Irish Yearbook of International Law, Volume 7, 2012 9781474201261, 9781849466295

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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, Permanent Representative of Ireland to the United Nations and other International Organisations in Geneva

Editors-in-Chief Professor Fiona de Londras, Durham University Professor Siobhán Mullally, University College Cork

Editorial Board Professor Jean Allain, Queens University Belfast Professor Christine Bell, University of Edinburgh Professor Christine Chinkin, London School of Economics Professor Imelda Maher, University College Dublin Professor Michael O’Flaherty, National University of Ireland, Galway Professor Gerard Quinn, National University of Ireland, Galway Professor William Schabas, Middlesex University

Correspondents Dr Fiona O’Regan Human Rights in Ireland Dr Alan D.P. Brady: Irish Practice in International Law Mr Stephen Coutts: Ireland and the European Union Prof. Brice Dickson: Human Rights in Northern Ireland Dr Ronán Long: Irish Practice on the Law of the Sea

Book Reviews Editor Dr Michael Kearney, University of Sussex

EDITORIAL

With the publication of Volume VII of the Irish Yearbook of International Law, we continue our work of highlighting Irish practice on a range of international law matters, including international environmental law, the granting of refuge to vessels in distress, sovereignty over natural resources, conflict-related sexual violence and reform of the European Court of Human Rights. The Correspondents’ Reports analyse and reflect upon developments in Irish practice, and the documents section of the Yearbook brings to the attention of readers the positions taken by Ireland in international organisations, and in ongoing engagement with bodies such as the International Law Commission and the Inrnational Court of Justice. In 2011, we marked Ireland’s acceptance of the jurisdiction of the International Court of Justice. In this issue, the statement from the Legal Adviser to the Department of Foreign Affairs and Trade, Mr James Kingston, at the High Level Meeting on the Rule of Law, gives an insight into the political context within which such seemingly formal declarations of acceptance of the Court’s jurisdiction take place. Also in 2012, Ireland became the last EU Member State to ratify the Convention on Access to Information, Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). As is noted in Ronán Long’s Correspondent Report, the much awaited ratification of the Aarhus Convention has the potential to transform Irish practice in environmental law. Ireland is a dualist state, however, and the transformative potential of ratification, in itself, is often limited. Much will turn on whether or not the next steps of implementation and enforcement are taken. In the articles section in this issue of the Yearbook, Anthony Carty and Zhang Xiaoshi explore the contested legality of ‘unequal treaties’ in international law, and the relevance of the context of inequality to Sino-British and Anglo- Irish relations and territorial claims. Carty and Xiaoshi take us from the practice of international law in the 1920s, through to contemporary debates on the legacy of territorial disputes and the constraints of treaty law. A neglected area of analysis of Irish practice in international law, their article combines historical and contemporary analysis of treaty law with insights from the realpolitik of treaty negotiations and practice. Also in this issue, Josh Curtis explores the normative underpinning and policy debates on international law relating to sovereignty over natural resources, taking Irish law and policy on foreign direct investment (FDI) as a significant case study. And finally, in this issue, the politicisation of referrals to the International Criminal Court by an un-reformed UN Security Council is examined by Amanda Kramer and Rachel Killean. Such referrals, given the inevitable selectivity of such a practice, are but one aspect of the heavily politicised nature of the Court’s work, as is evident in ongoing debates on the Court’s engagement with African states and the impact of Security Council referrals on domestic politics.

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The work of editing a Yearbook of International Law is significant. In bringing this issue to publication, the Editors would like to acknowledge the support received from the Department of Foreign Affairs and Trade and A&L Goodbody Solicitors.

Fiona de Londras & Siobhán Mullally, April 2014

UNEQUAL TO EQUAL TREATY: FROM THE ANGLO-IRISH TREATY 1921 TO THE BELFAST AGREEMENT (GOOD FRIDAY AGREEMENT)1 1998 – A CHINESE PERSPECTIVE ANTHONY CARTY AND ZHANG XIAOSHI* Despite the desire of most citizens to look ahead and move forward, Northern Ireland remains constrained by its past… As a result, the past continues to permeate our government, institutions, and people. It creates mistrust among leaders at all levels of society who wish to continue tackling problems of the modern world. It maintains the gulf between neighbours who pass each other in the street or in the shops. Without facing this issue, Northern Ireland and its people will find it challenging to achieve the future its people desire and deserve.2

INTRODUCTION Normally, the terms of the Belfast Agreement would be considered within the intellectual framework and agenda of an international legal order as dominated at present by Western states, as always in the past. So it would be agreed that frontiers in the postcolonial situation cannot be changed; that minority groups within existing boundaries do not, therefore, have any right of secession, except perhaps in the most extreme circumstances, which do not pertain in the North of Ireland; that human rights must be respected, and, therefore, in conclusion especially that internal group self-determination is preferable to contemplating external self-determination. In this sense, the Belfast Agreement can be presented as a package of human rights, some group rights, which conforms to existing, especially European international law standards.3

* University of Hong Kong, School of Law. Research for this article benefited from a Hong Kong Research Grants Council funded project on the Qing Dynasty of China and the impact of unequal treaties on China. 1 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland. The focus of this article is on the international treaty and only incidentally on internal, constitutional aspects of the Agreement. 2 Proposed Agreement 31 December 2013, An Agreement Among the Parties of the Northern Ireland Executive on Parades, Select Commemorations, and Related Protests; Flags and Emblems; and Contending with the Past, Introduction, 19, available at: http://www.northernireland.gov.uk/haass.pdf, accessed on 17 January 2014. 3 See in particular the authoritative essay by C Bell, K Cavanaugh, “’Constructive Ambiguity’ or Internal Self-Determination? Self-Determination, Group Accommodation and the Belfast Agreement”(1998-1999) 22 Fordham Int’ L.J. 1345, which gives especially prominence to

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However, in the view of the present authors it is not useful to consider the Northern Ireland situation exclusively in the context of western dominated and, even more so, western European law regulated international relations. In the European context, this perspective will inevitably lead to an ahistorical view of “the conflict” in Northern Ireland as an “ethnic conflict” amenable to sociological description but not to normative evaluation.4 However, the perspective preferred here is the longevity of a hundred years old historical conflict, intelligible in terms of historical imagination and empathy, but, of course, not necessarily resolvable in these terms. Historically, Northern Ireland is a leftover of the imperialism of a global empire, the British Empire, and it can only be understood, if at all, also as an evolution of legal standards in a global context. There are probably an infinite variety of global contexts with which it can be compared, e.g. Cyprus, Palestine, Afghanistan, but the one chosen here is Hong Kong. This choice the article will try to justify with a fairly close comparison, but enough will have been achieved if the reader can at least glimpse the possibility of breaking out of the constrictions of a European Council to which Ireland appealed, without evoking any response in 1949, about the issue of partition.5 The Belfast or Good Friday Agreement 1998 was the fourth inter-state treaty between the UK and Ireland/The Free State since the Treaty of 1921 founding the Irish State. The UK as a world empire concluded many treaties regulating its imperial relations during the same time (1921-1998). One aspect of these imperial relations was the UK’s relations with China. The heart of the Chinese attempt to renegotiate its unequal treaties with the British Empire occurred between 1918 and 1931,6 although the final conclusion of these negotiations in China’s favor occurred in early 1943,7 two years after the UK, under the premiership of Churchill, a driving signatory of the 1921 Treaty with Ireland, had made a formal offer to remove the partition provisions of the 1921 Treaty.8 Extreme conditions in the British Empire appeared to lead to radical changes of its stance, both in relation to Ireland and to China. Another point of comparison is that China was the one participant the European Framework Convention for the Protection of National Minorities 1998, a product of the Council of Europe. 4 In the preface to Was Ireland Conquered?, the author (A Carty) wrote: “While I cultivate close ties with the French and German Societies of International Law, this book is a solitary undertaking. The subject of Northern Ireland is unpalatable to very many people and I am conscious that in undertaking to address it, I cannot expect support and sympathy from the profession”, A Carty, Was Ireland Conquered? International Law and the Irish Question, (London, Pluto, 1996) p. vii. 5 The United Kingdom National Archive, (henceforth, UKNA), CAB 21/ 1845 Commonwealth Relations Office Print, September 8th 1949, Note by Gilbert Laithwate, UK Representative to the Republic of Ireland. 6 See in particular, R Butler, JPT Bury, (eds), Documents on British Foreign Policy 1919-1939 Second Series Volume VIII Chinese Questions 1929-1931, (London, HMSO, 1960). The volume begins with an historical survey, i.e. of the period before 1929, Foreign Office memorandum of 8 January 1930 on British Policy in China, 1-26. 7 The British appear to have begun in earnest with the idea of complete revocation of extraterritoriality with a memorandum of 12 March 1942 F 2609/ 74/ 10, and see further infra. 8 Vividly described by R Fisk R, In Time of War, Ireland, Ulster and the Price of Neutrality 1939-45, (Paladin, Granada Publishing 1983), especially chapter 6, ‘An Offer of Unity and the Rule of “Equal Holds”’, at 186-219.

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in the Versailles Peace Conference that refused to sign a Treaty regarded as unfair,9 and Ireland, for its part, was excluded and hence denied the application of Wilson’s principle of self-determination to it.10 Throughout the 1920s and 1930s Ireland/The Irish Free State was in the process of attempting to change its international law relationship with the UK/British Empire, the landmark treaties being in 1925 and 1938. Many of Ireland’s actions were unilateralist after 1932 – with the accession of de Valera to the Irish leadership – and were simple appeals to Ireland’s rights of sovereignty, while China’s actions were more conciliatory, trying to persuade the UK to accept revision, while threatening denunciation. Both Ireland and China argued from a premise of unequal treaties; indeed in 1921 the Irish negotiators used this direct comparison in the face of the UK’s draft proposals.11 Interestingly, neither country understood this inequality primarily as a matter of imbalance of power or the application of duress or threat of force. Rather the argument was that the content of the treaties was incompatible with such principles as the full sovereignty of states, in particular full control over the sovereign territory and of the nation. China negotiated in vain through the 1920s to 1931 to obtain the removal of extraterritorial jurisdiction. The communality of empire shows itself, at least as a matter of anecdote, in the presence of Judge Feetham in a commission recommending an indefinite postponement of the removal of extra-territoriality in 1931,12 the same judge who man-

9

The day of the announcement of the Versailles Treaty terms for China became a day of infamy in China heralding the May The Fourth Movement to protest the handing over of the German occupied Shandung Province to Japan. 10 Copies of the unanswered documents sent by Irish leaders to George Clemenceau as President of the Peace Conference are to be found in R Fanning et al (eds), Documents on Irish Foreign Policy, vol.1, 1919-1922, (Dublin, Royal Irish Academy, Department of Foreign Affairs, 1998) at 19-25, documents no. 12 and 13. 11 See in particular ‘The Memorandum by Erskine Childers on Irish Defense as affected by the British proposals of 20 July 1921’ in Ibid., document no. 142, at 239-46, esp. 244-5. 12 The British Ambassador to China, Sir M. Lampson had endeavored to agree with the Chinese Foreign Minister, Wang a limit to the extension of extraterritoriality to ten years. The Foreign Office needed assurance that a new agreement could be made for the future administration of the International Settlement in Shanghai, which rested on the legal basis of the extraterritoriality guaranteed by treaty. The Foreign Secretary referred to Mr. Justice Feetham’s Report. He continues: “It may, however, prove very difficult to secure the assent of the Chinese Government to the continuance of extraterritorial privileges in Shanghai for an indefinite period. Mr. Justice Feetham, in the Report referred to above, has suggested that there should be such an indefinite period, to be measured not in years but in decades, and he has laid down conditions precedent of such a character that the period may well extend to generations. The probable result of these recommendations may be to arouse the suspicions of the Chinese upon this point, and strengthen their objections to the indefinite continuance of extraterritorial privileges in Shanghai” (in Butler et al, Documents on British Foreign Policy, at 616-617, Marquess of Reading to Sir M. Lampsom, October 6, 1931). In fact at this point the Chinese abandoned the negotiations, due to the Japanese pressure in Manchuria. They were not resumed until 1942.

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aged the interpretation of the mandate of the Boundary Commission arising out of Article 12 of the 1921 Treaty with Ireland.13 There was significant progress in one area only: the UK Naval Base at Weihaiwei. Equally in the Irish case there was great progress in renegotiation of the naval port elements of the 1921 Treaty in the Treaty of 1938. The outbreak of WWII tempted the UK to make radical concessions to its former colonies, and also, after 1945 both China and Ireland entered their most radical phases, at the beginning of the Cold War. Ireland declared a Republic, unilaterally renouncing the whole structure of the 1921 Treaty and provoking an equally radical reaffirmation of the partition elements of the Treaty by the UK. Also at exactly the same time, China became the People’s Republic of China (PRC) and rooted out within a couple of years the last vestiges of British presence in China, apart from Hong Kong. In the 1950s, 1960s and 1970s, a form of Cold War in treaty relations marked both Chinese and Irish relations with the UK. However, by the 1980s remarkable transformations appeared to take place in the relations of both countries with the UK. In 1984 the Sino-British Declaration on Hong Kong was signed, and in 1985 there was the first Anglo-Irish Agreement, the precursor to the 1998 Treaty. The hand-over (return) of Hong Kong to China occurred in 1997, under terms that granted it a high degree of autonomy within China, while in 1998 the UK agreed with Ireland the terms for the setting up of an autonomous Northern Ireland, predominantly within the UK, but with complex provisions for the possibility of transfer of sovereignty to Ireland. The UK concluded many treaties leading to the independence of many countries in the course of the 20th century. However, arguably none have the continuous duration that one finds in the Chinese and Irish cases, where unresolved issues were the subject of repeated negotiations, diplomatic breakdowns, and unilateral actions, thereby allowing comparison of how the three States changed in their perspectives – with respect to the UK’s desire to continue and maintain relations with the other two countries, and with respect to the Irish and Chinese desire to change what they took to be a lack of balance in these relationships. In particular it is possible to gauge and assess changing attitudes to imbalance and inequality of treaties, which could lead to the point where all sides regarded the final outcomes as satisfactory conclusions of formerly imperial relations, now re-established on a basis of mutual respect and esteem. It is not possible in the space of one article to cover meticulously every detail of the parallel developments of the relationships. Obviously comparison is made easier by the common denominator of the changing character of the UK. Indeed, there are striking resemblances of detail. For instance, as already mentioned, the Irish in 1921 were aware of and made comparisons with the UK draft Treaty and treaties already concluded with China, and Judge Feetham turns up on both scenes as an “expert” member of Commissions relating to treaties with both China and Ireland. The negotiations of the Naval Treaties are equally easily comparable and almost contemporaneous.

13

The very well known role of Mr Justice Feetham in the Irish case has now been the further subject of two recent academic monographs, K Mathews, Fatal Influence, The Impact of Ireland on British Politics, 1920-1925, (Dublin, University College Dublin Press, 2004), esp. 205-9, and P Murray, The Irish Boundary Commission and Its Origins 1886-1925 (Dublin, University College Dublin Press, Dublin, 2011) esp. pp 213-21 and 236-39.

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However, what is fundamental to the comparison – whether the longevity of the relationship or its eventual relatively successful conclusion – is the framework of analysis which we offer. International law is not a complete system of law like municipal law. Its treaties are not contracts. While they may be regarded formally as legal instruments, deposited with the League of Nations or the United Nations, they are not in reality legally enforceable before any tribunal, although perceived breaches by one side may lead to equivalent retaliation by the other. The treaties are expressions of esteem and respect among peoples, expressions captured at a particular moment in time, of the characteristics and qualities of the relationships of the two peoples at that time.14 Montague Bernard, the first Chair of International Law in Oxford, wrote in 1868 that nations observed treaties out of a sense of obligation, not because of international law. The latter could say nothing about the effect of the presence of such common events as unjustifiable violence or changed circumstances, as these were matters of opinion about which no rules had developed.15 John Westlake, one of the first to hold the equivalent Chair in Cambridge, said the question whether a major political treaty could be rescinded did not admit of a legal solution “because the appreciation of the circumstances on which its true value depended could not be reduced to a rule, but was a question for statesmen.”16 Modern treaty law, i.e. as codified in the United Nations Vienna Convention on the Law of Treaties (VCLT), is very similar in principle to contract law in the common law system in terms of regulating a contractual relationship between two states. The prime rule is pacta sunt servanda, meaning every treaty in force is binding upon the parties to it and must be performed by them in good faith.17 The binding force of the agreement is the basis and standard of behavior in the “civilised” world. This western tradition of contractual relations emphasises the will of the contracting parties. As long as the consent is made out of free will, a state is bound by what it promises. A state may invoke the following reasons to invalidate their consent to be bound by a treaty: error, fraud, corruption of a representative of a state, or coercion of a representative of a State.18 A treaty is void if it had been procured by coercion of a State by the threat or use of force.19 All of the above vitiating factors are focused on whether the contracting party has given a valid consent. There is also one provision that is about the influence of substantive contents on the validity of a treaty. Article 53 stated that treaties conflicting with a peremptory norm of general international law (jus cogens) are also void. At the Vienna Conference, debate on this article was the longest, most heated and disorganised. Britain saw this article as the Pandora’s Box. The adoption of Article 53 was welcomed by African, Asian, Southern American and former communist states. Western states in general disagreed with it. The final adoption was only possible by adding the words “accepted and recognised by 14

See already A Carty, The Decay of International Law, (Manchester, Manchester University Press, 1986), chapter 5, ‘“Pure” Theories of Treaty Law: a World without Diplomacy’, 6586. 15 Ibid., 65. 16 Ibid., quoted at 67. 17 Vienna Convention on the Law of Treaties, 27 January 1980, 1155 UNTS 331, Article 26. 18 Ibid., Articles 48-51. 19 Ibid., Article 52.

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the international community of states as a whole” and “at the time of its conclusion”.20 Unless the western states could guarantee that they decide what is jus cogens, just as they decided whether the Chinese judicial system had matured enough so that they could give up extra-territoriality, they would not put the validity of a treaty into uncertainty. While acknowledging the validity of a treaty, another principle could be invoked to free one from treaty obligations. Article 62 adopts the principle rebus sic stantibus, meaning that when a fundamental change of circumstances occurs, a party may terminate or withdraw from the treaty. The contention always focuses on whether a change constitutes fundamental change. The Vienna Convention on the Law of Treaties 1969 is a modern codification of the developments in treaty law. Article 4 stipulates that the convention cannot be used retrospectively. However, all of the above mentioned provisions are derived from the Good Faith principle which has existed in international law from ancient times.21 Pacta sunt servanda is the foundation of treaty law and the first rule derived from good faith. Articles 48 to 51 are also consistent with the first rule in treaty law. These provisions stipulate that if the consent given by one party is not real, the treaty is not binding. Therefore, the inter-temporal rule won’t frustrate the general discussion on the purpose and impact of these rules. Unfortunately, the good faith of international treaty law doesn’t appeal to eastern minds; eastern minds don’t reason in the same way. According to the comprehensive study of Alain Supiot, the eastern tradition is almost opposite to the traditions of western international law in that the neo-Confucian culture values, first and foremost, cosmic and social harmony. Individual will is certainly not at the core of this culture. The Chinese language tends to “evoke the concrete diversity of people, things and feelings, rather than abstractions”. Moreover, the bonds among people in cultures influenced by neo-Confucianism are maintained by people’s ability to adjust to changing circumstances and others rather than holding strictly to pledged words.22 In contrast, the concept of contract “implies a radical separation between the world of things and that of persons. It implies the idea that the future may be controlled by words.”23 The abstract emphasis on free will in western international law is fundamentally alien to this culture. This culture could not understand the rigid emphasis on consent and the binding force of treaty. They could not understand why China had to be subordinated to an Extraterritoriality Commission to decide whether or not China’s legal system has improved sufficiently.24 It doesn’t sound just to them that substantial disadvantages and violation of sovereignty could be justified under international law. The international legal framework does not provide a solution to their exploitation. On the contrary, it is degrading and defines their motivations as law-breakers.

20

ME Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden, Boston, Martinus Nijhoff Publishers, 2009), 667-68. 21 JF O’Connor, Good Faith in International Law, (Aldershot, Dartmouth, 1991), 110. 22 A Supiot, Homo Juridicus (London, New York, Verso, 2007), 80-81. 23 Ibid., 86. 24 GW Keeton, ‘The Revision Clause in Certain Chinese Treaties’, (1929) 10 British Year Book of International Law 111, 135.

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Speaking politically and culturally, it has been more important for China that over the years of campaigning against unequal treaties, it was only by becoming powerful that China could abrogate unequal treaties. This conviction is deep-rooted in the Chinese mind and continues to shape its attitude to international law. Final success, in ridding itself of the treaties, was not because China has become “civilised” but because China has become powerful.25 Unequal treaties have become a collective memory rooted in Chinese minds. And international law, as the symbol of international justice, has not provided any justice to them. Professor Mindy Chen-Wishart, based in Oxford, who has an Asian background, when commenting on the law of undue influence in the common law system, says that: “In sum, our normative reasoning is totally consent-bound even as consent runs out of explanatory power.”26 Here we are faced with a similar problem. The international law system and normative reasoning fail to provide any solution to the eastern grievance. Chen-Wishart adopts Raz’s theory that one purpose of law is to prevent harm to positive autonomy. Similar to variable forms of life in a domestic society, the variable forms of relations between states in an international society also require a culture that recognises the need to protect positive autonomy.27 The complexity of international society and diversity of cultures determine that two cultures may recognise two different normative orders when the same practice is happening. Moreover, the purpose of treaty law should not be to enforce promises, but to facilitate mutual respect and cooperation between states. Even international law in general is “mostly concerned with facilitating agreement, thus is not ‘big’ on formalities”.28 This is not to say that pacta sunt servanda is no longer the foundation of treaty relations. It’s only to remind states that nowadays no state can exist as a super-detached state or as an oppressor. Therefore, remaining in long-term good relations with one another seems far more important than ever. “Duties of fair dealing and honesty” are the purpose of having any legal system at all, whether domestic or international.29 If a discussion within the legal framework in effect frustrates this purpose, then we need to reflect on what went wrong. Disregarding the histories associated with unequal treaties and arguing for the legality of unequal treaties will only contribute to further misunderstandings between two groups of people with different traditions. Treaties articulate mutual understandings and misunderstandings, concluded by collective communities (nation-states). These are anything but culturally homogenous and eternally stable entities. While state practice repeatedly articulates a rule of law that agreements concluded by governments bind successor governments of the same state,30 it is quite clear that agreements among states affecting their fundamental relations – the character of their relations with one another as peoples – have themselves the character of alliances, always as fragile as the moods and feelings that the peoples have with one 川岛真(2012)中国近代外交的形成 (北京: 北京大学出版社); S Kawashima, Zhongguo jinda iwaijiao de xingcheng (Beijing, Beijing da xuechu ban she, 2012), 192-96. 26 M Chen-Wishart, ‘Undue Influence: Vindicating Relationships of Influence’, (2006) 59 Current Legal Problems 231, 239. 27 Ibid., 248. 28 J Klabbers, “The Validity and Invalidity of Treaties”, The Oxford Guide to Treaties (Oxford, Oxford University Press, 2012), 554. 29 Chen-Wishart, above n 26, 249. 30 Lord McNair, The Law of Treaties (Oxford, Clarendon Press, 1961), 668-72. 25

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another. The agreements reflect stages in the development and also possible deterioration of relationships. The definition and application of international legal rules can be understood in terms of a phenomenology of patterns of mutual empathy or alienation among states. In particular, how far two states define themselves against one another depends on the particular circumstances of the history of their relationships with one another. For instance, how the Soviet Union and the USA perceive threats from one another depends upon how these states have “constructed” the political image of the other. The same would just as well apply to relations between India and Pakistan, Israel and Palestine, or China and Japan. In our study we apply it to China, Ireland and the UK. The material personalities of these communities decisively shape how they “verbalise” their relations in agreements. Instability inheres in mutual perceptions of states in most trouble spots of the world. Self-perception and mutual perception of states, just as much as self-misperception and mutual misperception, not only define the terms of relationships in agreements, but also destabilise them continuously. This is not to deny the desirability of stable rule-articulated relationships. It is simply to recognise that the material personality of a state is as an historical, cultural community. The hoped for legal order based upon mutual respect of sovereign equality (self-determination, respect of boundaries) supposes a clear, stable, continuing self-perception as well as a clear perception of the other.31 For these reasons the Chinese and Irish case studies of relationships with the UK, reflect upon the changes that have occurred over an extended period of time, spanning several decades. Our study diverges sharply from the endeavor to study peace agreements comparatively so as to identify their “legal” characteristics. Bell distinguishes declarations or records from agreements using the language of obligations.32 This is not to deny the fact that declarations, framework agreements etc. do mark stages in which the parties are seriously conscious of trying to define more and more rigorously their commitments to one another. Yet, as this approach recognises, even the final outcome, for instance in the case of Northern Ireland, leaves the issues partially resolved and partially postponed.33 The exercise of characterisation of agreements as legal, political or moral may be merely taxonomy,34 but it is more likely to have a paradigmatic aim, that where parties resolutely commit themselves to legal forms, they are thereby deliberately tying their hands and their reputations to what they sign. This is in contrast to a preference for ambiguity in a state’s commitments, leaving open moral and political debates as regards breach, “which have little claim to independence from the underlying disputes at the heart of the conflict, weakening their impact on conflict resolution”.35 This aim of legal taxonomy is entirely commendable and realistically formulated. Bell recognises that peace agreements do suffer from the problem of political treaties such as “treaties of alliance”,

31

See further and again, A Carty, Philosophy of International Law, (Edinburgh, Edinburgh University Press, 2007), chapter 8, especially, 240-41. 32 C Bell, ‘Their Nature and Legal Status’, (2006) 100 American Journal of International Law 373, 376. 33 Ibid., esp. 378. See note 1 where Bell and Cavanaugh employ the expression “Constructive Ambiguity” in their title for their article on the Belfast Agreement. 34 Ibid., 385. 35 Ibid., 386.

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namely that a “change in a government’s orientation must…be regarded as a ‘‘fundamental change of circumstances”, changing the foundation of the treaty.36 However, where our approach differs from that of Bell is that her aim, in its basic formalism, is to seek a typology of characteristics of peace agreements which favor increased legalization as the ideal form of conflict resolution. She calls this a lex pacificatoria, on analogy with the medieval lex mercatoria,37 presumably intending that negotiators should look to such typologies of comparable institutional practices in order to become better aware of what they are likely to achieve through deploying a particular formula. Our aim is not necessarily in conflict with this one, although the hermeneutic of inter-community relations is based much more on a belief in the uniqueness of relationships historically, rather than on their reproducibility sociologically. Yet our fundamental difference of approach is that we are concerned in highlighting the developmental, or anti-developmental (dysfunctional), process of interaction between fundamental material, personality elements of states as collectives and the forms of agreements they actually reach. The determining factor is the material personality, and the legal forms merely give expression to the material personalities. Therefore our expectation is that more is to be learned from understanding the dynamics and viability of legal forms by seeing how they are embedded in continuing relationships of material personalities over time. Effectively this does treat positive law as derivative of history, diplomacy and collective psychology. However, the argument does rest on an implicit natural law theory that peace and harmony among peoples will evolve out of relationships of mutual respect and understanding, and, a contrario, violence and war, out of mutual contempt and a passion to dominate. By way of this introduction to illustrate the personal, material dimension of “legal subject-hood”, we will select a number of issues of treaty relations and their breakdown, from both the Chinese and Irish experiences. In the interests of portraying the longevity of the relationships, there will be inevitably some superficiality in the treatment of the immense resource of materials. Our analysis will represent work in progress. The crucial analytical point to retain in the two histories that will follow – the Chinese much shorter than the Irish and intended as illustrative of a tradition which is already very used to thinking in terms of unequal treaties – is the interplay between the legitimacy force attaching to relations of esteem and the legality force attaching to “pure legal forms”. Our analysis gives priority to the former. It may be the case that at certain points in time, clearly binding, legal agreements were made by both Ireland and China. China never renounced its treaties with the UK, even in 1984. Ireland not only ratified the 1921 Anglo-Irish Treaty and the 1925 Boundary Treaty, it proudly deposited them with the League of Nations, to evidence its treaty-making capacity, as a mark of full state sovereignty. However, neither country was prepared to accept the status quo of these legal relations. Because the relations were seen to be built on a lack of mutual respect and esteem, they were constantly destabilised by the insistent questioning of their legitimacy by the countries disputing them (for China – the system of extra-territoriality and the status of Hong Kong; for Ireland – the oath of allegiance, the “Treaty Ports”, the border and the status of the Northern minority). Since there is, in any case, no question of compulsory adjudication of treaty disputes, the effect of this endless contestation was that the treaties reflected and continued to reflect distortions and imbalances in the mutual 36 37

Ibid., 391, quoting Baxter. Ibid., 409.

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relations, which would lead to breakdown. Arguably the delay in abolishing extra-territoriality contributed to the revolutionary break of China with the west in 1949 and the continuing festering of the “unequal treaties” issue. The unrest with which Ireland threatened the UK throughout the 1950s eventually materialised in 1969.

PART I CHINA – UK 1. THE SCOPE OF UNEQUAL TREATY IN CHINESE-UK PRACTICE: SOME PRELIMINARY ISSUES The notion of “unequal treaty” seems to have a changing meaning for China according to research conducted by British Foreign and Commonwealth Office in 1970. They reached a conclusion that the original meaning of the phrase includes treaties granting foreign powers extra-territorial rights without reciprocity to China. Later on, the scope of the phrase is extended to include treaties containing concessions made by China because of its own weakness.38 In 1926, China terminated the Sino-Belgian Treaty of 1865. In explaining its action, the government made a statement defining unequal treaties as those that placed limitations upon China’s political jurisdictional and administrative freedom of action and so constituted an infringement of China’s sovereignty.39 Communist China carried on defining unequal treaties in the above way. Mao Zedong wrote in 1939 in his booklet: “The Chinese revolution and the Chinese Communist Party show that wars of aggression are the first measure used to force China to conclude treaties to acquire numerous rights in China which infringe Chinese jurisdictional, administrative and other sovereign rights.”40 At the time, the term of unequal treaties was not applied to cession or lease of territory. In 1962, the application of unequal treaties was extended again to include cession or lease of territories. “A comment on the statement of the Communist Party of the USA” in the People’s Daily of 8 March 1963 referred to the fact that China was compelled by the colonialist and imperialist aggression to sign several unequal treaties to give away Chinese territory. These treaties were recognised as existing at the inauguration of the PRC in 1949, but they were to be abrogated, revised or renegotiated.41 Sino-Soviet relations were very stiff during the time, and the “Comment” included a warning to the Soviet Union, implying that the Chinese territories ceded to the Tsarist government in the form of treaties also violated Chinese sovereignty. Therefore, the British Foreign Office research paper comes to the conclusion that the extension of the use of the term was due

38

UK National Archive, China and the Unequal Treaties, 5 Feb 1970, FCO21/671. Ibid., para 5. 40 Ibid., para 7. 41 Ibid., para 9. 39

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to the Sino-Soviet rift. In other words, “unequal treaties” was again used as a political term rather than a legal term from the British perspective.42 Even though China has always recognised the legality of some unequal treaties, it has never fully accepted the legitimacy of the treaties. Abrogating unequal treaties was associated with China’s struggle for independence and international status. The reason for any acceptance was always considered to be related to the balance of power and China’s own weakness. Therefore, the history of unequal treaties is also a history of Chinese defeat. However, China seems to be unable to present the history of Chinese defeat in legal terms. International law doesn’t provide a conceptual framework to explain what happened to China and how the story is told from the Chinese side.43

2.

CHINA’S STRUGGLE TO ELIMINATE THE INFLUENCES OF UNEQUAL TREATIES: GENERAL CONSIDERATIONS

The whole process of Chinese struggle against unequal treaties could illustrate how China’s revision plan eventually became a determined abolition of all unequal treaties. On the other hand, Britain became more and more aware of Chinese frustration. As a consequence, its policy became more and more conciliatory. However, fundamentally, China and Britain seemed never fully to agree with each other. The purpose of the Chinese governments in the 1920s was to get rid of the fetter of unequal treaties. The treaty revision campaign of the Beijing government was usually regarded as a legal method. Abrogating a treaty, in contrast, is usually connected with Sun Yat-sun and the Guangzhou Government. After the May 30th Movement in 1925,44 the southern government criticised the north severely, claiming that the treaty revision was a compromise of core national interests. However, as a matter of fact, neither government ever completely broke away from the international legal system set out by the west, nor on the other hand did they ignore public opinion completely. Legal solutions

42 43

44

Ibid., para 10. See for example, M Craven, ‘What happened to Unequal Treaties? The Continuities of Informal Empire’, (2005) 74 Nordic Journal of International Law 335; L Caflisch, ’Unequal Treaties’, (1992) 35 German Yearbook of International Law 52; A Peters, ‘Treaties, Unequal’, (2007) Max Planck Encyclopedia of Public International Law: for a prior discussion of Craven and Peters’ views on the contemporary significance of the unequal treaties debate, see A Carty and Zhang X, ‘From Freedom and Equality to Domination and Subordination: Feminist and Anti-Colonial Critiques of the Vattelian Heritage’, (2012) 43 Netherlands Yearbook of International Law 53, pp 76-79. Other relevant authors include S Malawer, ‘Imposed Treaties and International Law’, (1977) 7 California Western International Law Journal 1; A Lester, ‘Bizerta and the Unequal Treaty Theory’, (1962) 11 International and Comparative Law Quarterly 847. The May Thirtieth Movement (五卅运动) was a major labor and anti-imperialist movement during the middle-period of the Republic of China era. It began when Shanghai Municipal Police officers opened fire on Chinese protesters in Shanghai's International Settlement on May 30, 1925. The shootings sparked international censure and nation-wide anti-foreign demonstrations and riots.

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and political solutions were used by both governments, but neither of them got rid of the legacy through either political or legal means. The statement China made for the unilateral termination of the Sino-Belgian Treaty of 1865 included China’s proposed way of eliminating unequal treaty provisions: either by negotiating amendments to existing treaties or by the negotiation of new treaties. The word “termination” was used as opposed to renunciation as if to show the legality of the method. China argued that the old Sino-Belgian Treaty was due to expire if not extended, so China was justified to unilaterally terminate it. However, a contemporary lawyer commenting on the unilateral termination of the Sino-Belgian Treaty held the view that to say that, “the treaty was unequal and that Article 4645 was a striking symbol of inequality may be good diplomatic rhetoric but it is legally valueless”.46 In other words, from the international law point of view, the old treaty should remain legal until a new agreement was reached. Yet the legal argument did not pay attention to the Chinese Government’s worry that a prolonged renegotiation meant that the unequal provisions in the old treaty would remain valid. The context of the negotiation was that the Beijing Government was in crisis. Some success in diplomatic dealings was to provide crucial justification for its existence, when the Guangzhou Government was denouncing its efforts and the people were expecting some improvement in treaty revision. The Chinese officials must have understood that the Beijing Government’s unilateral termination was highly likely to be illegal in the eyes of international lawyers. When a Chinese minister objected to going to the Permanent Court of International Justice in a committee meeting, he expressed the view that the proposed ending of the treaty was started through political method and it should be solved by political methods. Most of the Chinese ambassadors to Europe also agreed with political solutions. They reasoned that going to the Court would most possibly be disadvantageous to China. The Chinese ambassador to Germany said that the question is relevant to the very existence of China. If the court ruled that China could not terminate the treaty, then China would never get rid of its colonial status.47 Fundamentally, it is also noteworthy that unlike Britain, Belgium had no military presence in China, but it had huge commercial interests.48 Later on, to avoid future antiBritish movements like the one that happened in Hankou,49 Whitehall started rethinking its policy towards China. They began to realise that the time when Britain could simply ignore or oppress the demands was gone, unless armed force was to be used, which was impossible now.50 When Belgium asked for help from Britain in 1926, before the Beijing government denounced the treaty, Britain did not support them. The Strang minute on

45

The article stated that only Belgium had the right to raise the revision clause. Keeton, above n 24, 125. 47 唐启华(2010)被”废除不平等条约”遮蔽的北洋修约史,社会科学出版社; Q Tang, Treaty Revision Campaign of the Beijing Government 1912-1928: Out of the Shadow of the “Abrogating Unequal Treaties”(China, Social Sciences Academic Press, 2010), 376-99. 48 Ibid., 370. 49 Early in 1927, the British concession was occupied in the course of the revolutionary troubles that accompanied the Northern Expedition, when the Chinese Kuomintang forces occupied the concession and showed no intention of withdrawing. 50 FO Minute, VW, 10 August 1925, FO371/10922(F3860/2/10) cited in 唐启华(2010)被”废除 不平等条约”遮蔽的北洋修约史;Tang, above n 47, 492. 46

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revision of the China Treaty indicated that treaty revision was necessary. It was not because Britain was sympathetic towards China, but because the treaty rights could not be protected without a powerful enough Chinese Government. Therefore, western powers had to be prepared to find a workable policy, either together or separately.51 Britain was in a dilemma. For one thing, they wanted a strong Chinese Government to enforce and protect their treaty rights. For another, they didn’t want to give up the rights to too strong a government, which would want to abolish the rights altogether. The prime consideration is always national interest. Getting back to Belgium’s case, no western power supported Belgium at this time even though Belgium had a solid point in terms of international law.52 The political method of the Beijing Government was successful. In the provisional arrangements, the Beijing Government had taken back extra-territorial rights and Belgium’s application to the Permanent Court of Justice was suspended. However, when the Nanjing Government took over, because they wanted to resume good relations with the west and to make some progress in treaty revisions, they compromised on the point of extra-territoriality, in the Preliminary Treaty of Amity and Commerce 1928. In principle, the treaty was signed on the basis of equality and reciprocity and the abolition of extra-territoriality. However, Belgium agreed to give up extra-territorial rights only when half of the states that had enjoyed these rights gave them up.53 The Chinese people were so dissatisfied with the new treaty that they destroyed the official residence of Foreign Minister Wang to express their anger with the unequal nature of the new treaty.54 The British change of policy also aroused some general reactions from the Chinese authorities. There were three governments in China at the time, one in Beijing, and one in Wuhan and another in Guangzhou. After the release of British Proposals to the Powers Concerning China in 1926,55 Marshal Zhang Zuolin (Chang Tso-lin), who was in de facto control of the Beijing Government, was dissatisfied with Britain’s new policy. His reasoning was that he had declared several times that he respected the current treaties and proposed to revise them through negotiations, but whenever he sought support from Britain, he was always refused. However, the violent methods of the Wuhan government had pressed some concessions from the British. He later on made it clear to the British Minister to China, Sir M Lampson, that he could also create trouble if the British continued to ignore him. Disputing the suggestion that Britain should use force to take back the Hankou concession, Sir M Lampson reasoned that Britain needed to be careful not to let the Chinese believe that Bolshevist methods of violent revolution were the only way to recover China’s full sovereignty.56 The crisis with Britain was relieved at last by

51

Strang’s minute, Revision of the China Treaty, 4 November 1926, FO 371/11684(F4645/933/10), cited in 唐启华(2010)被”废除不平等条约”遮蔽的北洋修约 史;Tang, above n 47, 494. 52 唐启华(2010),被”废除不平等条约”遮蔽的北洋修约史; Tang, above n 47, 380. 53 Ibid., 390. 54 Ibid., 395. 55 The British Proposals to the Powers Concerning China was referred to as the December Memorandum or the Christmas Memorandum. It was a sign of the change of British Policy towards China. For the full text see HEW Woodheaded The China Year Book (1928), 756-59, cited in Ibid., 497 Footnote 1. 56 Ibid., 499.

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Britian’s smart and practical diplomacy, and the British interests in China remained almost intact. 3. THE WEIHAIWEI NEGOTIATION Negotiations concerning the status of Weihaiwei are a good example of what Britain’s real intentions were in terms of preserving its own rights in China in the 1920s. The direct negotiation with Britain proved to be much harder than the Chinese government expected, despite Britain’s own pledged words at the Washington Conference of 1922. The history of this negotiation began in 1898. Weihaiwei was a port in Shandong Province. It was leased to Britain “for so long a period as Port Arthur shall remain in the occupation of Russia”, according to the Weihaiwei Convention 1898. The British authorities informed the Chinese authorities that if Russia ceded Port Arthur, China could retain Weihaiwei as well. The purpose of the lease was to provide Britain with a suitable naval harbor in the North of China and to protect British commerce.57 In the beginning of the 20th century, the British colonial official documents showed that the Chinese population was peaceful and law-abiding and they maintained good relations with the British authorities.58 The British authorities also believed that the Chinese inhabitants in the leased territory knew that they would be treated justly under British rule.59 Comparing the advantages and disadvantages of holding Weihaiwei, the author of the memorandum wrote: “If we are going to make as much of our Empire hereafter as heretofore, why should it be a subject for ridicule that in the Far East we have a place which is thoroughly healthy for Englishmen?”.60 However, once again they overlooked the resentment of the Chinese people. From the Chinese perspective, the legitimacy of British presence could not be justified, regardless of the content of specific treaty provisions. In 1929, the British Foreign Office produced a Memorandum during the negotiation between the Nanjing Government, now the unified government of China, and the British Government. The Memorandum stated that Britain took control of Weihaiwei only to assist in maintaining the independence of China, when Lord Salisbury believed that HMG had no wish for special rights at Weihaiwei and he believed that occupying the territory would be costly. The British viewed occupying Weihaiwei as the “only possible way of checking the Russian advance and preventing the partition of China”.61 After the Russo-Japanese war, the Russian presence was removed from Port Arthur. In accordance with the Weihaiwei Convention, Britain should have given up Weihaiwei. However, the Foreign Office proposed that HMG could claim a twenty-five year lease since originally Russia leased Port Arthur for twenty-five years. A further reference could be made to the stipulation in the Sino-Russo agreement that “an extension of the term maybe arranged between the two countries.” However, the Colonial Office thought a twenty-five year lease period was too short to attract any investment. Therefore, a long extension of

57

UK National Archive, Eastern, No. 86, Weihaiwei, Confidential Memorandum, 7 June, 1904, CO/882/6/17, 1-2. 58 Ibid., 4. 59 Ibid., 6. 60 Ibid., 8. 61 Memorandum on the rendition of Weihaiwei, 31 Jan, 1 Feb, 1929, FO/676/311, para 1-8.

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the Weihaiwei lease had to be negotiated immediately.62 In 1904, no one criticised Britain for disregarding the clear wording of an international treaty. When China requested the return of Weihaiwei in 1906, Sir J Jordon expressed the view that “the return of Weihaiwei would strengthen the chauvinist movement for the repudiation of existing arrangements and add seriously to the British difficulties in China.”63 The Japanese Government concurred on this point and stressed “[t]he temper of the Chinese Government who seemed bent on repudiating all their engagements.”64 The British reply to the Chinese request might be summarised as saying that the political situation in the north of China meant that Britain should not withdraw from Weihaiwei, but that Chinese use of Weihaiwei as a harbour and for training exercises for its fleet would be acceptable.65 The Chinese Government appreciated the British response and enquired as to whether China could resume possession when they had a Navy of their own. Sir Edward Grey replied: “No doubt in future years if China had a powerful Navy of her own and was able thoroughly to protect herself, more normal conditions of affairs would be produced in the Far East that might lead to the re-cession by us of Weihaiwei.”66 Given that Britain had not even a treaty right over Weihaiwei, the arrogance of suggesting a “recession” was to continue to sow seeds for future friction and resentment amongst the Chinese people. During the Washington Conference of 1922, Britain believed that they might be the “only original aggressors to retain Chinese territory”, and that the Chinese would have the sympathy and support of the Americans and others when they asked for the return of Weihaiwei.67 Britain considered that returning Weihaiwei to a chaotic Chinese authority would be seen as an act of great generosity. So they insisted that China should make some return for “so substantial a concession.”68 The British also noticed the agitation of the Chinese press and understood that the Chinese delegates were frightened by the violent agitation in the press for an unconditional return.69 In 1923, a Labour Government came to power and displayed greater recognition of the difficulties faced by the Chinese government. Although they did not make any further substantial concessions, they were willing to alter the form of the lease agreement to make it easier for the Chinese Government to respond to hostile public opinion domestically.70 Chinese public opinion was in any case outraged having learned of the proposed British conditions for returning Weihaiwei. Britain took the position that the Admiralty and War Office had purchased the island (Liugong Island) belonging to Weihaiwei, and that it was the private property of the British Government.71 In Chinese law, the British Government was the tenant in perpetuity of the Chinese Government with regard to the island. According to the Chinese, Britain purchased Liugong Island for 300,000 Yuan. 62

Ibid., para 27. Ibid., para 30. 64 Ibid., para 30. 65 Ibid., para 31. 66 Ibid., para 32. 67 Ibid., para 44. 68 Ibid., para 49. 69 Ibid., para 62. 70 Ibid., para 78. 71 UK National Archive, Eastern, No. 86, Weihaiwei, Confidential Memorandum, CO/882/6/17, 3. 63

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But they demanded 600,000 to 700,000 Yuan from the Chinese Government for the return of less valuable lands. Even though a mere unequal bargain could not influence contractual rights, in ordinary people’s minds such substantive unfairness was manifestly unjust. If a body of law protects this kind of unfairness, then the legitimacy of that law is brought into question. From a Chinese perspective, there were other more ridiculous demands by the British. These included, for example, that China should pay the fees for British soldiers and civilians to return home, that Chinese people could not grow plants on Liugong Island, and that China should remunerate Britain for the administrative deficit of 1,400,000 Yuan.72 In 1924, the negotiation was disrupted by political turmoil in China. In 1929, the negotiation was resumed between the Nanjing Government and the British Government. The two sides represented respectively by the British Minister to China, Sir M Lampson and China’s Foreign Minister, CT Wang, reached an agreement in 1930. The provisions of the treaty appeared to be favorable to China. But in the annex and notes, Britain maintained their original demands. Nonetheless, Wang was satisfied with the result. He considered it a great achievement to move beyond the humiliation of 1898. Under this new Sino-British Treaty, Britain could hold on to Liugong Island for another ten years with right of renewal upon agreement. A commentary in the Morning Post (ZaoBao) criticised the new treaty severely. The new treaty again violated Chinese territorial sovereignty. China could not build its own naval base on the island, and it was feared that this example might be followed by other occupying powers: “This diplomacy is a betrayal to our country and it’s no better than the unequal treaties signed by Qing government.” Dagongbao (Ta Kung Pao)73 also made negative remarks about the new agreement.74 The attempted abrogation campaign of the Nanjing Government failed to address the people’s concerns.

4. THE FINAL ABROGATION OF EXTRA-TERRITORIALITY APART FROM HONG KONG75 Britain realised that its privileges in China could not be permanent. The popular antiBritish movements had demonstrated how much the Chinese people wanted them to leave. Their presence in China was protected by the words pledged in the treaty, and therefore was legal. From the Chinese perspective, however, the legal instrument was just another excuse to seal the status quo for Britain’s own interests. When a Chinese authority recognised a treaty’s legal force, it did not have the strength of the legal text in mind. Other considerations, such as recognition from foreign powers, always played a 李育民(2005),中国废约史,(北京: 中华书局); Y Li, A History of China’s Abrogation of Unequal Treaties, (Beijin, Zhonghua Book Company, 2005), 374-76. 73 Ta Kung Pao is the oldest Chinese language newspaper. 74 Ibid., 852. 75 For the state of discussion of this question, see SS Liu, Extraterritoriality: its rise and its decline (New York, Columbia University, 1925); WR Fishel, The end of extraterritoriality in China (New York, Octagon Books, 1974); T Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge, Cambridge University Press, 2010); PR Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (New York, Oxford University Press, 2012). 72

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role. From their constant efforts at abrogating treaty rights, it is obvious that they never willingly accepted the legal force of the treaties. More likely, they treated the treaties as being the result of political and military weakness. Moreover, the resentment of the people also indicated that a treaty as an international instrument had also to be accepted as just by the members of that community. Otherwise, the government of this community would lose legitimacy. The Chinese Government did not manage to abrogate all unequal treaties before Japan invaded China and destroyed the system set up by previous treaties. From December 1938, Japan occupied Tianjin and imposed restrictions on foreign concessions. Meanwhile, Germany was challenging Britain in Europe. In this context, Britain finally agreed to limit its rights in China and gave away control of north and central China to Japan. At the time of Japanese occupation, China was supportive of western presence. The foreign concessions served as places of asylum and a source of financial support.76 However, the restrictions imposed on its own treaty rights at this particular time had a damaging effect on British reputation in China.77 At the beginning of Japanese aggression, the US insisted on its treaty rights. In 1939, Britain and the US addressed notes to Japan stating that they did not accept Japan’s use of force to secure changes in treaty relations. However, Japan ignored their warnings and expressed their own willingness to relinquish extra-territorial rights in China. In taking this stance, Japan wanted to discourage the US and Britain from supporting China. As early as 1939, Britain had already expressed its willingness to relinquish extraterritorial rights. In January 1942, the Foreign Office was still considering granting the Swiss Consular representative legal powers in occupied China.78 The reason given was that the Chinese courts were precluded by treaty from exercising such jurisdiction and were not apparently endeavoring to exercise it. And due to the Japanese occupation, it was impossible for the British courts to continue exercising jurisdiction. They therefore communicated to the Chinese Government that when peace was restored in the east, the British Government would be ready to negotiate with the Chinese Government on the abolition of extra-territorial rights, rendition of concessions and the revision of treaties on the basis of reciprocity and equality.79 In March 1942, the Foreign Office undertook an assessment of the advantages and disadvantages of holding on to extra-territoriality. The argument in favour of abolishing extra-territoriality was that China would welcome this step, and it would enhance the prestige of the President of the Republic of China, Chiang Kai-shek. It would also show that Britain no longer treated China as an uncivilised country. Against ceding extra-territoriality, it was argued that British firms trading in China would oppose such a move. However, this argument was unlikely to win local sympathy. The Foreign Office decided, therefore, that it was better to make the gesture at this point.80

李育民(2005),中国废约史;; Li, above n 72, 888. Ibid., 895-96. 78 UK National Archive, Proposed legal powers to be granted to Swiss Consular representatives in occupied China, 23rd Jan, 1942, F828/828/10. 79 UK National Archive, Extraterritorial Jurisdiction in China, 2nd March, 1942, F828/828/10. 80 UK National Archive, Extraterritoriality in China, F2609/74/10. 76 77

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Fishel considered that the failure of the western allied powers to give up their treaty rights earlier, in 1941, was a serious mistake.81 When Britain finally took this step, it was perceived as acting out of weakness, not generosity. For instance, the Chinese ambassador to Britain, Wellington Koo, commented that after the attack on Pearl Harbour, the US and Britain proposed to terminate extraterritoriality in China to keep China in the war against Japan. As Britain was anyway unable to exercise its extra-territorial rights and other related rights because of the Japanese occupation, it was only giving up what had already been lost.82 When Chiang Kai-shek met with President Roosevelt’s representative, he expressed the view that China had lost its trust in Britain and in the Soviet Union. Chinese people considered the US as the only country willing to guarantee equality among all nations. The negotiation with Britain proved much harder than negotiation with the US. The British ambassador to China, Sir HJ Seymour, proposed that the present brief treaty should focus on extra-territoriality and concessions. Economic rights such as trade in ports and inland navigation rights should be solved later in a more comprehensive treaty. The reason for British unwillingness to negotiate was that Britain had huge interests in trade with China. The US was trying to persuade Britain to give up its rights, and had already agreed with China the terms of the brief treaty giving up extra-territoriality in late November 1942. Britain described this agreement with China as unilateral action, which deprived them of any real chance of a bargain.83 They were especially insistent on retaining the Kowloon Leased Territory (KLT) (or New Territory) in the present negotiations. KLT was acquired in 1898, the same year as Weihaiwei, and it was expressly stated in the 1898 Convention that it was an enlargement of British territory where Britain has sole jurisdiction.84 Britain treated KLT or the New Territories as part of British territory, not as a concession or settlement, and it was only these latter special rights that they were prepared to relinquish.85 For China, the lease of territory was the same as concessions, both of which were within the scope of unequal treaties infringing on Chinese sovereignty. The British Foreign Office was determined to resist returning KLT, even if it threatened the negotiations with China. China finally compromised, expressing, however, both its dissatisfaction and the possibility of KLT being returned following the end of WWII.86 In an editorial published in Dagongbao (Ta Kung Pao), commenting on the new treaties, it was noted that: “We earned the respect of friendly nations because all the Chinese soldiers and civilians fought for five years with great sacrifice.” Even so, the lease of KLT was not solved and still remained as an unequal treaty right.87 In any case, the new treaties were far from the end of struggle against unequal treaties. New forms of unequal treaties emerged, for example the Yalta Conspiracy and the Friendship Commerce Navigation Treaty of 1946 between China and the US. Britain Fishel, above n 75, 208-09, cited in 李育民(2005)中国废约史; Li, above n 72, 903. 李育民(2005)中国废约史; Li, above n 72, 910. 83 Ibid., 918-21. 84 Extraterritoriality: Hong Kong etc. FO 371/316 (F9822/828/10). 85 War Cabinet Distribution To China, From Foreign Office to Chungking, 5 December, 1922, FO 371/316( F7822/G). 86 李育民(2005)中国废约史; Li, above n 72, 922-23. 87 Ibid., 929. 81 82

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was no longer the major power in China. However, the status of Hong Kong remained as a reminder to China that the past struggle against unequal treaties was not finished. With the coming declassification of the British Foreign Office documents, the whole negotiation process will be open to the public. The Chinese stance has already been made clear. Deng Xiaoping had written from the Chinese perspective on the Hong Kong question. His words may give some clue as to why Communist China had finally won the people’s support and rejected all the unequal treaty rights: If China could not take back Hong Kong after 48 years since the PRC was established, any Chinese leader or government could not be accountable for the Chinese people or even the international public. If we don’t take Hong Kong back that means the Chinese government is the late Qing government, the Chinese leader is Li Hongzhang! We have waited for 33 years plus another 15 years. We have waited for 48 years long because the people trust us. If we don’t take Hong Kong back in 15 years, people have no reasons to trust us. Any such Chinese government would have to relinquish power. There is no second choice. 88 The struggle to abolish unequal treaties and the pursuit of equality of esteem may explain how the Chinese people have come to the conclusion that unilateralism is the only way to remedy inequality in the international legal system.89 The history of abrogating unequal treaties seems to explain why Mao Zedong’s political theory was successful in China and why there was little confidence in international law. In his report to the Seventh National Congress of the Chinese Communist Party in 1945, Mao stated that the conclusion of equal treaties does not mean that China has actually won genuine equality. China could only win real equality through their own efforts politically, economically and culturally.90 Emphasis on the importance of abrogating unequal treaties in order to retain absolute sovereignty survived until the last piece of Chinese land was returned.91 After the adoption of the “Opening Up” policy, the government is guiding China towards a new era of globalisation. China is now actively engaging in international affairs and contributing to the development of international law. However, to establish the international rule of law, the history of the law needs to be re-evaluated and put into a more balanced narrative. Moreover, one other issue that was not dealt with successfully was the Hong Kong question. For China, the hand-over of Hong Kong marked the end of a period of humiliation and the end of an unwanted foreign presence. The Sino-British Agreement (198485)92 had placed the Hong Kong question in an international law framework once and 88我们对香港问题的基本立场,邓小平文选,第

3 卷; Selected works of Deng Xiaoping, Volume 3, at 12-14 cited 李育民(2005)中国废约史; Li, above n 72, 1067-68. 89 Ibid., 2 and 399-403. 90 China and the Unequal Treaties, FCO21/671, para 8. 91 李育民(2005)中国废约史; Li, above n 72, 1074. 92 The UK archival material on the negotiation of this accord is gradually becoming available between August 2013 and December 2013. It is beyond the scope of this article, viz, the Belfast Agreement from a Chinese Perspective, to pursue this theme in detail, but the final agreement of 1984 registered the unresolved disagreement as to history in terms of whether

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for all. However, it was agreed in separate paragraphs of the Declaration (One and Two) to leave open the question of whether unequal treaties were illegal, by adopting both the Chinese view that what was happening was a resumption of sovereignty and the British view that the agreement reflected a decision to restore Hong Kong to China.93 But China and Britain had both overlooked the distinct local identity that had developed during a unique colonial history. This identity issue is behind the continuing conflicts between the central Government and dissenting voices in Hong Kong. UK Cabinet documents declassified in January 2014, concerning the negotiations over the status of Hong Kong, indicate that Britain’s primary concern at that time was to improve its standing with China, leaving the need to assure Hong Kong’s pathway to democracy as very much a lesser priority.94 The failure to attend to the requirements of a transition to democratic government continue to be felt in ongoing tensions between dissenting voices in Hong Kong and the central Government, concerning the mode of election of the post of Chief Executive in Hong Kong in 2017.95 A simple transfer of title to territory cannot change the identity of the people living on that piece of land. Whether a local community accepts the resulting legal arrangements determines whether the transfer will succeed or not. Any state that employs an international territorial transfer needs to bear this lesson in mind.

PART II IRELAND-UK: THREE MAJOR ISSUES IN IRISH-BRITISH TREATY NEGOTIATIONS The Anglo-Irish Treaty Negotiations from 1921 to 1998 are a story of abortive separation, ice cold distance and gradual rapprochement. In terms of the consciences of the parties – what we call the material substance of their personalities, as reflected in their conscious strategies – the determining factors in the conclusion of the treaties, i.e. in their actual terms, were that the UK began by regarding the separation as an unnatural self-misunderstanding of the Irish, who, in turn, resented terms of the treaties which continued to tie them to the UK. For these material reasons, the treaties were unstable. As the UK modified its attitude to Irish independence in the 1930s and 1940s, this did not produce reconciliation on the Irish side because of the issue of Northern Ireland, in fact itself a continuing expression of the inability of the two sides to resolve the whereabouts of the boundaries between them. The lessons of these histories are that unless and until the there was a restoration of sovereignty (Chinese view) or a handover of sovereignty (British view). 93 See: The Constitutional and Mainland Affairs bureau, Government of the Hong Kong Special Administrative Region, The Joint Declaration, available at: http://www.cmab.gov.hk/en/issues/joint2.htm, accessed on January 17, 2014. 94 See: E Tsang ‘UK foresaw enchanced influence in China at handover talks’, South China Morning Post, 5 January 2014, This is with reference to CAB 128/79 Cabinet Minutes, 2 August 1984. 95 See: T Cheung and T Chong, ‘Catch-22 situation looms over election for chief executive in 2017’, South China Morning Post, 21 November 2013.

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boundaries of material personality are settled, treaty relations cannot be stable. A constructive approach to treaty practice is to be conscious of this fact and to strive for a realist accommodation of different self-understandings through the gradual removal of the elements making for mutual alienation.96

THE OATH ISSUE The sovereign oath issue was undoubtedly the crux of the question of Irish/British identity and continues to be the issue which distinguishes the two “communities” in the north of Ireland. Britain was sincerely prepared to go to war on this issue in 1921. This was clear from the beginning with respect to the 20th July Proposals of 1921. These referred to the conviction of the British Government that the Irish people “may find as worthy and as complete an expression of their political and spiritual ideals within the Empire as any of the numerous and varied nations united in allegiance to His Majesty’s throne”.97 In response to Irish objections on 27 October 1921, the British Government said that, the Irish views now being clear, no further progress was possible without unmistakable clarity by the Irish about “certain questions of supreme importance”, the first of which was the place of the Crown. There followed a clear statement that the very idea of Ireland as a political entity was historically inseparable from the Crown: The first question of imperial importance is allegiance to the Crown. The Crown is symbol of all that keeps the nations of the Empire together. It is the keystone of the arch in law as well as in sentiment. All the Governments of the Empire are His Majesty’s Governments; and there has never been a government recognised by Ireland as a whole which was not the King’s Government. The British Government must now know definitively whether or not the Irish Delegates are prepared that Ireland should maintain its ancient allegiance to the Throne, not as a State subordinate to Great Britain, but as one of the Nations of the Commonwealth, in close association with the realm of England, Scotland and Wales.98 The passages in the italics of the author indicate the clear view of the British that Irish political identity was inseparably a British identity. 99 The separation of Ireland from this empire was in 1921 a concept which it was beyond the imagination of British leaders to conceive. Irish resistance to it was bound to evoke a compulsive response from Britain. The Irish objections continued that the closeness of Ireland to England, compared to Canada or Australia, made the likelihood of English intervention through the 96

For a profound elaboration of this “existential phenomenology of personality”, based upon the work of Jean Paul Sartre and others, see J Der Derian, On Diplomacy: A Geneology of Western Estrangement (Oxford, Oxford University Press, 1987), and also discussion thereof in Carty, above n 31, especially 237 et seq., but also more generally, 227-45, sections: Personality as Demarcation of Boundaries or Personality Embedded in Relationships; Imperial Personality and a Phenomenology of Broken Relationships. 97 Fanning, above n 10, at 236. 98 UK National Archive, Cab 43/ 4 SFC 21, from Tom Jones to Erskine Childers, Memorandum of H.M.G. to the Irish Representatives, 27 October, 1921. 99 Again the principal argument of chapter 4 of Carty, above n 4.

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Crown so serious that the treaty should only mention the Crown specifically for particular purposes, essentially to do with its role as head of the association of the British Commonwealth, thereby having no function in relation to Ireland itself – the Irish idea of the Crown as head of an “External Association”.100 The Law Officers’ response was: 101

The British Representatives pointed out that there were the gravest objections to any proposal to limit or subtract from allegiance. Irishmen could not be both aliens and citisens. It was answered that, except for the purposes mentioned above, there was no question of allegiance, nor could the present oath of allegiance be recommended to an Irishman. The British representatives were willing that the position of the Crown should be the same as the position of the Crown in Canada and in Australia. They would not accede to anything else. They regarded that as fundamental, the real test of citisenship. So the British view was that they and the Irish could not constitute two completely separate states. Relations between them would not be defined as treaty relations, hence their later objections to the Irish purporting to register the “treaties” with the League of Nations. Of course the nature of relations in such a traditional “marriage of peoples” could countenance quite a measure of pressure – as was to occur again in British-Ulster Unionist relations leading up to the 1998 Agreement. In March 1932, de Valera won an Irish general election and lost no time in writing the following dispatch to JH Thomas, Secretary of State for Dominion Affairs. This two page document disregards the idea that the 1921 Treaty is legally binding, resorting to various arguments italicised below, which bear easy comparison to a doctrine of unequal treaties, and to a belief that a coerced treaty is also not binding. The only possibly binding accord would be one which contained no element of domination of one people by the other, but only a desire to achieve a relationship of mutual respect. The dispatch deals with all three issues for discussion here, but firstly mention will be made primarily of the Oath: 102 Whether the Oath was or was not “an integral part of the Treaty made ten years ago” is not now the issue. The real issue is that the Oath is an intolerable burden to the people of this State and that they have declared in the most formal manner that they desire its instant removal…103 In justice …I must point out that the observance of the agreement of 1921 has involved no parity of sacrifice as between Great Britain and Ireland. This agreement gave effect to what was the will of the British Government. It was 100

Cab/43/4 S.F.C. 27 Aide Memoire of the Attorney General, 24th November 1921, being a record of a meeting between Lord Birkenhead, Sir Gordon Hewart and the Irish Representatives, Arthur Griffith, Michael Collins and Gavan Duffy. 101 Ibid. 102 C Crowe et al (eds), Documents on Irish Foreign Policy (2004) vol. 4 no. 26, at 31 Dublin, 5th April 1932. 103 Presumably a reference to de Valera’s recent election victory in which this was an election pledge: see further D Keogh and A McCarthy, The Making of the Irish Constitution (Cork, Mercer Press, 2007), 42.

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on the other hand directly opposed to the will of the Irish people and was submitted to by them only under the threat of immediate and terrible war… (W) are dealing at the moment with the…issue whether an oath is or is not to be imposed on members elected to sit in the Parliament of the Free State. The Government of the Irish Free State must maintain that this is a matter of purely domestic concern. The elimination of the Oath…is a measure required for the peace, order and good government of the State. The competence of the legislature of the Irish Free State to pass such a measure is not open to question and has been expressly recognized by the British legislature itself. (emphasis added) Keogh and McCarthy report how Thomas objected that the removal of the Oath was “nothing more than a repudiation of the settlement of ’21 as a whole”.104 The AngloIrish Treaty “… transcended the provisions of the Statute of Westminster since it was vested with the force of fundamental law.”105 Some Irish opinion argued as well that “the essence of the Treaty was that Ireland should remain in the British Commonwealth of Nations and the oath was the earnest of her intention to do so.” Britain should stand on the treaty and wait for the Irish nation to return to it.106 As a matter of international law, one might well give right to Thomas and say that the fact that the 1921 Treaty entered UK law as legislation does not mean it can be repealed in Ireland like any other UK legislation. The agreement between the States remained. However, on the British side this agreement was based on a sincerely held conviction as to the political identity of the two peoples, and by the late 1930s Britain was prepared to admit this identity was dissolving and could not usefully be maintained through coercion, whatever the formal legal position as a matter of treaty law. In late 1937, Britain was resolving to reach a consensus with Ireland on a variety of financial and security issues. However, on the identity issue, bar a formal note of protest, it decided to let it pass, helped along by de Valera’s willingness to continue a Commonwealth membership. Malcolm Macdonald, the new Dominions Secretary was responsible for making recommendations to the Cabinet. After proposing solutions on financial and security matters, he made a general conclusion:107 The only satisfactory final settlement would be one in which the Irish Free State Government accepted frankly, freely and ungrudgingly loyalty to the King and full association with the British Commonwealth. Owing to the attitude of Mr. de Valera and the introduction of the new Constitution, I cannot see that any such settlement is possible for a very long time to come, if indeed it can ever be achieved.

104

Ibid., 46. Ibid., 47. 106 Ibid., quoting from the Roundtable. 107 Cab. I.S.C. (Irish Situation Committee) (32) 128 Relations with the Irish Free State, Prospects of Settlement of Outstanding Questions, 10th December, 1937, para 25. 105

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These remarks appear to meet wholly the spirit in which de Valera wished to discuss revision of formal obligations under the 1921 Treaty, while not abandoning UK treaty rights as a matter of law. In the previous April, the UK had transmitted a formal reservation to the Irish Free State about legislation involving a departure from the Articles of Agreement of 6th December 1921:108 […] and, in their opinion, therefore, the changes should properly have been the subject of prior consultation. They regret the disappearance as regards the internal affairs of the Irish Free State of constitutional forms in relation to the King which are in use by other Members of the Commonwealth. At the same time they understand the position to be as follows: (i) The Irish Free State desires to remain a coequal member of the British Commonwealth of Nations; (ii) The King’s Title remains unaffected…(He) continues…to exercise his functions in regard to the external affairs of the Irish State. On this basis the United Kingdom Government have reached the conclusion that they are prepared to treat the Irish Free State legislation in question as not effecting a fundamental alteration in the position of the Irish Free State as a Member of the British Commonwealth. In international law this is a formal acquiescence by the UK to the Irish breach of the 1921 Treaty, for the reasons which MacDonald explained in the above internal memorandum. The Irish response was anything but gracious and said that the establishment of friendly relations between Ireland and Great Britain would require “the removal of the inequalities of the Treaty position”, especially stressing the fact that Ireland remained “a partitioned nation”. More precisely, the Irish note stressed that the particular changes under discussion at this point, especially the status of the King and the Oath, were merely a reflection of the evolution of constitutional developments within the Commonwealth, an evolution which the UK note appeared to suggest had reached its conclusion. The point still remains: 109 It need only be said that the evolution in the status of the Members of the Commonwealth which has taken place since the Articles of Agreement were signed, has created an entirely new situation; these Articles of Agreement have been gradually replaced by legislation in the Irish Parliament based on declared principles of co-equality….The Articles of Agreement postulated control of the Irish Parliament by the British Parliament. Until that situation was ended no approach to a final settlement between the peoples of the two countries could be made. The last sentence is probably a reference to the control of the Irish Parliament through the Crown over long centuries until 1800 at the time of its abolition.110 This was the background of the discussions during the treaty drafting concerning the reference to the 108

Cab I.S.C. (32) 124 Relations with the Irish Free State, 7th May, Annex I, 7th April 1937 The Cabinet Paper is referring to the forthcoming Irish Constitution. 109 Ibid., Annex III. 110 Again see Carty, above n 4, chapter 4.

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Crown in the treaty. The Irish representatives did not believe the British protestations that the role of the Crown would be as symbolic in relation to Ireland as it was supposed to be in relation to Canada and Australia. Erskine Childers used the argument that Ireland was simply infinitely closer. When one comes now to consider the provisions of the treaty on defense and security, it might appear that, however unsound their knowledge of recent British constitutional law, the Irish representatives could still have cause for anxiety about Britain’s acceptance of Irish autonomy.111 The study of the archival records on the Oath Issue illustrates closely the development of the force of legitimacy in relation to the force of legality with respect to the 1921 Treaty. The British clearly consider the treaty has been violated, while the Irish consider that, as an unequal treaty, it is not binding as a matter of law. The treaty is unequal because it was concluded through the use of force and because it seriously interferes with the exercise of Irish sovereignty, also in Irish internal affairs. The British subsequently formally acquiesce in the Irish violation of the 1921 Treaty. However, even this the Irish do not accept with any grace. There are continuing unequal features of the treaty. The interplay of the force of legitimacy is on the British side. While they continue to consider that Irish identity is historically intimately bound up with Britain’s and that the Irish misunderstand this, the British (Malcolm MacDonald, above all) recognise that real friendship, in particular the overcoming of mutual estrangement, involves meeting the Irish demands for respect and esteem, whatever their merits. The British do not accept the legality of the formal procedure adopted by the Irish but they acquiesce anyway in the outcome.

NATIONAL SECURITY, SPECIFICALLY, THE TREATY PORTS The question of the status of the Treaty ports is hugely important if one takes a long historical point of view. Since the conflicts with Spain in the 16th century, France in the late 18th century and Germany from 1914, Britain was concerned about treating Irish security under a rubric of British control and subordination. The 1921 Treaty continued this pattern. So the British proposals of July 1921 provided, equally as with the Oath of Allegiance, the idea of a common identity:112 The common concern of Great Britain and Ireland in the defense of their interests by land and by sea shall be mutually recognised...Ireland lies at Britain’s side across the sea ways North and South that link her with the sister nations of the Empire, the markets of the world and the vital sources of her food supplies. In recognition of this fact, which nature has imposed and no statesmanship can change, it is essential that the Royal Navy alone should control the seas around Ireland and Great Britain, and that such rights and liberties should be accorded to it by the Irish State as are essential for naval purposes in the Irish harbors and coasts.

111

Fanning, above n 10, no. 190 Extracts from a memorandum by Erskine Childers on defense issues London, 7th November 1921, especially para 2. 112 Ibid., 237.

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The issue was intimately linked in Irish minds with the place of the Crown and the Oath of Allegiance. Childers commented that under the defense proposals it would be impossible to aim for external association within the Commonwealth. Or have a “mere” recognition of the King:113 The Kingship in itself may be a mere symbol. But the King’s Government is a concrete fact, and if the two islands are to be a self-contained strategic unit in both peace and war – the object aimed at – with the British Navy solely responsible for its defense, then it is hard to see how the British government, with the King at its head, can be kept out of Ireland. If the British troops are occupying Irish soil as of right, it becomes still harder. In the event, Articles 6 and 7 of the Treaty gave substance to the British demands. Article 7(2) provided, that in time of war or strained relations with a Foreign Power, the Irish would provide “such harbor and other facilities as the British Government may require for the purposes of such defense as aforesaid”. That is to say, under Article 6, “the defense by sea of Great Britain and Ireland shall be undertaken by His Majesty’s Imperial Forces…”. The Irish could not simply revoke the Treaty Ports, because the British occupied them physically. So the issue became connected with the wider problem of economic warfare arising out of the Irish refusal to pay the land annuities, despite the commitment in the 1921 Anglo-Irish Treaty. The settlement of the trade war was wanted by both countries, and Ireland and Britain then tried both to trade on the financial burden of the upkeep of the Treaty Ports. The Irish starting point was presented by de Valera in the key dispatch to Thomas already mentioned. The defense provisions were part of a treaty whose signature was forced with a threat of renewed warfare. In particular:114 British maintenance parties are still in occupation in some of our principal ports, even in the area of the Free State. Our coastal defense is still retained in British hands. Britain claims the right in times of war or strained relations with a foreign power to make demands upon Ireland which if granted will make our right to neutrality a mockery. In 1937-38, the starting point of the British appeared to be that the ports were not so useful and they were not so prepared to incur the expense necessary to modernise them. At the same time, the British stance clearly showed a huge evolution in the British attitude to the nature of their relationship with Ireland. McDonald recommended to the Cabinet (I.S.C.):115 That the most satisfactory arrangement, if it should prove feasible, would be a better general understanding with the Irish Free State, which would enable our defense forces to establish the same close relations with the corresponding Irish Free State Services as they already enjoy with those of the other Dominions.

113

Ibid., 302. Crowe, above n 102, vol. 4, 31. 115 I.S.C. (32) 128 Relations with the Irish Free State (supra note 107) at para 3. 114

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Provided improved relations are assured, despite the risks involved, it would be desirable to offer to hand over the complete responsibility for the defense of the reserved ports to the Irish Free State. Britain wanted Ireland to agree to an alliance structure which would allow them to return to the ports in time of war. They considered this militarily very useful. However, the dominating consideration was to respect Irish freedom, and, probably, to try to reach some measure of reconciliation and good relations with Ireland. The ports occupied against a hostile Irish population would be heavily burdensome. There was a continuing simmering IRA militancy which de Valera opposed but could not control completely. It was a constraint on him against offering any terms of alliance, i.e. conditions in time of war when the British could return. He repeatedly assured the British that he would not allow Ireland to be used by a foreign power against Britain. The British were unhappy that Ireland would really be able to prevent the intervention of any such foreign power. So assurances of an informal nature were made that the Irish would seek military cooperation and assistance of a technical nature. However, no formal request for British military intervention could precede an actual foreign invasion.116 What would be the Irish position in the negotiations was clearly stated. The same distrust as in 1932 continued to be present. De Valera’s words were quoted, representing once again, in a rather more bitter tone than McDonald’s, with the same underlying philosophy of putting a premium on good relations over legal commitments: 117 […] if we (the UK) stayed in the ports, our occupation of them would remain a point of serious friction between the people of the Irish Free State and the people of Britain. The Irish regarded our occupation as an infringement of their national sovereignty. If in these circumstances we were to become engaged in war, he was afraid that feeling in Ireland would be so strong that there would be land attacks on the ports by irresponsible but considerable Irish force…Military action…would arouse further the hostility of the Irish people. Any possibility of their coming into the war on our side would be at least gravely prejudiced… . On the other hand if we did not remain in the ports, that extremely unpleasant possibility would not arise. The result would be a tendency to much better feeling on the part of the Irish towards Britain. At the same time, de Valera was very sensitive to any suggestion that the Irish were entering into any formal commitment of any kind in return for the hand-over of the ports, even assurances about the upkeep of defense. From the minutes of the negotiations of the Agreement of 25th April 1938 there are the following exchanges. Chamberlain had wanted to be able to point to some form of defense agreement for the sake of his own public opinion.118 Mr. Chamberlain: He could have said that we had handed over the ports to Eire, that they would be maintained in full efficiency and that there would be cooperation in defense questions generally…

116

Ibid., para 6. Ibid. 118 Crowe, above n 102, vol. V 1937-39, 231-35. 117

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Mr. De Valera: The real fundamental difficulty was that there was nothing tangible that Eire could give. Her people regarded the defended ports and other items which the United Kingdom was proposing to concede as theirs by right, and that they were only recovering what had wrongly been taken away from them. Sir Thomas Inskip suggested that use could be made of the natural assumption that Mr. de Valera’s Government would take all necessary steps to defend their own country. Mr. de Valera did not dissent. He wished it, however, to be made very clear that nothing which was said over the Conference Table by the Eire Delegation was to be taken as the consideration in return for which the United Kingdom were to hand over the treaty ports. In the final analysis, the negotiations were very hard and de Valera resisted any form of assurance that Britain could use the ports in time of war. He insisted simply on the deletion of articles 6 and 7 from the 1921 Treaty in ‘An Agreement regarding Articles 6 and 7 of the Articles of Agreement of December 6, 1921’. Article 1 simply provided that “…Articles 6 and 7… and the Annex thereto shall cease to have effect…” The way to British-Irish equal relations was painfully hard. In his assessment of these negotiations, Robert Fisk remarks how the advice of the Chiefs of Staff on the usefulness of the Treaty Ports would have swayed the British negotiators. The loss of the ports could lead to the life of the nation being imperiled but “it would need a British division together with anti-aircraft defenses at each port to defend them from attack by the Irish Army...” However, they thought Britain “…should waive insistence on a formal undertaking (to use the ports in time of war), which it might be politically impracticable for de Valera to give and which would not necessarily have any value in the event.”119 Fisk concludes that even if this had not been the policy of the Chiefs of Staff, the British were very anxious “to create a new understanding with a nation passing outside any British control…” He continues to say that if there was a mistake here, it was in not appreciating “that Irish policy towards Britain had not developed as fast or evolved in the same way as British policy towards Ireland in the last seventeen years.”120 Fisk concludes by quoting another British politician whose views could fairly be said to have remained where de Valera’s were- Winston Churchill, the architect of the naval provisions in the 1921 Treaty. Fisk quotes the latter as saying in Parliament: 121 These ports are, in fact, the sentinel towers of the western approaches, by which the 45,000,000 people in this Island, so enormously depend on foreign food for their daily bread, and by which they can carry on their trade, which is equally important to their existence. …Now we are to give them up, unconditionally, to an Irish Government led by men – I do not want to use hard words – whose rise to power has been

119

Fisk, above n 8, 39. Ibid., 41. 121 Ibid., 43. 120

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proportionate to the animosity with which they have acted against this country, no doubt in pursuit of their own patriotic impulses, and whose present position in power is based upon the violation of solemn Treaty engagements. Again, as with the Oath Issue, the British formally acquiesce as a matter of international law, in a treaty revision. It eliminates the sovereignty treaty bases which Britain retained in Ireland under the 1921 Treaty. This was a major development in international law apparently achieved by the de Valera Government. It was not matched by the Chinese at this time and very many such military base agreements exist around the world at the moment, causing tension between host and occupying states, particularly with Okinawa between the US and Japan. The remarkable feature of de Valera’s negotiating tactic is his refusal to bargain the removal of the bases. He will offer no quid pro quo because the British side is merely giving up that to which it has no right. The British wish some form of assurance in terms of a mutual defense pact but this is not acceptable to the Irish on legal grounds. The original pact was invalid and it is this which has to be rendered nugatory. On the British side acquiescence in the deletion of the offending articles of the 1921 Treaty means that they choose not to dispute the Irish contention to the end, although they clearly consider the Treaty provisions on bases to be perfectly valid legally and that they are entitled to compensation for giving them up. However, it would not appear to be the case that the legal concession made was only motivated by the desire to establish friendly relations on a range of issues on the basis of mutual respect. The outcome of this negotiation also rested upon the particular personalities negotiating on the British side and the expert military advice they were receiving. It appears that the British did not consider the bases vital to their national security, and that holding onto the bases against the wishes of the Irish would be militarily counterproductive, simply in terms of the amount of defense they would require. It was clear that different British negotiators, for instance a Churchill-led Government, would have acted otherwise than Chamberlain’s. The Agreement, concluded by the man who went on to conclude the so-called Munich Agreement with Hitler, left a considerable feeling of resentment on the British side, which, with Irish neutrality in the Second World War, did not leave Britain welldisposed towards the next Irish onslaught on the 1921 Treaty in 1949.

PARTITION AND THE BOUNDARY 1921 Was Ireland Conquered? starts from the premise that there are contradictory histories of Ireland, hence the title of the book. It did not take the Anglo-Irish Treaty of 1921 as its starting point, but it was perhaps overly fascinated by the idea that the acceptance of two Irish nations seems to underlie the Treaty, in particular in its Article 12. This provided for a Boundary Commission to draw a fairer line between the two nations than would have been represented by the Six Counties division of the Government of Ireland Act 1920. The perhaps overly simple logic of the book was that since, in the author’s view, there were still very much, in the mid-1990s, two nations in Northern Ireland, it was logical to revisit the question whether they should be under one jurisdiction or, somehow, could be separable. It became apparent, in the research done for the book at the time,

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that there were many characteristics of the conclusion of the Anglo-Irish Treaty of 1921 that were doubtful, from an international law point of view. There appeared to have been deceit by the British negotiators about the effect that Article 12 would have, and there was, more generally, to bring the negotiations to a swift conclusion, a threat of war on the British side which led to virtually all of the treaty as signed on the 6th December 1921, merely reproducing the British Government Proposals of July 1921. Since 1998 there has been an increase in historical interest in the circumstances of the conclusion of this treaty, particularly with respect to the boundary provisions. Mathews and then Murray have provided two academic, historical monographs.122 The archival records of both countries concerning the Treaty negotiations have been digitalised in micro film (UK) and e-book (Ireland) form. Both have already been often cited in this article. These events show that the continued significance of the conclusion of this treaty is obvious to everyone. By significance we mean, very much as in the case of China, the traumatic consequences of its conclusion continue to reverberate throughout the island of Ireland. Confronting the significance of this fact for the general health of Ireland is a greater and more important task than legal argument about the detail of the treaty, although the two are related. The nature of the problem – betrayal, internal and external, rather than humiliation as in China – was well highlighted by de Valera in his already mentioned dispatch to Thomas. Of course, it is well said that de Valera contributed himself handsomely to the tragedy he describes. However, his eloquence with words still resonates:123 This agreement divided the people of Ireland into two hostile camps, those who deemed it a duty to resist, facing the consequences, and those who deemed it prudent in the national interest temporarily to submit, the latter being placed in the no less cruel position of having apparently to hold Ireland for England with “an economy of English lives”, to quote the late Lord Birkenhead’s famous exposition of the policy in the House of Lords. To England this agreement gave peace and added prestige. In Ireland it raised brother’s hand against brother, gave us ten years of blood and tears and besmirched the name of Ireland wherever a foul propaganda has been able to misrepresent us. De Valera is spelling out that the primary consequence of an unequal treaty means severe damage to the very core integrity of the material personality of the victim community. This will lead inevitably to further pathological relations between the two treaty parties. As already argued, it has to be stressed that analytically the issue of partition is deeply embedded in the two other issues just discussed. In 1910–1921 the British were quite clear that the Ulster Protestants were their “kith and kin”. That attitude remained throughout the 1920s until at least the 1960s. The minority community’s presence in the north was historically based upon a contradiction of principle – the principle of selfdetermination – applied otherwise to both the Protestants and the southern Irish. The treaty set up to institutionalise this situation, the 1921 Treaty, was unequal, not merely 122 123

See above n 10. Crowe, above n 102, vol. 4, 32.

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because it was in this as in all other respects coercive in form, but also because it was unequal in substance, since the self-determination principle was excluded from application to the minority. In other words the imposition of an uneven application of the principle of self-determination was only part and parcel of the imposition of a form of political identity (the Oath of Allegiance), just as it was also accompanied by the imposition of a geo-political concept of defense and security, which denied final national sovereignty to Ireland in the event of war. All the features of inequality were to the Irish an expression of high-handedness, while to the British they were merely a firm, disciplinary insistence upon what they, probably sincerely, took to be the demands of a common British-Irish identity – a common material personality. This broader perspective is necessary to a review of the exact issue of deceit with respect to the legal meaning of Article 12. Murray argues that it is more accurate to say that the treaty was concluded as a result of a fundamental mistake by the Irish delegates: 124

[…] in failing to discern, or to contemplate in detail, what they were actually subscribing to in the case of Article 12, a failure induced by British misrepresentation to them of its actual thrust and intent. Murray goes on to raise the objection of Sinclair, that the difficulty with the concept of deceit in Article 49 of the Vienna Convention on the Law of Treaties, was that there is little guidance in state practice or international jurisprudence as to the meaning of the concept. Villiger, in his comment on the article, also confirms that the only case discussed in the drafting process was between Italy and Abyssinia.125 Indeed, he remarks that, while cases of fraud are rare, and the accusation is not to be taken lightly, it does “even suggest a certain naiveté or incompetence on the part of the diplomatic services of the defrauded State.”126 Murray, who does not engage at all with any of the archival record of the negotiations, argues that the Irish delegates, in particular Michael Collins, were exceptionally stupid. Basing himself entirely on the comments of the British negotiators, Murray collects a catalogue of insults against the Irish delegates and Collins in particular, which is quite illuminating. They were, in the words of Lloyd George, Lionel Curtis, Mark Sturgis, particularly of Collins, “the corner boy”, “self-satisfied cattle dealer”, “just a wild animal” etc. Murray reproduces this abuse with admiration, noting how, for instance, Lionel Curtis was (somehow?) “ideally placed to assess Collins”. 127 The difficulty remains whether this is the spirit in which to approach one’s opposite numbers in a negotiation which endeavors to bring peace based upon mutual respect and esteem. In the Irish version of the archival notes of the final negotiations on 5th December 1921, Lloyd George presented a memorandum which he had showed Arthur Griffith at a previous meeting on 12th November, 1921. The document dealt with the Ulster Opt Out of a united Ireland. Lloyd George began by accusing the Irish of “trying deliberately to bring about a break on Ulster because our people in Ireland had refused to come within 124

Murray, above n 13, 131. Villiger, above n 20, 615. 126 Ibid., 620. 127 Murray, above n 13, 76-77. 125

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the Empire”.128 This certainly shows how all parties thought the issues to be linked. The document itself concluded that if there was an opt-out there would have to be a revision of the border. “This might be done both by inclusion and exclusion so as to make the Boundary conform as closely as possible to the wishes of the population.”129 This exchange took place at the last session of the Conference, where Lloyd George had threatened war if all the Irish delegates did not sign the draft that had been prepared for signature. The British record of the final negotiations confirms the Irish record.130 Of course the memorandum of Lloyd George is a written document presented in the negotiations as a clear understanding of what the parties had agreed. Whether under Article 31 of the VCLT (any agreement made by the parties to the agreement in connection with its conclusion) or under Article 32 (supplementary material, the preparatory work and the circumstances of the conclusion of the treaty, invoked because of ambiguity of a clause or to avoid a result which was manifestly absurd or unreasonable), there can be no doubt that there was written agreement on the afternoon of the 5th December 1921, that, in the event of Ulster opting out, the border would have to be revised so as to conform as closely as possible to the wishes of the inhabitants. As we have already pointed out the articles should be understood as general expressions of the principle of good faith. There is controversy as to whether, before 1969, the specific rules of articles 31 and 32 represented customary law. Villiger points out that the International Court of Justice now so regards them, although academic opinion differs.131 Nonetheless, to ourselves it is clear what Lloyd George’s memorandum was saying. Murray’s comments on Lloyd George’s contempt for his negotiating partners and the information that he was giving contrary assurances to Sir James Craig and Michael Collins merely confirms the absence of good faith on his part. Murray’s reading of Griffiths and Collins having “talked themselves, and others, into believing that a boundary commission would inevitably transfer extensive Nationalist areas” merely evidences that he shares Lloyd George’s contempt for them. To say also that he was “not explicitly fostering this belief, but did not discourage it” is incompatible with the strenuous way Lloyd George introduced what he said was a decisive memorandum already agreed between himself and Arthur Griffith.132 Murray congratulates Lloyd George for the skill with which he could use the Boundary Commission to postpone a decision on the border.133 However, our framework of analysis insists that there is simply no point in such “cleverness”. Bad faith will continue to undermine the agreement reached.

1925 128

Fanning, above n 10, vol 1, 352. Ibid., 353. The same document is discussed in Carty, above n 4, at 136-37, drawing on the same version in Frank Pakenham’s Peace by Ordeal, the Negotiation of the Anglo Irish Treaty, (London Pimlico, 1935/1992) 177. 130 National Archive, Cab 43/4 Record of the Negotiations no. 22/N/143 date 22.5.22, for 5th6th December 1921, 124-5 of the Complete Cabinet Record and 115-6 of the Record of the Negotiations. 131 Villigers, above n 20, 440. 132 Murray, above n 13, 89. 133 Ibid. 129

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Of course, further historical research also confirms the argument of Was Ireland Conquered? that by 1924 the main British signatories still in power had reneged on their promise to revise the boundary to correspond as closely as possible to the wishes of the inhabitants. The author’s analysis drew on Praeger.134 This research has now been massively confirmed by Mathews. He shows the intensity of the links of “kith and kin” between the Conservative Party in Britain, following the collapse of the Lloyd George Government in October 1922, and the Northern Irish Unionists, led by Sir James Craig. Stanley Baldwin’s sympathies were entirely with them and hostile to southern Ireland. For Lord Birkenhead, Austen Chamberlain and Winston Churchill, political survival within the Conservative Party from the end of 1922 and in Government from 1924 depended entirely upon their abandoning any prior commitment to Lloyd George’s memorandum presented in their presence to the Irish delegation on 5th December 1921. The demand of Sir James Craig and his Unionist Government in Northern Ireland was that none of the territory of the six counties could be surrendered – “not an inch”. This is what loyal members of the Conservative Government had to support, under huge pressure from British public opinion, as Mathews’ exhaustive research shows.135 It is worthwhile quoting again, through Praeger, what the Irish Premier Cosgrave said, about the sense of these negotiations, because they strike a chord that could be said to be finally realised, in a slightly different form, in 1998. The general purpose of the Treaty was to end the coercion of Ireland and thereby:136 To substitute the principle of democratic government based on the consent of the governed. No other interpretation of article 12 could possibly accord with the general spirit of the Treaty. It was clearly intended, in the event of Northern Ireland deciding to secede from the Irish Free State, to bring relief to the nationalist inhabitants of the six counties. Despite these fine words Cosgrave signed away almost at once, any right in international law for the Irish State to contest the border. This was to remain the case until 1998. The negotiations between the Irish and British Cabinet leaders in London and Chequers are recorded in Documents on Irish Foreign Policy nos. 351 to 368, from 26th November to 3rd December 1925.137 The meetings and search for agreement were requested by the Irish delegation, in particular Liam Cosgrave and Kevin O’Higgins, President and VicePresident of the Executive Council. On the British side in the negotiation were, besides Stanley Baldwin, the Prime Minister, three people who had been major figures in the 1921 negotiations, Lord Birkenhead, Austen Chamberlain and Winston Churchill. The ostensible cause of the meeting was anxiety on the part of Cosgrave about the forthcoming publication of the results of the Boundary Commission, which had already been leaked in the Morning Post. Cosgrave was worried about the unrest in Ireland, following the realization that there would be no significant boundary changes. He presented the possibility that if his Government was to face the Irish public and parliament with this fact and had nothing further 134

Carty, above n 4, 140 i.e. J Praeger, Building Democracy in Ireland (Cambridge University Press, 1986) at 145, 148, 241. 135 Mathews, above n 13. 136 Praeger, above n 134, 148. 137 Crowe, above n 102, vol. II (1923-26).

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to show for it, there could be a breakdown of Government and chaos in the Irish Free State. Baldwin warned that the publication of the Boundary Commission Report was imminent, and that once published it would have to be implemented, as a matter of law. O’Higgins and Cosgrave reiterated the well-known arguments about what had been legitimately expected of Article 12 and the mistakes of law which were made by the Boundary Commission. Birkenhead, Chamberlain and Churchill begged to differ on all these points and said that there was never any intention but to make possible minor changes to the boundary, and that the Commission had operated independently, its Chairman Judge Feetham having been appointed by Ramsey McDonald, as Labor Prime Minister.138 These legal differences having been aired, Cosgrave and O’Higgins moved to the practical matter of how they could survive politically in Ireland if they could be shown to have, in spite of the Boundary Commission disaster, achieved something from the British. They said the most desirable would be a significant alleviation of the welfare of the Nationalist Minority in Northern Ireland. Discrimination and gerrymandering were mentioned. The British were skeptical about these matters and said that, anyway, they were outside of their competence. Sir James Craig was invited to discuss the issues further with Cosgrave and O’Higgins. The latter decided that no concrete concessions could be obtained from Craig and anyway a paper agreement between them would carry no weight with southern Irish political opinion. Therefore they moved to an alternative proposal: the removal of Article 5 of the Anglo-Irish Treaty, which provided for the Irish to accept a fair and equitable proportion of the UK public debt as existing in 1921. The proposal was accepted, albeit with some (brief) resistance. So the Agreement Amending and Supplementing the Articles of Agreement for a Treaty between Great Britain and Ireland was signed on 3rd December 1925 by the three Governments of Baldwin, Cosgrave and Craig. It provided as follows in the first two articles: 1.- The powers conferred by the proviso to article 12 of the said Articles of Agreement on the Commission therein mentioned are hereby revoked, and the extent of Northern Ireland for the purposes of the Government of Ireland Act 1920 and of the said Articles of Agreement shall be such as was fixed by subsection (2) of section one of that Act. 2.- The Irish Free State is hereby released from the obligation under article 5 of the said Articles of Agreement to assume the liabilities therein mentioned. This outcome is hugely significant for the future development of the Anglo-Irish Treaty relations. As a matter of law, boundary revision disappears from the agenda. Whatever the coercive dimensions of the 1921 Treaty, this was a freely concluded treaty, made at the behest of the Irish Government. Whatever the bad faith of the majority of the British negotiators,139 the idea of a bargain of release from financial obligations in return for an abandonment of the border provision of the Treaty came from the Irish side. However,

138

Actually on the recommendation of Lionel Curtis, who chose him as a person who could be relied upon to reject the extravagant claims of the Free State, Murray, above n 13, 199. 139 See above n 12.

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as discussed in Was Ireland Conquered?,140 the view of the political opposition led by de Valera, which later found expression in the Irish Constitution of 1937, articles 2 and 3 and in subsequent judicial decisions, was that the Irish Government could not sign away the rights of the Irish nation. The right of national self-determination of the Irish people had priority over any positive law or treaty. The claim in Article 2 of the Constitution is “….a claim of the Irish Nation and not the Irish State. The Nation as the constituent authority must precede the State.”141 The question whether such a claim had standing in international law, as distinct from Irish constitutional law, would become a major issue in the diplomatic exchanges of 1949, at the time of the declaration of an Irish Republic. The more immediate question is whether and how the issue featured in the 1938 Treaty negotiations.

1937-8 From this point onwards it appeared that Ireland had tied itself as a matter of international law. Its major diplomatic efforts during the 1938 Treaty negotiations and during the Coalition Government of 1948-1951 might be thought to be of a clearly political nature, not mentioning, never mind contesting, the 1925 Treaty. The next stage after 1925 was the promulgation of the 1937 Constitution with Article 2 providing that “…the national territory (of Ireland) consists of the whole of Ireland and its territorial seas; that right of the Nation to the whole of the national territory is absolute and indefeasible.” Keogh and McCarthy do not suggest that any profound background thinking went into the adoption of this formula. They note merely that de Valera had assured Deputy Eamon Donnelly, the T.D. most concerned about partition, that there would be no boundary placed on the nation.142 However, it is arguable that the promulgation of the Constitution, with this article in it, could be taken as making an international claim to the North of Ireland, if not according to international law – which was not mentioned – then by virtue of the indivisible character of the Irish nation. This position receives some substance by virtue of the fact that it was so seen by the British Government. It considered it necessary to take an international stance on this Article 2, which it is important to appreciate, if only because of how the British claim came to be modified: His Majesty’s Government in the United Kingdom take note of Articles 2, 3 and 4 of the new Constitution. They cannot recognize that the adoption of the name “Éire” or Ireland, or any other provision of these Articles involves any right to territory or jurisdiction over territory forming part of the United Kingdom of Great Britain and Northern Ireland or as affects in any way the position of Northern Ireland as an integral part of the United Kingdom of Great Britain and Northern Ireland. They therefore regard the use of the

140

Carty, above n 4, 150-54. Ibid., 153. 142 Keogh and McCarthy, above n 103, 82-83. 141

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name “Éire” or “Ireland” in this connection as relating only to that area which has hitherto been known as the Irish Free State.143 In the negotiations from December 1937 to April 1938, de Valera fought hard with Chamberlain to make progress on the partition question. It is not fair to say that he was not serious, but he was probably engaged in a negotiating tactic. His colleagues, particularly Seán MacEntee, Minister of Finance, and Joseph Walshe, Head of the Department of External Affairs, thought there was a real risk that the entire negotiations, which dragged on for five months, could collapse altogether because of de Valera’s insistence on a breakthrough on partition. In particular, Walshe warned that the strongest element of the Conservative Party was as fanatical as the Belfast Government itself.144 This is important to stress, in our view, also because in the 1920s and 1930s the British Governments are expressing themselves not only legally incompetent, but also out of sympathy with complaints that the Nationalist minority are subject to any discrimination. The “kith and kin” solidarity expresses itself not only in a very strong international law statement about Northern Ireland and territorial integrity, but also in a refusal, either legally or politically, to intervene in the domestic affairs of the North of Ireland. The nature of the material personality of Britain determined fundamentally the character of its legal arguments in response to Ireland, simply the view that the British nation extended to the North of Ireland. It is not merely the form of de Valera’s arguments which are of interest, but also the analysis of the nature of the resistance to them, coming from the British side. It was de Valera’s hope to make a possible defense agreement with Britain dependent upon a united Ireland being the partner in defense. He was guarded about what he said. For instance, if the UK could reach an understanding on partition, it might be possible to look to the UK for cooperation on defense, because it might be seen by Irish people that Irish freedom was no longer at risk of being impaired, that a desire to use the ports was not evidence of an intention to interfere in Irish affairs.145 De Valera continued to insist that friendly relations among the two peoples and the risk of increased tension and conflict were attributable to Britain giving the north as much territory as it could hold and assuring the north of its continued unqualified support. There was therefore always the risk of security failure in the border area.146 So at this stage Irish argument about partition had a political character, intended as a bargaining tactic to hold out the possibility of one thing (a defense agreement) in return for another (a united Ireland) – with no mention of rights under the 1921 Treaty. This is an important feature of the British political stance, which was to change later on. Chamberlain re-iterated that he could not do anything about the internal affairs of the North of Ireland, for instance addressing Nationalist grievances. He said that “the UK Government possessed no legal powers or authority which would enable them to 143

FO/ 372/ 3205 1937 / T 17650 29 December 1937 at 91a, after going through the same formulation numerous times in the I.S.C. it was sent out to delegations abroad, to coincide with the publication and entry into force of the Irish Constitution. The italics are the author’s. 144 Crowe, above n 102, vol. V, 214; also T Feeney Seán MacEntee: A Political Life (Dublin, Irish Academic Press, 2009) at 220-5. 145 Ibid., 152-53 and 191. 146 Ibid., at 196.

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compel the Government of Northern Ireland to change their alleged attitude towards the minority in Northern Ireland, even if the discrimination was, in fact, shown against that minority.”147 In addition, Chamberlain pointed out that whatever de Valera said of the grievances of the Nationalist minority his real aim was to get rid of partition and there was no way that the UK could implement such a policy legally without the consent of Northern Ireland, but also it would be impossible politically for any Government to put pressure on it to agree against its will to abolishing partition.148 It was also probably the case that de Valera was using pressure on partition to get the maximum on finance, trade and the treaty ports, since it was at this point in the negotiations that he introduced the idea of a radical solution on trade and finance, as well as an unconditional handing over of the treaty ports, without any assurances as to defense cooperation.149 So, legal arguments based on Article 12 of the 1921 Treaty were gone from the Irish agenda.

1948-9 Nonetheless, a decisive change in the Irish position is expressed with the coming into force of the Republic of Ireland Act 1948 in April 1949. The right of self-determination of the Irish people came to the fore, latent since the declaration of the 1937 Constitution. The issue now became, particularly in British eyes, whether such arguments had any legal as distinct from political force. The Irish attempted to argue in terms of new fundamental principles of international order declared during the Second World War. An exchange of diplomatic opinions on partition followed the Irish declaration of a Republic in 1948. The specific occasion was the preparation and passing of the UK’s Ireland Act of 1949. It provided in section 1 (2) that in no event will Northern Ireland or any part thereof cease to be part of Her Majesty’s dominions without the consent of the Parliament of Northern Ireland. The Irish view, expressed by An Taoiseach, John A. Costello, was that the Ireland Bill represented unparalleled abdication of authority of the Imperial Parliament to a subordinate legislature, perpetuating the domination of a Tory minority in Northern Ireland. The implications of the use of the expression “territorial integrity of Northern Ireland” in the Preamble, given the place of this expression in the UN Charter, “can only be regarded as sinister”. References to “Northern Ireland or any part thereof” could only mean that not even inhabitants of Nationalist minority areas could secure release from the “Squire of Brookville”:150 For the purposes of self-determination the nation, not a small area, must be the unit. The United Kingdom was responsible for partition and was trying to pass on the responsibility to the Ulster legislature and place itself in a position in which it could no longer abolish partition. That Parliament, whatever its claim to represent a small area round Belfast did not properly represent

147

Ibid., 227. Ibid., 228. 149 Ibid., at 228. 150 Ibid., Telegram from UK Representative in Dublin, 10 May 1949. 148

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the catholic majorities in Tyrone, Fermanagh and the old constituencies of South Armagh, South Down and East Down (emphasis added). The Taoiseach published a declaration of Dáil Eireann which solemnly asserts:151

re-

[…] the indefeasible right of the Irish nation to the unity and integrity of the national territory, reaffirming the sovereign right of the people of Ireland to choose its own form of Government and through its democratic institutions to decide all questions of national policy, free from outside interference, repudiating the claim of the British Parliament to enact legislation affecting Ireland’s territorial integrity in violation of those rights, pledging the determination of the Irish people to continue to struggle against the unjust and unnatural partition of the country until it is brought to a successful conclusion… (emphasis added). This declaration in the Sunday Independent was accompanied by a number of aide memoires from January to May 1949 (the Ireland Act became law on 2nd June 1949) which were primarily founded on what the Irish see as new, emerging standards of international justice and morality, which are essential to maintaining peaceful and friendly relations among states. There was no attempt to deflect the legal significance of the Anglo-Irish Agreement of 1925 (it is never mentioned), and, of course there was no mention of the people of the North of Ireland. The problem was seen as one of the quality of relations between Ireland and the UK, to be resolved through negotiation, as the use of force was excluded. At the same time there was a clear assertion of the priority of the idea of the Irish nation over any idea of the Irish state, thereby implicitly rendering mention of the 1925 Boundary Agreement redundant. In 1925 de Valera had said that the Government could not sign away the rights of the Nationalist minority in Northern Ireland without a referendum, while Cosgrave persuaded the Dáil to pass a resolution waiving a referendum for reasons of public peace and safety.152 The Irish Representative in London, Dulanty, sent an aide memoire on the 7th January 1949 to the Secretary of State in London, trusting “…that nothing would be done by legislation or otherwise which could be construed as prolonging or strengthening ‘the undemocratic anomaly’ whereby Éire had been partitioned ‘against the will of the overwhelming majority of the people’”.153 Another crucial Irish aide memoire was reported for the 7th May 1949. It stressed the injustice of partition and the deep resentment it caused in the Irish people. It noted the absence of a reply to the January aide memoire and stressed “the serious difficulties and grave dangers resulting from the enforced unjust and unnatural partition of Ireland” which “must inevitably increase enormously the existing difficulties and dangers internally and from the point of view of the relations between Great Britain and Ireland”. This last aide memoire also referred to a further aide memoire of 8th February in which the Irish Government hoped that the North Atlantic Pact could represent a concept of cooperation between States which would afford the 151

Ibid., Telegram from UK Representative in Dublin, 8 May 1949, with respect to Ireland Bill. Carty, above n 4, 150. 153 CAB 21/ 1842 Telegram from Commonwealth Relations Office to UK Representative to Republic of Ireland, 19 May 1949. 152

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occasion for the friendly examination of the last remaining difficulty between the two countries. From the February document, the May aide memoire quoted once again these fateful words:154 …We feel… the wisest and most realistic approach to the question of North Atlantic security lies, in so far as Ireland is concerned, in ending a situation which threatens the peace of these islands and which may, at any moment, prove a source of grave embarrassment to both Britain and Ireland. Sooner or later, the question will have to be solved. The Government of Ireland feels strongly that it is better to face the question in a realistic fashion and as a matter of urgency now, rather than allow a situation to develop wherein a solution might be more difficult… The May aide memoire stressed again how this fresh denial of Ireland’s right to national self-determination was a:155 […] destructive and unfriendly attitude at a time when so much effort is being devoted to preserve fundamental rights and liberties and the democratic way of life…The fact that Ireland is a small nation debarred by her exclusion from the United Nations Organization from other means of redress makes it all the more necessary… to reassert unequivocally the right of the Irish people to determine, democratically, of their own free will, without outside interference, their own affairs. Broadly speaking the UK response was to stick quite strictly to its understanding of international law, although its reflections did address the justice of the border as a compromise between the two very mixed populations, ruling out a change in the boundary as a violation of elementary democracy if done without the consent of Parliaments on both sides.156 Nonetheless a mark of the “unfriendliness” of relations at this time can be gathered from a Cabinet consideration of the news that the Irish government was possibly considering relaxing its checks on the activities of the Irish Republican Army. It was debated whether to make a public announcement that “Northern Ireland would be defended against aggression just like any other part of the United Kingdom.” The Cabinet reflected that such an assurance should be given if any questions were raised in parliamentary debates, but that otherwise it would not take the initiative.157 At the same time the same Cabinet considered the question whether the Northern Ireland Parliament “was in fact so constituted as to reflect fairly the views of the electors”. However, Ministers

154

Ibid., Telegram from UK representative to Republic of Ireland 8 May 1949. Ibid., paragraph 8 of the May aide memoire. 156 On the last point only briefly, a memo points out how the counties of Fermanagh and Tyrone have only small Nationalist majorities and that these are not in the border areas of the counties, which are inhabited by Unionists: see CJ I / 114000 note of R. Gansden to Murrie, 9t May 1949, with reference to the wording “or any part thereof” in the Ireland Bill and its possible relation to the principle of self-determination. The note says the boundary has been recognised by the Government of the Irish Free State. It is “…only in accordance with elementary democratic principles that any change in Northern Ireland’s territory should be effected with the consent of her Parliament”. 157 CJI 44/ 114000 Cab 34 (49) 34th Conclusions of Cabinet Meeting 12 May 1949. 155

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decided they would be ill-advised to consider this matter as it “fell wholly within the jurisdiction of the Northern Ireland Government”.158 The reply of the British Government to the Irish aide memoire of 7th May 1949 came on the 10th May 1949. It stressed that there was no new policy in the Ireland Bill. The view of the government had always been that no change should be made in the constitutional position of Northern Ireland without its free agreement. The Prime Minister continued to stress the close ties between the Irish Republic and the United Kingdom and the common desire that close and friendly relations should continue. The aide memoire then says: 159 […] By an Agreement signed on the 3rd December 1925, and later confirmed by legislation in both countries, the Governments of the United Kingdom and of the Irish Free State agreed to the present boundaries of Northern Ireland. …It is not in doubt that a large majority of the population of Northern Ireland at present desire that Northern Ireland should remain within the United Kingdom. The Irish Republic has ceased to be part of His Majesty’s dominions, and recognition is given to that fact in the Ireland Bill. The United Kingdom Government are at a loss to understand how they can legitimately be accused by the Government of the Irish Republic of impairing in any way the cooperation between democratic nations by their proposal to declare, in the same Bill that Northern Ireland remains part of His Majesty’s dominions, and that no change will be made in her status unless the consent of the people of Northern Ireland, expressed through their Parliament, has first been obtained. The aide memoire concludes that the Irish were welcome to provide the people of Northern Ireland with evidence that their interests lie with the people of the Irish Republic rather than with the rest of the UK, and further that the UK would always be happy to see the development of good feeling between Northern Ireland and the Irish Republic. There was a further telegram to all British Government representatives on 25th May 1949, called “Ireland: The Partition Issue”. It shows the nature of the diplomatic cold war being waged world-wide between the Irish Republic and the United Kingdom. The telegram began by explaining that the Irish Premier, Mr. Costello, did not consult with the UK Government before announcing in a press conference in Ottawa on 7th September 1948 that his government would repeal the External Relations Act and declare that Éire was no longer a member of the Commonwealth. It was this policy move that necessitated the Ireland Bill. A simple acknowledgement was sent in the aide memoire of 7th January 1949 about the “undemocratic anomaly” of partition. The 8th February Irish aide memoire was actually a response to the US Government when it suggested Ireland might join NATO. The Irish asked the US Government to intervene with the UK Government on the matter, since Ireland could not join the pact, until partition was ended. Most of this text the Irish also circulated through their representatives around the world. The US Government replied, declining to intervene in a matter which they regarded as a matter “of exclusive interest to the United Kingdom and Éire Governments”. On the 7th May 158 159

Ibid. FO 373/ 2170 114000, CRO Telegram no.81 to UK Representative to Republic of Ireland 10 May 1949.

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1949, the Irish Government followed up with an aide memoire referring to their earlier correspondence and characterizing the Ireland Bill, Section 1(b) and the Preamble, as “an unnecessary, provocative, and gratuitous reassertion of the claim of the British Parliament to intervene in Irish affairs”. The British position was that Northern Ireland was an integral part of the UK and this could not be changed without its consent. This policy, they said, “cannot be held to impair the cooperation between democratic nations”. While the Irish would resort to further propaganda against partition, which His Majesty’s Government would counter with appropriate material, “the Government of the Irish Republic in their public utterances have denied any intention of resorting to force, though the possibility of a recrudescence of acts of terrorism by the I.R.A. or other irresponsible elements cannot be excluded”.160 The discussion of the international law situation in the UK Government reflected awareness of the problem of the legal status of arguments about self-determination alongside traditional state sovereignty arguments. At this time under general international law there was a consensus that such arguments of self-determination were political in character. The discussion was quite extensive, including the Legal Adviser to the Foreign Office, Sir Eric Beckett, and covered possible Irish recourse to the United Nations (A), or UK recourse to the International Court of Justice (B), respectively. Obviously the former would concern attempts to make the Northern Ireland situation a threat to peace and security. Domestic jurisdiction arguments would not work, given the general attitude of the UN to Indonesia, Kashmir and the Indians in South Africa. Yet there was in fact no general threat to the peace arising out of the position of Northern Ireland and there was no threat to the peace between the UK and Éire, “because neither country has the least intention of going to war about the matter”. In so far as there was friction it was caused by Eire’s “refusal to face the facts that Northern Ireland is legally part of the United Kingdom”.161 The further possibility of action before the I.C.J. (B) seemed hardly conceivable, because the UK would be asking it to seek a ruling as to its ownership of its own territory. The memo continues:162 If, however, we were to do this the legal position is that the Irish Free State Government agreed to the present boundary in 1925. Both the Agreement with the Irish Free State and the 1921 Agreement were registered by the Irish Free State at the League of Nations and therefore have binding force internationally, even though we ourselves did not register them on the ground that they were intra-Commonwealth agreements. It seems that the Court would certainly decide in our favor on this basis. Apart, however, from the objection referred to above, there is the further objection to this course that the Eire Government would ignore any verdict on this limited basis on the ground that times have changed and that a case which is good in International Law may nevertheless be bad in equity.

160

CAB 21/ 1843, Foreign Office to His Majesty’s Representatives No. 231 INTEL 25th May 1949. 161 CJI 54/ 113933 attachments to memo of Roger Allan to W.S. Murrie, 10th February ‘Partition: Possible Action by the Government of Éire before the UN’. 162 Ibid., ‘Draft Note on Possible Reference of Partition Issue to an International Tribunal (A) By the Éire Government and (B) By the UK Government’.

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The options open under (A) would also be to call attention to the alleged discrimination against Catholics and gerrymandering in constituencies in Northern Ireland and possibly even denial of majority rule in the island of Ireland. Very significantly the memorandum continues:163 As to the forum, they would clearly choose some non-legal forum in which they could hope to exercise the maximum of political and sentimental pressure in alliance with our opponents on other issues, e.g. the Jewish element in the US. It seems likely that on this basis, they would choose the UN rather than the International Court or some ad hoc tribunal under the Hague Convention of 1899. In other words, it was considered that a claim of a people to self-determination (the Costello argument) was political and not legal, but might still resonate with international public opinion as a matter of equity, or indeed legitimacy. The memorandum concludes that, with respect to legal probabilities, it would be better for the UK to take action under (B) rather than to risk action being taken under option (A) by the Irish Government.164 In other words, Ireland was resorting to arguments of legitimacy rather than law and, although the UK repeated its legal case to itself, it knew they would be rejected by the Irish as illegitimate, even if legal. These are precisely the distinctions, which Martin Mansergh later tries to make, to explain the place and function of Articles Two and Three in the Irish Constitution, and to justify their removal in the circumstances of the signing of the 1998 Belfast Agreement.

1998 The Irish Government come into the negotiations of 1998 with a willingness to modify the 1949 principle of the self-determination of the Irish people, in favor of the notion of the self-determination of the Irish people within the two jurisdictions of Ireland, north and south. Formally this appears to retain the rhetoric of a Nationalist claim to unity, while according the Unionists their traditional veto, as the majority within the North of Ireland. Here the type of research method used up until now no longer easily applies, i.e. research into archives which may very likely reveal conclusive intentions. Instead one is engaged in contemporary history writing, based on interviews, newspaper articles, and “engaged” contemporary scholarship, above all, by those heavily involved and very close to the issues – the present authors included.165 In our view this principle is a conclusive recognition of the legality of a partition, which since 1925, it is difficult to dispute in international law, except possibly by invoking the very self-determination principle which is now being modified by the principle of a self-determination vote in two separate jurisdictions. This appears to be how the 163

Ibid. Ibid. 165 For further reflection on this issue see, A Carty, “Distance and Contemporaneity in Exploring the Practice of States: The British Archives in Relation to the 1957 Oman and Muscat Incident” in M Craven et al (eds), Time, History and International Law (Leiden, M. Nijhoff, Brill, 2007), 231- 45. 164

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Irish Government saw it in the run up to the 1998 Treaty, assuming the official authority of Martin Mansergh.166 Mansergh’s thinking behind the rewriting of the Articles Two and Three of the Irish Constitution was to offer an historical account.167 The controversial articles contested the legitimacy rather argued that the political imperative for denying than the legality Northern Ireland, the latter having been conceded in 1925 with the Boundary Commission Agreement. However, a political decision had been taken to deny the legitimacy of the North after the removal of the safeguards for nationalists, including proportional representation and non-discrimination contained in the 1920 Government of Ireland Act. Given that those safeguards would be reinstated Mansergh legitimacy would be removed, thereby allowing changes to Article Two and Three. The new Article Two would create a clear link between nation and territory. “It is the entitlement and birthright of every person born in the island of Ireland which includes its islands and seas to be part of the Irish nation”. The task of assessing the relative strength of forces of legitimacy and legality with respect to the Treaty entails a judgment of the circumstances of its conclusion, as a matter of contemporary diplomacy and international relations. As a Peace Treaty the Belfast Agreement is bound to be concerned, above all, with the balance of forces that will assure a cease-fire and ending of the forms of violence in play, primarily para-military activity on the one side and state counter-terrorism or insurgency activity on the other, and with the minimum concessions to both sides (including Loyalist para-militaries) that will lead to a ceasefire. This approach reveals the driving force for the Belfast Agreement to be coming from the Nationalist Minority Community in Northern Ireland, which the Irish Republic is merely endorsing and representing. It is this community that is not interested in a repartition option following Article 12 of the 1921 Treaty. The context for this approach requires an understanding of the outbreak of violence in Northern Ireland from 1969. For Mansergh there were two key events. The 1960s civil rights movement gave way to violence because of the change of Government in 1970 from an initially reformist to a “restoration of order” government which gave clear backing to the Stormont regime. This led “a section of the nationalist community to abandon democratic protest for the traditional recourse to arms”.168 The second event was the 1969-70 Arms Crisis when “the Irish Government, recoiling from giving any assistance for self-defense for fear of

166

As to the role of Mansergh, see the chapter of T Hennessey, “Negotiating the Belfast Agreement” in B Barton and PJ Roche (eds), The Northern Ireland Question, The Peace Process and the Belfast Agreement (Basingstoke, Palgrave, 2009) at 40-41. Hennessey points out that this formula had already been presented by Mansergh to the Unionists and what he calls constitutional (rather than international?) issues had been resolved outside the formal talks process. 167 K Rafter, Martin Mansergh, A Biography (Dublin, New Island, 2002), 251. 168 Ibid., 163.

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misuse, lost all restraining political influence over militant republicanism in the North, a situation that would continue for almost twenty years”.169 The history of the inter-communal conflict from 1969 to 1998 inevitably meant that the Nationalist Minority thought of itself as a single political entity, for whom a repartition of part of their community would be unthinkable as a solution to their situation. Instead, it eventually achieves a huge international law victory of seeing the Protestant Unionist Majority separated legally from the rest of the British nation, becoming part of the Irish people in the 1998 Settlement. The principle of consociational government, the consent of the two communities to every major issue that affects them, does not apply to a referendum about unification. That is decided by the Irish people in the Northern Jurisdiction, simultaneously with the people in the Southern Jurisdiction. It means that the traditionally, one third Nationalist Minority has only to persuade another 1/6th of the population to follow it.170 This was the goal which Mansergh sought to achieve with his formula which became Article 1 (ii) of the Belfast Agreement.171 Again, the long historical narrative is also necessary to understand the nature of the violence, which require a Peace Treaty, to bring it to an end. Unionism was, in essence, a campaign to keep in place the Act of Union of Great Britain and Ireland. The twenty six counties were lost in 1921. A different logic was now undermining Northern Ireland. In Rafter’s words:172 In lecture after lecture, Mansergh traced the conflict in the North back to the compromise of the 1921 Anglo-Irish Treaty, which brought civil war in the South and the sporadic violence leading to civil war in the North after a delay of fifty years. While accepting that Southern nationalists and Northern unionists broadly achieved their objective from the Treaty, Mansergh argued that the unequivocal losers were “Northern nationalists”. Article 1(ii) had already been formulated in the Downing Street Declaration of December 1993. This was a gamble to achieve an IRA ceasefire. 173 There was fundamental compromise all around, at the inter-state level. Again as Rafter notes:174 The British gave the commitment to “encourage, facilitate and enable” agreement among the Irish people. The Irish Government accepted “that the democratic right of self-determination by the people of Ireland as a whole must be

169

Ibid. See Carty, above n 4, at 153, a figure suggested by de Valera in the 1937 Referendum on the Constitution as preferably to any idea of use of force, which was both “distasteful” and unlikely to succeed. 171 This analysis is not designed to erase the huge historical significance of John Hume’s work in developing the formula and negotiating it with Gerry Adams. See in particular PJ Mc Loughlin, John Hume and the revision of Irish Nationalism, (Manchester, Manchester University Press, 2010) especially 176-91. It is simply Mansergh’s function is representative at the international law level, of what has come up out of the nationalist minority community, especially Mansergh’s negotiation with Gerry Adams. 172 Ibid., 161. 173 Ibid., 218. 174 Ibid., 217-18. 170

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achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland”. In fact, the application of the consociational principle to the internal settlement of government in Northern Ireland further reinforces the right to self-determination of the Irish people in Northern Ireland. The overall effect of the totality of the Belfast Agreement, in the words of Campbell, Ní Aoláin and Harvey was to work for the Nationalist community:175 Because it gains a recognition for the legitimacy of its preferred constitutional status and its suspended application, coupled with an assurance that as long as UK sovereignty remains, key institutions of the state can function only with its consent. Thus rather than ending the conflict, it may be more accurate to see the Agreement as transforming it from a violent to a nonviolent one. The requirement of a majority of the Northern Ireland population to vote for unification would make it appear that there is no climb down on the UK side, and in a sense this is true. As Bell remarks, the provision can be dismissed as rhetorical, given that the need for a positive vote retains the “veto” of Northern Ireland. Yet, her argument is for the ambiguity of such a settlement and she says the referendum (all-island dual referendum) “can also be understood as creating a precedent for any future negotiation and so to be addressing Irish self-determination challenges”.176 This probably means Article 1(ii) provides a framework or context for constant contesting of the legal foundation of Northern Ireland’s status, a virtually unique situation in international law, and probably always one ground for the previous exclusion of “disloyal” nationalists from positions in the northern state. Campbell et al prefer to stress this side of the “ambiguity equation”. The so-called Aaland Islands Report to the League of Nations contained the phrase which they quote: “To concede to minorities…. or to any fractions of a population the right of withdrawing… would be to uphold a theory incompatible with the very idea of the state as a territorial and political union”.177 The European consensus after WWI – and also WWII – has been to address minority concerns within existing boundaries. Campbell et al recognise that Article 1(ii) makes an exception: 178 No longer is territorial cession about the transfer of sovereignty by means of an agreement between ceding and acquiring state, but rather the ceding of the decisive power to citizenry itself, with the prior consent of the implicated states. This is a radical reconfiguration of both the theory and practice of state formation. In short, democratic and the expressly articulated desire of a majority to change their national and territorial status trumps established borders. This proposed mode of change is part of the notion that borders can only be altered by peaceful consent of the affected states. 175

C Campbell, F Ní Aoláin and C Harvey, “The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland” (2003) 66 Modern Law Review 317, 332. 176 C Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford, Oxford University Press, 2008) at 112. 177 Campbell et al, above n 175, 329. 178 Ibid., 330.

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Here Campbell et al are unintentionally confirming the central thesis of this article, that the Irish issue is not a European issue for which there are European remedies. It is part of the wider global phenomenon of imperialism and unequal oppression of colonial peoples by imperial metropolitan populations. This is a fact clearly recognised by the British who, therefore, consciously distance themselves from their Northern Irish “kith and kin”. The supreme irony is that on this utterly fundamental issue there is a profound ambiguity in the Irish stance. It does not regard the Northern Irish, Protestant, Unionist population as a settler, colonial community, or at least not unequivocally. The rhetoric of the “one people of Ireland”, upon which the Belfast Agreement is based, is from Wolfe Tone Republicanism, a philosophy of the “false consciousness” of the Unionist Majority, 1/6th of whom should, by the law of averages, be persuadable. Therefore the legal interpretation which Campbell et al have put on the Belfast Agreement is, in our judgment, too abstract and general. It leaves out of the account the whole reasoning of the final part of their own article, that a theory of transitional justice is needed to address the fact that the treaty, in our view, by its nature a peace treaty, does not try to deal with the specific context of Northern Irish history, a fact which the authors themselves recognise. The authors are in fact very uncomfortable with that history themselves, from their very much liberal, European perspective. A liberal rhetoric has to oppose itself to what it sees as a nationalist rhetoric of purity. So: 179 […] the plantation settlement of the 17th century was only one of a wave of external invasions…imposed on the island of Ireland for centuries. They were of course more decisive for current communal and religious configurations in Northern Ireland than other settlements. What is most true is that the stark division of community into two political cleavages is not an absolute and the contingency of that division is stamped into the constitutional arrangements of the Agreement. (emphasis added). It is the words in our italics that mark the true level of inequality in the new Belfast Agreement. Herein lays the renewed element of coercion in the treaty, now primarily an imposition on the Unionist majority. It is essential to see, as Unionist analysts do, that there has been a sea-change in the attitude of the United Kingdom to its “kith and kin” in Northern Ireland since, for instance, the 1949 diplomatic exchanges and the Ireland Act 1949, which was a standard international law territorial guarantee. Bew gives a complex historical picture of Ulster Unionists in the “mainland” imagination from the 1830s, which suggests that for a long time it had “an uncertain and unloved place in the United Kingdom firmament”.180 Bew challenges the existence of a consistent practice of British manipulation of Unionist opinion to frustrate Irish aspirations or keep the country partitioned. This is to counter the official Irish state position from the time of the Anglo-Irish Treaty of 1921. However, we believe that Bew’s own liberal spirit merely identifies that the British approaches to Ireland have always been marked by, on the one hand, more disinterested and, on the other hand, more nationalistic stances, major contrasts which he himself draws being between Gladstone and Winston Churchill.181 What Bew does 179

Ibid., 327. P Bew, Ireland, The Politics of Enmity 1789-2006 (Oxford, Oxford University Press, 2007), 572, in a section “Selfish Strategic Interests”, 568-74. 181 Ibid., 569-73. 180

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show is that Ulster Unionist passion, particularly from 1912 to 1921, cannot be reduced to British manipulation. Britain was faced with a moral dilemma of finding a language to justify expulsion of a settled community of a million citizens from the UK polity.182 In our view this greatly understates the sense of common solidarity identified by Mathews for the period 1921-25, and which we consider found a true expression in the 1938 Treaty negotiations and the 1949 affirmations at the time of the Ireland Act. Bew himself recognises that, most likely due to Ulster Unionist participation in WWII, in the 1950s the British Cabinet could say that “the possession of Northern Ireland is of capital importance to the defense of Great Britain”.183 However, after the end of the Cold War, British strategic thinking changed and on 9th November 1990 the Northern Ireland Secretary could insist that Britain had “no selfish and strategic interests in Ireland”.184 Obviously, Peter Brooke meant “anywhere in Ireland, including Northern Ireland”. Politics is not a sphere of “unselfish interests” and Ulster Unionist commentators are aware of this. Bew himself remarks on the notorious failure of Gordon Brown in his Daily Telegraph article of 25th March 2008 on Britishness, to include mention of Northern Ireland alongside the Welsh, Scottish and English.185 This could be a single act of forgetfulness and Bew cites Blair in contrast. However, Kennedy piles up examples from speeches and interventions by British politicians, including Jack Straw and Ruth Kelley. Indeed the whole Labour debate on multiculturalism and national identity left out Northern Ireland.186 Both Bew and Kennedy mention the enormous pressure put on David Trimble and the Ulster Unionists to sign up to the Belfast Agreement.187 In other words, the UK and Irish State can easily unite in a common objective of bringing to an end Sinn Fein/IRA political violence. Ulster Unionism has to accommodate itself to their common objective. Hence it is no longer part of a common political partnership with the UK, its “home” state. In Northern Ireland, as Kennedy points out, members of the Belfast Assembly or Executive take no oath of allegiance, judges do not swear allegiance to the Crown and all symbols of monarchy are excluded by law from new courtrooms.188 The inherent logic of what is predominantly a peace treaty is to deal with those who can produce the peace. Both Bew and Kennedy agree that this ”inclusive” approach to the conflict could only encourage and lead to the rise and eventual coalition of those most opposed to one another in the enforced coalition governments in Northern Ireland. As the long battle with Sinn Fein over “decommissioning” of its weapons continued, the Democratic Unionist Party could effectively pose as the Unionist Part most able to ensure that Sinn Fein would deliver. The result of this type of settlement, as Bew puts it, is 182

Ibid., 571. Ibid., 573. 184 Ibid. 185 P Bew, “The Triumph of the Belfast Agreement” in Barton and Roche, above n 166, 242. 186 D Kennedy, “The Case Against the Agreement” in Barton and Luce, above n 166, at 256-57. 187 Bew, above n 185, at 245 “the international and domestic pressure … was massive”; Kennedy, Ibid., 249, mentioning the consensus of all the studies of the Belfast Agreement, that the core objective was to make a deal with Sinn Fein, “a deal between the British and Irish Governments and the representatives of those whom they had long condemned as terrorists seeking to subvert the democratic process, with the key object of securing an end to terrorist violence”. 188 Kennedy, Ibid., 257. 183

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that “a deal based on moderate leadership would have enhanced the politics of cooperation and mutual understanding. A deal based on the erstwhile “extremes” of the political spectrum has no such operating logic…”.189 This will mean the institutions of coalition government will be less able to resolve the problems of the province. Kennedy is more categorical, that the Belfast Agreement was brought about by “extreme pressure from London, and much influenced by immediate party interests, rather than by any rapprochement between the two main partners – a forced marriage rather than a sudden discovery of mutual trust.”190 The consequences of so much coercion of their own “kith and kin”, so to speak (our words), by both the Irish and British Governments in 1998 means that, to return to Kennedy’s argument, the Government of Northern Ireland is not only a partnership, locked in together by constitutional law, of those who have least in common, but also each partner can only survive by convincing themselves that they have fooled the others. Persisting in their own contradictory perceptions of what is really happening,191 their conflicts now play themselves out on the streets over marching routes and flag flying over public buildings, between 2011 and 2013. A peace treaty is by definition that which is sufficient to bring an agreed end to political violence or war, however defined. If one asks whether it is a product of political cynicism or a basis for lasting peace,192 the answer would be that wider or deeper issues of identity were compromised in order to achieve a ceasefire that the inter-state parties hoped would be permanent. In other words, the character of this treaty is fundamentally the same as the Anglo-Irish Treaty of 1921. A product of political violence below the state level on the one side (the Provisional IRA), and a willingness to continue to use armed force on the other (the British Armed Forces and Loyalist para-military activity), it resembles the stand-off between Collins’ Sinn Fein IRA and Lloyd George’s Imperial Army. The question whether the treaty will last is inevitably speculative, but the analytical framework which is suggested here for such speculation is to consider the nature of the compromises the two states made to achieve a cease-fire and to what extent they meet the identity demands of their respective minorities in Northern Ireland. It may seem strange that the Protestant or Unionist Community do not appear much concerned about the terms under which a partition referendum would take place. This may be because they hope and believe, with plenty of justification, that the position of the minority in the consociational regime is so attractive that they are not likely to want to exchange it for a unitary, centralised Irish State, where they would be a politically insignificant dispersed minority. The figures on opinion polls for unification show very little support also on the Nationalist side.193 In this sense, the Belfast Agreement is really a triumph for Unionism because it finally succeeds in winning the Nationalist Minority to the idea of partnership within the UK.

189

Bew, above n 185, 243. Kennedy, above n 186, at 259. 191 Ibid., 261-62. 192 The dichotomy presented on the cover of Barton and Roche, above n 166. 193 See the Belfast Telegraph survey 13 September 2013, showing less than 4% of the population as a whole was interested in a United Ireland. Arguably this represents the long hoped for postmodern depression with politics, http://www.belfasttelegraph.co.uk/news/politics/polljust-38-want-a-united-ireland-now-29584149.html, accessed on 11 December 2013. 190

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However, in the immediate aftermath of the 1998 Agreement the confidence of the Unionists in the continuance of the Union seems to be have been grounded in a fairly typical imperialist triumphalism that Ireland’s adviser, Mansergh, was too foolish to realise that he had made a bad legal bargain. Thomas Hennessy explains the view of the Ulster Unionist Party leader, David Trimble, and Professor Bridget Hadfield of Queen’s University Belfast, that the Irish misunderstood the significance of the Government of Ireland Act 1920, with its reservation of sovereignty clause in section 75. Apparently, the Irish thought that this clause was the legal basis of the territorial claim of Britain to the North of Ireland, comparable to the Irish territorial claim of articles 2 and 3 of the 1937 Irish Constitution. The Irish were presumed to believe, therefore, that the removal of both provisions would lead to some kind of constitutional accommodation whereby each side renounced their territorial claim. For Trimble this was “an intellectual absurdity” because, in the absence of joint sovereignty, sovereign title to territory in international law had to rest somewhere, and that is with the UK. Such errors are “so gross that it is difficult to believe any constitutional or international lawyer advised Albert Reynolds, John Bruton and now Bertie Ahern”.194 Trimble is correct that no international lawyer was advising the Irish Government. Rather than relying on its own legal division, the Department of Foreign Affairs apparently looked to the office of the Attorney General for legal advice.195 Yet this Unionist “triumph” may well have been a crucial example of what David Kennedy has described as the intellectual confusion, whereby the partnership of government at present rests on the conviction of each that they have succeeded in fooling the other. Every student of the Government of Ireland Act knows that section 75 meant no more than that the powers of the devolved Parliament in Belfast could be revoked at any time and that this merely meant the full restoration of the legal position set up under the Union with Ireland Act 1800. It is true that Mansergh took no international law advice. Hennessey points out that Mansergh mistakenly thought that the Union guarantee (presumably constitutionally) was in the now repealed Government of Ireland Act 1920, and forgot about the Treaty of Union.196 Mansergh is not a lawyer at all, whether constitutional or international. That will have, maybe, some importance for his too extreme rejection of the repartition option, but it is difficult to see how it matters for the legal potential of a referendum procedure, which contains no consociational reservation. In fact, as Rafter points out, for Mansergh, who is at least from a family of historians, the Treaty of Union was, effectively, a classic case of an unequal treaty: “The Union of Parliaments of 1801 was a pact largely between landed elites of Britain and Ireland, in which the vast majority of Irish people were neither asked nor involved”.197 The Act of Union remains on the UK Statute book.198 However, it is beside the point to argue that 194

T Hennessey, The Northern Ireland Peace Process, Ending the Troubles (Dublin, Gill and MacMillan, 2000), 142. 195 Interview of James Hamilton, (former DPP, and formerly head of the Office of the Attorney General), with author, A Carty, 24 December 2012. 196 See T Hennessey, “Negotiating the Belfast Agreement” in Barton and Roche, above n 166, at 40-41. 197 Quoted by Rafter, above n 167, at 156. 198 See further B Hadfield, “The Belfast Agreement, sovereignty and the state of the Union” (1998) Public Law 559.

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the 1921 Treaty was given the force of law under the Irish Free State (Agreement) Act 1922, whereby Ireland did not include Northern Ireland. The name “Ireland” in British constitutional law may be taken to exclude Northern Ireland. However, as a matter of international law, the opt out of “Ireland” provided for Northern Ireland under the 1921 Treaty was conditional on a revision of the boundary that had been set up under the, for the Nationalists, “hated” Government of Ireland Act, a revision required by Article 12 of the 1921 Treaty, but which never took place. This failure to mention in the Irish Free State (Agreement) Act 1922 a boundary revision to reflect the wishes of the population more accurately means, of course, that the UK Statute gave only partial effect to the 1921 Treaty in UK law. One view of the history, presented by Mansergh, was that the troubles of 1969 onwards were another civil war arising out of the 1921 Treaty, only fifty years delayed.199 If Article 12 had been implemented and a much smaller Nationalist minority had been left in Northern Ireland, possibly it would have been more easily integrated into a stable and permanent Unionist enclave. As it is, the compromise reached by both the UK and Ireland in the 1998 is that both states have withdrawn their territorial claim to Northern Ireland, as being in the usual international law language of sovereignty, an integral part of the national territory. So the 1998 Treaty provisions on a referendum by majority vote in the Northern jurisdiction were designed to bring an end to the civil war which had been delayed fifty years in the north. Of course the UK would not cite a domestic statute, the 1800 Act, as a reason for not observing an international treaty. This profound misunderstanding by lawyers, all of them constitutional lawyers, about what was agreed in 1998 shows the full force and foundation for the skepticism of David Kennedy about a peace treaty grounded in a mutually triumphalist confusion of legal concepts. Our analysis of the conclusion of the 1998 Agreement, consistently with the argument of the article as a whole, is that the capacity of the parties, including but not limited to states, to conclude a comprehensive agreement was limited not merely by the objectives they set themselves, but also by their capacity to understand themselves, once again the dimension of material personality, to which Kennedy is also referring from another standpoint. All of the issues of legitimacy that emerge out of the Belfast Agreement have to do with the approach taken to the issues of identity which Was Ireland Conquered? thought too serious to make possible any real cross-community cooperation. They concern at present the continuing lack of consensus on whether the use of force by the nationalist community was justifiable or whether and how the Unionist community should have somehow ceased to be part of the British people for the purposes of a referendum on unification. These elements of dissent were coercively resolved within the parameters of a peace agreement, even although it received the maximum conceivable democratic legitimation with a referendum. Such documents as The Report of the Consultative Group on the Past in Northern Ireland (2009-2010) show the continuing significance of this dimension of identity.200 The argument of Was Ireland Conquered? was not primarily that Ireland still had a legal right to reopen the issues to do with Article 12 of the 1921 Treaty, in the sense of 199 200

Rafter, above n 167, 161. Available at: http://cain.ulst.ac.uk/victims/docs/consultative_group/cgp_230109_report.pdf; and: http://www.publications.parliament.uk/pa/cm200910/cmselect/cmniaf/171/17102.htm.

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making a territorial claim. It was primarily an argument that nothing like consociationalism could be expected to work, given the extent of divisions of identity in the Northern Ireland population. Was Ireland Conquered? favored repartition because it rejected as an illusion the ideal encompassed even in a voluntary unification of Ireland, as it would involve a fundamental change of identity within the Unionist community, however it conceives itself. Chapters five and six set out various forms of Unionist identity, including liberalism and civic democracy. Certainly the tone of the book and the chapter was and is that the dominant Unionist identity is one of a settler, plantation community. However, that did not matter to the argument of the book rejecting democratic majoritarianism wherever it shows its head, also as it does in Article 1(ii) of the Belfast Agreement: To speak of a pathway to a voluntary reunification of Ireland in the face of an obvious lack of such a change of heart is simply not a political position. To hope that a change in the balance of the population will bring about a favorable democratic majority is to ignore the fact that problems of identity…precede the option of democratic resolution. Given that the so-called nationalist/republican community in Northern Ireland is merely a part of an Irish nation of the island as a whole, it makes little difference to the presence or absence of a legitimate foundation to the Unionist presence in Ireland, whether this minority is a more or less large part of the overall Irish nation. The protestant and Unionist community remains much the same size and as irreconcilable as ever to being part of an Irish Nation.201 In other words, the absence of consociationalism in the referendum question simply makes no sense of the place of identity in determining the political and legal future of the people of Northern Ireland. Legally it hands a decisive advantage to the Nationalist minority, which was probably the price of peace. Politically, it is difficult to see how the Unionist community will accept in practice that equality of esteem etc. is satisfied by being outvoted on the most fundamental question of their British identity. As has been seen, their triumphalist constitutional lawyers seem to think they have “fooled” their “uncouth” Nationalist opponents into failing to realise that this can never happen. The Union with Ireland Act 1800 is on the UK Statute Book to protect them! More protection is of course to be had from the postmodern blues which have descended on democratic politics in western Europe, pace the latest Belfast Telegraph survey.202 Mansergh was aware of the argument of the book. His response was that whether partition had been justifiable in 1920-1, in view of the fact that Ireland was an administrative unit under the Act of Union, may have been doubtful. It would not be permissible under the uti posseditis rule of international jurisprudence after the African independences of the 1960s, but Northern Ireland was an accomplished reality which had to be accepted.203 Mansergh relied upon the manner in which President Wilson had combined the principle of self-determination with the principle of consent. The general principle should be that all territorial settlements should be made in the interests of the populations

201

Carty, above n 4, 114-15. See above n 193. 203 See unpublished addresses of Martin Mansergh to the Fianna Fail National Congress, Galway, 9 May 1996 and Taoiseach Albert Reynolds at UCD Law Society 20 January 1994. 202

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involved.204 In our historical legal narrative this principle was flagrantly flouted by the British in 1921-5. However, in Mansergh’s view it was not practicable to reverse these events and one should aim for a holistic solution, which did eventually receive the overwhelming endorsement of the Nationalist minority in a referendum in May 1998. In Rafter’s words again, which capture the essence of Mansergh’s and hence, the Irish Republic position in international law: 205 Demanding the incorporation of territory outside the jurisdiction was not feasible on practical terms. It was also contrary to international law, as expressed in the UN’s Charter and Covenants. The guiding principles included an acceptance that territorial changes must take place with the fully expressed wishes of the people involved and that all disputes must be resolved by peaceful means with no resort to the threat or use of force. Those principles were elaborated upon in the 1993 DSD where the objective was “to work towards a new agreed Ireland based on justice and equality and respect for the democratic dignity, civil rights and religious liberties of both communities.” At one level, this does, strangely, capture the words of Cosgrave in 1925. The idea of Article 12 had been to ensure democratic government based on the consent of the governed, thereby bringing an end to the coercion of Ireland.206 However, repartition achieved voluntarily is just as compatible with the combination of the principles of self-determination and consent as the majoritarian concept of Article I(ii) of the Belfast Agreement. It would be only useful to consider if it meant such a reduction in the size of minorities as to make the “Forced Marriage” of consociational government no longer necessary. Based upon a two nation theory of the population of Ireland, the book represented an attempt to put the issue of repartition on the agenda even if it did not go far at all in explaining how it could be developed. So everything depends upon the success of consociational government in Northern Ireland as a final solution to the issue of the Nationalist Minority in the Province. Apart from speculations about the future political behavior of the people of Northern Ireland, one may review the ongoing academic debate about consociationalism. Murray’s work provides academic support at the level of political theory for expected continuing difficulties of so-called “inter-ethnic” cooperation. Writing in 2011, he completes his book with a 40-page study revisiting the whole nature of nationalist and, especially, unionist identity in Northern Ireland. Murray points out that in Northern Ireland there is some change of heart where the Republicans drop insistence on a united Ireland and Unionists recognise the identity of Northern Nationalists. This is the context in which, as Murray explains additionally, the two states equally “cease to insist on incorporating the six county area into their respective nation states”.207

204

Rafter, above n 167, 155. Ibid., 155. 206 See above n 138. 207 Murray, above n 13, 276, contrary to Trimble’s view. Of course, sovereign jurisdiction remains to be exercised fully by the UK. In the absence of joint sovereignty, there can only be one paramount jurisdiction, which is with the UK. 205

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However, his aim is to oppose the very idea of what he thinks is ethnicity in favor of what he calls civic democracy. Taking a comparative perspective with Lebanon he writes: 208 The introduction of right-shaping, consociational arrangements, coinciding with Lebanese independence but only recently implemented in Northern Ireland as part of the Belfast Agreement, merely emphasized the failure to find a basis for civic democracy. The need to resort to the consociational model, with its institutionalization of ethno-religious divisions and its tendency to solidify vertical cleavages among competing groups, was a consequence of the original preoccupation of those who drew the borders with ethnicity as their primary basis. The difficulty with his argument is that he fetishises a dichotomy between ethnicity and civic democracy, which it was the whole point of chapter six of Was Ireland Conquered? (“Irreconcilable Identities”) to argue were each in turn embedded in particular historical traditions of particular peoples. Abstract appeals to philosophies of civic or contractarian liberalism cannot be understood apart from the historical communities which inspired them. Liberalism leads to majoritarianism, etc. However, these political theories and discourses are themselves a product of particularly historical, cultural communities, the Anglo-American community, in the argument of Was Ireland Conquered? Not only do theories of civic democracy not take account of colonialism, they have been actually profoundly complicit in it.209 This is not to say there are no serious difficulties with consociational theory. McGarry and O’Leary recognise that originally it has been concerned with purely “domestic” communities divided ethnically, religiously or linguistically. They have had to develop the theory to cope with a situation where ethno-national communities are contesting homelands, so that more than one state is involved.210 An even more important distinction for our purposes, i.e. the circumstances in which international agreements are concluded, is the huge importance that McGarry and O’Leary put on the exogenous factors which could very well outweigh the forces working for endogenous foundations of Northern Irish consociationalism, i.e. the issue of “irreconcilable Identities”.211 The authors are writing in 2006 about the dangers of “settlements reached primarily under exogenous pressure” as “they may have shallow endogenous foundations”.212 They remark that “[o]ne difficulty with the Agreement is that it is not clear that it would have been signed, at least in its extant form, particularly by unionists, without outside pressures”.213 Nonetheless, it is true that these authors consider this exogenous pressure as benign, overcoming internal intransigence on both sides, with a constructive outcome.214 208

Ibid., 278. See above all R Tuck, The Rights of War and Peace, Political Thought and the International Order From Grotius to Kant (Oxford, Clarendon Press, 1999). 210 McGarry and B O’ Leary, “Consociational Theory, Northern Ireland’s Conflict and its Agreement” (2006) 41 Government and Opposition 43, at also 55. 211 Again chapter 6 of Carty, above n 4. 212 Above n 210, at 53. 213 Ibid. 214 Ibid., 48. 209

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The difficulty may still remain that McGarry and O’Leary reify ethnic difference in another way from that challenged by Murray. There is considerable evidence that the arguments of equality of esteem as a final basis of settlement ignore precisely the inequalities arising out of colonialism, i.e. distributions of land and wealth which are the leftovers of the conquest. Patterns of population distribution and segregation also reflect the historical conquest, not to mention the hotly disputed legitimacy of the use of force since 1969 to change the status quo.215 It is inevitable that these factors were not taken into account in a settlement which was designed to invite each side to these controversies to persuade the other by peaceful rather than war-like means. However, the historical fault lines of conquest remain and the question is whether, with time, they will fade from memory or whether they will return to haunt the status quo of the 1998 Agreement.216

CONCLUSION The outcome is that the Belfast Agreement (1998) and the Sino-British Agreement (1984-5) mark a considerable improvement in the relations among the three countries. They signify primarily a real increase in respect and esteem between the two inter-state parties, the UK and China and the UK and Ireland. However, there are shadows left over, to do with the actual situations within Northern Ireland and within Hong Kong. As interstate agreements in both cases, a certain resolution is found to the colonial dimension, but to some extent, to use the metaphor of Rene Girard (the scapegoat), it is at the expense of local Northern Irish and Hong Kong Communities. In each case, the issue of colonial identity is off-loaded onto their minorities by the three states, leaving the communities in the two autonomous regions to work out among themselves the consequences of colonialism. The Belfast Agreement, on the vital issue of adherence to a wider nation-state, denies any international law (as distinct from constitutional law) issue of cultural or historical identity to the two communities in Northern Ireland. They are to vote as part of the people of Ireland in the jurisdiction of the north, on the future of Ireland – no mention of the British nation. In the case of Northern Ireland, it appears the UK has abandoned its “kith and kin” to become purely formal parts of the so-called “people of Ireland voting in two jurisdictions”. In legal terms one may argue that Unionists/Protestants are committed to accepting a numerical outvoting, but as a matter of legitimacy of esteem, this eventuality will possibly once again destabilise the Irish UK relationship, should it become a reality. Likewise, in Hong Kong democracy has been delayed and may never come, even in 2017 and 2020. This is because the underlying tension around democracy is rooted in the unclear question of whether a separate national identity might develop in the autonomous region. The People’s Republic of China says a democratically elected Chief Executive can only be one who is a patriot and loves the motherland. 215

See the argument of Rupert Taylor in R Taylor (ed), Consociational Theory, McGarry and O’Leary and the Northern Ireland Conflict (London, Routledge, 2009), p. 309. 216 See the “Hass Talks” on flags, parades and the past: http://www.bbc.co.uk/news/uk-northernireland-25397142 (entered 17 December 2013). Even these talks are relatively symbolic compared to the issues raised by Taylor and by the Report of the Consultative Group on the Past, n 200 above.

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These two inter-state treaty solutions equally avoid judgments on the consequences of empire and colonialism. They equally purport to draw a clean slate over the past. That is why repartition cannot be an option in Ireland in 1998 and why the issue of a referendum in Hong Kong after 1984 is avoided. The “genius” of the Belfast Agreement is supposed to be that the two “communities” will pursue their conflictual goals by peaceful means. It is simply a fact – not a criticism of the idea of any peace treaty – that the Agreement does not deal with the history of Northern Ireland. It does not answer the question directly whether the Ulster Protestants are as a group entitled to remain as part of the UK population, while it actually negates that Northern Ireland is an integral part of the territory of the UK. Equally the Agreement treats the Northern Nationalists as only entitled to become part of a single Ireland if they can ensure a fundamental change in how the Protestants/Unionists understand their identity. It does not deal at all with the question whether there was a conquest, whether illegitimate or illegal. In turn, the Sino-British Declaration maintains most of the features of a Treaty Port Agreement. The UK does abandon what it considered clearly to be its sovereign territory, a reflection of the balance of material forces, as the British saw it during the negotiations. It does not admit that its original possession was illegal or even illegitimate. Indeed, underlying the Hong Kong Agreement, the UK have astutely preserved the question, which they have continued to pose since the installation of their extra-territorial regime in 1842 – that the Chinese are unable to institute a satisfactory regime of governance in the sense of public and civil administration, judicial review and democratic accountable. In this sense, the battle for equality of esteem continues to be carried on in Hong Kong, with a very marginal UK participation on the sidelines, but with strong identification of many Hong Kongers with British traditions. In terms of international law, it remains the case that the discourse of unequal treaties has not disappeared since the VCLT, due to the unsatisfactory nature of international treaty law. Neither the VCLT nor international law generally are prepared to address historical wrongs done to China, Ireland and many other countries – victims of colonialism such as Palestine, the Western Sahara, Kashmir etc. As Lester points out, developing countries in the UN General Assembly have abandoned general international law and made broad assertions of the inviolability of sovereignty or the invalidity of treaties, as de Valera did in the 1930s. Lester considers the problem of unequal treaties is unjuridical only in the sense that the intransigence of states appears to make legal development impossible, and not because of the potential of international law itself.217 The argument of the present article is that the models of Chinese-British and IrishBritish treaty negotiations in the long view show another way forward. Using the concept of material personality, it is argued that the succession of treaties studied in this article show how changes in the personalities of the states over a longer period, and especially changes in their personalities in relation with one another, gradually come to be reflected in progressively changing treaty relations. It is the dynamic of these changes in personalities which ensures progressive development of the treaty relations. There is an ongoing pressure to change, subsuming fetishised categories of legality and legitimacy into an ongoing process of treaty change. That change has been portrayed here as very positive, although not completely so. Of course relations among states could deteriorate, 217

See above n 43.

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bringing with it a corruption of promises based upon a disappearing mutual trust. However, the state practices analyzed here show, once again, that state practice is ahead of doctrine, or at least western doctrine. What is needed, nonetheless, is not simply a triumphant study of how practice is ahead of doctrine but also a more general meticulous study of many patterns of inter-state treaty practice, where relations of domination and subordination do not always produce legal outcomes as benign as those described here. The broader contextual dimension, which sees treaties as embedded in wider relations among states is how international history and diplomacy have always seen them. It is up to international law, once again, to try to catch-up.

THE ‘ECONOMICS OF NECESSITY’, HUMAN RIGHTS AND IRELAND’S NATURAL RESOURCES JOSHUA CURTIS* ‘Liberty and equality … will best be attained when all persons alike share in the government to the utmost’ - Aristotle

INTRODUCTION Currently, governments, particularly in what is termed the developed or industrialised north, govern largely in accordance with the supposedly ‘scientific’ principles of economics,1 or more accurately, by one dominant branch of that field: what could be termed mainstream economics, or alternatively, neo-liberalism or the Washington Consensus.2 Hand in hand with the demise of the welfare state and the rise of the competition state,3 this set of prescriptions has come to convince governments of its inevitability and its necessity, despite its observable negative effects.4 Many have noted that this has brought about a ‘hollowing’ of the democratic process in most states.5 In the guise of a technocratic, scientific and value-free process of decision-making, the people are effectively * PhD Candidate, Irish Centre for Human Rights, NUI Galway, Ireland. Contact email: [email protected] I am very grateful to Dr Michelle Farrell, Dr Annabel Egan, Dr Shane Darcy, Shannonbrooke Murphy, Prof Vinodh Jaichand, and two anonymous reviewers for reading over earlier drafts and providing helpful comments and suggestions. All errors remain the responsibility of the author. 1 S Keen, Debunking Economics – Revised and Expanded Edition: The Naked Emperor Dethroned? (London, Zed Books, 2011); E Fullbrook (ed), A Guide to What’s Wrong With Economics (London, Anthem Press, 2004). 2 The term ‘neo-liberalism’ is preferred here. See D Harvey, A Brief History of Neo-liberalism (Oxford, Oxford University Press, 2005); R Turner, Neo-Liberal Ideology: History, Concepts, and Policies (Edinburgh, Edinburgh University Press, 2008); R Robison (ed), The Neo-Liberal Revolution: Forging the Market State (Houndsmill, Palgrave Macmillan, 2006); J Campbell and O Pedersen (eds), The Rise of Neoliberalism and Institutional Analysis (Princeton, Princeton University Press, 2001). 3 C Hay, ‘Re-Stating Politics, Re-Politicising the State: Neo-liberalism, Economic Imperatives and the Rise of the Competition State’ (2004) 75 The Political Quarterly – Issue Supplement 38. 4 L Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (London, Duke University Press, 2009). 5 This could be viewed as an aspect of the broadly observed truism whereby as markets have grown politics have shrivelled. See, eg A Chua, ‘The Paradox of Free Market Democracy: Rethinking Development Policy’ (2000) 41 Harvard International Law Journal 287; D Rodrik, The Globalization Paradox: Why Global Markets, States, and Democracy Can’t Coexist (Oxford, Oxford University Press, 2011). Naomi Klein takes this reasoning a step

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left with little choice other than the adoption of slight variations on neo-liberal freemarket policies:6 the donning of what Friedman termed the Golden Straightjacket.7 Despite the challenge of the latest global financial crisis, neither these policies’ perceived necessity nor their implementation by government and international institutions would seem to be in abeyance.8 In the search for conceptual tools to combat these trends outside of the field of economics, criticism from the social and political sciences has a long pedigree. However, the resources of international law have been largely overlooked. Nevertheless, particularly through its developing critique of the multifarious processes of globalisation, the field of human rights law has increasingly sharpened its conceptual tools in resistance against mainstream economic theory.9 To redress the exclusion of a legal viewpoint and utilise developments in human rights law, the core of this paper measures one prominent aspect of neo-liberal theory in Ireland, namely the nation’s oil and gas regime, against the government’s legal obligations under international law. Ireland provides a very apt case study in this regard. As referred to above, it is a typical northern state adhering to neo-liberal principles. Yet, the neo-liberal regime in Ireland is particularly pronounced, and the attraction of foreign direct investment (FDI) forms the overriding rationale of the nation’s current struggle for further development and higher living standards. However, measures taken since the 1990s to integrate into the global market, open the economy and pursue deregulation in order to attract FDI have undoubtedly made Ireland more susceptible to international economic shocks and worsened the impact of the latest global financial crisis. The government’s response, in which it provided blanket guarantees to bondholders and bank bail-outs with insufficient public funds, designed specifically to reassure foreign investors and international capital markets, failed and resulted in an unsustainable level of national debt. The avoidance of sovereign default necessitated an international loan that has the usual neo-liberal structural adjustment conditions attached. Austerity measures and the continuation of an ‘investment friendly’ tax and regulatory environment were deemed by international lenders as essential to reduce the national debt and make the nation once again attractive to FDI and international capital markets. This formula for recovery is presented as Ireland’s

further and shows how in many instances a substantial shock to the whole of society is needed to push these policies through a temporal window where the people are too economically, physically, or psychologically stunned to mobilise in their own interest: N Klein, The Shock Doctrine (London, Penguin, 2007). 6 J Carrier and D Miller (eds), Virtualism: A New Political Economy (Oxford, Berg, 1998). 7 T Friedman, The Lexus and the Olive Tree: Understanding Globalization (New York, Anchor Books, 2000). 8 Colin Crouch, for example, argues that ‘neoliberalism is emerging from the financial collapse more politically powerful than ever’: C Crouch, The Strange Non-Death of Neoliberalism (Cambridge, Polity Press, 2011) vii. See also, E Van Waeyenberge, H Bargawi and T McKinley, Standing in the Way of Development? A Critical Survey of the IMF’s Crisis Response in Low Income Countries, A Eurodad & Third World Network Report in Cooperation with the Heinrich Böll Foundation, April 2010, Ch 4. 9 See, eg M Branco, Economics Versus Human Rights (London, Routledge, 2009).

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only chance, despite its common failure,10 and may therefore be termed ‘the economics of necessity.’ From a legal standpoint, it is important to note that local community and broad civilsociety participation in the application of this formula and the trajectory of development is restricted in Ireland, specifically as regards the utilisation of the nation’s natural resources.11 Within the broad theme of incentives and capitulations in the interests of foreign investment,12 much of which is now written into law, Ireland’s oil and gas licensing regime stands out as a particularly investor friendly piece of legislation, which results in the loss of a disproportionate amount of the revenue that could be derived from these resources. Domestic responses to this economics of necessity are evident; however, a legal response generally, and one referring to international human rights norms specifically, is not currently expressed. An issue that has garnered no attention at all is the interaction between perceived economic imperatives and the collective rights to selfdetermination and permanent sovereignty over natural resources. It is the aim here to initiate an inquiry into the relevance of these collective rights with respect, in the belief that a debate that squarely faces and centralises these rights is of crucial importance to Ireland’s future development. In the context of that debate, these rights can legally ground a solid response to the received economic wisdom. The following section will look briefly at the nature of the necessity rhetoric, focussing on its anti-democratic effects, the competition state that it institutionalises, the context of FDI dependence in which all states are increasingly encouraged to operate, and the role of law in restricting distributional deliberation and economic choice. A proper appreciation of the modality of the necessity rhetoric is needed to fully appreciate its effect on democratic debate and public participation, the substantial absence of which is crucial to the legal conclusions of the paper. The prospects of Ireland’s current mode of development are then briefly assessed, weighing the benefits and costs of FDI for development and highlighting the danger that, if dependency goes too far, whole sectors of the economy could possibly be ceded to foreign interests. The context of Ireland’s oil and gas regime is then detailed, arguing that such ceding is in fact already taking place 10

On the general failures of neo-liberal economics see, E Fullbrook (ed), A Guide to What’s Wrong With Economics (London, Anthem Press, 2004). On the failure of structural adjustment policies and FDI for development in particular see, UN Conference on Trade and Development, Trade and Development Report 2012 (New York, United Nations, 2012) vii, ix, 23-26. On the failure of austerity see, Caritas Europa, A Study of the Impact of the Crisis and Austerity on People, With a Special focus on Greece, Ireland, Italy, Portugal and Spain, Caritas, 2013. Currently there are signs that the Irish economy may be exiting recession slowly. Yet these signs are still weak, the full cost of the measures taken to recover has yet to be calculated, and most importantly, regulatory changes to ensure that the same catastrophe does not happen again remain largely absent. Indeed, it was part of the conditions on the international loan that some such changes in certain areas would not be made (for example the introduction of capital controls), and that Ireland would remain one of the most open economies in the world, therefore particularly subject to external economic shocks and FDI dependence. 11 The most cited example being the history of the Shell-Corrib Gas Project in county Mayo; See F Connolly and R Lynch, The Great Corrib Gas Controversy (Dublin, Centre for Public Inquiry-Fiosrú an Phobail, 2005). 12 K Allen, The Corporate Takeover of Ireland (Dublin, Irish Academic Press, 2007).

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in this sector of the Irish economy. The economics of necessity may dictate that such ceding is perhaps an unfortunate political decision that must be taken by the government. However, a very different legal obligation is derived from the perspective of the people’s rights to permanent sovereignty and self-determination under human rights law. State duties under international law are buttressed by a consideration of certain requirements under the Irish Constitution. Throughout this analysis, the current position of the Irish Government is evaluated against these legal standards. In short, it is argued that the policy of the Irish Government in regard to FDI and licensing agreements in this sector may be viewed as a prima facie violation of the state’s obligations under common Article 1 of the two International Covenants, instituting the people’s right to self-determination,13 as well as their sovereignty over and use of natural resources. Furthermore, it is argued that the current situation is, at the least, very difficult to square with the Irish Constitution.

THE (LAW AND) ECONOMICS OF NECESSITY It is pertinent to dwell briefly on the perceived and transmitted ‘necessity’ of neo-liberal policies and their displacement of democratic participation by market preoccupation,14 as this goes to the core concern of the paper from a legal standpoint: that the contemporary socio-political debate on national development in Ireland is being heavily circumscribed by decision-makers and the technocratic elite through the use of this discursive tool of economic imperative. Margaret Thatcher famously inaugurated an era of severe neo-liberal reform in the UK by stating that there was no alternative. Through this rhetorically asserted absence of practical economic and political choice in the face of crisis, Thatcher instituted a programme of neo-liberal transformation in Britain that was deeply unpopular, subjecting the nation to ‘market-discipline’ and converting it from a welfare to a competition state.15 At that time, there were strongly extant alternatives to a global spread of neo-liberalism.16 However, by the late 1990s neo-liberal ideology had achieved a secure and global hegemonic status that some may mistakenly characterise as inevitable.

13

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 14 M Branco, ‘Economics against Democracy’ (2012) 44 Review of Radical Political Economics 23. 15 R Vinen, Thatcher’s Britain: The Politics and Social Upheaval of the Thatcher Era (London, Simon and Schuster UK, 2009). 16 As Harvey explains, the way in which neoliberalism rose to hegemony following the economic problems posed in the 1970s and 80s, in retrospect, may seem ‘both inevitable and obvious, but at the time, I think it is fair to say, no one really knew or understood with any certainty what kind of answer would work and how. The capitalist world stumbled towards neoliberalization as the answer through a series of gyrations and chaotic experiments that really only converged as a new orthodoxy with the articulation of what became known as the “Washington Consensus” in the 1990s.’ D Harvey, A Brief History of Neo-liberalism, above n 2, 13.

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The watershed moment is often seen as 1989 when, along with the Berlin Wall, all substantial barriers to global capitalism fell, and with capitalism came the contingent neo-liberal form in which it was by then routinely practiced. The neo-liberalised international financial institutions,17 and the imposition of structural adjustment policies,18 played a large part in the spread of this ideology as a result of the perceived imperatives of globalisation.19 Yet, it is of particular interest that the spread of neo-liberalism has taken with it an enduring association with the notions of necessity and the absence of real alternatives. A number of scholars have formulated important critiques of this association. Hay,20 for example, drawing on Cerny21 and Jessop,22 concentrates mainly on the institution of the market driven state in the UK. However, his analysis is equally applicable to a majority of northern states, and especially to Ireland. Hay charts the decline of the post-war welfare state, seen by business and political elites at the time as ‘no longer viable … in the context of the crises of the 1970s’.23 Social munificence has been subordinated to perceived economic necessity as the heightened competition engendered by increased capital mobility in an era of globalisation has exposed the welfare state as a somewhat indulgent luxury of a bygone era. All aspects of state policy are essentially exposed, in an era of heightened capital mobility, to an exacting and exhaustive competitive audit at the hands of globalisation.24 The realm of ‘feasible’ government action and ‘deference’ to the preferences of the people is, therefore, set by the externally erected fences of economic imperative, which are subsequently internalised in government parlance, and also, to a degree, within the 17

R Peet, The Unholy Trinity: The IMF, Word Bank and WTO (New York, Zed Books, 2009); N Chomsky, Profit Over People: Neoliberalism and Global Order (New York, Seven Stories Press, 1999). 18 M Abouharb and D Cingranelli, Human Rights and Structural Adjustment (Cambridge, Cambridge University Press, 2007). 19 See D Held and A McGrew, The Global Transformations Reader: An Introduction to the Globalisation Debate (Cambridge, Polity Press, 2003). On the particular effects of a neoliberal New World Order on the balance between business and people’s democratic rights, see V Schmidt ‘The New World Order, Incorporated: The Rise of Business and the Decline of the Nation-State’ (1995) 124 Daedalus 75. 20 Hay, ‘Re-stating Politics’, above n 3. See also, C Hay ‘The Normalizing Role of Rationalist Assumptions in the Institutional Embedding of Neoliberalism’ (2004) 33 Economy and Society 500; ‘The Crisis of Keynesianism and the Rise of Neoliberalism in Britain: An Ideational Institutionalist Approach’ in J Campbell and O Pedersen (eds), The Rise of Neoliberalism and Institutional Analysis (Princeton, Princeton University Press, 2001). 21 P Cerny, The Changing Architecture of the State (London, Sage, 1990); P Cerny, ‘Globalization and the Changing Logic of Collective Action' (1995) 49 International Organization 595; P Cerny, `Paradoxes of the Competition State: The Dynamics of Political Globalization' (1997) 32 Government and Opposition 251. 22 B Jessop, The Capitalist State: Putting Capitalist States in Their Place (Cambridge, Polity Press, 1990); ‘Towards a Schumpeterian Workfare State? Preliminary Remarks on PostFordist Political Economy' (1993) Studies in Political Economy 7; The Future of the Capitalist State (Cambridge, Polity Press, 2002). 23 Hay, ‘Re-stating Politics’, above n 3, 40. 24 Ibid.

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expectations of the people themselves.25 Hay theorises this internalisation as a ‘shift from a normative to a normalized and necessitarian neoliberalism’, whereby the underlying pro-market assumptions of this ideology permeate and become a part and parcel of the everyday workings of the institutions of government and society, such that the allowed life of the nation is restricted to curtailed variations on these core assumptions.26 The institutionalisation of this neo-liberal paradigm is posited as explanation for the very evident political disaffection of the people with, and disengagement from, the process of their own government, serving ‘to depoliticize and de-democratize economic policymaking’.27 Neo-liberal prescriptions are often made ‘necessary’ by a perceived situation which is presented as self-evident, often a supposed impending crisis that may not be anything of the sort, or a misrepresentation of the causes or an exaggeration of the scope and effects of an actual crisis.28 In this way, the prerogative decision-making power of government may be exercised in a zone where the social contract is effectively suspended and the decision-maker is empowered to make such decisions as are necessary for the economic

25

Notably, Stephen Gill, in numerous publications, has pursued the same themes on a global scale, albeit with a more self-consciously socialist analysis from the Marxist-Gramscian school. See, eg, S Gill, Power and Resistance in the New World Order, 2nd edn (Houndmills, Palgrave Macmillan 2008); ‘Constitutionalizing Inequality and the Clash of Globalizations’ (2002) 4 International Studies Review 47; ‘European Governance and New Constitutionalism: Economic and Monetary Union and Alternatives to Disciplinary Neoliberalism in Europe’ (1998) 3 New Political Economy 5; ‘The Global Panopticon? The Neoliberal State, Economic Life and Democratic Surveillance’ (1995) 20 Alternatives 1; ‘Economic Globalization and the Internationalization of Authority: Limits and Contradictions’ (1992) 23 Geoforum 269. 26 Hay, ‘The Normalizing Role’, above n 20, 500. 27 Ibid., 502. In further depth, Hay points out that; ‘political parties vying for office now couch their political rhetoric to a considerable extent in terms of: (1) the nonnegotiable character of external (principally economic) imperatives; (2) the powerlessness of domestic political actors in the face of such (ostensibly self-evident) constraints; and (3) the need, in such a context, to displace responsibility to quasi-independent and supra-democratic authorities such an independent central banks. Elections, it seems, are increasingly about appointing officers to be trusted to take the necessary technical decisions dictated by shifting external circumstances; they are not public plebiscites on manifesto policy commitments. … In other words, competence rests on technical proficiency which is, in turn, conditional upon the internalization of the guiding assumptions of the prevailing economic paradigm. It is perhaps not then surprising that the higher-order assumptions of the dominant (neoliberal) economic paradigm seem to be accepted by all serious contenders for high office in contemporary Britain - for this is now taken as a token of their electoral competence and credibility’. Hay, ‘The Normalizing Role’, 502-3. See further, on ‘neo-liberal obscurantism’, Y Tandon, Development and Globalisation: Daring to Think Differently (Oxford, Pambazuka Press, 2009) 8-12. 28 As Hay notes, Thatcher’s policies were presented as necessary to counter the perceived, more than the actual, crisis of an overloaded welfare state; Hay, ‘The Normalizing Role’, above n 20, 511.

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‘survival’ of the nation, even where they are directly contrary to the interests of the people.29 Such perceived economic crises can be extended for decades. As such, a supposedly temporary prerogative power to violate the social contract due to purported economic exigency can become a permanent characteristic of the competition state. Semi-permanence is enhanced greatly through the ‘legalisation’, or, more simply, the direct legislation, of neo-liberal economic preferences, permeating the durable legal structure of the modern competition state. Over the last thirty years neo-liberalism has, in a very real sense, been written into the law of most modern states, and into the international law that bounds states. Such writing was neither incidental nor accidental, but rather programmatic in many respects, as a result of the highly influential ‘law and economics’ movement instigated in the 1960s.30 Linked closely with the contemporaneous neo-liberal economic revolution at the Chicago School of Economics through natural collaboration with the same University’s Law School, this legal movement sought to reinterpret the utility, application and purpose of law in accordance with dominant microeconomic principles and theory.31 It soon became normalised that existing law was to be evaluated, and proposed legislation designed, on the basis of its contribution to economic efficiency, as defined (with few exceptions) by neo-liberal precepts. The law’s social function, mitigating wealth and power differentials, has thereby been marginalised, if not exorcised. Questions of distribution are systematically ignored,32 and certain areas of law where there is a sort of ‘natural harmony’ with the dominant economic paradigm (such as intellectual and other property law, contract and corporate law, finance, investment and trade) have become privileged, enjoying more strict regulation, stronger enforcement, and a virtual, if not formal, ‘constitutional supremacy’. For instance, a prominent article in the law and economics tradition by Landes and Posner opens with a classical set of statements and a characteristic intent: Intellectual property is a natural field for economic analysis of law, and copyright is an important form of intellectual property. … As in most of our work,

29

K Arnold, ‘Neoliberalism and the Language of Economic Necessity’, Paper Presented at the WPSA Annual Meeting – ‘Ideas, Interests and Institutions’, Vancouver, 19 March 2009. 30 R Coase, ‘The Problem of Social Cost’ (1961) 3 The Journal of Law and Economics 1; G Calabresi, ‘Some Thoughts on Risk Distribution and the Law of Torts’ 70 Yale Law Journal 499. The extensive overlap between this movement and that of the New Institutional Economics, both seminal in the extension of economic thought through-out the sociopolitical structure, to become its major determinant, is explored by Posner; R Posner, ‘The New Institutional Economics Meets Law and Economics’ (1993) 149 Journal of International and Theoretical Economics 73. 31 See generally, R Posner, The Economics of Justice (Cambridge, Harvard University Press, 1983); R Coase, The Firm, The Market, and the Law (Chicago, University of Chicago Press, 1990); S Shavell, Foundations of Economic Analysis of Law (Cambridge, Harvard University Press, 2004). 32 This is due to the premise that distributive decision-making is inherently arbitrary, selective and politically biased, yet does not account for the equally plausible premise that decisionmaking according to a pre-determined and narrow set of economic principles can be equally arbitrary and biased.

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we are particularly interested in positive analysis, and specifically in the question to what extent copyright law can be explained as a means for promoting efficient allocation of resources.33 In this article, the ‘optimal degree of copyright protection’ is calculated solely on the basis of economic considerations, not surprisingly leaning towards the benefit of the author/corporation over that of the public and marginalised communities. Elsewhere, Landes describes the particular ‘contribution’ of the law and economics school with remarkable clarity: Instead of saying policy X was good or fair, one could use economic principles to spell out the consequences of that policy. Any problem involving competing goals and choices constrained by limited resources and available opportunities is fair game for economics. … this may sound commonplace today but thirty years ago it was not. … we now take for granted that the domain of economics is not confined to explicit markets but is a ‘way of looking at life.’34 ‘Goodness’ or ‘fairness’, in this new view of potentially all aspects of life, is neatly replaced by narrowly defined efficiency.35 Legal doctrines and rules are treated as ‘data’ to be analysed ‘in order to test the hypothesis that the law is best explained as efforts by judges, often implicitly, to decide case [sic] as if they are trying to promote economic efficiency.’36 This is portrayed by neo-liberals as a form of decision-making devoid of political or ideological preference, based supposedly on neutral criteria of economic efficiency, which deliberately sets aside distributional issues as the ideological/political 33

W Landes and R Posner, ‘An Economic Analysis of Copyright Law’ (1989) 18 The Journal of Legal Studies 325, 325. 34 W Landes, ‘The Art of Law and Economics: An Autobiographical Essay’, Program in Law and Economics Working Paper No 45, University of Chicago Law School, 1997, 4-5. 35 Most often, efficiency is defined in the law and economics literature according to the ‘KaldorHicks’ criteria allowing for efficient outcomes based on compensation, in addition to Pareto outcomes, whereby those made better off compensate those made worse off in a given transaction, such that no-one is ultimately worse off. See N Kaldor, ‘Welfare Propositions in Economics and Interpersonal Comparisons of Utility’ (1939) 49 The Economic Journal 549; and J Hicks, ‘The Foundations of Welfare Economics’ (1939) 49 The Economic Journal 696. One obvious problem is that the set of utilities according to which each are determined to be better or worse off, must generally be reducible to a monetary value, thus treating as unconsidered ‘externalities’ anything not so reducible, leading to the exclusion of a large number of human and other utilities. In theory, the legislature is relied upon to correct for these failures through political means, correcting for adverse distributional consequences, but in practice this rarely occurs, and if it does it is usually belated and partial. See D Kennedy, ‘Law-and-Economics from the Perspective of Critical Legal Studies’ in P Newman (ed), The New Palgrave Dictionary of Economics and the Law (Houndsmills, Palgrave Macmillan, 1998) 467, ‘Legislatures never, ever pass statutes that adjust tax and transfer programmes to make up for the impact of modifications of private law rules (though of course they could if they wanted to).’ Another major problem is that the model for choice assumes no difference in the distribution of income but rather takes account only of its absolute level, such that discrepancies in the marginal value of money (i.e., that the loss of one dollar has a greater impact on a poor person than on a rich one) are ignored. 36 W Landes, ‘The Art of Law and Economics’, above n 34, 7.

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preserve of the legislature, thereby maintaining the ‘sanctity’ and theoretical ‘purity’ of efficient legal formulation.37 In fact, so neat was the confluence between the law and economics school and neoliberal expansionism that, as Kennedy writes, in re-creating the state in its competitive manifestation, [a]t the national and international level, law was the instrument for neo-liberal policy. …. Completely new legal regimes were necessary, domestically and internationally, to support markets – financial regimes, intellectual property regimes, regimes of commercial law. New statutes and administrative rules were required – to structure the privatisation of state-owned enterprises, establish financial institutions, and support new capital markets. Banking and payment systems, insurance schemes – all required a new legal framework. Investment laws and corporate laws, insurance and securities laws were needed, and were promoted across the developing world through legal reform programs.38 At the international level similar regimes were necessary to support the market revolution, and duly arrived in the vast extension of the international investment regime and the judicialisation of international trade law through the World Trade Organisation (WTO). The most relevant critique of the law and economics school, from the standpoint of this essay, is to be found in its assumption that, at the domestic level, the legislature will correct for legal decisions having negative distributional consequences. This theory would predict, for instance, that numerous domestic legal decisions favourable to foreign investors based on considerations of economic efficiency would be balanced by the legislature through progressive tax structures. Yet, in reality, such decisions are complemented by regressive taxation instead, due to the ‘capture’ of the legislative process by the same neo-liberal principles of economic efficiency. Governments thus compete with each other in lowering corporate tax in order to attract the same foreign investors. Ireland, for example, has one of the lowest corporate tax rates in the world at 12.5 per cent, befitting its economic dependence on foreign investment. To this we can add routine regimes of reduced social security and service provision to the poor, characteristic of the neo-liberal dogma, and numerous other legislated means of funnelling wealth upward rather than redistributing it evenly. The end result is the distinct absence of any balancing

37

An approach is taken whereby ‘the thrill of the chase for a technically impressive solution to the [legal] problem at hand is far more engaging than an interminable and indeterminate methodological discussion that involves all kinds of non-technical or even anti-technical rhetoric’, and which demands significant and widespread democratic debate. In effect an ideological aim is pursued through manipulation of ‘the apparently value neutral, technocratic discourse of efficiency … rather than by arguing on more overtly distributive or justice oriented grounds’. D Kennedy, ‘Law-and-Economics’, above n 35, 468. According to David Kennedy the yardstick of ‘efficiency’ even replaced general references to ‘development’ itself. D Kennedy, ‘The “Rule of Law,” Political Choices and Development Common Sense’ in D Trubek and A Santos (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge, Cambridge University Press, 2006), 129. 38 D Kennedy, ‘The “Rule of Law”’, above n 37, 138.

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effect at all. Of course, it must be noted that at the international level no legislative balancing is even theoretically possible in the absence of a global parliament. As such, decisions based on efficiency criteria at this level, as in international investment arbitration and the WTO dispute settlement mechanism, generally escape even the possibility of political correction. The infusion of neo-liberalism, under the guise of ‘neutrality’, into mainstream development practice at the international level has been greatly facilitated by the rising influence of programmes to build the ‘rule of law’ in the developing world. Rule of law doctrine, as employed by the international financial institutions and major donors, effectively crystallises the agenda of the law and economics school and seeks to stamp it, at a basic level, on the legal systems of those nations subject to the international project of development (which may refer to any nation, developing or industrialised, dependent on external financing for development). This process obviates national democratic debate and externally imposes a singular model of an economically effective legal system, which is based on the supremacy of neo-liberal principles, privileging property and contract and again ignoring distributional consequences.39 The rule of law doctrine prioritises those aspects and functions of a national legal system that promote markets and the efficiency of private transactions, in a formalised legal programme that has the hypnotic result of removing from view all complex consideration of the concrete social effects of a given legal rule and the detailed choices it will raise.40 Instituting such a rule of law came to be regarded as both necessary and sufficient for development: The rule of law was not a development tool – it was itself a development objective. Increasingly, law – understood as a combination of human rights [taken as exclusively civil and political rights, necessarily excluding socio-economic rights], courts, property rights, formalisation of entitlements, prosecution of corruption, and public order – came to define development.41 In this way, a formalist conception of the law substitutes for, displaces and obviates the plethora of fine-grained distributive questions that should be resolved in the political democratic life of the nation, through legal simplification. Neo-liberalism effectively utilises the law to short-circuit important issues of resource allocation, instead distributing in fact according to its own, nominally neutral, designs. In the Irish case below, for example, a neo-liberal ‘neutral’ preference for strong contract and property rights, a small competitive state, foreign capital and regressive taxation translates into the legal ‘choice’ of a very liberal licensing regime for the management of its oil and gas resources. Other regulatory choices, such as state shares (controlling or otherwise), royalties, alternative contractual systems of production sharing, guarantees of ensured national supply at set rates, and requirements of local processing, have first been actively removed from the regime and subsequently effectively ignored, as have public calls for their re-consideration. There has been a distinct effort made to 39

D Kennedy, ‘The “Rule of Law”’, above n 37, 144. ‘There is something mesmerising about the idea that a formal rule of law could somehow substitute for struggle over these issues and choices – or could replace contestable arguments about the consequences of different distributions with the apparent neutrality of legal best practice.’ D Kennedy, ‘The “Rule of Law”’, above n 37, 144. 41 D Kennedy, ‘The “Rule of Law”’, above n 37, 157 (original emphasis). 40

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insulate this particular legal artefact, in the form of the current specific licensing regime, from debate, lest potential foreign investors become alarmed. Justification for this stance is consistently based on the argument that there is no other legal regime that satisfies the requirements of market efficiency given current circumstances.42 The particular nature of the current legal regime for regulation of oil and gas in Ireland is presented as economically necessary.43 Other choices of legal design are therefore systematically discounted, as is public debate concerning any alternative. The distributional consequence is the loss of control over these resources to foreign corporations, with very little economic benefit to the state or its people. This real-world consequence is enforced by a

42

Regarding ‘some contributors to the debate on fiscal terms’ who advocate significant changes, the current Minister for Communications, Energy and Natural Resources stated that ‘[w]hile contributing nothing constructive to an important public policy consideration, such interventions can give rise to confusion, deflect focus from the real questions to be addressed and do little to engender confidence amongst those considering the relative merits of investing in the Irish offshore’. Speech by Minister Rabitte opening the debate in Dáil Éireann on the Report of the Joint Committee on Communications, Natural Resources and Agriculture on ‘Offshore Oil and Gas Exploration’, Dáil Éireann, 14 May 2013, at http://www.dcenr.gov.ie/Corporate+Units/Press+Room/Speeches/2013/RABBITTE+ANNO UNCES+REVIEW+OF+FISCAL+TERMS+FOR+OIL+AND+GAS+PRODUCTION.htm (accessed 13 February 2014). This suggests that a broad debate, where it begins to touch on the possibility of changing the core fiscal terms currently offered by the Irish State and related issues that are not included within the Minister’s conception of what is ‘constructive’ or what is a ‘real question’, should be avoided on the basis that even such a desirable exercise of free speech could offend potential investors. The primary concern limiting public debate, therefore, is the appeasement of potential FDI. Debate can occur, as long as it does not upset potential investors by questioning the fundamentals of the fiscal regime. The economic imperative of attracting foreign capital for exploratory drilling is not simply one of a number of factors within the debate; it is thereby positioned as the very determinant of the debate itself. 43 For example, the Minister consistently defends the current regime in the following terms: ‘In my view, Ireland’s focus should be on how to encourage an increase in the level of exploration investment and exploration drilling. This is what we need if we are to establish the true petroleum potential of the Irish offshore. …. The challenge is how to improve the industry’s perception of Ireland’s prospectivity relative to that of other countries. … It is important then that the State provides suitable opportunities for international investors and provides the right environment to encourage private industry to take the risk associated with investing in exploration.’ Speech by Minister Rabbitte, Dáil Éireann, 14 May 2013, above n 42. The necessity of the current fiscal regime follows directly from these considerations. It is necessary to induce foreign investment in exploration, by suiting ‘the industry’s perception of Ireland’s prospectivity’. However, if the initial premise differs, for example if it were to be the goal of self-determined development respecting the people’s sovereignty over natural resources and their full participatory rights, such a necessity does not follow. Minister Rabitte’s position leaves the government open to the charge that its policy is constructed according to the perceived necessities of a foreign economic industry, rather than in relation to the democratic rights of its citizens. It would indicate that ‘the mindset of the department of natural resources is shaped by the perceived needs of the oil and gas companies’. F O’Toole, ‘Bad Politics Behind Great Oil and Gas Giveaway’, The Irish Times, 23 August 2011. See further discussion on the Minister’s position in the section below on Government Response.

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formalist ‘rule of law,’ and the legislature characteristically fails to compensate or redistribute. The law becomes the essentially manipulated handmaiden of the economics of necessity. Indeed, this is the current fate of the law and economics school as a whole, according to Korobkin and Ulen, who note the reversal of disciplinary fortunes under economic imperialism whereby ‘[w]hat began as a form of legal analysis that employed economics as a tool is now too often economic analysis that uses law as a target.’44 The mounting critique of the mainstream law and economics school, however, has as yet had very little effect.45 The law is as much in the grip of neo-liberal principles, at least in most critical areas, as the rest of the competition state. The new ‘rule of law injection projects have generally been promoted … as necessary for markets to operate effectively and to attract foreign investment for development.’46 Indeed, ‘economic imperialism’ and the subsequent capture of the political realm described above,47 among most other realms of social import including the law,48 is the hallmark of the competition state, giving rise to the same sort of de facto legal ‘necessitarianism’ as is described on the political level by Hay.49 Such a competition state displays a number of other notable and more concrete characteristics: its reluctance to interfere in the market on behalf of its people; its abdication of macroeconomic planning (with the exception of interest rate manipulation); its promotion of an ‘investment friendly’ tax and regulatory environment, and also of labour flexibility, in the competitive interests of large (often foreign) businesses; the implementation of neo-liberal monetarism; and its subjection of social welfare to ‘market logic’.50 The state is then set in a global environment leaning towards a phase-out of Official

44

R Korobkin and T Ulen, ‘Law and Behavioural Science: Removing the Rationality Assumption from Law and Economics’ (2000) 88 California Law Review 1051, 1054. 45 D Kennedy, ‘Law-and-Economics’, above n 35, 471. 46 D Kennedy, ‘The “Rule of Law”’, above n 37, 159. 47 See further, B Fine, ‘“Economic Imperialism”: A View from the Periphery’ (2002) 34 Review of Radical Political Economics 187; B Fine and D Milokanis, From Economics Imperialism to Freakonomics: The Shifting Boundaries between Economics and other Social Sciences (New York, Routledge, 2009). 48 Creating what some term a ‘virtual reality’ of neo-liberal economic rule, circumscribing the very perception of our entire environment; J Carrier and D Miller (eds), Virtualism, above n 6. 49 Such observations must be balanced by the fact of a certain ‘chastening’ of neo-liberalism since the late 1990s, as observed by David Kennedy and exemplified in the work of Joseph Stiglitz, which is somewhat more evident following the latest global financial crisis of 2008. However, the degree of theoretical and analytic chastening is not great, and what there is tends to break down markedly in practice as default neo-liberal settings are routinely adopted in the current process of international development. See further D Kennedy, ‘The “Rule of Law”’, above n 37, 150-58; J Stiglitz, Making Globalization Work (London, Penguin, 2006). 50 Hay ‘Re-Stating Politics’, above n 3, 40. For further detail on these characteristics of the competition state see, R Plant, ‘Neoliberalism and the Theory of the State’ (2004) 75 The Political Quarterly – Issue Supplement 24; R Robison, ‘Neo-liberalism and the Market State: What is the Ideal Shell?’ in R Robison (ed), The Neo-Liberal Revolution: Forging the Market State (Houndmills, Palgrave Macmillan, 2006) 3-19; For a deeper and broader analysis of the competition state, as well as the consequences of a world full of competition states see, S Strange, ‘The Defective State’ (1995) 124 Daedalus 55.

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Development Assistance (ODA) and other forms of public financing, and instead dictating a reliance on foreign direct investment as the only viable development ‘solution’, as opposed to the nurturing of domestic capital and capability that would require a more nationalistic, insular and protectionist development policy.51 This is largely due to the congruence of FDI dependence within the globalising neo-liberal agenda with the goal of a fully global market-place, requiring open economies and the free movement of capital. An inward-looking development path is simply unacceptable from the perspective of this globalising agenda. It is a highly defensible generalisation that FDI assisted development (with a positive mainstream slant), or FDI dependent development (with a more realistic post/neo-colonial slant), is now perceived worldwide as the only preferred, and for many of the poorest and most desperate countries the only possible, ‘engine’ for economic growth and the national realisation of higher living standards.52 States are required to set aside any remaining commitments to collectivism and social democracy as hangovers from the bygone welfare state, and to maintain and extend open economies and the dominance of capital over labour. This often translates into the policing of local communities and the subordination of human rights and the people’s interest to that of foreign investment.53

51

This is clearly evident in the current process of financing for development. The move to a reliance on FDI over other resources for development is overt in the 2008 Doha Declaration on Development, which states the following: ‘We recognise that private international capital flows, particularly foreign direct investment, are vital complements to national and international efforts. We appreciate the rise in private international capital flows to developing countries … and the improvements in the business climates that have helped encourage it. … We will seek to enhance such flows to support development … we will strengthen national, bilateral and multilateral efforts to assist developing countries in overcoming the structural or other constraints which currently limit their attractiveness as a destination for private capital and foreign direct investment. … We stress the importance that ODA plays, leveraging and sustaining financing for development … We reaffirm the essential role that ODA plays, as a complement to other sources of financing … ODA can play a catalytic role in assisting developing countries in … promoting foreign direct investment. … We also acknowledge that ODA is still essential for a number of these countries. … We note that the aid architecture has significantly changed in the current decade. New aid providers … have contributed to increasing the flow of resources. … [T]he interplay of development assistance with private investment, trade and new development actors provides new opportunities for aid to leverage private resource flows’. Doha Declaration on Financing for Development: Outcome Document of the Follow-up International Conference on Financing for Development to Review the Implementation of the Monterrey Consensus, United Nations, 2 December 2008, paras 23, 40, 45, and 47. See also a range of publications from the Organisation for Economic Cooperation and Development (OECD); OECD, Promoting Private Investment for Development: The Role of ODA (Paris, OECD, 2006); OECD, Policy Framework for Investment (Paris, OECD, 2006); OECD, ‘Mobilising Private Investment for Development: Policy Lessons on the Role of ODA’ (2005) 6 The Development Assistance Committee Journal 7. 52 See R Narula and S Lall (eds), Understanding FDI Assisted Economic Development (London, Routledge, 2006). 53 See S Zizek, First as Tragedy, Then as Farce (London, Verso, 2009); U Baxi, The Future of Human Rights, 2nd edn (Oxford, Oxford University Press, 2006); K De Feyter, Human Rights: Social Justice in the Age of the Market (London, Zed Books, 2005); L Bernal et al,

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THE PUZZLE – IRELAND’S NATURAL RESOURCES Until recently Ireland was universally touted as an FDI generated economic success story, which many other nations would do well to emulate.54 Undoubtedly, FDI played a large part in the transformation of Ireland, from one of the poorest and most marginalised states in the European Union in the 1980s to the booming and fully globalised ‘Celtic Tiger’ of the new millennium.55 Yet, beginning even in the middle of the boom, large cracks of inequity, social exclusion, political disconnection of the populace and an overdependence on FDI56 were already in evidence and causing concern in some quarters.57 Ultimately, events have vindicated such concerns. The country is currently experiencing a protracted economic crisis exacerbated by the extreme policies of economic openness, deregulation, and attractiveness to foreign capital that were deemed necessary for the boom in the first place. The commentary now is self-reflective not only of the illusory nature of a boom predicated on FDI,58 but also of the harm done to the body politic during this phase of extreme internalisation of the global neo-liberal development paradigm.59 Most FDI in Ireland is in the pharmaceutical, medical devices and information technology industries. However, of concern here is the current and future development of investment in the oil and gas industry. Presently, oil and gas does not comprise a particularly large sector of the Irish economy; however, finds are becoming more numerous The World Development Report 2005: An Unbalanced Message on Investment Liberalisation (Geneva, South Centre, 2004). 54 See R McSharry and P White, The Making of the Celtic Tiger: The Inside Story of Ireland's Boom Economy (Cork, Mercier, 2000); R Berry, U.S. Foreign Direct Investment in Ireland: Making the Most of Other People’s Money (Bethlehem, PA, Lehigh University Publications, 2000). 55 ‘Ireland Heads World Index of Globalisation’, Financial Times, 9 January 2002. 56 As an indication, in 1997 45% of employment in the whole manufacturing sector of the Irish economy was in foreign owned companies, and these companies accounted for 60% of the nation’s gross manufacturing output. F Barry and J Bradley, ‘FDI and Trade: The Irish HostCountry Experience’ (1997) 107 The Economic Journal 1798, 1798. In 2010 Ireland had the highest ratio of employment in foreign companies in the manufacturing and services sectors of all OECD countries, with foreign companies accounting for 90% of total Irish exports. L Brennan and R Verma, ‘Inward FDI in Ireland and its Policy Context’, Columbia FDI Profiles , Vale Columbia Center on Sustainable International Investment, 7 October 2010. 57 See, K Allen, The Celtic Tiger: The Myth of Social Partnership in Ireland (Manchester, Manchester University Press, 2000); D O’Hearn, Inside the Celtic Tiger: The Irish Economy and the Asian Model (London, Pluto Press, 1998); P Kirby, The Celtic Tiger in Distress: Growth with Inequality in Ireland (Houndmills, Palgrave Macmillan, 2002); C Coulter and S Coleman, The End of Irish History: Critical Reflections on the Celtic Tiger (Manchester, Manchester University Press, 2003); F O’Toole, After the Ball (Dublin, TASC, 2003); D Jacobson et al (eds), Taming the Celtic Tiger: Social Exclusion in a Globalised Ireland (Dublin, TASC, 2006); T Fahey et al (eds), Best of Times? The Social Impact of the Celtic Tiger (Dublin, Institute of Public Administration, 2007). 58 P Share and M Corcoran, Ireland of the Illusions: A Sociological Chronicle 2007-2008 (Dublin, Institute of Public Administration, 2010). 59 P Kirby and M Murphy, Towards a Second Republic: Irish Politics after the Celtic Tiger (London, Pluto Press, 2011); P Kirby, Celtic Tiger in Collapse: Explaining the Weaknesses of the Irish Model (Houndmills, Palgrave Macmillan, 2010).

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and this sector will gain in size and importance in the future.60 It has recently been estimated that there is enough oil and gas off the west coast of Ireland to meet the nation’s needs for the next 100 years at current rates of usage,61 at a value of €750 billion.62 This does not take into account further finds of shale gas onshore valued at around €55 billion63 or recent promising finds of high quality oil off the south coast.64 Over the last 40 years the management of oil and gas resources in Ireland has seen dramatic changes commensurate with the spread of neo-liberalism and the associated reliance on attracting FDI. In the 1970s, licensing terms for the extraction of these resources mandated a 50 per cent state interest in the enterprise, royalties on production of between 8 per cent and 16 per cent, and a standard corporation tax of 50 per cent on profits.65 These terms adhered to the contemporary balance worldwide between the interests of foreign capital and the welfare state, favouring the latter. However, as this balance tipped in the opposite direction and the Irish welfare state came to be replaced by its current competitive incarnation, these terms were reduced to a bare minimum in the interests of making the state attractive to foreign investors. The terms were revised somewhat in 1985, and, in 1987, the requirements of royalties and state participation were abolished and companies were entitled to a tax exemption for all exploration and development costs.66 These changes were made largely in response to intensive lobbying of oil industry representatives.67 This is a general refrain of the industry and of government: that the terms must be of such limited value to the Irish people as to achieve the higher aim of attracting large foreign firms to explore and extract. A new Finance Act in 1992 reduced the corporate tax on profits to 25 per cent.68 Finally, legislation introduced in 2007 effectively adds between 5 and 15 per cent to the ultimate tax burden after exploration and set-up costs, but only on large finds, as the extra tax is 60

A small to medium sized commercial oil find has very recently been made off the Southern Irish coast that many believe will greatly raise the interest of foreign firms in Irish oil and gas. The CEO of Providence, the company operating the relevant exploration license, has stated that this find ‘creates a reappraisal in the minds of global oil corporations about coming back to Irish waters to drill for oil. Irish territorial waters are massively underexplored’. H McDonald, ‘Ireland Oil Strike Raises Hopes for Exploration Boom’, The Guardian, 16 March 2012. See further, A Long, ‘Irish Oil and Gas: Acting on a Bonanza’, Natural Gas Europe, 16 September 2013. 61 SIPTU (Services, Industrial, Professional and Technical Union), ‘Optimising Ireland’s Oil and Gas Resources; Report of the SIPTU Oil and Gas Review Group’, Dublin, June 2011, 5. 62 I Yates, ‘What Lies Beneath the Seabed? That’s the €750bn Question’, The Irish Examiner, 8 September 2011. 63 W Reville, ‘The Pros and Cons of Fracking for Natural Gas’, The Irish Times, 16 February 2012; ‘Minister Calls Shale Gas a “Game Changer” for Ireland’, Leitrim Observer, 26 April 2013. 64 S Lynch, ‘Providence Says Oil Find off Cork is Commercial’, The Irish Times, 16 March 2012; S Stack, ‘Oil in Irish Waters: Cork Well Raises 3,514 Barrels a Day’, The Irish Independent, 15 March 2012. 65 SIPTU, ‘Optimising’, above n 61, 29. 66 Ibid. 67 Ibid, 9. 68 Finance Act, 1992, Section 43 (2)(c); and Taxes Consolidation Act, 1997 as amended by the Finance Act, 1999.

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graded on a profitability ratio.69 This extra tax only applies to licenses granted after 2007. Because exploration licenses incorporate first refusal on extraction, should the holder make a find, any company granted an exploration license before 2007 that subsequently makes a strike will only be subject to the 25 per cent flat rate. This is the case for 13 holders of the current 21 exploration licenses issued.70 It has been noted that ‘except in the case of very profitable fields, Ireland will see little additional revenue from the 2007 terms’.71 This is where the licensing terms currently stand: after all exploration and development costs have been deducted, the Irish people will see 25 per cent of the remaining profits of oil and gas extraction in the case of small and medium finds, and up to 40 per cent in the case of large finds.72 Making matters worse, there are no negotiated agreements whereby the foreign company is obliged to sell the oil and gas back to the Irish domestic market at a set rate for a certain period of time. There is also no guarantee of ensured supply. The Irish people will have to buy back their own resources at the full market rate, and if they cannot or will not pay then their resources will simply benefit the citizens of another country that can and will. In the 1970s, there was some initial collaboration between the Irish state and Norway, which was at the time developing a very different approach to managing its oil resources. An Irish state-owned exploration and extraction company was mooted and expertise was set to be transferred from the Norwegian experience; however this became little more than a thought.73 Currently, the Irish state is refusing to entertain the idea of revisiting this strategy.74 There is no effort made by the government to ensure even a minimum state share in the extracted resource. Under the current licensing system the Irish state,

69

The additional Profit Resource Rent tax ‘will be payable in addition to the 25% corporate tax on anincremental basis as follows: • no change where the profit ratio is less than 1.5 • at a rate of 5% where the profit ratio is between 1.5 and 3.0 • at a rate of 10% where the profit ratio is between 3.0 and 4.5 • at a rate of 15% tax in respect of fields where the profit ratio exceeds 4.5 The profit ratio is calculated by the ratio of cumulative post-tax profits to the cumulative value of capital investment.’ Department of Communications, Energy and Natural Resources, Petroleum Taxation in Ireland. See Finance Act, 2008. As such the top rate of 40% will only apply when the profit rate is more than 450 per cent with respect to the investment, and will therefore very rarely apply. 70 SIPTU, ‘Optimising’, above n 61, 5. 71 Ibid. Another independent review concurred, stating that ‘there may be potential to capture a higher share for the Government on more profitable finds but the potential for this should not be overestimated’. Indecon International Economic Consultants in Association with London Economics, ‘Expert Advice on Review of Irish Petroleum E&P Licensing Terms’, Report Prepared for the Irish Department of Communications, Marine and Natural Resources, London, Indecon, 2007. 72 In one instance, Shell’s Corrib gas enterprise in County Mayo, these costs have been estimated by the company at €2 billion. Yates, ‘What lies beneath’, above n 62. 73 H Ryggvik, The Norwegian Oil Experience: A Toolbox for Managing Resources?, L Cox trans (Oslo, TIK-Centre, 2010). 74 See discussion of Minister Rabbitte’s position above at nn 42-43 and below at nn 249-64 and accompanying text.

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therefore, in effect cedes control of the people’s oil and gas to foreign companies.75 In addition, foreign companies are not required to employ Irish workers or source any other

75

It may be objected that the use of the term ‘cedes control’ is under-substantiated in the legal sense. One of the major aims of the paper is to establish the proper use of this term. The current section makes the point that once a license is granted under the current regime there is very little recourse to alter the deal, short of expropriation or significant infringements on the rights granted to foreign investors that would involve prohibitive compensation (as explained below, text to nn 108-21) . Under current arrangements, once gas or oil is aboard vessels owned by foreign investors it may be transported, processed and sold wherever, and in whatever manner the investor desires. The purpose of the license granted is to facilitate the transfer of the resource from the ground or sea bed to such vessels. Legally, the Irish state has virtually no effect on the disposition of the resource once the license has been granted, bar entitlement to at least 25 per cent of the profits generated therefrom, under current arrangements (again, except with payment of unknown amounts of compensation). Any legal entitlement is rendered purely formal (enforceable only with substantial financial and reputational cost), and the people’s permanent sovereignty over the resource would seem to have been annulled. The observation that licensing systems are preferred in a number of jurisdictions does not alter the fact that, by nature, they tend toward a cession of control over the resource. What mitigates this fact in most other jurisdictions are built in conditions of guaranteed supply at below market rates, provisions for local processing and employment, and other relevant performance requirements limiting the investors control after extraction. Such mitigating conditions are absent from the current Irish regime. The answer preferred here, is, in a sense, to ‘cut ones losses’ and accept that what licenses have been granted to date amount to lost resources, and to change the regime such that the mistake is not continuously repeated. To answer the possible objection to the use of the term ‘cession’ from a reverse viewpoint: Given the circumstances, it would need to be demonstrable that the Irish government retains control over the oil and gas subject to licenses now in force. As argued, this would only seem to be demonstrable through the concession of large amounts of compensation. However, the question is one of control itself, not of willingness or ability to pay for control with the people’s taxes, or, in a sense, to buy back their sovereignty once it has been given away. The author, therefore, holds with the opinion of the Irish Services, Industrial, Professional and Technical Union (providing very similar evidence), that ‘[i]t would appear that these elements of the licensing system bind the Irish State into fixed contract terms without it having prior knowledge of the value of the reserves in the relevant field. Under the current licensing terms, the State effectively passes ownership of any finds to the petroleum lease holding company.’ See SIPTU, ‘Optimising’, above n 61, 10. Furthermore, the extended discussion below in relation to the application of human rights and Irish constitutional law is intended to mitigate the objection referred to. Finally, as noted by Olivier De Schutter, the issue of a loss of control is the core reason for terming host government agreements with foreign investors in the extractive sector ‘concession’ agreements. ‘All too often, such agreements are seen as private contracts, in which efficiency is promoted by one party (the State) ceding to another the right to exploit certain resources for which that other party (the investor) disposes of superior knowledge or technology, and for its own profit’. O De Schutter, ‘The Host State: Improving the Monitoring of International Investment Agreements at the National Level’ in O De Schutter et al (eds), Foreign Direct Investment and Human Development: The Law and Economics of International Investment Agreements (London, Routledge, 2013), 170 (emphasis added). To avoid the obvious negative results of ill-thought-through concessions it would be highly valuable to recast such agreements as public or social contracts involving intensive public participation, rather than private contracts naturally concluded outside the public domain.

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inputs from Ireland, nor are they required to process oil and gas on Irish shores. Currently, it is possible for companies to simply load off-shore resources onto tankers and ship directly anywhere in the world, excluding the possibility of any further control over the resource to the benefit to the Irish economy beyond, of course, the minimalist 25 per cent tax take on profits.76 A study by the US Government Accountability Office (US GAO) in 2007 puts the Irish licensing regime in a global perspective.77 The US GAO study of the government take78 from the oil and gas industry in 142 countries found that the benefit to the Irish state is the lowest of all nations surveyed except for one (Cameroon).79 108 states took over 50 per cent, already twice that of Ireland’s effective take, and 32 states took between 25 and 50 per cent. The yield to the Irish state is amongst the absolute lowest in the world, and this is something of which the government is well aware, having been informed by two of its own commissioned reports.80 While there may be some sense to a liberal regime to attract foreign investment, there is very little reason to hold that having the most liberal approach in the developed world rather than being commensurate with its middle-lower level (i.e., around the 50 per cent range) would be to any significant degree less likely to attract investment. Phrased differently, considering the regimes of

See N Miranda, ‘Concession Agreements: From Private Contracts to Public Policy’ (2007) 107 Yale Law Journal 510. 76 According to William Hederman, ‘Companies that discover oil or gas in Irish territory are not obliged to supply these resources to the Irish market. Not only that, our licensing terms are so weighted in the industry’s favour, they do not require the companies to bring a single drop of our oil or gas ashore in Ireland. I did what policy-makers and journalists appear not to have done: I lifted the phone and asked oil companies what they intended to do with our oil and gas. For example, I asked the technical director of Providence Resources, John O’Sullivan, what would happen to oil from its Dalkey Prospect. He explained that modern technology allows for the oil to be put into “tanker-ready form” at the rig and it would probably be shipped to Milford Haven in England or to Rotterdam’ (NB the author recognises that Milford Haven is technically located in Wales, not England). Joint Committee on Communications, Natural Resources and Agriculture – Offshore Exploration: Discussion – Submission by journalist William Hederman, supported by Dr Andy Storey, School of Politics & International Relations, University College Dublin, 12 December 2011, available at http://irishoilandgas.wordpress.com/2012/01/26/submission/ (accessed 15 June 2013). 77 US GAO, ‘Oil and Gas Royalties: A Comparison of the Share of Revenue Received from Oil and Gas Production by the Federal Government and Other Resource Owners’, GAO-07676R, 1 May 2007. 78 Government take is defined as any financial benefit to the state from the extraction and sale of the resource. This could be in the form of any, all or a various combination of the following; tax, royalties, state investiture, bonuses, or ensured supply at a discounted market rate. 79 US GAO, ‘Oil and Gas Royalties’, above n 77. The US sets the minimum take at 42%, though it can rise to 60%. Regionally, South American states take between 25% and 90%. Europe between 35% and 65%, Asia between 40% and 84%, Sub-Saharan Africa between 44% and 85%, and the Middle East between 60% and 93%. 80 D Fox, ‘Fiscal Terms Comparison: A Study for the Petroleum Affairs Division’, Prepared for the Department of Communications, Marine and Natural Resources, Dublin, 2003; and Indecon, ‘Expert Advice’, above n 71.

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other developed countries in similar positions, there seems to be little added economic advantage from undercutting them to such a radical degree. Aside from the poor terms of the licensing regime itself, a point of great concern is the initial choice of a licensing system as opposed to other methods of resource management in collaboration with foreign companies. Over half of the world’s nations possessing oil and gas instead employ a contractual system of production sharing and/or service agreements, leaving far more control of the resource in the hands of the state.81 Under these agreements, the state retains ownership of the resource, and then contracts the foreign company to carry out exploration and production in exchange for a share of revenues.82 One study of 45 states in 2008 found that 21 followed the licensing model and 24 followed a contractual system. Estimating Ireland at an average 28 per cent take, this study also found that this was the lowest of all states surveyed, the next lowest being between 38 per cent and 42 per cent.83 It is hard to avoid the conclusion that what belongs to the people is virtually being given away by the government.84 A number of alternative systems of resource management exist and have been proposed.85 These alternatives are eminently reasonable and achievable, and it is the considered view of some that there should be a moratorium on any new licenses or authorisations until all the alternatives are properly and, most importantly, publically deliberated.86 Within the current licensing system, taxes could be raised, royalties could be reintroduced, or a direct financial interest by the Irish state could be introduced. Licenses could be granted to Irish over foreign companies, guarantees of supply at cut-market rates could be ensured, and the entire decision-making process could be made far more transparent and publically accessible. On the other hand, a contractual system, as described above, could be instituted to transform the current system, based on the fundamental principle that ownership should be retained by the Irish people. Such a contractual system could ensure that Irish control over its oil and gas is not completely lost to foreign interests. In this sense, the Norwegian model could be followed,87 whereby a nationally owned exploration and extraction company could partner with a foreign company and share the benefits, though not the ownership, of the resources.88 Technology 81

SIPTU, ‘Optimising’, above n 61, 13. Ibid. 83 Ibid, referring to Ernst and Young, Global Oil and Gas Tax Guide 2009 (Dublin, Ernst & Young, 2009). 84 A Storey and M McCaughan, ‘The Great Gas Giveaway: How the Elites have Gambled with Our Health and Wealth’, Dublin, AFRI, 2009. 85 SIPTU, ‘Optimising’, above n 61, 19. 86 For a number of other alternatives, though generally variations on the licence, contract or hybrid theme see, R Arezki et al (eds), Beyond the Resource Curse: Policies to Harness the Power of Natural Resources (Washington, IMF, 2011); M Katz et al, Lifting the Oil Curse; Improving Petroleum Revenue Management in Sub-Saharan Africa (Washington, IMF, 2004). 87 Ryggvik, The Norwegian Oil Experience, above n 73. 88 This would be the preferred position of the Sinn Fein party. They propose ‘the reform of the current exploration licensing and taxation regime and [renegotiation of existing] oil and gas contracts … [the introduction of] a policy to ensure that the State would take a 51% shareholding in these resources, and introduce an immediate levy of 48% and a royalty of 7.5% ... [as well as the establishment of] a State oil, gas and mineral exploration company 82

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and knowhow could be transferred this way in the initial partnerships, which could ultimately make the nationally owned company independent. Finally, a number of variations of a hybrid system could be realised, combining elements of both contract and licensing systems. The possibilities here are numerous.89

THINKING OUTSIDE THE ECONOMIC BOX To date, the limited debate on the most effective means by which to exploit Ireland’s natural resources has taken place entirely within the confines of neo-liberal development imperatives. Generally characterised, it approaches the ‘puzzle’, in Kuhn’s terms,90 of oil and gas extraction from a paradigmatic standpoint that is deeply favourable to the interests of foreign investors. The approach taken here seeks to avoid these confines by instead looking at the puzzle from a legal standpoint; that of human rights law specifically. Instead of purported economic necessity, the point of departure becomes the people’s original and enduring ownership of their resources, and adds the weight of the legal concepts of their sovereignty and self-determination to decisions regarding these resources. There is another legal approach, from the standpoint of the protection of foreign investors within Ireland under international and domestic law. Ireland has a high standard code of property protection in line with the upper norm for industrialised, or northern, which would actively participate and invest in exploration’. Sinn Fein, ‘Our Natural Resources: A Key Economic Asset’. Michael Colreavy, Sinn Fein’s spokesperson for Communications, Energy and Natural Resources, has also initiated the Petroleum and Other Minerals Development (Amendment) Bill 2013, which introduces social clauses to provide for local employment and mandates that oil and gas found offshore must be landed in Ireland. It also provides for public consultation and engagement with local communities in the process of granting licenses, and ensures greater accountability through initiating an annual review of the license by the Joint Committee on Communications, Energy and Natural Resources. The proposed bill, however, cannot address the taxation regime for procedural reasons due to the Standing Orders of the Dáil Eireann. ‘Colreavy Launches Oil and Gas Legislation’, Sinn Fein News, 14 May 2013, available at www.sinnfein.ie/contents/26663 (accessed 16 June 2013). 89 To be clear, the point here is not to advocate a contractual system specifically, or any other particular regime. It advocates increased public participation, facilitated by the government in response to its human rights obligations, in order to meet the requirement of adequate public debate. If adequate procedural hurdles are cleared, whatever outcome that results will most likely satisfy human rights requirements, which are not prescriptive (in this case) of the substance of the regime, only of the process by which it is created. If the current regime remains following such an informed, broad and inclusive debate with the capacity to concretely affect the outcome decision, then it may be concluded that the people have voluntarily yielded their permanent sovereignty, and that this is their legitimate expression of their right to self-determination, even if the consequences would seem severe. The essential nature of democratic debate and public participation is made clear in the discussion below on permanent sovereignty and self-determination. 90 T Kuhn, The Structure of Scientific Revolutions (Chicago, University of Chicago Press, 1962). Kuhn made a distinction between normal and revolutionary phases of scientific evolution, the latter associated with paradigm shifts, whereby ‘puzzles’ (or individual situations) are approached from the angle of a new paradigm.

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states, which is to say that foreign ownership and use of property, broadly conceived, is very well protected domestically.91 Ireland has implemented strong investor protection in its domestic legal system as a cornerstone of state administrative adjustments aimed at the promotion of large amounts of inward FDI (the central pillars of which are the 12.5 per cent general corporate tax rate,92 and the complete absence of performance requirements), adjustments that have undoubtedly borne fruit.93 The rights provided to investors under the oil and gas regime just described, and under individual state-investor contracts, are therefore easily enforceable through domestic courts. In fact, the licensing provisions themselves mandate the exclusive jurisdiction of the Irish courts in the event of disputes.94 At the international level, in the unlikely event that a foreign investor does not receive a favourable remedy under Irish domestic law and can avert the exclusive jurisdiction of the national courts, further protection is available under customary or treaty law. The customary law of international investment is notoriously difficult to define with accuracy; however, in theory, a relatively sound level of protection would be administered by ad hoc tribunals or by any permanent international courts or tribunals in accord with custom.95 Many foreign investors also may avail of very strong protection under bilateral investment treaties (BITs) or other international investment agreements (IIAs), provided their home state and the host state are both signatories to such treaties. In the current case, Ireland is party to only one agreement, with the Czech Republic,96 meaning that this avenue of protection is extremely limited. Finally, due to Ireland’s ratification 91

R O’Shea and S Hanna, ‘Ireland’ in C Goldman (ed), Foreign Investment Regulation Review, 1st Edition (London, Law Business Research, 2013), 147; US Department of State – Bureau of Economic and Business Affairs, 2012 Investment Climate Statement – Ireland, June 2012, at http://www.state.gov/e/eb/rls/othr/ics/2012/191168.htm (accessed 2 December 2013). 92 ‘The corporate tax rate in Ireland is often described as the ‘cornerstone’ of industrial policy.’ J Stewart, ‘Corporation Tax: How Important is the 12.5 % Corporate Tax Rate in Ireland?’, Institute for International Integration Studies Discussion Paper No. 375, Trinity College, Dublin, September 2011, 1. 93 Ireland is ranked 10, of 183 economies, in the 2012 World Bank Doing Business Report, which assesses the ease of setting up and managing businesses as measured by transparency and minimisation of government regulation. World Bank, 2012 Doing Business Report: Doing Business in a More Transparent World (Washington DC, World Bank, 2012), 6. It is worth noting that Ireland’s corporate tax rate has been repeatedly criticised by other EU nations, particularly the French government, arguing that it amounts to a ‘beggar-thyneighbour’ policy, and ‘harmful tax competition’. See J Stewart, ‘Corporation Tax’, above n 92. The deeper question is whether such a low tax rate is in the long-term interests of Ireland’s economy. For example, Stewart notes that ‘excessive reliance on tax reliefs and on the attraction/retention of foreign direct investment has led to the development of certain tax haven type features for the Irish economy. Tax haven type features are in turn at variance with the development of sustainable firms.’ Ibid, 1-2. 94 Department of Communications, Energy and Natural Resources, Licensing Terms for Offshore Oil and Gas Exploration, Development and Production, 2007, Section 39. 95 M Sornarajah, The International Law on Foreign Investment, 3rd Edition (Cambridge, Cambridge University Press, 2010), 82-85. 96 Agreement Between the Czech Republic and Ireland for the Promotion and Reciprocal Protection of Investments, 28 June 1996, at http://www.unctad.org/sections/dite/iia/docs/bits/czech_ireland.pdf (accessed 2 December 2013).

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of the Energy Charter Treaty,97 foreign investors in the oil and gas sector will have recourse to dispute resolution procedures under Article 26 of that Treaty, to enforce rights and entitlements granted under Articles 10 to 15, providing the investor’s home state is also a party to the Treaty.98 This would be a more likely avenue for investor litigation. Investor protection under these international treaty regimes is comprehensive, and decidedly limiting of government policy that may be contrary to investor’s interests, regardless of the motivation for such policy. Measures taken in the public interest and for purposes of human rights realisation and environmental protection are often further bounded by the extensive interpretations given to investor’s rights under these regimes by ad hoc, usually commercially trained, arbitrators. This was the case more so in the ‘first generation’ of investment agreements promulgated from the 1960s until the late 1990s, where investor protections were especially broad and incursive on government freedom to regulate. Recent developments in the form of renegotiated agreements, adjustments to model investment treaties, and increasing opportunities for civil society participation in arbitrations, have somewhat wound investor protections back and provided greater legal space to governments to regulate for social and environmental purposes.99 Nevertheless, these ‘second generation’ investment agreements continue to be highly restrictive of government intervention, the adjustments being relatively minor. As one author notes, the second generation has not fallen far from the tree, demonstrating only small changes within the previous liberalist paradigm of BITs. These changes do not alter the fundamental character of these investment treaties as quintessential liberalist instruments, which only protect and ‘empower’ investors without sufficient consideration of the rights of host states and the duties of the investors.100 In addition, for purposes here, while clauses widening space for environmental and public interest regulation have appeared in some treaties, specific mention of exemptions or carve-outs for regulation in the interest of human rights realisation remains absent.101 Specific defences by states based on their international human rights obligations, as well as parallel arguments by third parties, remain without any effect in investment arbitration

97

Final Act of the European Energy Charter Conference, Lisbon, 17 December 1994, Annex 1. 51 states are party to the Treaty, largely European states, but also including most of the former Soviet bloc, Afghanistan, Australia, Iceland, Japan and Mongolia. See further K Hober, ‘Investment Arbitration and the Energy Charter Treaty’ (2010) 1 Journal of International Dispute Settlement 153. 99 M Footer, ‘Bits and Pieces: Social and Environmental Protection in the Regulation of Foreign Investment’ (2009) 18 Michigan State University College of Law Journal of International Law 33, 34-35. 100 W Shan, ‘Calvo Doctrine, State Sovereignty and the Changing Landscape of International Investment Law’ in W Shan, P Simons and D Singh (eds), Redefining Sovereignty in International Economic Law (Oxford, Hart, 2008), 303-04. 101 There are a few very sporadic exceptions. US model treaties, for example, seek to protect ‘basic worker’s rights’. M Footer, ‘Bits and Pieces’ above n 99, 38. Yet, even the extent of this singular exception relating to only one right would not seem to protect the full range of rights to work found in international human rights law and International Labour Oganisation treaties. 98

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to date.102 While it is the case, as noted by Footer,103 that certain social and environmental concerns and some ambiguously framed social issues104 are receiving greater attention in arbitration, this development should not be exaggerated and may be subject to reversal.105 Human social and economic rights, however, remain effectively excluded from consideration. However, the aim of this paper is to address the legal regime for oil and gas management in Ireland itself, rather than the rights and entitlements currently held by foreign investors in Ireland as a result of other legislation, domestic and international, motivated by investor protection generally. The quarrel is not with foreign investors directly, but with the government decision-makers creating and upholding the current regime, of whose decisions foreign investors naturally take advantage and from which they benefit. Foreign investors did not create this law, governments did. The argument here is that they may have done so contrary to pre-existing international human rights and constitutional obligations towards their own people. While adjustments to existing arrangements highly protective of foreign investors may well be challenged by those investors in defence of currently existing rights, this is a situation again created by governments, and equally so, it remains in the sovereign power of those governments to redress these legal 102

This fact is widely acknowledged. See, for example, S Schadendorf, ‘Human Rights Arguments in Amicus Curiae Submissions: Analysis of ICSID and NAFTA Investor-State Arbitrations’ (2013) 10 Transnational Dispute Management 1; M Hirsch, ‘Investment Tribunals and Human Rights: Divergent Paths’ in P Dupuy, F Francioni and E Petersmann (eds), Human Rights in International Investment Law and Arbitration (Oxford, Oxford University Press, 2009); E Levine, ‘Amicus Curiae in International Investment Arbitration: The Implications of an Increase in Third-Party Participation' (2011) 29 Berkeley Journal of International Law 200; E De Brabandere, ‘Human Rights Considerations in International Investment Arbitration’, in M Fitzmaurice and P Merkouris (eds), The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications (Leiden, Martinus Nijhoff Publishers, 2012); L Peterson, ‘Selected Developments in IIA Arbitration and Human Rights’, IIA Monitor No. 2 (Geneva, UNCTAD, 2009), UNCTAD/WEB/DIAE/IA/2009/7. 103 M Footer, ‘Bits and Pieces’ above n 99, 39-46. 104 These are usually referred to as broad and amorphous ‘public health and safety’ considerations, which must compete in arbitration with the investor’s well defined legal rights. Furthermore, such concrete rights will always outweigh efforts to enforce voluntary commitments to corporate social responsibility (CSR). This situation could be remedied through inclusion of CSR codes within investment agreements themselves, as suggested by Footer; ‘Yet … there is a long way to go. It seems that the world may not yet be ready for extensive inclusion of such [CSR] standards, alongside enhanced social, environmental, and cultural protection, in investment treaty instruments. The question also arises as to the enforceability of these [CSR] standards, even if taken up in BITs or other IIAs.’ M Footer, ‘Bits and Pieces’ above n 99, 61-64. On the application of CSR in this context, see also D Leipziger, B Simmons and A Autio, Corporate Social Responsibility and Regional Trade and Investment Agreements (Geneva, United Nations Environment Programme, 2011). 105 See, for example, the recent refusal by one tribunal to accept an amicus curiae intervention in one case on highly questionable and defensive grounds, seeking to insulate the investment regime from international human rights law; Bernhard von Pezold and Others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, and Border Timbers Limited and Others v. Republic of Zimbabwe, ICSID Case No. ARB/10/25 (conjoined), Procedural Order No. 2, 26 June 2012.

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regimes. The value in pursuing the line of reasoning here is that the same governments may use this reasoning in defence of such adjustments, and the public might use it in seeking to pressure governments into making those adjustments. Abiding by long extant human rights obligations (and giving meaning to constitutional text) forms a powerful rationale and defence for governments seeking alternatives to the blind maintenance of current regimes highly favourable to foreign investors. The broader network of domestic and international legislation aimed at investor protection generally forms a very closely interconnected backdrop, highly relevant to and somewhat explanatory for the nature of the limited national oil and gas regime under review; yet this specific regime is nevertheless analytically distinct. In other words, the fact that the Irish state is in a situation where domestic and international protection for foreign investment generally is highly restrictive of state action against foreign investors provides no reason whatsoever, in itself, to design a regime on oil and gas resources for foreign investors, voluntarily extending the rights they can enforce. Of course, the conditions of dependence on FDI for development are the reason for both the protective and the permissive regimes. Yet this is a question primarily of economics, rooted in neoliberal economic theory, rather than one of law, which is reflexively informed and shaped by that theory. This is the reason for the discussion of economic necessity above. To return to human rights law, Article 1 common to the two major international human rights conventions, the Covenant on Economic, Social and Cultural Rights (ICESCR) and the Covenant on Civil and Political Rights (CCPR),106 states that, 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. Ireland is a state party to both covenants and, therefore, the Irish government is bound to ensure the people’s rights to self-determination and free disposal of their natural wealth and resources. In its periodic report to the Committee on Economic, Social and Cultural Rights (CESCR), Ireland has stated that it freely endorses and subscribes to Article 1, which is reflected in Articles 5, 6 and 10 of the Irish Constitution, and that the state is ‘fully committed to the principles contained in this article’.107 In turn, the relevant articles of the Irish Constitution provide that Ireland is a sovereign and democratic state, wherein all state powers are derived from the people whose right it is ‘to decide all questions of national policy, according to the requirements of the common good’.108 Of further relevance here are the Directive Principles of Social Policy, enacted in Article 45 of the Irish Constitution. Though they are not enforceable by the 106

See above n 13 for citations. Ireland’s First Periodic Report to the Committee on Economic, Social and Cultural Rights, UN Doc E/1990/5/Add.34, 26 September 1997, paras 2, 3. 108 Constitution of Ireland 1937, Article 6(1). 107

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courts, the Constitution foresees that they be applied by the legislature in the making of laws. Accordingly, the state ‘shall strive to promote the welfare of the whole people’,109 in particular ensuring that policy is formulated such that ‘the material resources of the community may be so distributed … as best to subserve the common good’.110 Of prime relevance in the present context the Constitution states that ‘especially, the operation of free competition shall not be allowed so to develop as to result in the concentration of the ownership or control of essential commodities in a few individuals to the common detriment’.111 Furthermore, the Irish state is directed to ‘endeavour to secure that private enterprise shall be so conducted as to … protect the public against unjust exploitation’.112 This particular body of international and domestic law would then seem eminently applicable to the case at hand. To apply it accurately, however, it is first necessary to discern exactly what is constituted by the legal regimes of permanent sovereignty and self-determination.

Permanent Sovereignty over Natural Resources The UN Declaration of Permanent Sovereignty over Natural Resources113 institutes a right held by peoples, which must be exercised in the interests of their well-being and national development.114 The doctrine of permanent sovereignty has historically been tied to questions of interstate sovereignty over natural resources;115 nevertheless, its ap-

109

Ibid, Article 45(1). Ibid, Article 45(2)(ii). 111 Ibid, Article 45(2)(iii). 112 Ibid, Article 45(3)(2). 113 Declaration of Permanent Sovereignty over Natural Resources, UN GA Res 1803 (XVII), 14 December 1962. In addition to the two international human rights covenants addressed directly below, the doctrine of permanent sovereignty is also contained in the following treaties: United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 397, 16 November 1994, Articles 56 and 93; European Energy Charter Treaty, 34 I.L.M. 360, 394 (1995), 17 December 1994; United Nations Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818, 5 June 1992; Banjul Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3 rev. 5, reprinted in 21 I.L.M. 58, 7–19 January 1981; Vienna Convention on Succession of States in Respect of State Property, Archives, and Debts, UN Doc A/CONF.117/14 (7 April 1983), reprinted in 22 I.L.M. 306 (1983); Vienna Convention on Succession of States in Respect of Treaties, UN Doc A/CONF.80/31 (22 August 1978), reprinted in 17 I.L.M. 1488 (1978). 114 Declaration of Permanent Sovereignty over Natural Resources, Ibid., Article 1. See further, N Schrijver, ‘Permanent Sovereignty over Natural Resources Versus the Common Heritage of Mankind: Complementary or Contradictory Principles of International Economic Law?’ in P de Waart et al (eds), International Law and Development (Martinus Nijhoff, Dordrecht, 1988), 87-91. 115 N Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge, Cambridge University Press, 1997) 306. Schrijver generally takes a conservative approach, expressing a certain tentativeness regarding the relevance of the doctrine of permanent sovereignty to an imposition of duties on states in relation to their own population, with the notable exception of people’s with a well-defined identity and resident on a defined territory to which they have a strong connection, such as indigenous peoples. Ibid, 310-19. However, 110

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plicability to the distribution of resources and the benefits derived therefrom within individual states, as well as to the direct relationship between a government and its own people, have long lingered and are now being brought into the foreground.116 The Declaration clearly states that: [t]he exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.117 For present purposes, it is important to stress the requirement of a free deliberation by the people, which will only be possible through appropriately open, informed and inclusive democratic procedures. Where foreign investment is admitted and authorised, only after the conclusion of this free process of inclusive decision-making, it is further mandated that the derived profits must be shared in measures ensuring that ‘there is no impairment, for any reason, of that State's sovereignty over its natural wealth and resources’.118 Finally, while the Declaration obliges both states and foreign investors to observe agreements that are entered into ‘freely’ in good faith, this obligation is immediately followed by an admonition to the effect that States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance with the Charter and the principles set forth in the present resolution.119

Schrijver does note that, ‘as understood today, permanent sovereignty over natural resources is as much an issue of state duties as it is one of state rights.’ Ibid, 311. See further on indigenous permanent sovereignty; United Nations Commission on Human Rights, SubCommission on the Promotion and Protection of Indigenous Peoples, Prevention of Discrimination and Protection of Indigenous Peoples: Indigenous Peoples’ Permanent Sovereignty over Natural Resources, UN Doc E/CN.4/Sub.2/2004/30 (13 July 2004). 116 See for example, L Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and People’s-Based Development’ (2012) 45 Vanderbilt Journal of Transnational Law 785. ‘[O]ver the past decade, the principle of permanent sovereignty over natural resources has saliently resurfaced in discussions regarding the appropriate balance between states’ development projects and the observance of peoples’ claims and rights.’ Ibid., 810. This is due primarily to ‘two recent historical processes [that] have reignited discussion regarding the potential intrastate applicability of the doctrine of permanent sovereignty over natural resources: (1) the capture of natural resource wealth by state elites with detrimental consequences for the nation as a whole, and (2) the affronts of state development on the land and resource claims of particular communities that rely on such natural wealth for their cultural survival or subsistence.’ Ibid., 794, see also, 803. This shift is also bolstered by greatly increased weight and attention given to the rights held by indigenous peoples against their governments, as a ‘contemporary process that has shaped the doctrine of permanent sovereignty over natural resources.’ Ibid, 810. 117 Declaration of Permanent Sovereignty over Natural Resources, above n 113, Article 2. 118 Ibid, Article 3. 119 Ibid, Article 8.

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It is unclear whether this statement is made as a direct qualification to the general international law principle of pacta sunt servanda set out in the previous sentence.120 However, there is an expectation at least that agreements and arrangements that are found to have been concluded in an un-free manner due to government neglect of the people’s right to make an informed decision, or are otherwise instituted or carried out in subsequent operations in ways that are not respectful of the people’s right to a full and effective democratic debate, need not be strictly observed, may not have binding force, and certainly lack legitimacy. As Miranda states, at the core of such arguments for such government responsibility in the vicarious exercise of the people’s permanent sovereignty, is a significant concern regarding the ability of a state to translate an absolute sovereign right to own and develop natural resources into equitable gains for the national polity or specific communities of people within its borders. Ultimately, these arguments challenge a state’s uncontested claim to ownership over natural resources and, thereby, to chart the goals and means of development aimed at distributing economic gains.121 Three points are of particular importance in ascertaining the correct legal formulation of permanent sovereignty over natural resources: (1) its binding status under international law; (2) its direct adherence to peoples as sovereigns and its indirect employment by governments as trustees; and (3) its effect to limit the discretion of government action in dealings with foreign investors, and to require a strong, clear and verifiable mandate from the people, especially in circumstances where the ceding or loss of control of natural resources is at issue. These points are treated in succession. Firstly, despite the ‘soft-law’ status of UN General Assembly resolutions, there is sufficient evidence that the people’s right to permanent sovereignty over natural resources has now attained the status of a peremptory, or jus cogens, norm of international law, and so is now binding on all states.122 In 1977, in the Texaco arbitration, the sole arbitrator, Professor Rene-Jean Dupuy, addressed the standing of UN General Assembly resolutions in international law for the purposes of determining whether the principle of permanent sovereignty was to be counted as an operative element of this body of law at that time.123 What was held to be crucial by the arbitrator in such a determination was

120

‘Foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith’. Ibid, Article 8. 121 L Miranda, ‘The Role of International Law’, above n 116, 795. 122 ‘Other rules which have this special status [of jus cogens or erga omnes obligations] include the principle of permanent sovereignty over natural resources and the principle of selfdetermination’. I Brownlie, Principles of Public International Law, 7th Edition (Oxford, Oxford University Press, 2008) 511. See also, S Chowdhury, ‘Permanent Sovereignty over Natural Resources’ in K Hossain and S Chowdhury (eds), Permanent Sovereignty Over Natural Resources in International Law: Principles and Practice (London, Frances Pinter, 1984), 1; K Hossain, ‘Introduction’ in K Hossain and S Chowdhury (eds), Permanent Sovereignty Over Natural Resources, Ibid., ix; A Maniruzzaman, ‘International Development Law as Applicable Law to Economic Development Agreements: A Prognostic View’ (2001) 20 Wisconsin International Law Journal 1, 23. 123 Texaco Overseas Petroleum Company v The Government of the Libyan Arab Republic (US v Libya), 1977 ICJ 2 (June 1977), at 26-30.

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an analysis of the voting patterns by which the relevant resolutions had been passed.124 Libya, as respondent, argued that the original resolution 1803, relied upon here, had been partially superseded by subsequent resolutions 3201,125 and 3281,126 which, it argued, established that the relevant law to be applied in cases of foreign investment disputes was restricted to domestic law only. The arbitrator declined to agree, pointing out that the two latter resolutions did not have the support of most of the industrialised states, in the form of the ‘Western Europe and Others’ group within the General Assembly, while resolution 1803 did. 127 Of the greatest relevance here is the conclusion of Professor Dupuy, in 1977, that while the latter resolutions lacked applicable status in international law, resolution 1803 on permanent sovereignty was to be applied, as the standards of international law established by that resolution reflected customary law in that field.128 Later, in 1995, ICJ Judges Weeramantry and Skubiszewski confirmed that the doctrine of permanent sovereignty had entered comfortably into custom. Skubiszewski noted in a presumptive manner with regard to ‘the rights to self-determination and to 124

For further detail see the discussion on the status of General Assembly resolutions by Judge Lauterpacht, concluding that ‘although the decisions of the General Assembly have no full legal effect they are nevertheless a weighty factor in the system of supervision and that therefore the procedure of the voting by which they are reached is decisive for the purpose of the Opinion of the Court. … [I]t is not admissible to give currency to an interpretation, without qualifying it in all requisite detail, which gratuitously weakens the effectiveness of the Charter. It would be wholly inconsistent with sound principles of interpretation as well as with highest international interest, which can never be legally irrelevant, to reduce the value of the Resolutions of the General Assembly—one of the principal instrumentalities of the formation of the collective will and judgment of the community of nations represented by the United Nations—and to treat them, for the purpose of this Opinion and otherwise, as nominal, insignificant and having no claim to influence the conduct of the Members. International interest demands that no judicial support, however indirect, be given to any such conception of the Resolutions of the General Assembly as being of no consequence.’ Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa, Advisory Opinion, 1955 ICJ 67 (7 June 1955), Separate Opinion of Judge Lauterpacht, 122. 125 Charter of Economic Rights and Duties of States, UN GA Res 3281 (XXIX), 12 December 1974. 126 Declaration on the Establishment of a New International Economic Order, UN GA Res 3201 (S – IV), 1 May 1974. Also of importance was, Permanent Sovereignty over Natural Resources, UN GA Res 3171 (XXVIII), 17 December 1973. 127 The voting patterns were as such: resolution 1803 – 87 for, 2 against, 12 abstentions; Relevant provisions of resolution 3281 referring to domestic law only – 104 for, 16 against, 6 abstentions; Relevant provisions of resolution 3171 referring to domestic law only – 86 for, 11 against, 28 abstentions; resolution 3201 – adopted without a vote. For further discussion see, A Varma, ‘Casenotes - Petroleum Concessions in International Arbitration: Texaco Overseas Petroleum Company v. Libyan Arab Republic (Dupuy, Arb.) (Prelim. Award, 1975; Award on the Merits, 1977)’ (1979) 18 Columbia Journal of Transnational Law 259, 280-83. 128 Texaco Overseas Petroleum Company v The Government of the Libyan Arab Republic (US v Libya), 1977 ICJ 2 (June 1977), at 30. Hyde noted at that time, that such developments in international law meant that ‘Assembly resolutions as evidence before international tribunals could not be dismissed because they are legally merely recommendations.’ J Hyde, ‘Permanent Sovereignty over Natural Wealth and Resources’ (1956) 50 American Journal of International Law 854, 854.

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permanent sovereignty over natural resources’, that ‘[a]ny country has the … duty to respect these rights’. 129 Specifically regarding permanent sovereignty, the following quote leaves no doubt about the opinions both of Weeramantry and of the government of Australia confirming the jus cogens nature of the doctrine: Australia has submitted that Australia too enjoys the right of permanent sovereignty over its natural resources and that what is involved in this case is 'peremptory norm versus peremptory norm', 'permanent sovereignty of Australia versus sovereign rights of Portugal'. The undeniable rights of Australia cannot, of course, be matched by the purely fiduciary rights of Portugal, for Portugal has no sovereign rights, save in its capacity as custodian of the rights of the East Timorese people. More properly stated, the suggestion is then of a clash between the peremptory norm of Australia's permanent sovereignty over its natural resources and the peremptory norm of East Timor's permanent sovereignty over its natural resources.130 Secondly, the declaration refers to permanent sovereignty being vested in both states and peoples.131 The traditional preoccupation in the literature has been with a sovereignty vested in states or nations. The legacy of decolonisation brought an associated focus of the newly independent states on their national economic sovereignty, and the conflict between this and pre-existing foreign interests inside the state. Nevertheless, the Declaration, in Article 1, prioritises permanent sovereignty as a right of peoples and emphasises the ‘well-being of the people’ as the core concern of the document. This flows from its original conception in the context of a great push for decolonisation, as a right of colonised peoples, as against colonial states, and as the ‘economic corollary of the political and legal call for decolonization and self-determination.’132 Following decolonisation, history has taught a hard lesson that the interests of state governments and their people can never be assumed to be identical, and has highlighted the serious danger in vesting undifferentiated sovereignty in the state itself, or even risking ‘state capture’ by advocating a differentiated right vested in states and peoples simultaneously.133 As

129

East Timor (Portugal v Australia), 1995 ICJ 91 (30 June 1995), 264. Ibid, 203-4. 131 Though there has been a great deal of controversy over the definition of peoples in regard to the rights of permanent sovereignty over natural resources and self-determination I use it here in its least controversial sense, as referring to the entire population of a given state taken as a whole. See A Cassesse, ‘The Self-Determination of Peoples’ in L Henkin (ed), The International Bill of Human Rights: The Covenant on Civil and Political Rights (New York, Columbia University Press, 1981), 94. 132 R Dolzer, ‘Permanent Sovereignty over Natural Resources and Economic Decolonization’ (1986) 7 Human Rights Law Journal 217, 221. 133 ‘[I]t is almost meaningless to speak of peoples' rights when governments also hold these rights. If governments are vested with a right, it is not necessary to also vest it in the people they represent. As Professor James Crawford has observed, "[a]ny insistence that peoples' rights are vested in governments disqualifies the right in question from being regarded as a peoples' right."’ E Duruigbo, ‘Permanent Sovereignty and Peoples’ Ownership over Natural Resources in International Law’ (2006) 38 George Washington International Law Review 33, 49, quoting J Crawford, ‘Some Conclusions’ in J Crawford (ed), The Rights of Peoples (Oxford, Clarendon Press, 1992), 167. 130

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such, there is now increasing application of the principle as adhering to peoples,134 aided in no small part by the advent of common Article 1(2) of the international human rights covenants,135 stating that, ‘[a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources.’ Most authors agree that this development concludes the vesting of permanent sovereignty finally in peoples themselves.136 The present movement towards peoples and away from states amounts to a return to the origin of the legal doctrine and is ‘certainly a laudable development, as it implies that States should be instruments to serve the interests of peoples and not vice versa.’137 A historical preoccupation with permanent sovereignty as a right that the state may hold and exercise in the capacity of a trustee on behalf of the people should not detract from the fact that sovereignty itself is ultimately vested in the people themselves.138 Authors indicate the development of this fact by reference to the 1981 African Charter of Human and Peoples’ Rights, which elaborates at Article 21(1) that, ‘All peoples shall freely dispose of their wealth and natural resources’, adding that ‘[t]his right shall be exercised in the exclusive interest of the people.’139 Duruigbo employs standard rules of

134

L Miranda, ‘The Role of International Law’, above n 116, 795, 803-6. E Duruigbo, ‘Permanent Sovereignty’, above n 133, 37; R Dufrense, ‘The Opacity of Oil: Oil Corporations, Internal Violence and International Law’ (2004) 36 New York University Journal of International Law and Policy 331, 356; A Farmer, ‘Towards a Meaningful Rebirth of Economic Self-Determination: Human Rights Realisation in Resource Rich Countries’ (2006–2007) 39 New York University Journal of International Law and Policy 417, 424; L Barrera-Hernández, ‘Sovereignty over Natural Resources Under Examination: The InterAmerican System for Human Rights and Natural Resource Allocation’ (2006) 12 Annual Survey of International & Comparative Law 43, 57; M Salomon and A Sengupta, The Right to Development: Obligations of States and the Rights of Minorities and Indigenous Peoples (London, Minority Rights Group International, 2003), 35; S Chowdhury, ‘Permanent Sovereignty over Natural Resources’ in K Hossain and S Chowdhury (eds), Permanent Sovereignty Over Natural Resources in International Law: Principles and Practice (London, Frances Pinter, 1984), 3; J Graff, ‘Human Rights, Peoples, and the Right to SelfDetermination’ in J Baker (ed), Group Rights (Toronto, Toronto University Press, 1994), 186. 135 ICCPR and ICESCR, above n 13. 136 See for example, A Cassese, ‘The Self-Determination of Peoples’ in L Henkin (ed), The International Bill of Human Rights: The Covenant on Civil and Political Rights (New York, Columbia University Press, 1981), 92, 103; T van Boven, ‘Human Rights and Rights of Peoples’ (1995) 6 European Journal of International Law 461, 470; M wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’ (1995) 35 Virginia Journal of International Law 339, 376. 137 N Schrijver, Sovereignty Over Natural Resources, above n 115, 371. 138 See generally, E Duruigbo, ‘Permanent Sovereignty’, above n 133. 139 See, for example, V Nmehielle, The African Human Rights System: Its Laws Practices and Institutions (Dordrecht, Martinus Nijhoff, 2001), 147. In addition, in the current context, the Irish constitution states clearly that all powers of government derive from the people (Constitution of Ireland 1937, Article 6(1)), thus, any exercise of the right to permanent sovereignty over its natural resources must recognise the people as the source of that right, and so natural resources must be utilised with a view towards benefiting the entire population. See further, A Cassesse, ‘The Self-Determination of Peoples’, above n 136, 103.

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treaty interpretation140 to a close analysis of the sources of permanent sovereignty, arguing persuasively that such sovereignty should be legally construed as vested in peoples rather than states.141 ‘International law therefore has a major role to play in clarifying governments' responsibility and peoples' rights.’142 While the emphasis is rightly placed on the proper role of governments, Duruigbo concludes further that the relevant construction of ‘peoples’ will most often, as in the case at hand in this paper, be the populace of the nation as a whole.143 The term ‘peoples’ may be construed in a number of ways, all of which may hold relevance and be viable in certain contexts. Yet it remains that, generally speaking, the term should be taken as a substitute for the whole population. ‘Peoples’ may apply to the inhabitants of a country under colonial occupation; however, this sole application would not account for the term’s continued relevance, or for the fact that it is used so prominently in the African Charter, which was drafted at a time of colonial independence. Furthermore, it would lead to the nonsensical situation that the very goal of the people’s anti-colonial struggle, independence, resulted in the cancellation of their sovereignty.144 The term may also apply to separable and distinct portions of the national population, such as indigenous peoples. However, exclusive application as such leads to very strong claims for the national independence of such distinct groups, which, irrespective of their merit, was evidently not the intent of those drafting resolution 1803.145 This could foreseeably lead to multiple spurious and vexatious claims for political autonomy that may end in chaos.146 Finally, ‘peoples’ may refer exclusively to the state itself. The objections here have already been fully outlined. Therefore, once it is accepted that the state and ‘peoples’ cannot be treated identically, the reference of the term to the population as a whole becomes ‘the most plausible, realistic, and sustainable position … Other definitions of "peoples" hardly

140

The author applies the following formula: ‘Treaty interpretation should be based on the text of the treaty and attention should also be paid to the object and purpose of the treaty in appropriate cases.’ E Duruigbo, ‘Permanent Sovereignty’, above n 133, 43. See Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 340, 23 May 23 1969, Articles 3133. 141 See also J Crawford, ‘The Rights of Peoples: “Peoples’ or ‘Governments”?’ in J Crawford (ed), The Rights of Peoples (Oxford, Clarendon Press, 1992), 55, 63, noting that; ‘The precedent for treating questions of permanent sovereignty over natural resources as rights of peoples, rather than as rights of States, is thus an established one’. 142 E Duruigbo, ‘Permanent Sovereignty’, above n 133, 37. See further, W Reisman, ‘Harnessing International law to Restrain and Recapture Indigenous Spoliations’ (1989) 83 American Journal of International Law 56. 143 E Duruigbo, ‘Permanent Sovereignty’, Ibid., 52. 144 J B Marie, ‘Relations Between Peoples' Rights and Human Rights: Semantic and Methodological Distinctions’ (1986) 7 Human Rights Law Journal 195, 201. 145 Similarly, in respect of the right to self-determination, the African Commission on Human Rights has noted that exclusive, or ‘strong’, interpretation of the term ‘peoples’ as distinct national sub-groups is unacceptable, as it may lead to unjustified challenges to state’s territorial integrity in the absence of state abuse. See Kantangese Peoples' Congress v. Zaire, African Commission on Human and Peoples' Rights, Communication No. 75/92 (1995). 146 See for example, R Falk, ‘The Rights of Peoples (In Particular Indigenous Peoples)’ in J Crawford (ed), The Rights of Peoples, above n 141, 17-18.

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withstand scrutiny; even where they do, unpalatable consequences likely not envisaged by the formulators are the result.’147 In addition, when addressing permanent sovereignty in the context of the human rights covenants, Cassesse states definitively that to cover all relevant situations ‘peoples’ must refer both to the populace of a state or territory as a whole, and to distinct groups therein: Literal as well as more comprehensive interpretation supports the conclusion that the words 'all peoples have the right...' in Article 1 refer to any people irrespective of the international political status of the territory it inhabits. It applies, then, not only to the peoples of territories that have not yet attained political independence, but also to those of independent and sovereign states. This conclusion is borne out by the travaux preparatoires.148 During the drafting of the ICCPR, explicit mention was made of tribal groups and indigenous peoples as within the definition of ‘peoples’ under the covenant.149 In a number of instances, the acknowledgement of the adherence of these rights in ‘peoples’ as distinct, marginalised and subjugated groups within the nation will be necessary, and, as Cassesse points out, was intended for their protection. At the same time, it is understandable that states concerns for political and territorial integrity will resist an unbalanced formulation as such in international law. To provide balance, it is submitted that, at the very least, in its most uncontroversial and logical form ‘peoples’ was intended to also (and perhaps primarily) refer to the national population as a whole, and permanent sovereignty therefore seeks to protect the rights of all individuals and groups within the national territory. This leaves a number of undecided issues still open. Chief among them is the question of balancing the diverse interests and demands of multiple communities, such that benefits may accrue to the whole population and a verifiable mandate from the people as a whole may be ascertained, upon which the government may act safely in the knowledge that it is appropriately exercising its role as trustee. The only logical answer is that such determinations must be entrusted to an appropriately defined political process of contestation and debate. Crucial legal principles should nevertheless guide the procedure, such as inclusiveness, freedom from coercion, openness, informed access, transparency, effectiveness, and active empowerment in proportion to the degree of factual marginalisation. To which we should add that an ultimate decision should allow for structural compensation to those left unaffected or worse off, by those who benefit the most, maximising equity and balancing necessary trade-offs. On the final point, the Declaration makes it clear that the state government, in its dealings with foreign investors, cannot violate the people’s permanent sovereignty. Such dealings must be done in the interests of the well-being of the people and in accordance with only such ‘rules and conditions which the peoples … freely consider to be necessary or desirable’, and they must in no circumstances impair ‘that state’s sovereignty over its natural wealth and resources’. Schrijver states that, permanent sovereignty amounts to 147

E Duruigbo, ‘Permanent Sovereignty’, above n 133, 55. ‘The Self-Determination of Peoples’, above n 136, 94. 149 E Duruigbo, ‘Permanent Sovereignty’, above n 133, 56-57. 148 A Cassesse,

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granting a right to the people ‘to withdraw from unequal investment treaties and to renounce contractual relations when one party unjustly enriches itself thereby’ and ‘to revise the terms of an arrangement in the exercise of [their] legislative competence.’150 Similar to Miranda, Duruigbo believes that the law of permanent sovereignty is important in the work of changing the ‘natural resources paradigm’, referring in part to the dominant and privileged position in this paradigm held by foreign investors. ‘Without doubt, one of the principal objectives behind the emergence of [permanent sovereignty] was to prevent even well-meaning but weak or short-sighted leadership from adversely affecting the survival of the country through wide concessionary arrangements’.151 This core purpose is evident from the drafting of the Declaration.152 Permanent sovereignty was, therefore, intended as a means whereby a people could have recourse to an internationally set benchmark of governmental neglect or mismanagement. 153 As Duruigbo states, ‘a driving force behind the formulation of the notion of [permanent sovereignty] was an aversion to national leaders diverting their countries' natural wealth to foreign investors’.154 Orford, Schrijver and Crawford also make the same assessment.155 Logically, then, the doctrine demands the institution of procedures by the state to accurately determine the will of the people in regards to natural resource management. It has long been noted in this field that a strong, clear and verifiable mandate from the people is invaluable: to ensure the equitable and just distribution of benefits; to secure government legitimacy; and to protect the defensible expectations of foreign investors and the long-term viability and security of their investment. Additional to its pure common sense, the doctrine of permanent sovereignty makes the clear ascertainment of the will of the people a legal demand under international law. As Crawford notes, the consequences are that ‘the right avails as against decisions of the government of the territory in which the people live’, suggesting that ‘governmental decisions on the disposal of natural resources are … subject to international scrutiny on the basis that particular decisions are abusive.’156 This view is strengthened by consideration of government re-

150

N Schrijver, ‘Permanent Sovereignty over Natural Resources Versus the Common Heritage of Mankind’, above n 114, 90. 151 E Duruigbo, ‘Permanent Sovereignty’, above n 133, 49. 152 Ibid. 153 ‘[A]ctions not grounded in the peoples' interest taken by government which involve natural resources could be open to challenge as violations of international law.’ Ibid., 63. 154 Ibid., 51. Hyde notes that the Saudi Arabian delegate, during discussions of the relevance of permanent sovereignty to the right to self-determination in the negotiation of the human rights covenants, stated that ‘it was intended to prevent what had been a frequent occurrence in the nineteenth century, namely, that a weak and penniless government should seriously compromise a country's future by granting concessions in the economic sphere. This sentence was intended to serve as a warning to all who might consider resorting to such unfair procedure.’ J Hyde, ‘Permanent Sovereignty over Natural Wealth and Resources’, above n 128, 858. 155 See A Orford, ‘Globalization and the Right to Development’ in P Alston (ed), Peoples’ Rights (New York, Oxford University Press, 2001) 127, 137; N Schrijver, Sovereignty over Natural Resources, above n 115, 370-71; J Crawford, ‘Some Conclusions’ in J Crawford (ed), The Rights of Peoples (Oxford, Clarendon Press, 1988) 167. 156 J Crawford, ‘Some Conclusions’, Ibid, 171.

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sponsibility to ensure the sustainability of natural resources for the benefit of future generations, such that ‘resource depletion and exhaustion as a result of profligate exploitation’ may be challenged by any legal means available and lays a foundation for future legislation to make it illegal.157 The more substantial the particular decision to be made, the broader the various affected communities, and the more far-reaching are its consequences, then the more refined is this demand. For example, similar to the context at hand, in the case where a national oil and gas regime that potentially transfers control of resources to third parties is contemplated, the requirements for establishing the will of the people must be construed strictly. Procedures for such an enquiry must be significantly inclusive, free, open, informed, transparent and empowering, such that the end result may enjoy substantial legitimacy and be well insulated from subsequent dispute. This consequence of the law of permanent sovereignty is simply a natural extension of the role of government as trustee. As many have noted, this requirement would also greatly increase the strength and durability of subsequent agreements with foreign investors, and the stability and public support of the investment itself.158 Such a procedure should therefore be desirable from all perspectives; that of the people, governments and investors. Casting permanent sovereignty over natural resources in this way, as a right solidly held by the people, would again recognise their entitlement to demand revision and to reject agreements formerly entered into by their governments with foreign investors should it later become evident that their terms, effects, or implementation significantly contradict the people’s interests in ways unforeseen, undisclosed or undebated at the time of the establishment of such agreements.159 Befitting the regional experience with foreign exploitation, the African Charter of Human and Peoples’ Rights, for example, states clearly that ‘[i]n case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.’160 State par-

157 A Diaz,

‘Permanent Sovereignty Over Natural Resources’ (1994) 24 Environmental Policy and Law 157, 168-69. 158 On the importance of a viable social contract between the investor and the public for the stability of arrangements generally, and the associated concepts of a ‘stakeholder approach’ and a ‘license to operate’, see for example, N Kakabadse, C Rozel and L Lee-Davies, ‘Corporate Social Responsibility and Stakeholder Approach: A Conceptual Review’ (2005) 1 International Journal of Business Governance and Ethics 277; and United Nations Conference on Trade and Development, The Social Responsibility of Transnational Corporations (Geneva, United Nations, 1999). 159 E Duruigbo, ‘Permanent Sovereignty’, above n 133, 61. ‘The right of peoples to sovereignty over natural resources necessarily imports an entitlement to demand that governments manage these resources to the maximum benefit of the people. It has been correctly observed that “[i]f the phrase ‘rights of peoples’ has any independent meaning, it must confer rights on peoples against their own governments.”. . . Primarily, this duty would restrain irresponsible use and management of resources by public officials and positively utilize the resources for peoples’ benefit. … [governments are thereby] prevented from exercising permanent sovereignty in a way that would cause substantial harm to their peoples.’ Ibid, 65-67, quoting J Crawford, ‘The Rights of Peoples: "Peoples" or "Governments"?' in J Crawford (ed), The Rights of Peoples, above n 141, 56. 160 Banjul Charter on Human and Peoples' Rights, above n 113, Article 21(2).

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ties to the Charter are further obliged to ‘eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.’161 In the specific sector at hand in this paper, permanent sovereignty could then be seen to limit foreign investment by negating the ability of oil corporations to exercise their rights granted by governments under certain conditions. In specific contexts, it could allow affected groups to challenge the transfer of title or ownership of natural resources to oil corporations, thus endowing them with a negative or suspensive prerogative.162 On the basis of the preceding analysis there is scope to argue that Ireland’s current licensing regime offends the peoples’ right to permanent sovereignty over their natural resources on a number of grounds. The licensing system itself transfers ownership of oil and gas from the people to foreign companies, which undermines the basic idea of permanent sovereignty. On this reading, the alternative of a contractual system, retaining some form of ownership, would be clearly preferred. At the least, a serious debate about the feasibility of alternative systems maintaining ultimate control of the resource would be mandated. The Irish peoples’ permanent sovereignty may then require the government to at least exhaust the possibility of creating a contractual system. Even within the current licensing regime, the fact that Ireland is at the very bottom end of comparative benefit sharing in global terms would indicate that the government is not maximising the benefit of its natural resources for national development or the well-being of its people, thereby violating their permanent sovereignty by effectively alienating it at a nominal price and excluding the possibility of benefits accruing to future generations. Furthermore, on the basis that the current licensing terms are against the economic interest of the Irish people, an obligation may arise for the state to suspend and renegotiate existing agreements. Nevertheless, the marketing of economic necessity creates a very emotive counter-argument mitigating these considerations. On the one hand, the government argues that it must incentivise foreign investors now, resulting in paltry benefits to the people. The economics of necessity might argue that asserting people’s sovereignty upsets investor’s expectations, security and certainty. Yet, as is evidenced in the fact that the trouble between Shell and local communities in Mayo has set that project well over a decade behind in schedule,163 not asserting the people’s sovereignty equally results in insecurity and uncertainty for investors. On the other extreme, it may be argued that the resources should stay where they are, in the hands of the people, until such time as the dependence on foreign capital is reduced, their exploitation can actually bring a substantial dividend, and the people’s sovereignty may be partially or even entirely traded for a 161

Ibid., Article 21(5). R Dufrense, ‘The Opacity of Oil’, above n 134, 393. ‘The importance of recognizing a “peoples” right to sovereignty over natural resources is that “peoples” can seek to hold states accountable under international law for the misuse of natural resources. This interpretation, for example, could support claims by the national polity against the state for spoliation or perhaps even for passing title to a corporate actor over natural resource wealth in the context of an extractive industry project.’ L Miranda, ‘The Role of International Law’, above n 116, 805. 163 ‘Twelve years behind its original completion schedule, the Corrib gas project’s costs have spiralled with €2.68 billion spent by December 2012 … [and] will culminate in a €3.4 billion cost when completed by the end of next year.’ Aine Ryan, ‘Corrib will Cost €3.4 Billion when Completed’, The Mayo News, 31 December 2013. 162

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reasonable gain from the perspective of the lifetime of a nation. Between these extremes lie a plethora of intermediate views. In the end, it becomes a matter of appropriately conducted political debate by which to better ascertain the will of the people. This brings us to the crux of the matter. Such a debate must at least take place. The important point is that, even if a loss of sovereignty is unavoidable, the terms on which this occurs must be ‘freely agreed upon’ and set ‘in conformity with the rules and conditions which the people … freely consider to be necessary or desirable’. The crucial element then is the assessment of the will of the people, taking us to the exercise of their right to self-determination.

The Peoples’ Right to Self-Determination The institution of the law on permanent sovereignty has had a seminal influence on the developing formulation of the right to self-determination later codified in both international human rights covenants:164 The iteration of the doctrine of permanent sovereignty over natural resources in these foundational human rights documents is best understood as mediating the relationship between the state, represented as a governmental abstraction, and the ‘peoples’ of a state, represented by the national polity. In this context, the doctrine possesses an intrastate dimension: one that was originally qualified as an obligation of the government of a state to its peoples as a whole.165 This viewpoint is enhanced by attention to an article identical to both human rights covenants, which, as such, may be taken to underpin the entirety of international human rights law. The article states that, ‘Nothing in the present Covenant[s] shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources.’166 This provision was undoubtedly intended to prevent government’s abuse of such collective rights in their focussed attention to the realisation of the individual rights enumerated in both documents. Miranda points out that contemporary debates over natural resource management in the relations between peoples and their governments have more often been conducted in the discourse of human rights and self-determination, rather than that of sovereignty.167 This is mostly likely due to the fact that human rights are specifically designed for such relations, and that in this context the sovereign territorial integrity of the state is not generally threatened. This contextual discourse is most usually employed in relation to 164

‘Into the discussion of this politically delicate issue the capital-importing countries were able to inject the principle of permanent sovereignty over natural wealth and resources. In the jargon of the Human Rights Commission, as well as its draft article on self-determination, this principle came to be known as economic self-determination.’ J Hyde, ‘Permanent Sovereignty over Natural Wealth and Resources’, above n 128, 855. For further discussion of these debates linking human rights, natural resources and self-determination in the United Nations see, N Schrijver, Sovereignty over Natural Resources, above n 115, 49-56. 165 L Miranda, ‘The Role of International Law’, above n 116, 800. 166 ICCPR, Article 47; ICESCR, Article 25, above n 13. 167 L Miranda, ‘The Role of International Law’, above n 116, 810.

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the struggle of indigenous peoples and other distinct minorities for their rights over territories and resources essential to their cultural life when jeopardised by government development projects.168 Yet, it is now increasingly recognised that ‘the right to selfdetermination should not benefit indigenous peoples [or minorities] alone … [it] is recognised to all “peoples”, and its enjoyment should not be made conditional on these peoples being “indigenous”.’ 169 The right has been extended by the Inter-American Court of Human Rights, for example, to encompass a broader definition of ‘peoples’, defined as communities that need not be indigenous.170 The scope and content of the right to self-determination, as a whole, is open to a degree of contestation. However, it does contain a verifiable core content that can be applied in illumination of the present puzzle. Self-determination has been described as one of the most under-rated and under-utilized norms in the international human rights system of protection. If taken seriously, self-determination means that the peoples, not governments alone, should be making the fundamental choices as to how the resources available should be used: in essence it is a norm about participatory democracy, particularly in the context of the use, exploitation and allocation of natural resources.171 Further detail on self-determination is provided by Nowak in his commentary on the Covenant on Civil and Political Rights.172 In the past, the right to self-determination has been interpreted as one that is exercised once only in the history of a nation state, at the time of its independence, thereafter holding no relevance. This very narrow interpretation was dominant during the process of decolonisation. As Nowak makes clear, this interpretation is no longer accepted, and now it is widely held that self-determination is a continuous right that ‘must be exercised, asserted and perhaps renewed or redefined in a continual process’.173 In other words, any government must always be conscious of its relationship to its people, and ever mindful of the constantly evolving realisation of this

168

See generally J Anaya, Indigenous Peoples in International Law, 2nd Edition, (Oxford, Oxford University Press, 2004); P Thornberry, International Law and the Rights of Minorities (Oxford, Clarendon Press, 1993). The Declaration on the Rights of Indigenous Peoples, for example, establishes a state duty to consult indigenous communities with the aim of acquiring their consent ‘prior to the approval of any project affecting [their] lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.’ UN GA Res 61/295 (VXI), 13 September 2007, Article 32(2). 169 O De Schutter, ‘The Host State’, above n 75, 166-67. 170 Case of the Moiwana Community v Suriname, Inter-American Court of Human Rights, Judgement, 15 June 2005, Series C No. 124, paras 132-33; Case of the Saramaka People v Suriname, Inter-American Court of Human Rights, Judgement, 28 November 2007, Series C No. 172, para 86. 171 O De Schutter, ‘The Host State’, above n 75, 165-66. 172 M Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd Edition, (Kehl am Rhein, NP Engel, 2005). 173 Ibid, 16. See also, R McCorquodale, ‘Self-determination: A Human Rights Approach’ (1994) 43 International and Comparative Law Quarterly 857, 865.

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right. As such, self-determination, as with permanent sovereignty, is a right held by the people separate from and potentially opposed to the exercise of governmental power.174 Self-determination is divided into internal and external elements.175 The external element involves the exercise of the right at the point of independence of the nation, as described above, and operates also as a part of the general principle of international law of non-interference in the internal affairs of other states. However, it is the internal aspect that is of relevance here. Internal self-determination relates to the relationship between a people and its government. It prohibits government abuse of its own people, and, in turn, is divided into political and economic elements, both of which concern us. As Nowak states, ‘the right of internal political self-determination is based on a democratic element, which is to be exercised together with the Covenant’s other political rights and freedoms, especially Articles 19, 21, 22, and 25’.176 This aspect of the right to self-determination is stressed as permanent in character and continuous, and is therefore reflective of the fact that self-determination is a prerequisite for the realisation of all other human rights.177 It can be considered an ‘overarching or structural provision’ in the canon of human rights law.178 The democratic element of self-determination has been interpreted by some, together with the progressive development of a collection of other rights, as amounting to an international right to democratic governance.179 However, pursuing this route is of limited significance in regard to the present endeavour, as this developing democratic entitlement is limited to the institution of free and fair elections, and does not have the depth to aid analysis in the present case. Of much more interest is Article 25, the right to political participation,180 to which we will return presently. The economic element of internal self-determination asserts that ‘peoples may by virtue of this right freely (i.e., free of external or domestic interference) pursue their economic … development’.181 Echoing the above, Nowak makes the following statement:

174

J Crawford, ‘The Rights of Peoples: “Peoples” or “Governments”?’ in J Crawford (ed), The Rights of Peoples (Oxford, Clarendon Press, 1988). 175 Committee on the Elimination of Racial Discrimination, General Recommendation No. 21: Right to Self-determination, 23 August 1996, para 4. 176 M Nowak, U.N. Covenant, above n 172, 24. The individual articles refer to, respectively, the rights to freedom of opinion and expression, the right of peaceful assembly, the right to freedom of association, and the right to political participation. See also, A Rosas, ‘Internal Self-Determination’ in C Tomuschat (ed), Modern Law of Self-Determination (Dordrecht, Martinus Nijhoff Publishers, 1993). 177 Human Rights Committee, General Comment No. 12: The Right to Self-Determination of Peoples, 13 March 1984, para 1. 178 A Batala, ‘The Right of Self-determination – ICCPR and the Jurisprudence of the Human Rights Committee’, Symposium on The Right to Self-Determination in International Law, The Hague, 29 September – 1 October 2006, 2. 179 See T Franck, ‘The Emerging Right to Democratic Governance’ (1992) 81 American Journal of International Law 46; and G Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale Journal of International Law 539. 180 See the suggested requirements for community participation in the Joint Committee’s Report, Offshore Oil and Gas, text below nn 254-56. 181 M Nowak, U.N. Covenant, above n 172, 24.

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The right of all peoples to free disposition over natural resources applies not only with regard to other States and foreign companies but also internally: governments of sovereign States … may not waste raw materials at the expense of the interests of the relevant peoples or transfer control over natural resources to other States or foreign companies without corresponding compensation for the benefit of these peoples. Internal economic self-determination thus is closely related to political self-determination. Governments that systematically and grossly disregard the economic rights of their citizens violate the right of self-determination of their peoples just as much as those that trample on civil and political rights.182 From this viewpoint, the anti-democratic modalities and effects of an economics of necessity are immediately problematised, not simply as an unfortunate side-effect of a presupposed reality, but separately, as a distinct set of government decisions, acts and omissions potentially incurring state responsibility for the violation of a legal obligation. A state policy and a licensing regime that wastes the nation’s resources and permanently transfers control over them at the expense of the peoples’ interest and without adequate compensation is no longer only a matter for political struggle but becomes cognisable for its ramifications under human rights norms. This serves to reframe the problem of natural resource management in an international law context where the state is obliged to recognise at all times that ownership resides with the people and its role is simply one of custodian. Only the people hold the right to decide on the manner of the management of their natural resources, and the state must continuously recognise that right and ensure its proper exercise. Conversely, with particular regard to economic self-determination, Oloka-Onyango remarks that, states in modem times serve less to facilitate the dynamic of self-determination than they serve to impede it. Their most important function is as a direct competitor with their own peoples for the resources of the territories they govern.183 In the same vein, Farmer notes that ‘economic self-determination, much like internal self-determination, has at its core a power struggle between peoples and states’.184 The importance of this economic aspect of self-determination has been noted by the Human Rights Committee and a number of authors.185 In fact, in a world where a certain level of formal democracy has become the norm, leading to a current intensification of the 182

Ibid, 26. J Oloka-Onyango, ‘Heretical Reflections on the Right to Self-Determination: Prospects and Problems for a Democratic Global Future in the New Millenium’ (1999) 15 American University International Law Review 151, 205-6. 184 A Farmer, ‘Towards a Meaningful Rebirth’, above n 135, 444. 185 Human Rights Committee, General Comment 12, UN Doc HRI/GEN/1/Rev.1 at 12 (1994), para 5; A Rosas, ‘The Right to Self-determination’ in E Krause and A Rosas (eds), Economic, Social and Cultural Rights, A Textbook (London, Martinus Nijhoff, 1995) 83; E Spiry, ‘From Self-determination to a Right to Self-Development for Indigenous Groups’ (1995) 38 German Yearbook of International Law 129, 144; S Trifunovska, ‘One Theme in Two Variations – Self-determination for Minorities and Indigenous Peoples’ (1997) 5 International Journal on Minorities and Group Rights 175, 182-83. 183

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call for the next level of substantive democracy, the economic element is beginning to take a dominant position in discussions on self-determination. At the same time, we are seeing more clearly an increased tendency whereby the state engages in this power struggle with its own people in collaboration with foreign investment and on behalf of its interests. This has long been evident in developing countries, as an important element of development failure known as ‘the resource curse’, where such collaboration has been openly pursued by dictatorial or authoritarian governments. The collaboration now is generally more subtle and disguised, operating under the rhetorical cloak of economic necessity. The development of the content of the right to self-determination has been approached with caution by the Human Rights Committee, arguably due to the vast internal political ramifications of the right. The Committee has refused to entertain complaints based solely on this right, stating that it may only address the individual rights of the CCPR and not collective ones. However, there is broad understanding that the right to self-determination is exercised partially, though importantly, through the right to political participation. The Human Rights Committee is ‘increasingly considering participation and other relevant rights affecting minority groups in relation to the implementation of self-determination under Article 1 through broad democratic processes’.186 This developing shift in attitude of the Committee reflects what Miranda refers to as a move towards ‘natural resource allocation beyond state sovereignty’ and a ‘peoplesbased model of development.’187 The effect of the emerging legal approaches to permanent sovereignty and self-determination described here seek to rectify a common situation where current orthodox modes of state-base development have failed to adequately address the needs of the whole people, especially the poor and the marginalised. They signal an evolution in international law away from absolute state sovereignty over land and natural resources … [and] carve away at the notion of a state’s unqualified authority to freely dispose of land and natural resources within its territory. Consequently, they challenge the orthodox top-down model of development, which prioritizes the state as the ultimate decision maker in charting a development strategy without permeating the abstraction of the ‘state’ to account for the distinct and particularly vulnerable position of historically marginalized communities.188 To date, states have proved largely unable in most cases to realise the promise of a development path based on absolute centralised control over decision-making and the subsequent ‘trickle-down’ of economic benefits. Greater success in this regard iscorrelated with greater democratic participation. The new modes of development that this understanding of international law mandates emphasise state duties towards its people, rather than state rights over resources, and hold the people’s participatory rights in de-

186

G Pentassuglia, ‘State Sovereignty, Minorities and Self-determination: A Comprehensive Legal View’ (2002) 9 International Journal on Minority and Group Rights 303, 316 (referring to Concluding Comments from the Human Rights Committee regarding Canada, Mexico and Norway). 187 L Miranda, ‘The Role of International Law’, above n 116, 831-39. 188 L Miranda, ‘The Role of International Law’, above n 116, 830.

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velopment decision-making at their core as the primary means of ensuring the maximisation of benefits from development and their equitable distribution.189 The Declaration on the Right to Development adds substantially to this participatory approach to development, holding that states must [f]ormulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and the fair distribution of the benefits resulting therefrom.190 This clearly implies that, for the resulting decisions and distributions to hold legitimacy, adequate participatory mechanisms must be instituted actively by the state, transparency and full information must be ensured, and detailed and equitable benefit sharing accounted for up-front, such that revenues do not solely benefit foreign investors and limited sections of the national populace.191

Participatory Rights Article 25 of the CCPR provides for the right to political participation, obliging the state to provide the mechanisms necessary for each citizen, ‘without unreasonable restrictions’, to ‘take part in the conduct of public affairs, directly or through freely chosen representatives’. Of present concern is the scope of the right to direct participation in decision-making and policy formulation, involving such measures as referenda, plebiscites, consultation mechanisms, committee hearings, and people’s assemblies.192 According to the Human Rights Committee, [t]he conduct of public affairs … is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the

189

There is a ‘shift in decision-making authority over the means and goals of development from the state to the peoples involved.’ L Miranda, ‘The Role of International Law’, above n 116, 836. 190 UN GA Res 128 (XLI), 4 December 1986, Article 2(3). 191 N Miranda, ‘Concession Agreements’, above n 75, 540-48. 192 The Human Rights Committee states that citizens exercise the right to direct participation when ‘they choose or change their constitution or decide public issues through a referendum or other electoral process … [and] by taking part in popular assemblies which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government. Where a mode of direct participation by citizens is established, no distinction should be made between citizens as regards their participation on the grounds mentioned in article 2, paragraph 1, and no unreasonable restrictions should be imposed.’ Furthermore, ‘Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association.’ Human Rights Committee, General Comment 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, UN Doc CCPR/C/21/Rev.1/Add.7, 7 December 1996, paras 6, 8.

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formulation and implementation of policy at international, national, regional and local levels.193 Nowak notes that the people not only have the right, but must also have the ‘opportunity’ to take part in the decision-making process under Article 25: This sets up a duty on States parties to guarantee with positive measures that all formally eligible people have the actual opportunity to exercise their political rights. .. Mere passivity on the part of the State would … violate the opportunity to exercise political rights.194 Nevertheless, again, the Human Rights Committee has taken a relatively restrictive approach and, as a result, while there is an ‘individual right to take part in referendums and similar consultations when these are provided for by the State party’, they are not inherently obliged to provide for public consultations, referenda or plebiscites.195 In this regard, it must be noted that the Irish Constitution provides for the holding of referenda in Article 47. Although this mechanism has traditionally been used only for constitutional amendments, there is no legal bar to its use in regard to legislative questions. Indeed the article refers clearly to proposals ‘other than a proposal to amend the Constitution’.196 However, a recent proposal to require the holding of referenda in general within Ireland has met with resounding approval.197 It is worth quoting at length the Committee’s most significant pronouncement on the scope of the present right: It must be beyond dispute that the conduct of public affairs in a democratic State is the task of representatives of the people, elected for that purpose, and public officials appointed in accordance with the law. Invariably, the conduct of public affairs affects the interest of large segments of the population or even the population as a whole, while in other instances it affects more directly the interest of more specific groups of society. Although prior consultations, such as public hearings or consultations with the most interested groups may often be envisaged by law or have evolved as public policy in the conduct of public affairs, article 25(a) of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs. That, in fact, would be an extrapolation of the right to direct participation by the citizens, far beyond the scope of article 25(a).198 This could be viewed as very careful wording by the Committee in an area of great sensitivity from the viewpoint of the states on which it, at least partially, relies for its legitimacy, exposing the unavoidably political nature of international human rights treaty bodies, however ideologically restricted it should be. It is worth noting as such the 193

Ibid, para 5. M Nowak, U.N. Covenant, above n 172, 569. 195 Ibid, 572. 196 Constitution of Ireland, Article 47(2). 197 See text to below nn 243, 244. 198 Mikmaq Tribal Society v Canada, Human Rights Committee, Communication No. 205/1986, para 5.5. 194

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subtle emphasis placed on the issue of a group’s or citizen’s choice of the mode of participation in any given instance. The Committee states there is no unconditional right to choose any particular modality; yet, perhaps deliberately, it leaves space to affirm that a right to some modality or form of direct participation in practice nevertheless remains, even if the person or group holding the substantive right has no accompanying procedural right to choose the manner of its exercise. However, while the choice may be in the government’s hands, it may still be argued that a choice must be made; a modality of participation and an opportunity to exercise it must still be created and facilitated by the government. In addition, it would be presumed that the government must choose a meaningful modality, that a form of participation that was empty window-dressing would not be an acceptable choice. Finally, in denying an unconditional right, the Committee leaves the possibility open that a conditional right to choose the modality may still exist. For example, where a directly affected group or individual is very heavily or disproportionately impacted by a potential policy or government decision, they may satisfy any requisite conditions and then possess the right to choose the form of their participation in the decision-making process. Such considerations will no doubt have to be addressed by the Committee in the future. Nevertheless, on the basis of the Committee’s existing statements, Nowak concludes that ‘[i]n a parliamentary democracy based on separation of powers, the term “conduct of public affairs” is mainly limited to election of the legislative authority in conjunction with the commitment on the executive authority to observe parliamentary laws’.199 As in the case of the Committee’s approach to the right to self-determination generally, it would seem to be highly reluctant to engage with the detailed content and consequences of the right to direct participation, due to the fact that these rights lie at the heart of the contested nature of the liberal-democratic state. Regardless, the current state of the Committee’s view on direct participation may well be criticised for remaining mute in the face of an oft observed marginalisation and disregard of genuine stakeholders in the process of policy formulation and decision-making, whether they be local communities, civil society organisations, or peoples. This shortcoming is compounded by the dictates of economic necessity whereby those who are ‘freely’ elected ultimately perceive the possible scope of viable policy choices to be severely limited. In such a situation, participatory rights in general are rendered meaningless if restricted to an assumed realisation only through ‘freely chosen representatives’. Furthermore the spectre of corruption cannot be ignored. There can never be a guarantee that even freely chosen representatives will not abuse their positions, or in a lesser case, that a party once elected will not back-flip on its campaign promises. In these cases the people’s right to public participation is meaningless if there is no more direct mechanism to counteract the effective denial of their right to self-determination than to wait hopefully for the next election and more honourable politicians. Regarding participation in the specific context of privatisation Temperman reaches the same conclusion: [C]onstruing ICCPR standards on public participation so as to impose a generic, abstract duty upon the state to guarantee the right to public participation through indirect modalities, with the main emphasis on free elections, could 199

M Nowak, U.N. Covenant, above n 172, 570-71.

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fall short of affording appropriate protection. The question is whether the Committee’s decision … signifies that a concrete right to direct participation is altogether out of the question. If that is indeed the lesson to be drawn here, the Committee has shot itself in the foot by taking that approach, and – if it were to stick to that approach – one may not expect the Committee to be in a position to adequately face the challenge posed by privatisation to the right to public participation.200 This problem is even more pressing regarding the inherently connected challenge at hand, namely a dependency on FDI structurally instituted by a dominant neo-liberal development paradigm. This is more pressing because foreign companies will generally not share even the minimum local or national concerns that may be expected of domestic companies, and so the likelihood of conflict with local or national interests, and the need for their protection through direct participation, is that much greater. A ray of light is provided by the Committee in the case of Gauthier v. Canada, and in its General Comment 25, where the right to access and dissemination of information is emphasised in relation to contexts of direct participation.201 Individuals, ‘in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members’, even where information is held, or access controlled, by private parties.202 This would imply that, in tandem with obligations of direct participation, governments may be under a duty to give effect to people’s access and dissemination of information such that it has a real effect on national debate. This possible interpretation would amount to saying that where direct mechanisms and procedures of participation are provided, they must also be effective. Furthermore, the right to direct participation is somewhat extended in other human rights treaties. The Committee administering the Convention on the Elimination of Discrimination against Women has provided that states must ensure that women have the right to participate fully in and be represented in public policy formulation in all sectors and at all levels. This would facilitate the mainstreaming of gender issues and contribute a gender perspective to public policy-making… States parties have a responsibility, where it is within their control, both to appoint women to senior decision-making roles and, as a matter 200

J Temperman, ‘Public Participation in Times of Privatisation: A Human Rights Analysis’ (2011) 4 Erasmus Law Review 43, 53. 201 Robert W. Gauthier v Canada, Communication No. 633/1995, UN Doc CCPR/C/65/D/ 633/1995 (5 May 1999), paras 11.2, 13.4, 13.6; ‘In order to ensure the full enjoyment of rights protected by Article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. It requires the full enjoyment and respect for the rights guaranteed in Articles 19, 21 and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and oppose, to publish political material, to campaign for election and to advertise political ideas’. General Comment 25, above n 192, para 26. 202 Gauthier v Canada, Ibid, 13.4.

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of course, to consult and incorporate the advice of groups which are broadly representative of women’s views and interests.203 Moreover, the Committee on the Elimination of Racial Discrimination has emphasised a duty on states to provide indigenous peoples, individually and as communities, with ‘equal rights in respect of effective participation in public life’, ensuring that ‘no decisions directly relating to their rights and interests are taken without their informed consent’.204 This very strong formulation of rights to direct participation in regard to indigenous peoples is rightly necessitated by their extreme historic subjugation and marginalisation. Finally, the recent Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities was created specifically for the purpose of increasing the direct participation of such persons in the political life of the nation.205 Extensive rights to direct and indirect participation are provided by the treaty in Articles 9, 19, 29, 30, 33 and 34. Specifically, persons with disabilities must be ensured direct participation in the community,206 in NGOs,207 in cultural life,208 and in the national and international process of administering and tracking the rights of those with disabilities.209 States must also provide an enabling environment for political participation210 and ensure access to education in order to facilitate effective participation.211 The Committee on Economic, Social and Cultural Rights has taken the content of participatory rights the farthest with regard to the national population as a whole, calling on states to ‘mainstream’ the participation of all affected groups and individuals in all levels of the decision-making process where structural economic forces potentially infringe substantive socio-economic rights. 212 Though never acknowledging it in such terms, the Committee has had a long standing engagement with the dominant neo-liberal development paradigm.213 The necessity of meaningful participation in the process of policy formulation, to ensure that socio-economic rights are not discarded at the behest of perceived economic imperatives aligned with this paradigm, is expressed by the Committee in a number of its General Comments. Regarding the right to adequate housing, 203

Committee on the Elimination of Discrimination against Women, General Recommendation 23: Political and Public Life, UN Doc A/52/38/Rev.1 at 61 (1997), paras 25-26. 204 Committee on the Elimination of Racial Discrimination, General Recommendation 23: Rights of Indigenous Peoples, UN Doc A/52/18, annex V at 122 (1997), para 4. 205 Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, UN GA Res 61/106, Annex I, UN GAOR, 61st Sess., Supp. No. 49, at 65, U.N. Doc. A/61/49 (2006), entered into force 3 May 2008. 206 Ibid, Article 19. 207 Ibid, Article 29(b)(1). 208 Ibid, Article 30. 209 Ibid, Articles 33(3) and 34(4). 210 Ibid, Article 29(b). 211 Ibid, Article 24. 212 J Temperman, ‘Public Participation in Times of Privatisation’, above n 200, 60. 213 The Committee will usually refer instead to ‘forces or processes of globalisation’, or specific aspects such as privatisation or austerity measures. See for example, CESCR, Globalisation and its Impact on the Enjoyment of Economic and Social Rights, UN Doc E/C.12/1998/SR.20, 24 September 1998; CESCR, Statement of the Committee to the Third Ministerial Conference of the World Trade Organization, UN Doc E/C.12/1999/9, 26 November 1999.

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the Committee notes that this right (in common with all socio-economic rights) must be understood in conjunction with those enumerated in the CCPR, particularly the right to participate in public decision-making,214 requiring that a state’s national housing policy should reflect genuine consultation with, and participation by, all of those affected, including the homeless, the inadequately housed and their representatives. Furthermore, steps should be taken to ensure coordination between ministries and regional and local authorities in order to reconcile related policies (economics, agriculture, environment, energy, etc.) with the obligations [in the area of adequate housing].215 The Committee makes similar demands of governments with regard to the right to public participation, in relation to the rights to water,216 work, 217 food218, social security219 and health.220 These demands reflect the fact that despite shifting economic paradigms, with neo-liberalism often currently affecting the privatisation of those services necessary to the provision of these rights, the government itself remains accountable for their realisation. The provision and facilitation of such procedures of participation, and in some cases perhaps even the acquisition of direct consent, represents a form of due diligence incumbent on governments, the correct implementation of which is the first step in an avoidance of legal culpability should relevant rights be found to be unrealised. From the views of the human rights Committees and a detailed consideration of the effects of the neo-liberal paradigm in insulating previously public issues within the private sphere, Temperman concludes that recognition of ‘a concrete right to be directly involved in decision-making processes’ is an essential prerequisite for the adequate protection of all human rights.221 Furthermore, effective participation must oblige the state to ensure ‘that no decisions directly affecting stakeholders’ rights and interests may be taken without their informed participation, if not informed consent’.222 In sum, the exact parameters of a right to political participation are still in the process of developing. Correspondingly, it is difficult to say with precision what does or does 214

CESCR, General Comment 4: The Right to Adequate Housing, 13 December 1991, para 9. Ibid, para 12. 216 CESCR, General Comment 15: The Right to Water, 20 January 2003, para 24. 217 ‘The formulation and implementation of a national employment strategy should involve full respect for the principles of accountability, transparency, and participation by interested groups. The right of individuals and groups to participate in decision-making should be an integral part of all policies, programmes and strategies intended to implement the obligations of States parties under article 6. The promotion of employment also requires effective involvement of the community and, more specifically, of associations for the protection and promotion of the rights of workers and trade unions in the definition of priorities, decisionmaking, planning, implementation and evaluation of the strategy to promote employment’. CESCR, General Comment 18: The Right to Work, 24 November 2005, para. 42. 218 CESCR, General Comment 12: Right to Adequate Food, 12 May 1999, paras 23, 27. 219 CESCR, General Comment 19: The Right to Social Security, 4 February 2008, paras 5, 9, 13, 17, 26, 32, 34, 42, 46, 69. 220 CESCR, General Comment 14: The Right to the Highest Attainable Standard of Health, 11 August 2000, paras 11, 17, 23, 34, 35, 42, 43, 54, 55, 56. 221 J Temperman, ‘Public Participation in Times of Privatisation’, above n 200, 69. 222 Ibid. 215

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not currently amount to a denial of the right. Yet, Hannum, for one, has argued that ‘where persistent denial of the opportunity for participation occurs, the population concerned may ultimately have recourse to the principle of self-determination in order to ensure meaningful participation in the society in which it lives’.223 Should the people find that their government prevents their will from factoring into policy, then their right to self-determination is engaged. Regarding the relationship between the rights to political participation and self-determination, a few important concluding points must be made. Firstly, the scope of the right to political participation by no means exhausts the content of self-determination. The latter is understood as being promoted through, not exhaustively comprised of, the other political rights. The Human Rights Committee has stated that ‘the rights under Article 25 are related to, but distinct from, the right of peoples to self-determination’.224 Secondly, despite a restrictive approach to political participation, the Human Rights Committee has deliberately left the content of self-determination itself open, to be understood broadly. Thirdly, as such, the Committee has not sought to interpret Article 25 in light of the right to self-determination. Therefore, given these points, it is perfectly possible for a situation to exist which does not technically amount to a violation of Article 25 as framed by the Human Rights Committee, and yet remains a violation of the people’s right to self-determination. Finally, this is particularly true as we are speaking here primarily of economic selfdetermination, and, secondarily of political self-determination as a means to that primary end. Economic self-determination is best understood in the context of the CESCR, not of the CCPR, and it would, therefore, seem that in such a context a broader reading of the requirements of political participation would be better suited. This broader reading necessitates further forms of participation in the economic decision-making process of the nation, and it places further duties on the state to facilitate and promote participation. Indeed, this is the approach taken by the Committee on Economic, Social and Cultural Rights in holding that states should mainstream participatory rights through economic decision-making processes bearing on substantive socio-economic rights, in response to the anti-democratic effects of the neo-liberal development paradigm. The question then arises as to what the specific legal content of this broader reading of a right to public participation in the economic sphere might begin to look like. At a minimum, it is suggested that all those affected by a policy should have the opportunity of effective and informed participation in its formulation and in certain circumstances where that effect is particularly pressing, their direct consent may be required. The likely development of this content can be seen in the more advanced ‘hard-law’ determinants of rights to public participation in the environmental sphere. The next section looks briefly at this area, arguing that the future legal shape of public participation in the economic sphere, and therefore of the right to economic self-determination, will inevitably develop in alignment with the current requirements of environmental law.

223

H Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights, rev edn (Philadelphia, University of Pennsylvania Press, 1990) 115-16. 224 Human Rights Committee, General Comment 25, above n 192, para 2.

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Public Participation in International Environmental Law Bradlow and Chapman note the rapid and recent growth of public participation as definitive of contemporary international environmental protection: Rather than viewing public participation as a collateral matter of individual rights unconnected to positive economic development, the modern perspective of development is more holistic. In the modern conception, public participation is seen as an essential component of socially and environmentally sustainable development that can counteract the tendency of those who plan, promote, and implement development projects to underestimate the projects’ social and environmental disadvantages.225 The preoccupations of environmental scholars largely reflect the views of the Committee on Economic, Social and Cultural Rights described above. In the words of one such scholar: The competence with which public participation issues are handled will make the difference between development done successfully and development that either fails or leaves in its wake large numbers of dissatisfied constituents eager for the next opportunity to hamstring the completed project or the next development.226 Reminiscent of the concern around the government’s increasingly antagonistic stance towards the public over natural resources, those seeking to protect the environment often view government as part of the problem rather than the solution. In response, in this field the content and provisions for public participation are distinctly more substantive and delineated. They are grouped in a tripartite formation of interconnected and supportive public rights: (1) to access information held by government or the private sector; (2) to take part in legislative and administrative proceedings; and (3) independent judicial review and access to justice. This tripartite structure is reflected in the full title of the crowning achievement and state of the art in international environmental law known as the Aarhus Convention.227 The convention has been described as no less than ‘the most ambitious venture in the area of “environmental democracy” so far undertaken under the auspices of the United Nations’, creating ‘more public rights in relation to mining, energy, resources, and other forms of economic development than all previous

225

D Bradlow and M Chapman, ‘Public Participation and the Private Sector: The Role of Multilateral Development Banks in the Evolution of International Legal Standards’ (2011) 4 Erasmus Law Review 91, 95. 226 D Zillman, ‘Introduction to Public Participation in the Twenty-first Century’ in D Zillman et al (eds), Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources (Oxford, Oxford University Press, 2002) 1. 227 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, 25 June 1998, reprinted in 38 International Legal Materials 15 (1999). The Aarhus Convention entered into force on 30 October 2001. More than 40 states and the European Union are party to the convention.

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international law put together’.228 It is clear that ‘much of the future discussion of public participation is likely to revolve around the precepts of the Convention’.229 The Aarhus Convention provides that states are obliged to ensure meaningful public participation in decisions on specific activities and projects,230 in deliberations regarding plans, programmes and policies relating to the environment,231 and in the process of legislation and regulation.232 In the latter two instances, of most concern here, obligations regarding plans and programmes are worded differently to those regarding policy, legislation and regulation. The legal force of obligation on states is stronger, more specific and more concretely incumbent in relation to plans and programmes: Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public.233 In relation to policy, regulation and legislation, however, obligations are weaker and participatory rights decidedly more qualified: ‘To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment’.234 State parties are encouraged to strive for effective public participation before options are narrowed in the preparation of regulations, to ensure community involvement that is taken into account ‘as far as possible.235 Unsurprisingly, these latter provisions have received substantial criticism from NGOs as leaving states too much leeway in the extent and modalities to which the public must be involved.236 Nevertheless, in the Irish case, this direction in the development of public participation is reflected in a number of the recommendations made by the Joint Committee as described below.237 In addition, another regional initiative is of direct relevance here, the Inter-American Strategy for the Promotion of Public Participation in Decision Making for Sustainable Development, adopted by the Organisation of American States.238 This document recommends that public access and participation be centralised ‘throughout the process of formulating and implementing policies, laws and regulations’,239 that citizens councils 228

G Pring and S Noe, ‘The Emerging International Law of Public Participation Affecting Global Mining, Energy and Resources Development’ in D Zillman et al (eds), Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources (Oxford, Oxford University Press, 2002) 36. 229 D Zillman, ‘Introduction’, above n 226, 6. 230 Article 6. 231 Article 7. 232 Article 8. 233 Article 7. 234 Article 7. 235 Article 8. 236 G Pring and S Noe, ‘The Emerging International Law’, above n 228, 44. 237 See text below nn 253-56. 238 Organisation of American States, Inter-American Strategy for the Promotion of Public Participation in Decision Making for Sustainable Development, CIDI/Res 98 (V-o/00), OEA/Ser.W/II.5, CIDI/doc.25/00, 20 April 2000, 1. 239 Ibid, 2.1.2.

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be instituted,240 and that the state ensure ‘responsible debate, consultation, conflict resolution, and consensus building’.241 This body of environmental law gives a clear indication of the way the international community sees general obligations regarding public participation evolving in the future. In the words of the Inter-American Strategy: As it becomes more institutionalised, government/civil society partnerships that enrich decision-making will become increasingly common; civil society will become better organised to participate effectively and responsibly; and representative public and private institutions will be able to receive, manage, and use the input of civil society. The actions and attitudes of civil society and government will change. Thus, public policy, development programmes, and projects will be more effective, efficient and ultimately sustainable.242 Particularly as the provisions of the Aarhus Convention are implemented in its 40 state parties to date, it will be increasingly questioned why such participatory requirements should be limited to the environmental sphere only. Almost inevitably they will be transferred into other areas of government decision-making. It is highly likely that the area of oil, gas and natural resources management, so closely connected to environmental issues, will be one of the first to embrace such advances in public participation. In Ireland, this evolution is presaged in a vote at the recent Constitutional Convention. This Convention, comprised of 66 randomly selected citizens, representative of the spectrum of society, and 33 parliamentarians, was set up in July 2012 with a work programme to last for a year. Faced with questions of amending the constitution to increase public participation in the legislative and policy-making process generally, 83 per cent voted in favour of introducing ‘direct democracy’, or citizen’s initiatives, with adequate safeguards against abuse of the process.243 80 per cent were in favour of providing the ability for citizens to directly place items on, or remove them from, the legislative agenda, and 78 per cent favoured a requirement that constitutional referenda be held.244 Given such high figures, the eventual implementation of these measures for public participation looks relatively secure. It is anticipated that in application of the international legal standards developed here to the Irish situation there will arise two main objections. First, it may be said that a permissive policy regarding FDI is generally desirable for the future development of the nation, and that a dependence on this form of foreign capital and technology is an appropriate and beneficial development path. The proposed benefits may be argued to override government duties to provide complicated and time-consuming rights to public participation in the interests of economic necessity. Second, it may be argued more simply that the Irish government has adequately addressed all feasible alternative regimes for the management of its oil and gas resources that are more aligned with the 240

Ibid, 6.1.5, 6.1.6. Ibid, 6.1.1. 242 Organisation of American States, Inter-American Strategy, above n 238, Annex. 243 Constitutional Convention, Voting Results, Dáil Electoral Reform, Ballot Paper 2 – Other Changes to the Electoral System, 9 June 2013, Question 3, available at www.constitution.ie/NewsDetails.aspx?nid=246398d8-0cd1-e211-a5a0-005056a32ee4 (accessed 17 June 2013). 244 Ibid, Question 4. 241

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requirements of permanent sovereignty and self-determination as described herein, and has therefore discharged its duty of due diligence. These objections are now addressed with in further detail.

Benefits and Costs of FDI for Development It is widely understood that FDI may have both positive and negative effects on development. Yet, even in theory, a number of potential costs can be identified. Increased FDI may lead to environmental degradation and the displacement of communities. Local businesses may collapse if they cannot compete, leading to job losses and monopolisation by foreign investors of markets,245 and even whole sectors of the economy driving up prices. There may be no technology transfer or knowledge ‘spill-over’, unless the host government forces it, as it reduces the competitive edge and is inherently against the profit motive of the investor. Of particular importance in the current context, states might lose control over their natural resources or over the provision of essential public goods. Empirical studies of the effects of FDI in practice show a wide variety of results. In short, there is little evidence of technology transfer; indeed the intellectual property regime at an international and increasingly domestic level demanded by Northern states on behalf of their corporations mitigates strongly against this benefit. Tax revenues are very often offset by tax breaks and other incentives offered by governments to attract FDI, and further potential revenue is lost through the practice of transfer pricing. Mergers and acquisitions, offering no revenue to the state, form a large part of what is counted as foreign direct investment, meaning that statistically the actual amount of benefit to the host is often overrated. More often than not domestic firms are ‘crowded out’ of the market, leading to job losses and ultimately inflated prices. Public companies are very often sold at below market value, and in many instances, particularly in regard to public utilities, this amounts to the transfer of a state-owned monopoly into a foreign owned one with insufficient checks and balances against abusive price hikes and failure to make promised investments in infrastructure, due to the general drive for deregulation. Furthermore, in such cases the provision of public goods and services suffers and unemployment rises, as foreign investors ‘down-size’ and implement cost-cutting measures and other market rationalisations to maximise profits. Finally, broad generalisations are possible to the effect that, especially in the natural resource sector, benefits often do not materialise, and the costs often significantly outweigh those that do.246 245

‘It is no accident that, depending on the year, two-thirds to three-quarters of all the money labelled “foreign direct investment” is not devoted to new, job-creating investment, but to mergers and acquisitions, which almost invariably result in job losses’. Susan George, ‘A Short History of Neo-liberalism: Twenty Years of Elite Economics and Emerging Opportunities for Structural Change’, Address at the Conference on Economic Sovereignty in a Globalising World, Bangkok, 24-26 March 1999. 246 See for example, M Mortimore and S Vergara, ‘Targeting Winners: Can Foreign Direct Investment Policy Help Developing Countries Industrialise?’ (2004) 16 The European Journal of Development Research 499; P Nunnenkamp, ‘To What Extent Can Foreign Direct Investment Help Achieve International Development Goals?’ (2004) 27 The World Economy 657; M Blomstrom and A Kokko, ‘How Foreign Investment Effects Host Countries’, World

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While there are nevertheless some success stories, three general points emerge from the debate over the benefits and costs of FDI that are widely accepted. First, the benefits are never automatic, but only arise due to targeted efforts by authorities to negotiate good contracts and set appropriate regulatory boundaries and policies. To harness the benefits and to mitigate the costs, governments must have sufficient policy space and power to regulate the entry and activity of FDI according to the public interest and varied developmental objectives. In order to realise these goals, governments must also have in place proper procedures of public participation such that the will of the people may be made clear, and thereby the public interest and the appropriate developmental priorities accurately ascertained. Second, these developmental objectives of host countries and the driving profit motive of the foreign investor are inherently in opposition rather than alliance, and as such strong vigilance against government co-option and corruption in relation to foreign investment is of great importance. Finally, a government is well cautioned to consider very carefully under what conditions it allows FDI into various sensitive sectors of the economy, and, importantly, if it should allow foreign investment into certain sectors at all. Besides the obvious areas impinging on national security and state functions, such sectors importantly include those closely connected to the public interest, for example natural resources, health, housing and utilities. Again, substantive and direct public participation is essential in making the right decisions in these sectors. In a recent edited collection, Narula and Lall pose the question whether we need a new agenda on FDI and development. As an overall assessment they highlight the fact that, the intricacies of these mechanisms need to be better understood if they are to prove beneficial. All the contributors here are also unanimous in their scepticism of the Washington consensus and the rather simplistic view taken by certain mainstream economists that FDI is a sine qua non for development. Market forces cannot substitute for the role of governments in developing and promoting a proactive industrial policy. … In this regard, our contributors would suggest, we do need a new agenda if FDI is to be leveraged efficiently to promote development.247 One of the major potential downsides of heavy reliance on FDI is that a state can run the risk of losing control over a whole sector of its economy, which is particularly high

Bank Policy Research Working Paper No. 1745, 1999; R Shapiro, ‘Foreign Direct Investments In Developing Nations’, Council for European Investment Security, 2011; S Lall and R Narula, ‘Foreign Direct Investment and its Role in Economic Development: Do We Need a New Agenda?’ (2004) 16 The European Journal of Development Research 447; M Agosin and R Mayer, ‘Foreign Investment in Developing Countries: Does it Crowd in Domestic Investment?’ UNCTAD Discussion Paper No. 146, February 2000, UNCTAD/OSG/DP/146; D Brooks (et al), ‘Foreign Direct Investment in Developing Asia: Trends, Effects, and Likely Issues for the Forthcoming WTO Negotiations’, Asian Development Bank Economics and Research Department Working Paper No. 38, April 2003; UNCTAD, Tax Incentives and Foreign Direct Investment: A Global Survey, ASIT Advisory Studies No. 16, January 2000, UNCTAD/ITE/IPC/Misc.3. 247 R Narula and S Lall, Understanding FDI, above n 52, 15.

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in relation to natural resources and the provision of essential public goods. It is not farfetched to say that Ireland is at the moment running that risk over its oil and gas.

Government Response The consistent reason given by the government for the maintenance of the current oil and gas regime in Ireland is that of economic necessity. The current relevant Minister, Mr Pat Rabbitte, would seem to view himself as ‘merely pursuing a pragmatic continuation of the previous administration’s quest for investment’.248 He has acknowledged a potential need for a review of the regime;249 however, this is yet to materialise at a government level. On the contrary, Minister Rabbitte has also publicly stated that he has no intention of revisiting the licensing arrangements as they currently stand, being of the belief ‘that the obligation [on government] is to get the companies in here’.250 Unsurprisingly, he has been commended by Mr Briain O’Cathain, of Petroceltic International, stating that ‘the Minister, I think has done a very good job, and he has come out supporting the industry in a way that other ministers haven’t in the past, and I think that is to his credit’.251 It would seem that Minister Rabbitte’s main justification for this stance is one of economic imperative in the face of low strike rates to date, and the perceived need to reassure and attract foreign exploratory investment.252 A recently released report from the all-party Joint Committee on Communications, Natural Resources and Agriculture has made a number of progressive proposals regarding Ireland’s oil and gas regime.253 The report recommends that the tax take be raised to a minimum of 40 per cent, rising according to the size of the find to 60 per cent for medium discoveries and a maximum of 80 per cent for very large finds. At a minimum, the fiscal and licensing terms should be kept under constant review by the government. Very interesting proposals are made regarding broadened participation in the policymaking process, as well as in the management of individual projects. The government is encouraged to ‘establish a forum, comprising key stakeholders, to improve communications’,254 and to develop a ‘strategic policy document for petroleum exploration’ that 248

I Yates, ‘What lies beneath’, above n 62. Dáil Eireann Debate Vol. 730, No. 3, 19 April 2011. 250 Statement made on Frontline, RTE News, broadcast on 6 February 2012, transcript on file with the author. As noted elsewhere by a prominent commentator, Minister Rabbitte ‘was contemptuously dismissive of the call for a review, declared himself perfectly happy with the current regime and made it clear that he will go ahead and issue licences whatever the Oireachtas committee decides to do. This complete dismissal of any notion that we might just pause for thought before giving away what could be a historic opportunity is evidence, surely, that we have an official mindset that is simply incapable of dealing with this issue. My guess would be that the entire official apparatus is geared towards seducing multinational companies and giving them what they want.’ F O’Toole, ‘Let's Make Norway Joint Owner of Our Oil and Gas’, The Irish Times, 16 August 2011. 251 Frontline transcript, Ibid. 252 Ibid. 253 Oireachtas Joint Committee on Communications, Natural Resources and Agriculture, ‘Report - Offshore Oil and Gas Exploration’, Dublin, May 2012. 254 Including third-level institutions, oil and gas companies, trade unions, government nominees, and environmental and community representatives. 249

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would seek to ‘maximise the potential for Ireland’s hydrocarbon resources for the benefit of all Irish people … [and] to ensure that employment opportunities are maximised within the State’.255 Finally, there is a call for a clear and comprehensive process of public consultation beginning at the first substantive stage in offshore oil and gas exploration … based on a simple and transparent system, which would make it clear that those local communities affected … would benefit directly from any rewards generated from the oil and gas resources.256 While formally welcoming the report, Minister Rabbitte has not addressed the proposal to develop public participation in the policy-making process. Moreover, the Minister has failed to take seriously the proposal to reform consultation on a project basis, indicating that he would seem content with the status quo.257 As to the proposed changes to the tax regime, the Minister has stated that, ‘I remain to be convinced that doubling the tax rate would be in Ireland’s interest’, holding that ‘this Government finds itself in the position that in order to increase the level of drilling off our shoreline we must be able to incentivise those who can do it’.258 One Senator voiced the following reply to this remark: ‘Unsurprisingly, the companies’ response [to the report] was to claim that any change would act as a disincentive. I was disappointed to note that, yesterday in the Dáil, the Minister appeared to support this line in response to a question … Is he acting on behalf of citizens or the oil companies?’259 The Minister’s position is aligned with that of the industry at both the international and domestic levels. In regard to Ireland, the International Energy Agency is of the opinion that, ‘while the current fiscal regime is creating a favourable environment for developers, great care should be taken not to increase the risk for developers by tightening the rules’.260 In a submission to the above mentioned Joint Committee, the Irish Offshore Operators Association claim the necessity of the current low tax level on the basis that there have been few finds relative to the nearby North Sea and that investor risk is perceived to be high.261 It believes that any talk of changing the licensing regime should effectively be silenced by the government, as it will scare away prospective investors, stating that, ‘[i]n particular, applicants for licences need to be assured of the long-term 255

Joint Committee, ‘Report’, above n 254, 12. Ibid, 11-12. 257 Seanad Éireann Debate Vol. 216 No. 5, 27 June 2012. 258 Dáil Eireann Debates, Other Questions – Exploration Licenses, 26 June 2012, available at www.kildarestreet.com/debates/?id=2012-06-26.51.0 (accessed 17 June 2013). 259 Statement of Senator Trevor Ó Clochartaigh, who went on to ask, ‘Which Minister will stand up for the right of the people to ensure the greatest value for the State is derived from our natural resources? It should not be done to the companies’ benefit. … The Minister is following the line of previous Ministers by siding with the companies as opposed to citizens who have a right to a just reward from the State’s natural resources’. Ibid. 260 International Energy Agency, Energy Policies of IEA Countries: Ireland, 2007 Review (Paris, OECD, 2007) 9. 261 Irish Offshore Operators Association, ‘Submission to Oireachtas Joint Committee on Communications, Natural Resources and Agriculture’, 22 November 2011. 256

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stability of the licensing regime’.262 In reaction to the Joint Committee’s Report, the Association has been heavily critical, stating a fear that the recommendations of an allparty democratic process (the closest Ireland has come to effective public participation in the formulation of oil and gas policy) could ‘discourage companies who are currently considering Ireland as a location for exploration’.263 However, in the words of one member of the Oireachtas, [the] major concern is that the type of tax regime which offers so-called incentives is of no benefit to the Irish people. If discoveries are made, which I am confident they will if effort is put into them, it will mean nothing to the taxpayers in this country.264

APPLYING THE LAW TO THE PUZZLE Relative to the conceptual framework of mainstream economics, the body of international law relied on here presents a starkly contrasting paradigm for addressing the government’s role and the modalities of decision-making concerning natural resource management. The greatest difference is in the starting point, the initial focus which tells of the priorities from which all subsequent reasoning flows. The usual framework begins with an immediate short-term issue of locating and accessing the resources, which makes the attraction of foreign investment the highest priority. All else must fit within the bounds of this ultimate goal. Decisions, processes and actions for the fulfilment of the government’s duty under international law to realise and protect human rights must not impinge on an investor-friendly environment. Human rights and social justice must conform to presupposed and unexamined economics. In this scenario, the economics is taken for granted and it is the realisation of the people’s rights that is considered problematic and subjected to ‘interpretation’, qualification, trade-offs and compromise. Human rights are squashed into an economic box creating a recipe for injustice. Reversing this approach, the paradigm of international legal and constitutional obligation instead begins with the long-term permanent rights and claims of the people. Their ownership and right to benefit from their resources is the highest priority, and the ultimate goal for government becomes the realisation, facilitation and protection of these rights. Decisions and arrangements for the exploitation of those resources must not impinge on these rights, therefore the economics becomes problematised, examined and subject to compromise. When this is done, the necessity of one particular orientation towards foreign investment is exposed as empty rhetoric in service of the powerful, and the range and attractiveness of other alternatives become clearer.265 Economics is then 262

Ibid. T O’Brien and L Siggins, ‘Offshore Operators Criticise Oil and Gas Tax Proposals’, The Irish Times, 10 May 2012. 264 M Ferris, Joint Committee on Communications, Natural Resources and Agriculture Debate; Offshore Exploration Licences: Discussion with Department of Communications, Energy and Natural Resources, 27 September 2011, available at http://debates.oireachtas.ie/AGJ/2011/09/27/00004.asp (accessed 12 June 2013). 265 In the immediate case we can point to the recommendations of the Joint Committee and the policies of Sinn Fein as examples. In the sense of problematising the broader dictates of mainstream neo-liberal economics see, E Fullbrook (ed), Real World Economics: A Post263

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re-cast in its real light as a plural discipline that is highly contested, with some strains being more, and others less, human rights friendly. It is then seen that the economics can and must fit inside the human box. In application of this paradigm to the current oil and gas regime, several initial points are of particular importance. First is the evidently poor performance of the government in securing the greatest share of financial benefit possible from the exploitation of the people’s natural resources, that is, the most favourable possible terms of the licensing regime given the alternatives for tax takes within that system. It is evident that not even the standard of a fair share is being met, a point highlighted by the fact that only Cameroon retains a worse share for its people, and the worldwide average is roughly double Ireland’s rate. The second is the fact that ownership and control of those resources is transferred from the people to foreign interests as a matter of course, and alternative systems of exploitation that could retain ownership in the hands of the people, in whole or in part, are not being considered. Taken together, these two points make a strong initial case against the government within the legal framework set out above. From a constitutional viewpoint, this situation is arguably contrary to Article 6 read in conjunction with Article 45. These articles require that the government ‘decide all questions of national policy, according to the requirements of the common good’, such that ‘ownership and control of the material resources of the community may be so distributed amongst private individuals … as best to subserve the common good’, and that concentration of the ownership or control of essential commodities does not come to reside in a few individuals to the common detriment. Finally, a public good is being literally exploited without appropriate benefit to the people, in contrast to the duty of the Irish government to arrange private enterprise such as ‘to protect the public against unjust exploitation’. The situation would also seem to offend the people’s permanent right to sovereignty over their natural resources as this right places a very high level of obligation on the government to exhaust all other possibilities before violating that sovereignty by systematically transferring control to foreign companies. There is no indication that the government is considering any contractual or hybrid systems used widely elsewhere in the world, which would conform to the custodial obligations on the government under the Declaration on Permanent Sovereignty. The argument from economic necessity could perhaps mitigate the culpability of the government. However, this would not remove the requirement of a full engagement by the government with the people in a deep and inclusive public debate over the issue, which would enquire into the actual veracity of the necessity rhetoric. These points are important to stress. The government is bound to give expression to the will of the people such that any outcome meets the crucial requirement of being freely entered into on their behalf, and disposes of state duties as a trustee for the people’s sovereignty and a facilitator for their self-determination. In addition, essential to making a free decision is having access to all the information; therefore, the economics must be publically questioned. The economic theory supporting each of the alternatives must be set out and evaluated, which automatically brings the necessity of the mainstream approach into question. No Autistic Economics Reader (London, Anthem Press, 2007); HJ Chang (ed), Rethinking Development Economics (London, Anthem Press, 2003); S Keen, Debunking Economics: The Naked Emperor Dethroned, rev edn, (London, Zed Books, 2011); J Stiglitz, Freefall: Free Markets and the Sinking of the Global Economy (London, Penguin, 2009).

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longer is the unexamined refrain from government, that there is no alternative given economic ‘realities’, acceptable. There is a need for a full review of the current licensing regime involving effective opportunities for public participation throughout, and a broad, open, inclusive and fully informed public debate on the concrete alternatives and differing economic theories that support them. Yet there is an effective refusal of the government to honour this evident need. It demonstrates intransigence in maintaining the status quo to the benefit of foreign capital, and it has failed to initiate and facilitate any meaningful public consultations or participatory procedures.266 Given these facts, within the wider context, it is submitted that the government is in prima facie violation of the Irish people’s participatory rights, and subsequently of their right to internal economic self-determination. As noted above, an important requirement of the public participation aspect of selfdetermination is the state’s duty to provide the opportunity for citizens to take part in the conduct of public affairs, whereby positive action is required of the state and passivity is insufficient to avoid a violation. Moreover, especially in respect of economic selfdetermination, to ensure its proper exercise states should mainstream, or centralise, the participation of affected groups and individuals throughout the decision-making process, providing opportunities for inputs and information sharing at all levels. This is of particular importance in cases such as this, where policy decisions have an extraordinary potential effect on the provision of socio-economic rights, and therefore ‘should reflect genuine consultation with, and participation by, all of those affected’.267 A fair share of the revenue from the potentially trillions of euro worth of oil and gas in Irish territory could fund a very large number of social welfare, housing, health and education programmes, and as such the effective provision of socio-economic rights in the state is clearly at issue. Without engaging on these points and in holding fast to a line of economic necessity, the government is actively restricting awareness of alternatives, closing off possibilities, and in so doing, it is creating conditions that make a free determination on the issues impossible. Given these considerations a positive first step for the government to remedy this situation would be to adopt wholeheartedly the recommendations of the Joint Committee regarding the deepening of public participation in the process of policy formulation. The creation of a forum of stakeholders tasked with providing policy suggestions on how to maximise the benefits to the Irish people, and the institution of a ‘comprehensive process of public consultation’,268 would align appropriately with the content of the right to internal economic self-determination. In addition, support from the government for suggestions by the Constitutional Convention to institute mechanisms of direct democracy and facilitate citizens’ initiatives in the parliamentary process, would take the state a long way towards ensuring that it meets its international obligations under human rights law.

266

The deliberations of the Joint Committee (above n 253) are a step in this direction, yet they do not adequately involve the direct participation of a sufficiently broad range of communities and therefore fail to meet the requirements of the mainstreaming of participatory rights. 267 CESCR, General Comment 4, above n 214, para 12. 268 Joint Committee, ‘Report’, above n 253, 11.

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Although the key issue here is not the actual terms of the licensing regime but the process by which they are arrived at, the considerations above would nevertheless suggest that an adoption of the taxation regime suggested by the Joint Committee would align closer to the government’s obligations under this legal framework, ensuring, as it would, a greater benefit to the people even if there remains a loss of sovereignty. Yet to adhere to the letter of the Declaration on Permanent Sovereignty, a change to a contractual or hybrid system maintaining state ownership and involvement would seem to require greater prominence in the debate. An immediate response could be that the state currently has no capacity in the form of a publically owned vehicle to enter into such contractual arrangements, and furthermore it may be argued that there are currently no funds for the creation of such a vehicle. The current availability of funds versus the potentially enormous future pay-off for such an investment would be the subject matter of an important aspect of the broader debate. More importantly, however, this simply highlights the importance of long-term thought over short-term reaction, and the duty of the state to future generations. The viewpoint of permanent sovereignty may suggest that it would be better to leave the resources where they are until such a time as the state does have sufficient funding and the political will to ensure the proper benefit to the people from their exploitation, rather than give them away at a time of economic desperation. The current poverty of remuneration from these resources would not, in any case, seem to be enough to make a sufficiently significant impact on Ireland’s current economic situation as to be justified by any suggested ‘rescue’ of the economy. CONCLUSION The nature and terms of Ireland’s current oil and gas licensing regime, the government’s intransigence in relation to its review, and its failure to facilitate a broad public debate on the issue, in combination may be viewed as a prima facie violation of the state’s obligations under common Article 1 of the two human rights Covenants (internal economic self-determination and the use of natural resources). In addition, the considerations above indicate culpability for a violation of the people’s right to permanent sovereignty over their natural resources, and also, arguably, of the Irish constitution. It is therefore submitted that the government is not meeting its fiduciary obligation under international law to properly exercise the sovereignty and rights of the people that are placed in its trust. Some may find these assertions far-fetched. They may think themselves hard-nosed realists that, whether they like it or not, must accept the economics of necessity and simply get on with making the best of a bad situation. They may not favour a progressive reading of participatory norms in line with the Committee on Economic, Social and Cultural Rights and the developments in international environmental law. Or they may simply view these international human rights norms as too vague to be applied to concrete factual situations. It is believed that the foregoing provides substantial evidence and reasoning to counter these viewpoints. However, to conclude on a penultimate point of provocation, the following question may be posed in response: What use might there be in a right to self-determination or in a concept of permanent sovereignty over natural resources, as peremptory norms of international law, if they are inapplicable in cases such as this? What might they mean if they have nothing to say in the face of a government virtually giving away the natural resources of its people to foreign corporations on

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the simplistic justification that there is no choice, without any effort to initiate and facilitate a broad public debate and employ appropriate mechanisms of participation to determine the people’s actual will?269 Hannum sees the purpose of a right to self-determination as an international legal point of referral for a people to leverage meaningful opportunities to participate in the formulation of decisions that affect them from their governments where there is a persistent denial of such participation. For Duriugbo, Orford, Schrijver and Crawford, these norms were intended to provide the people with recourse to an external international benchmark of government mismanagement of their resources, especially important when domestic processes and remedies are absent or ineffective. Or, as Oloka-Onyango and Farmer state, these norms must create a bulwark against official abuse in the power struggle between peoples and their governments over natural resources and the proceeds to be derived from them.270 They must be there to ensure that no government may overstep its custodial role by a systematic dispensation of such resources in the absence of a clear mandate from the people to do so. That is to say, these peremptory norms have a very substantial and important meaning and potential value. Yet much depends on how these rights are employed by the people who hold them. It is unlikely that the suggestions of legal transgression made here will be tested in a court of law, and the Human Rights Committee, as noted above, has refused to accept complaints relating to collective rights. However, if the lines of argument initially sketched here are developed sufficiently, then their inclusion in shadow reports to the relevant human rights committees could provoke further elaboration resulting from pointed questions from the committees to the Irish Government, or discussion in the concluding observations and recommendations. Submissions to the Committee on Economic, Social and Cultural Rights would be expected to have more success in this regard. In domestic debate, these arguments grounded in international and constitutional law could counteract the empty rhetoric of an economics of necessity based on a neo-liberal paradigm that day by day is being proved deeply detrimental to the people as a whole. Notwithstanding a possible referendum on the licensing regime, which would currently seem unlikely and would contain risks for proponents as well as detractors of the regime, the struggle to vest actual control over their natural resources in the people of Ireland will substantially remain in the political arena. The legal arguments pressed in this paper may augment the persuasiveness of those seeking to implement the recommendations of the Joint Committee on Communications, Natural Resources and Agriculture, and make changes to the Constitution to institute a more direct democracy and grant the people a greater opportunity to assert their will and exercise their right to selfdetermination. The Irish government would do well to facilitate these changes, as spurning them and continuing to sideline public debate not only continues to invite assess-

269

The long standing conflict in Mayo between Shell and the local community where the Irish state has actively and physically defended the corporation’s interests by systematically denying the people’s rights by means of the police, the legal system and even the navy, is a prime example. See, F Connolly and R Lynch, The Great Corrib Gas Controversy (Dublin, Centre for Public Inquiry-Fiosrú an Phobail, 2005). 270 See text to above nn 183, 184.

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ments such as that made here, but will also breed discontent and engender a people increasingly willing to escalate their opposition to particular projects and investments. These arguments may also be of use in offering an alternative perspective in the wider context of debates over the marketised nature of the Irish competition state and the legal principles on which to build and select possible economic alternative

SECURITY COUNCIL REFERRALS TO THE ICC: A POLITICISED SYSTEM AMANDA KRAMER AND RACHEL KILLEAN* The relationship between the Security Council and the International Criminal Court has attracted significant academic and legal debate. This article seeks to contribute to that discussion by highlighting the political motivations behind Council referrals. A method of comparative case analysis is used, focusing on Sudan, Libya, Syria, Sri Lanka and Israel. The analysis reveals that in addition to humanitarian concerns, several politicised motivations and factors influence referrals, including economic interests, political alliances, and military considerations. Some tentative recommendations for Security Council reform are put forth that could minimise the impact of realpolitik on international criminal justice.

INTRODUCTION ‘Institutions do not replace politics, but enact them.’1 International responses to atrocity have often been subject to the criticism that they are motivated by political concerns, rather than legally sound arguments. International criminal law, while providing a legal framework within which to respond to atrocity, has not been exempt from this criticism. The post-World War Two International Military Tribunals in Nuremberg and Tokyo have been repeatedly accused of having exercised ‘victors’ justice’,2 and the Tribunals for the Former Yugoslavia and Rwanda have not escaped these accusations. While featuring independent prosecutors, they were still imposed on the relevant States by the UN Security Council, a political body made up of the dominant world powers.3 With the ratification of the International Criminal Court’s (‘ICC’ or ‘the Court’) Statute in 2002, many thought that a definite shift had occurred in favour of legal reasoning over politically motivated action.4 However, the ICC is by no means free of * School of Law, Queen’s University Belfast. 1 M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1878–1960 (Cambridge, Cambridge University Press, 2001), p 177. 2 The term ‘victors’ justice’ refers to the fact that historically, the prosecution of war crimes has been restricted to the vanquished or to isolated cases of rogue combatants in the victor’s army. See WA Schabas, An Introduction to the International Criminal Court (4ed) (Cambridge, Cambridge University Press) p 1. 3 Including the permanent members of the Security Council: the UK, the US, Russia, China and France. 4 MC Bassiouni, ‘The Permanent International Criminal Court’, in P Sands and M Lattimer (eds), Justice for Crimes against Humanity (Oxford, Hart Publishing, 2003) p 211.

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political influence; its relationship with the Security Council and the absence of worldwide ratification are both factors that limit the Court’s ability to pursue universal accountability. This article seeks to analyse the relationship between the Security Council and the Court and to highlight the extent to which political motivations have an influence on Security Council referrals. It will do this primarily through the examination of case studies including: Sudan and Libya (the two cases referred to the Court by the Security Council); and Sri Lanka, Israel and Syria (three cases that have been overlooked so far). By considering the similarities and differences between the case studies, we will show that in addition to concern over the commission of international crime, underlying realpolitik motivations such as access to resources, political and military alliances, and general economic concerns influence decisions to refer. We will argue that such considerations are likely to play as prevalent of a role in the referral process as legitimate concern over the punishment of international crime. Before analysing our chosen case studies, we will provide some background information on the ICC and the Security Council, and the relationship between the two.

THE COURT AND THE COUNCIL The Rome Statute came into force in 2002,5 creating a permanent, treaty-based court known as the International Criminal Court. The Court was tasked with prosecuting perpetrators of genocide, crimes against humanity, war crimes and the crime of aggression when national judicial systems have been unable or unwilling to do so.6 Although the ICC is not a part of the UN system, a special agreement exists between the UN and the ICC providing for cooperation between the two institutions,7 and the Rome Statute particularly recognises a specific role for the UN’s Security Council.8 This linkage between a political and judicial organ is based on the recognition that the two institutions have complementary functions. The four crimes over which the ICC has jurisdiction can comprise a situation which amounts to a threat to or breach of international peace and security, and such situations fall under the primary responsibility of the Security Council under Chapter VII of the Charter: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or

5

UN General Assembly, Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, entered into force 1 July, 2002. 6 However, the Court does not currently exercise jurisdiction over the crime of aggression. See ibid, Arts 5 and 17. 7 UN General Assembly, Relationship Agreement Between the United Nations and the International Criminal Court, 20 August 2004, UN Doc A/58/874. 8 The Rome Statute’s preamble recognises the relationship between the aims of justice and maintaining peace and security when it affirms that grave crimes must not go unpunished not only because they ‘shock the conscience’ but also because they ‘threaten the peace, security and well being of the world’.

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decide what measures shall be taken ... to maintain or restore international peace and security.9 The issue of the relationship between the Security Council and the ICC was a hot topic during Rome Statute negotiations, being a central point of contention for those who wished to establish a Court and a Prosecutor that were independent from a politically motivated Council.10 These parties were eager to move away from the ‘victor’s justice’ stigma that had sullied international criminal law’s reputation since the International Military Tribunals in Nuremberg and Tokyo. This reputation had continued to taint the Tribunals for Yugoslavia and Rwanda due to their creation by the Security Council, an institution composed of the ‘great powers’.11 Security Council members on the other hand opposed an independent Prosecutor, due to fears that it would limit the Council in its role of maintaining peace and security.12 The resulting provisions were intended to be a compromise for all: the Council may defer an investigation or prosecution for renewable twelve month periods, refer situations to the Prosecutor, and take action if the ICC encounters instances of non-cooperation from States.13 Thus, the Security Council retains a measure of control more limited than that held over the International Tribunals, suggesting that in theory the ICC signals a development towards a less politically influenced model of international criminal law. Under Article 13: [T]he Court may exercise its jurisdiction with respect to a crime...in accordance with provisions of this Statute if:...(b) a situation in which one or more of such crimes appears to have been committed and is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations. 14 The reference to Chapter VII provides the threshold for referring a situation to the Court: crimes must appear to have been committed, and the situation must amount to a threat or breach of international peace and security. This is an important power; as such a referral constitutes the only method by which the ICC can exercise jurisdiction over States that are not parties to the Rome Statute.15 While state parties may refer situations to the Prosecutor, or the Prosecutor may exercise her discretionary power to open an investigation herself, this is only possible if the country in question is a signatory of the Rome Statute.16 Without the additional avenue for referral that the Security Council provides, many perpetrators would avoid accountability due to these jurisdictional limits. Despite the numerous incidences of atrocity amongst non-Party States, the Council has to date only made use of the referral process twice. The Council first exercised its

9

UN, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, c7, Art 39. M Glasius, The International Criminal Court – A Global Civil Society Achievement (Oxon, Routledge, 2006). 11 WA Schabas, ‘Victor’s Justice: Selecting “Situations” at the International Criminal Court’ (2009 – 2010) 42 The John Marshall Law Review 535. 12 Ibid. 13 ‘Rome Statute’, above, n 5, Arts 13(b), 16, 87(5) and 87(7). 14 Ibid., Art 13(b). 15 Ibid., Art 12(b). 16 Ibid., Arts 13(a) and (c). 10

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ICC referral powers in 2005 when it recommended that the prosecutor investigate atrocities taking place in Darfur, Sudan. 17 This resulted in an investigation being opened three months later. The Security Council made its only other referral six years later, when it proposed that the ICC investigate the ‘gross and systematic human rights violations’ taking place in Libya.18

THE POLITICS OF THE SECURITY COUNCIL The Security Council is made up of five permanent members (the ‘P5’): China, France, Russia, the United Kingdom, and the United States. There are also ten non-permanent members, currently Argentina, Azerbaijan, Australia, Guatemala, Luxembourg, Morocco, Pakistan, Republic of Korea, Rwanda and Togo.19 These members are elected by the UN General Assembly to serve two-year terms. Non-permanent members are able to vote during resolutions, but do not have the same veto powers as permanent members.20 It is well recognised within the academic literature that the Security Council is a politically driven organisation,21 evidence for which dates back to its very creation, when decisions were made regarding which States would be included within the post-World War Two world order. Following several major world conflicts, the Security Council was created to manage ‘international peace and security’.22 The victors of the Second World War established themselves as permanent members of the Council, placing primary responsibility for the maintenance of peace and security on their own shoulders. In order to ensure the appearance of a more balanced and inclusive system, ten non-permanent positions were also created. The exclusion from permanent member status of former world powers, which also happened to be the ‘losers’ of this conflict (mainly Germany, Japan, and Italy), provides strong evidence of the political factors influencing the structure of the Security Council.23 Further evidence of this is found in the privileged vetoing power the P5 established for themselves.24 This power has caused significant controversy in the international arena because it gives permanent members the ability to strike down any decisions that would negatively impact themselves and/or their allies. Ainley and Mamdani argue that countries without these alliances, or the privilege of holding a

17

Security Council Resolution 1593, 13 March 2005, UN Doc S/Res/1593. Security Council Resolution 1970, 26 February 2011, UN Doc S/Res/1970. 19 ‘Current Members’, United Nations Security Council Website, available at www.un.org/en/sc/members. 20 Schabas, above, n 2, p 168. 21 K Ainley, ‘The International Criminal Court on Trial’ (2011) 3 Cambridge Review of International Affairs 24, 320; M Mamdani, Saviours and Survivors: Darfur, Politics, and the War on Terror (London, Verso, 2009); J Verbitsky, ‘What should be the Relationship between the International Criminal Court and the United Nations Security Council in the Crime of Aggression?’ (2008) 14 Vluslararasi Hukuk re Politika 4, pp 146-147. 22 UN Charter, Chapter VII. 23 O Bakircioglu, Self-defence in International and Criminal Law (London, Routledge, 2011) p 152. 24 J Verbitsky, ‘What should be the Relationship between the International Criminal Court and the United Nations Security Council in the Crime of Aggression?’ p 147. 18

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P5 position, are thus more likely to have their actions scrutinised on the world stage by the Security Council.25 Thus, it is not surprising that several authors have problematised the Security Council referral process as being heavily influenced by the political agenda of the P5 members. Due to the jurisdictional limitations of the ICC, the Council can use its power to either block the referral of situations within the P5 or their allies, or target the actions of ‘unfriendly’ nations.26 This level of influence impacts the Court’s perceived legitimacy as referrals may appear arbitrary rather than based on objective criteria. States’ motivation to cooperate is likely to be further diminished by the fact that three out of the five permanent members are not parties to the Rome Statute.27 One may wonder how the P5 can justify subjecting a State to the jurisdiction of a Court they do not accept themselves. It has been argued that these ‘political factors and special privileges’ built into Security Council decision-making practices lead to ‘political trials’ at the ICC.28 While the term ‘political trials’ may be an over exaggeration, as it is doubtful that the Security Council is able to influence judges once a case has actually been submitted, the Security Council’s ability to politically influence prosecutions is still problematic. This selectivity detracts from the possibilities of universality and impartiality of justice dispensed by the Court. Much of the literature on these issues has focused on US attempts to influence the Court, particularly the use of its veto power to control the referral and deferral processes of the Security Council.29 Mainly, the US has threatened to block referrals to the ICC when its interests are not catered to.30 It has employed a variety of techniques to achieve this, including threatening to pull US troops out of current and future peacekeeping missions;31 threatening to use their veto power to block the extension of current ad hoc international criminal tribunals;32 and direct threats to veto referral resolutions within the Security Council.33 The evidence so far demonstrates that these techniques have often caused the Council to concede to US demands. For example, the aforementioned threats have resulted in the restriction of the Court’s jurisdiction over ‘peacekeepers’ recruited from countries that were not involved in the conflict referred to the ICC, the recognition of non-surrender agreements, and limits to the ways in which the Court can be funded.34 25Ainley,

above, n 21, p 321; DP Forsythe, ‘The UN Security Council and Response to Atrocities: International criminal law and the P-5’ (2012) 34 Human Rights Quarterly 863; Mamdani, above, n 21, p 284. 26 Ainley, above, n 21, p 321. 27 Namely, the US, China, and Russia. 28 Forsythe, above, n 25, p 863. 29 Ainley above, n 21; B Krzan, ‘The Relationship Between the International Criminal Court and the Security Council’ (2009) 29 Polish Yearbook of International Law 65; M Weller, ‘Undoing the Global Constitution: UN Security Council Action on the International Criminal Court’ (2002) 78 International Affairs 4. 30 RC Johansen, ‘The Impact of US Policy toward the International Criminal Court on the Prevention of Genocide, War Crimes, and Crimes Against Humanity’ (2006) 2 Human Rights Quarterly 28. 31 Bakircioglu, above, n 23, p 178. 32 Weller, above, n 29, p 706. 33 Johansen, above, n 30, p 322. 34 See below for further discussion.

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This demonstrates the power and politics that influence referrals to the Court. While the US has been the most vocal, it is not the only State to attempt to influence the referral system and the following sections will expand upon this. Human rights organisations have identified similar problems emerging from the Security Council referral process. For example, Human Rights Watch sent a letter to 121 foreign ministers of ICC Member States in 2012 examining the progress of Council referrals and raising significant issues with the Council’s failure to refer situations in Sri Lanka, Gaza and Syria to the ICC. The letter takes issue with the apparent selectivity undercutting Security Council referrals, with particular emphasis on the ramifications for the Court’s impartiality and independence. It argued that the P5 nations – predominantly the US, Russia and China – have a tendency to ignore the crimes of themselves and their friends, while targeting injustices perpetrated by their enemies. This has left the victims of serious atrocities (such as Syria, Gaza and Sri Lanka) without any kind of protection or recourse to justice.35 Overall, the literature highlights the impact of politics on Security Council operations, specifically with regard to the ICC referral process. There exists a propensity on the part of the P5 to focus on the crimes of an individual State’s enemies and to ignore the crimes committed by allies of P5 States. Examples of these arguments can be found through the examination of the context and content of the two referrals made by the Council so far as well as the situations that have evaded referral to date. The following sections will therefore examine the referrals of Sudan and Libya to the ICC, highlighting some of the issues surrounding the referrals and venturing some submissions about the politics that lay behind them.

REFERRING SUDAN Sudan is an example of a State being both blessed and cursed by its natural resources.36 Since achieving independence from the UK in 1956, conflicts between the largely Arabic north and the indigenous south, and attempted military coups have been a regular occurrence. After a 1989 coup, President Omar Hassan Al-Bashir concentrated all political power into the hands of the President, and brought in an extremist Islamic constitution.37 The discovery of oil in southern Sudan exacerbated tensions in the region, since revenues were perceived as being unequally distributed. 38 Inter-group tensions relating to resources and more general regional tensions led to an eruption of violence in 2003, with the Sudan Liberation Movement and the Justice and Equality Movement rising up against the government. In an act of retaliation against these movements, the government provided funding and arms to groups of militia known as the Janjaweed (literally 35

Human Rights Watch, ‘Letter on the October 17 Thematic Debate at the Security Council on the Council's Relationship with the ICC’, 16 October 2012, Human Rights Watch Website, available at www.hrw.org/node/ 110772. 36 This has been referred to as the ‘resource curse’, for more information see ML Ross ‘The Political Economy of the Resource Curse’ (1999) 51 World Politics. 37 H Travis, ‘Genocide in Sudan: The Role of Oil Exploration and the Entitlement of the Victims to Reparations’ (2008) 25 Arizona Journal of International and Comparative Law 1. 38 R Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’ (2006) 19 Leiden Journal of International Law 195.

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translated as ‘devils on horses’),39 who went on to engage in a series of violent clashes with the groups from which the rebels originated.40 Over the next year and a half, villages were destroyed and civilians were subject to rape, looting and torture.41 In terms of estimated numbers and whether the crimes should be categorised as ‘genocide’,42 there has been significant disagreement, which is highlighted by Mamdani. He argues that ‘popular’ estimates – such as those put forth by the Save Darfur Coalition claiming that over 300,000 people have died in Darfur alone – are a gross exaggeration.43 He states that the UN International Commission of Inquiry is far more accurate with their estimate of 70, 000,44 and that those events in Darfur amount to crimes against humanity and war crimes, not genocide.45 On the other hand, Travis has criticised the International Commission of Inquiry, arguing that the attacks on identifiable ethnic groups more than satisfy the legal standard of genocide.46 Regardless of the exact numbers and categorisation, the events unfolding in Darfur doubtless constituted a grave violation of international criminal law. The Security Council took the first steps towards referring the situation in Darfur in 2004. After passing a resolution determining that the situation in Sudan constituted a threat to international peace and security, they appointed an International Commission of Inquiry to investigate reports of violations of humanitarian and human rights law. The resolution also determined that there were individuals who carried criminal responsibility for the violence being committed, and urged the Sudanese Government to investigate and prosecute those individuals.47 The Commission found that war crimes and crimes against humanity had been committed, and recommended that the Security Council refer the situation to the ICC. 48 The Council followed the Commission’s advice, adopting Resolution 1593,49 with eleven votes in favour and four abstentions (Algeria, Brazil, China and the US). Passing the resolution was no easy task as both China and the United States were initially opposed to any action against Sudan. The US Government in particular continuously attempted to undermine and limit the possibilities for referral throughout Security Council discussions.50 It began by advocating the establishment of an ad hoc criminal tribunal in place of a referral to the ICC. When it was apparent that 39

Travis, above, n 37. Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights: Situation of Human Rights in the Darfur Region of the Sudan, 7 May 2004, UN Doc E/CN.4/2005/3, para 6. 41 Report of the International Commission of Inquiry on Darfur to the UN Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, paras 73-488. 42 See G Moore, ‘How Does Genocide Differ from Mass Killing’ (2013) 1 Queen’s Political Review on the importance of distinguishing between ‘genocide’ and mass killing. 43 Save Darfur Coalition, available at, www.savedarfur.org/. 44 UN International Commission of Inquiry on Darfur, 25 January 2005, available at www.un.org/news/dh/sudan / com_inq_darfur.pdf. 45 Mamdani, above, n 21, p 42-44. 46 Travis, above, n 37. 47 Security Council Resolution 1564, 18 September 2004, UN Doc S/RES/1564. 48 Report of the International Commission of Inquiry on Darfur to the UN Secretary-General pursuant to Security Council Resolution 1564 of 18 September 2004. 49 SC Res 1593, above, n 17. 50 Forsythe, above, n 25. 40

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the remaining P5 nations did not support this position, the US Government ‘forced delays’, and eventually outlined a number of provisions that were designed to exempt the US from ICC jurisdiction and limit the operations of the Court.51 These concessions were accepted, but have been a major source of criticism surrounding Resolution 1593. In particular, the referral has been criticised for shielding Non-Party States’ nationals (apart from Sudan) participating in UN or African Union operations within Sudan from the Court’s jurisdiction.52 This amounts to a permanent deferral and a blanket protection from jurisdiction for a broad range of people, and thus goes beyond the Council’s powers.53 The limit on jurisdiction is also extremely difficult to reconcile with the general principle of equality before the law.54 Furthermore, the preamble acknowledged the bilateral agreements extracted from various States by the US, providing that US nationals would not be surrendered to the ICC. These agreements had been formed by the Bush administration, who threatened to withdraw military aid from States to secure promises of protection for US nationals serving in the States concerned.55 By acknowledging these agreements under Article 98(2) of the Rome Statute, the resolution gave them legitimacy; despite being widely criticised as misusing Article 98(2) to gain immunity for US nationals.56 Although these concerns are important, there are aspects of the Resolution that the US insisted upon which more specifically highlight the politicisation of referrals. For example, paragraph seven of the Resolution barred the UN from paying the ICC’s costs, instead requiring parties to the Rome Statute to pay for investigations and prosecutions. This was not the Security Council’s decision to make, and contradicted both the UN Charter and the ICC Statute. Article 17 of the UN Charter grants the General Assembly exclusive authority over budgetary matters.57 Article 115 of the Rome Statute provides for funding to be sourced from the UN, subject to the approval of the General Assembly. This is particularly the case in relation to expenses incurred by Security Council referrals.58 Such a transfer of power from the General Assembly to the Security Council gives rise to questions regarding the equality of the two bodies as primary organs of the UN.59 When the resolution was adopted, the US delegate stated that: We are pleased that the resolution recognizes that none of the expenses incurred in connection with the referral will be borne by the United Nations and that, instead, such costs will be borne by the parties to the Rome Statute 51

Johansen, above, n 31, p 321-322. SC Res 1593, above, n 17, Preamble. 53 Rome Statute, above, n 5, Art 16. 54 L Moss, ‘The UN Security Council and the International Criminal Court: Towards a More Principled Relationship’, (2012) Friedrich-Ebert-Stiftung, Berlin, available at library.fes.de/pdf-files/iez/08948.pdf; Cryer, above, n 38. 55 E Becker for the New York Times, ‘U.S. Ties Military Aid to Peacekeepers' Immunity’, 10 August 2002, p Ai. 56 Moss, above, n 54. 57 UN Charter, Art 17(1) ‘ The General Assembly shall consider and approve the budget of the Organization’ 58 ICC Statute, Art 115(b); also see Schabas, above, n 2, p 159. 59 Cryer, above, n 38, p 208. 52

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and those that contribute voluntarily. That principle is extremely important and we want to be perfectly clear that any effort to retrench on that principle by this or other organizations to which we contribute could result in our withholding funding or taking other action in response. That is a situation that we must avoid.60 Thus, it is clear that the US used its political weight within the Security Council and significant ability to deliver or withdraw funding to international organisations, to ensure that the Court would not receive funding from the UN. This unilateral ruling on the provision of funds by the UN has been described as ‘at odds not only with the decision to defer, but also with the duty of good faith negotiations, which flows from the obligation mutually agreed upon between the ICC and the United Nations.’61 However, none of the other Security Council members protested against the provision being included in the resolution; perhaps they were willing to allow such counterproductive provisions if it meant a resolution was at least passed.62 While this is understandable due to the state of the resolution as a product of negotiation, without financial backing the ICC will always be restricted in its ability to fulfil its mandate. From a pragmatic perspective and given the ICC’s tight budget and ever-expanding workload, a lack of funding is extremely problematic. Furthermore, unlike the resolutions establishing the International Tribunals, Resolution 1593 did not require all UN Member States to cooperate with the investigation and prosecution. It merely urged their cooperation, while pointedly noting that non-parties to the Rome Statute have no obligations whatsoever.63 By referring the situation, but then making clear it would not mandate cooperation or allow financial assistance to come from the UN, the Security Council showed a lack of commitment to ensuring that trials took place.64 To illustrate the potential impact of this, four of the nine African states bordering Sudan are not members of the ICC. Thus, there are many territories that alleged perpetrators may feel that they could travel to in order to avoid prosecution. This failure to mandate cooperation significantly diluted the potential effectiveness of the referral as a mandatory enforcement mechanism. In addition to flaws in the form of the Resolution, the Security Council’s subsequent behaviour can also be subject to scrutiny. Although Resolution 1593 requires the Sudanese government to cooperate fully with the ICC, Sudan has refused to comply with arrest warrants issued for government minister Ahmed Haroun, Janjaweed militia leader

60

United Nations Security Council, 5158th Meeting, UN Doc. S/PV.5158 (31 March 2005) p 34. 61 L Condorelli and A Ciampi, ‘Comments on the Security Council Referral of the Situation in Darfur to the ICC’ (2005) 3 Journal of International Criminal Justice, 594. 62 O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (2nd edn) (CH Beck, Hart and Nomos, Oxford, 2008) p 573. 63 SC Res 1593, above, n 17, para 2: ‘Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all states and concerned regional and other international organizations to cooperate fully.’ 64 Condorelli and Ciampi, above, n 61.

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Ali Kosheib and President al-Bashir.65 Apart from one presidential statement recognising the arrest warrants and urging Sudan to cooperate, the Security Council has done nothing to enforce cooperation,66 despite having a variety of options at its disposal, such as economic sanctions, no-fly zones, and further resolutions. Neither has the Council taken action when State Parties have hosted visits by alBashir but failed to enforce the warrant.67 Non-State Parties such as China and Libya have also hosted visits, and due to the wording of Resolution 1593, can rely on the fact that Non-State Parties have no obligation to cooperate with the Court. Furthermore, the African Union has repeatedly called upon the Security Council to ‘defer the process initiated by the ICC.’68 In response to the Security Council’s initial rejection and subsequent refusal to engage, the African Union stated that that ‘in view of the fact that the request by the African Union has never been acted upon, the African Union member states shall not cooperate’ in the arrest and surrender of President Bashir.69 To avoid this deadlock, the Security Council could have engaged more proactively with the African Union by initiating negotiations. Failing this, Chapter VII sanctions could have been utilised. While the Council has not deferred the prosecution under Article 16, its failure to mandate cooperation from Sudan, ICC Parties, and other UN Members shows a reluctance to actively bring those responsible before the Court.70 This failure to either actively defer or support its initial referral diminishes the Court’s effectiveness; if the Council makes a referral, it sets in motion a judicial process that should receive the Council’s on-going support. Overall, while Resolution 1593 was ground-breaking in that it constituted the first instance where the Security Council utilised the Court referral process, the substantive paragraphs reveal limited support for the ICC. The concessions demanded by the US in fact undermine the aims of the Court and limit its ability to dispense justice. As outlined above, the sections of the referral with the largest potential negative impact include the Security Council’s attempt to define the funding structure for the Court, and their lack of support regarding the arrest of alleged perpetrators. The problems created by these clauses, such as allowing Bashir to travel without being arrested and brought to the Court could have been addressed with a change to the language of the resolution. In order to 65

‘Darfur’, Coalition for the International Criminal Court, available at www.iccnow.org/?mod=darfur&idudctp =20 &show=all. 66 UN Security Council, Statement by the President of the Security Council, 16 June 2008, UN Doc S/PRST/2008/21. 67 Both Chad, Kenya and Malawi have all failed to arrest al-Bashir: UN News Centre, ‘Chad failed to arrest Sudanese President, ICC tells Security Council’, 13 December 2011, available at www.un.org/apps/news/story.asp?NewsID=40721#.USzUWPL09SN; UN News Centre ‘ICC informs Security Council about Malawian failure to arrest Sudanese leader’ 12 December 2011 available at www.un.org/apps/news/story.asp?NewsID=40705&Cr=criminal+court&Cr1=#.USzUa_L09 SM; ICC Press Release, ‘Pre-Trial Chamber I informs the Security Council and the Assembly of States Parties about Omar Al Bashir’s visits to Kenya and Chad’, ICC Press Release, ICC-CPI-20100827-PR568, 27 August 2010. 68 WA Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010). 69 Ibid., p 332. 70 Moss, above, n 54.

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understand why the resolution was weakened in this way, it is helpful to examine the political motivations behind the key P5 nations’ approaches.

The Politics behind the Law Under Chapter VII, the Security Council has primary responsibility for international peace and security and the authors do not dispute that the situation in Sudan satisfied this criteria. Therefore, the submission is not that the Security Council abused its powers in choosing to refer. Rather, the authors would argue that in addition to concern over the commission of international crime, other more self-serving factors also played a role in the decision making process. There is undoubtedly a role for politics to enter the decision making processes of the Security Council; after all, its role was defined within the Rome Statute with the knowledge that its decision making structures would often involve political considerations. For example, the deferral of a situation for the purpose of advancing the peace processes would be an innately political decision, but arguably an appropriate one.71 The authors acknowledge the necessity of allowing these types of politics to play a role in decision making at the Security Council. The authors take issue with the possibility that inappropriate political factors have affected decision making, as was potentially the case with the situation in Darfur. It has been claimed that concern over access to uranium and petroleum in the area was a critical factor in the way the situation was viewed by the international community, in particular the US. Sudan’s proven oil reserves amount to 6.4 billion barrels, but the Darfur conflict led to a ban on US companies carrying out business in the area.72 Thus, although the resolution was justified in using the language of international criminal justice, it is likely the rich natural resources of Darfur were also a motivating factor. After its abstention during the vote on whether or not to refer Sudan, China explained its position, arguing that the referral should have been made with the consent of the Government of Sudan.73 It is worth taking note of the relationship between China and Sudan when analysing China’s attitude to a referral. China’s initial resistance to referring the case of Sudan may have been prompted by the economic interests it had in the region and its fears over losing access to oil resources in the area. By the time of the referral, China had invested five billion US dollars in exploring and developing the Darfur region for oil deposits,74and in 2006 bought over 70 percent of Sudan’s oil and other exports.75 71

Schabas, above, n 68. M Ssenyonjo, ‘The International Criminal Court and the Warrant of Arrest for Sudan's President AI-Bashir: A Crucial Step Towards Challenging Impunity or a Political Decision?’ (2009) Nordic Journal of International Law 78, 397, p 421. 73 See W Guangya, the Chinese representative, reporting to the Security Council: UN Security Council Press Release, ‘Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court’, UN Doc. SC/8351, 31 March 2005. 74 European Coalition on Oil in Sudan, ‘Fact Sheet II: The Economy of Sudan’s Oil Industry’, October 2009, available at www.ecosonline.org/reports/2007/ECOSfactsheetIIOctober2007.pdf, p 9; R P McAleavey, 'Pressuring Sudan: The Prospect of an Oil-for-Food Program for Darfur' (2008) 31 Fordham International Law Journal 4, 1060-1073. 75 Ssenyonjo, above, n 72. 72

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In addition to these economic links, China has also been identified as a major arms supplier for the Sudanese government. In fact, ‘a significant portion of these purchases [found] their way to government-allied militia groups known as “Janjaweed”, the forces primarily responsible for crimes against humanity in Darfur.’76 A successful ICC referral had the potential to result in a regime change, disrupting existing trade agreements and threatening one of China’s close economic and political allies. However, as the humanitarian situation worsened and the international pressure increased, for example through the campaign led by the ‘Save Darfur Coalition’, it became more politically difficult to oppose a referral. The ‘Save Darfur Campaign’ involved a series of ads that utilised China’s upcoming bid for the Olympic games as bargaining power, going as far as nicknaming the Beijing Olympics the ‘Genocide Olympics’.77 These factors were likely to have contributed to China’s eventual abstention. The US also offered excuses for its abstention, arguing that ‘it did not agree to Council referral’,78 but that: [W]e believe a genocide is being committed in Sudan. Whatever you want to call it, there are clearly crimes against humanity being committed...and there are people who have to be held accountable for those crimes.79 As mentioned above, the US initially pushed for an alternative to an ICC referral. This can be explained by the US’s longstanding opposition to the creation of an international court; an opposition that made itself felt through consistent attempts to limit the Court’s effectiveness.80 Their eager depiction of the events in Sudan as genocide81 and eventual abstention from vetoing Resolution 1593 may be less linked to the events occurring within Sudan, and more linked to resources and a wish for stability within the region.82 US-Sudan relations were very poor at the time of the referral. This is evidenced by the comprehensive economic and trade sanctions the US had imposed on Sudan since 1997 and by the attack against the Al Shifa Pharmaceutical Industries Factory in Khartoum in 1998.83 It appears that the US was willing to allow the ICC referral as long as

76

McAleavey, above, n 74, p 1064. Mamdani, above, n 21, p 53-54. 78 See AW Patterson, US representative, reporting to the Security Council: UN Security Council Press Release, ‘Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court’, UN Doc SC/8351, 31 March 2005. 79 C Rice, US Secretary of State, Remarks with Hungarian Foreign Minister Ferenc Somogyi After Meeting at the Treaty Room in the White House, 1 April 2005, cited in NJ Udombana, ‘Pay Back Time in Sudan? Darfur in the International Criminal Court’ 13 Tulsa Journal of Comparative & International Law 1, p 1. 80 Johansen, above, n 30. 81 ‘Declaring Genocide in Darfur, Sudan’, House Concurrent Resolution 467, 22 July 2004; ‘Declaring Genocide in Darfur, Sudan’, Senate Concurrent Resolution 133, 22 July 2004. 82 C Kennedy, ‘Peace in the Sudans: The U.S. Needs it as much as the Sudanese’, International Policy Digest, 25 February 2013, available at www.internationalpolicydigest.org/2013/02/25/peace-in-the-sudans-the-u-s-needs-it-asmuch-as-the-sudanese/. 83 For a list of US Sanctions against Sudan, see US Department of the Treasury, available at, www.treasury.gov/ resource-center/sanctions/Programs/pages/sudan.aspx. 77

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it furthered the maintenance of US power in the region, but even then the US continued to push for measures limiting the Court’s jurisdiction. Overall, it is evident that political factors as well as concern over international crime informed the Security Council’s decision to refer Sudan to the Court. The initial reluctance of China to support such a move can be considered to have been influenced by their strong economic and military ties with Sudan. Although a referral was eventually obtained, the threat of the US veto had an impact on its eventual wording with potential implications for the perceived legitimacy of the Court. 84 Furthermore, the Security Council’s lack of subsequent support in the case of Sudan appears to have set a precedent as to the expected level of on-going support that the ICC should receive. While it is evident that enough political will could be garnered to result in a referral, the anti-ICC politics of some of the Council’s members likely influenced this reluctance to follow up the referral with more concrete support. As will be demonstrated below, many of the problems identified with the referral of Sudan were repeated, and a similar pattern of pulling back initial support continued with the Council’s second referral of the situation in Libya.

LIBYA’S REFERRAL From 1969 to 2011, Col Muammar Gaddafi ruled Libya with an iron fist, often preventing free speech, banning political opposition and using violent acts of repression against dissidents.85 His purportedly socialist system centralised the government around his own rule, and drove the country into economic distress despite the benefits of oil endowments.86 After witnessing the uprisings in Libya’s neighbours, Tunisia and Egypt, Libyans began protesting for regime change in February 2011, focusing on human rights abuses, social programme mismanagement, and political corruption. 87 Gaddafi’s response was to utilise violence against the dissenters, rally supporters and refuse to cede any power or control.88 This unapologetic and uncompromising response enhanced the grievance of the rebels, and the country was thrust into a state of violent conflict. Following a UN Human Rights Council resolution ‘condemning the recent gross and systematic human rights violations committed in Libya’ 89 the Security Council adopted Resolution 1970 by unanimous vote on 26 February 2011.90 The Resolution referred the situation in Libya since 15 February to the ICC,91 imposed an arms embargo,

84

Forsythe, above, n 25. BBC News, ‘Gaddafi's quixotic and brutal rule’, 20 October 2011, available at www.bbc.co.uk/news/world-africa-12532929. 86 M Bhardwaj, ‘Development of Conflict in Arab Spring Libya and Syria: From Revolution to Civil War’ (2012) 1 The Washington University International Review 76. 87 International Crisis Group, ‘Popular Protest in North Africa and the Middle East: Making Sense of Libya’. Middle East/North Africa Report N° 107, 6 June 2011. 88 Ibid. 89 Human Rights Council Resolution A/HRC/RES/S-15/1, 25 February 2011. 90 SC Res 1970, above, n 18. 91 Ibid. 85

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a travel ban, and an asset freeze.92 Thus, unlike in the case of Darfur, the Council was not relying entirely on the ICC referral as a response to the situation in Libya, but instead produced a resolution containing a package of sanctions aimed at placing pressure on the Gaddafi regime, of which the referral was one. Resolution 1970 was widely praised by proponents of the Court and human rights organisations, with Amnesty International describing the referral as marking ‘a historical moment in accountability for crimes under international law’.93 However, the referral remains problematic and deeply rooted in politics. The rapid referral process meant the language of Resolution 1593 was largely adopted, bringing several of its flaws to Resolution 1970. Although the reference to the US’s bilateral agreements was dropped, the explicit and arguably out of place reference to the power to defer under Article 16 remained, as did the recognition that ICC State Parties rather than the UN would fund the investigation, and the lack of any clear language obliging Non-Party States to cooperate with the Court. Possibly most concerning is the fact that the exclusion of nationals of Non-Party States from jurisdiction was also copied from the Darfur Referral. Thus, crimes committed by Non-Party States, particularly the US as one of the main intervening forces, would not fall under the jurisdiction of the Court. This repetition increases the likelihood of precedents being set and repeatedly followed; threatening to permanently damage the credibility of the referral system. As was the case after the Darfur Referral, support for the Court was less than forthcoming once the referral had been made. The Prosecutor was quick to act; requesting arrest warrants for Muammar and Saif al-Islam Gaddafi and intelligence chief Abdullah al-Sanusi on 16 May. However, the formerly strong proponents of the referral, such as France, the UK and the US, were becoming increasingly interested in finding a peaceful end to hostilities, and willing to push the judicial process to the side. At the beginning of the referral process the leaders of these three States had championed support for the ICC: The International Criminal Court is rightly investigating the crimes committed against civilians and the grievous violations of international law. It is unthinkable that someone who has tried to massacre his own people can play a part in their future government.94 However, as the conflict developed and it appeared more likely that Gaddafi would remain in Libya, the language of western States changed, and his fate was increasingly described as being up to the Libyan people.95 After the fall of Gaddafi’s regime in 2011, 92

J Cerone, ‘Documents on Libya, Introductory Note’ (2011) 50 International Legal Materials 709. 93Amnesty International, ‘Unanimous Security Council vote a crucial moment for international justice’ available at www.amnesty.org/en/news-and-updates/unanimous-security-councilvote-crucial-moment-international-justice-2011-02-28. 94 B Obama, D Cameron and N Sarkozy for the New York Times, ‘Libya’s Pathway to Peace’, 14 April 2011, available at www.nytimes.com/2011/04/15/opinion/15iht-edlibya15.html?_r=0. 95 ‘Gaddafi’s fate should be decided by the Libyan people – Russia’s Medvedev’, RIANOVSTI, 20 October 2011, available at http://en.ria.ru/russia/20111020/167897306.html; ‘Cameron: Gaddafi’s fate in hands of Libyan people’, Y Net News, 22 August 2011, available at http://www.ynetnews.com/articles/0,7340,L-4112339,00.html.

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the international community, particularly the countries involved in the original intervention, appeared to be far more focused on building new relations than with continuing to push through prosecutions. 96 The new regime quickly made clear that it intended to undertake all prosecutions itself, and would not be surrendering defendants into the ICC’s custody.97 Despite there being legitimate causes for serious concern over the capacity of Libya’s judiciary to provide an independent and impartial trial98 – particularly the fact that Libya had lacked a functioning judiciary for over forty years – Libya faced very little opposition from those States who had formerly pushed for the ICC referral.99 This opened up the original referral to criticism that it was used merely as a precursor to regime change.100 As a means of putting pressure on Gaddafi, the ICC was no longer needed, and with Libya eager to carry out domestic trials, it appeared that Security Council Member States were happy to leave the issue of ending impunity behind, and focus on pursuing other political aims with the new regime. This abrupt change in approach suggests a relationship of convenience between the Council and the ICC, rather than a true commitment on the part of the Council towards international criminal justice. The ICC’s Pre-Trial Chamber has since declared the case against Abdullah al-Senussi as inadmissible due to the ongoing proceedings in Libya, lending those proceedings some credibility. 101 However, this development does not shield the Security Council from scrutiny over its lack of support in the aftermath of its referral.

The Politics behind the Law Not unlike the referral of Darfur, it has been argued that politics were largely involved in persuading Security Council members to support the referral of Libya to the Court. According to Cerone, China did not initially support the referral of Libya to the ICC, it had to be persuaded to take ‘into account the special circumstances in Libya’.102 Russia 96

‘World powers scramble for a stake in future of the new Libya’, The Independent, 23 August 2011, available at www.independent.co.uk/news/world/politics/world-powers-scramble-fora-stake-in-future-of-the-new-libya-2342212.html. ‘The UK and Libya are building a strong relationship across the board’, Foreign and Commonwealth Office, 15 June 2012, available at https://www.gov.uk/government/news/the-uk-and-libya-are-building-a-strong-relationshipacross-the-board; ‘U.S. Relations with Libya’, U.S. Department of State, 15 January 2013, available at http://www.state.gov/r/pa/ei/bgn/5425.htm. 97 ‘No winners in ICC-Libya Standoff’, Foreign Policy, 8 October 2011, available at mideastafrica.foreignpolicy.com/posts/2012/10/08/no_winners_in_icc_libya_standoff. 98 While the complementarity principle of the ICC dictates that the ICC should declare a case inadmissible if the case is being investigated or prosecuted by a State which has jurisdiction over it, this can be overruled if the ‘proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.’ See Rome Statute, above, n 5, Art 17. 99 M Kersten, ‘Used and Abandoned: Libya, the UN Security Council and the ICC’, Justice in Conflict, 31 August 2011, available at justiceinconflict.org/2011/08/31/used-and-abandonedlibya-the-un-security-council-and-the-icc/. 100 Moss, above, n 54. 101 ICC, Pre-Trial Chamber, Decision on the admissibility of the case against Abdullah AlSenussi, 11 October 2013, ICC-01/11-01/11-466. 102 Cerone, above, n 92.

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was also very hesitant to show any support for the Court through a referral, making public statements that it ‘opposed counterproductive interventions’. 103 It is unclear how these States were ‘persuaded’ to cooperate with the proposal for referral lead by the United States. This opens up the possibility that political considerations may have played a role in motivating the adoption of Resolution 1970. It is entirely possible that the situation had reached a point where the Security Council felt that the ICC was an appropriate method of accountability. It is therefore worth considering that it may not always be illegitimate politics behind a referral. While this shows an increased willingness to use the Court, subsequent incidences of atrocity that have so far avoided a referral demonstrate that it did not mark the beginning of a more objective approach to referrals. The pulling back of support for the Court also demonstrates the lack of commitment to justice initiatives. In the end, the Security Council maintained its commitment as long as the Court aided the political aims of the intervening powers: to remove Gaddafi from power and justify interventionist policies in Libya. Such an approach to the ICC paints the institution as a mere weapon in the Security Council’s artillery, rather than as a judicial body seeking accountability and international justice. When Libya indicated its intention to prosecute the suspects domestically, it quickly became apparent that the Security Council’s Members were unlikely to put up resistance or provide support for the ICC, despite concerns over Libya’s judiciary system. Thus far, it is evident that P5 Security Council members exercise significant political control over the referral process and are selective in the situations that they chose to refer. The situations referred to the ICC, while constituting violations of international criminal law, can also be linked to the interests of the Security Council members. The resources present in Sudan and the uncooperativeness of the regime are likely to have influenced the P5’s concerns over ending impunity. Again in the case of Libya, while human rights abuses were certainly taking place, it is possible that the Security Council was motivated by a desire for a regime change as well as concern over the acts of Gaddafi, a leader that members of the Council had supported for years but were growing weary of.

SELECTIVE JUSTICE – THE FAILURES TO REFER Further evidence of political influence in the referral process can also be found by examining the situations that have been neglected by the Council. This has generally been because the State in question has an ally amongst the P5 members, who use their power of veto to prevent any resolutions against them. The argument gains particular credence when considering the mass atrocities being perpetrated by countries with strong ties to P5 member States, and the lack of a targeted international response to them.104 In order

103

M Kersten, ‘Between Justice and Politics: The International Criminal Court’s Intervention in Libya’, in S Carsten et al (eds), International criminal justice and ‘local ownership’: Assessing the impact of justice interventions, (Forthcoming, 2013) p 6. 104 Including: Human Rights Watch, ‘Letter on the October 17 Thematic Debate at the Security Council on the Council's Relationship with the ICC’; see Mamdani, above, n 21; Bakircioglu, above, n 23.

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to illustrate this point, we will now analyse some examples, including: Sri Lanka, Gaza, and in particular the current situation unfolding in Syria.

Sri Lanka Sri Lanka’s civil war came to an end in May 2009, with the defeat of the Liberation Tigers of Tamil Eelam (‘LTTE’) by the Sri Lankan army. As outlined by Peiris, the conflict between the Sinhalese and Sri Lankan Tamil ‘ethnic’ groups has its roots in early post-colonial years, following independence from Britain. Pieris argues that the conflict is rooted in a dispute over independence, land and rights.105 The Tamil people wanted to establish an independent State on land that belonged to Sri Lanka. This led to on-going clashes between the Sri Lankan army and a number of smaller groups fighting for Tamil independence, which eventually became the LTTE.106 India was heavily involved in the peace process throughout the 1980s but its withdrawal in the 1990’s led to a resurgence of violence. By the 1990’s the LTTE emerged as the government’s main opponent, eliminating or absorbing smaller rival groups, after allegedly receiving training and assistance from India. A peace agreement was completed in 2002;107 however, this peace was short-lived with escalating violence following LTTE attacks and military retaliations in 2006. These tensions continued to increase throughout 2006 and 2007, with the launch of a coordinated government campaign against the LTTE in 2008.108 The final phase of the war was characterised by intense violence from both sides, with thousands of civilian deaths and hundreds of thousands displaced from their homes. In June 2010, the UN Secretary-General established a Panel of Experts to advise him on the accountability measures being taken in Sri Lanka and the conduct of both the Sri Lankan government and the LTTE during the last stages of the armed conflict. The Panel was not given the same fact-finding mandate as had been previously given in Sudan and Libya; the Secretary-General repeatedly made clear that the Panel was not a commission of inquiry.109 It is likely that this was due to the political situation at the time, and the strong opposition from some States, particularly Russia and China, to any international investigation.110 Russia and China had previously vetoed even an informal briefing on

105

GH Peiris, Twilight of the Tigers: Peace Efforts and Power Struggles in Sri Lanka (Oxford, Oxford University Press, 2009). 106 The most notable of these conflicts occurred in 1955-56, 1957, 1958, 1961, 1966, 1972-73, 1974, 1977, and throughout the 1980s. 107 Peiris, above, n 105. 108 BBC news, ‘Sri Lanka Profile’, available at www.bbc.co.uk/news/world-south-asia-12004081. 109 S Ratner, ‘Accountability and the Sir Lankan Civil War’ (2012) 106 The American Journal of International Law 4, p 795. 110 Ibid.

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the humanitarian situation, describing it as ‘an internal matter’ and not a threat to international security.111 In fact, Russia and China supported the Sri Lankan government during the civil war, and had on-going economic interests in the area.112 Furthermore, Security Council practice shows that the internal nature of conflicts is not a bar to referral, as they can be considered threats to international peace and security due to their creation of refugees, spill-overs, and cross-border involvement. After conducting their investigations, the Panel of Experts reported: [C]redible allegations indicating a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity.113 Despite these findings, and the lack of criminal accountability within Sri Lanka, the Security Council failed to refer the situation to the ICC, again most likely due to the interests of powerful States in Sri Lanka. Russia and China continuously asserted the domestic nature of the conflict.114 The use of their veto power to shield Sri Lanka from the ICC likely had more to do with attempts to shield their own role in the conflict as well as maintaining their economic interests in the area.115 For example, Sri Lanka had recently discovered large oil deposits and expressed interest in attracting foreign investment.116 Russia and China both publicly stated their intent to gain access to this resource; and thus did not want to lose an investment opportunity by referring the Sri Lankan government to the ICC.117 The US did not support a referral either. Although the US publicly praised the Report and was the main force behind a subsequent Human Rights Council resolution reasserting the need for accountability,118 they still did not argue in favour of any international intervention: either through military intervention or ICC referrals. This may be due to a combination of their anti-ICC stance and their preferred focus on stability within the region, which arose from their support for India, their economic ally and Sri Lanka’s neighbour.119 While seeking stability is not a deplorable motivation in itself, it still highlights the prevalence of political over accountability concerns within the referral system.

111

P Sysmonds, ‘US, China and the War in Sri Lanka’ Global Research, 24 March 2009, available at www.globalresearch.ca/us-china-and-the-war-in-sri-lanka/12881. 112 MD Nazemroaya, ‘The US-NATO March to War and the 21st Century “Great Game” Part II’, Global Research, 5 December 2010, available at www.globalresearch.ca/the-us-natomarch-to-war-and-the-21st-century-great-game/22170. 113 UN Secretary General, Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011. 114 Nazemroaya, above, n 112. 115 Ibid. 116 C Haviland for BBC News, ‘Sri Lanka’s Potential Oil Reserves Spark Global Interest’, available at www.bbc.co.uk/news/business-17337054. 117 Ibid. 118 Ratner, above, n 109, p 806. 119 Sysmonds, above, n 111.

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More recent accusations have also emerged regarding the UN’s failure to take action in Sri Lanka, and the motivations behind this.120 The UN has released the ‘Report of the Secretary-General’s Internal Review Panel on United Nations Actions in Sri Lanka’, which contains condemning information that the UN had ‘a pretty clear idea of what was happening in the killing fields of Sri Lanka during the bloody climax of the civil war… yet it suppressed or diluted that information, utterly failing in its core mission of protecting civilians.’121 The report places a significant portion of the failure of international action in Sri Lanka upon the UN’s failure to release information. For example, the report states that, From 2008, a small group of non-permanent members of the Security Council has become deeply concerned by events and by early February 2009 wish the Security Council to formally consider the situation. However, they could not gather a sufficient consensus, hampered by a serious lack of information from the Secretariat on human rights and humanitarian situation and a general reticence among other members of the Security Council.122 Thus, an intervention, ICC referral, or some kind of international action could have been a possibility if advocates had access to accurate statistics highlighting the gravity of the situation. The United Nations rationales for its actions are that it did not want to ‘prejudice humanitarian access by criticizing the Government’.123 Although humanitarian concern can be considered a legitimate political consideration, it is possible that sharing this information exclusively with the Security Council, or at the request of the small group, could have changed the referral outcome of Sri Lanka.

Israel The conflict between Israel and Palestine, and the Israeli policy of expanding its settlements into Palestinian territory, has been widely reported over the years; numerous reports have been issued relating to the atrocities committed by both sides.124 Earlier this year the UN Human Rights Council issued a report stating that Israel must withdraw all settlers from the West Bank or potentially face charges at the ICC.125 The Human Rights 120

Internal Review Panel of Experts, ‘Report of the Secretary-General’s Internal Review Panel on United Nations action in Sri Lanka’, United Nations, November 2012, available at http://www.un.org/News/dh/infocus/Sri_Lanka/The_Internal_Review_Panel_report_on_Sri_ Lanka.pdf. 121 The Toronto Star, ‘How the United Nations failed Sri Lanka: DiManno’, 4 November 2013, available at http://www.thestar.com/news/world/2013/11/04/how_the_united_nations_failed_sri_lanka_d imanno.html. 122 See Internal Review, above, n 120, p 24. 123 Ibid., p 12. 124 See e.g. Report of the United Nations Fact Finding Mission on the Gaza Conflict, ‘Human Rights In Palestine And Other Occupied Arab Territories’, 15 September 2009, UN Doc A/HRC/12/48; Human Rights Watch Reports on Israel/Palestine, available at www.hrw.org/by-issue/publications/228. 125 UN General Assembly, Human Rights Council, ‘Report of the independent international factfinding mission to investigate the implications of the Israeli settlements on the civil, political,

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Council found that the settlement activity in occupied territory violated article 49 of the fourth Geneva Convention, and that the ICC had jurisdiction over: [T]he deportation or transfer, directly or indirectly, by the occupying Power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside that territory.126 The complete unlikelihood of the Security Council referring Israel to the ICC is the perfect example of political considerations influencing referral decisions. The unwavering support the US gives Israel is well documented. A number of authors have identified how this relationship has served to protect Israeli leaders from any accountability for atrocities committed in Gaza.127 Despite Israel’s sustained attack on the civilian population in Gaza from 2008-2009, the Security Council failed to refer the situation to the ICC,128 and the US’s continuing support means this is unlikely to change despite the ongoing conflict.129

Syria Over the past two years, a number of sources have urged the Security Council to refer the situation in Syria to the ICC. The UN High Commissioner for Human Rights has estimated that close to 70,000 people have been killed over a two-year revolt against Syrian President Bashar al-Assad. 130 The conflict began in March 2011 following a peaceful protest regarding the release of 14 school children arrested and tortured for

economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem’, 7 February 2013, UN Doc A/HRC/22/63. 126 Ibid. 127 Ainley, above, n 21; G Harms, Straight Power Concepts in the Middle East: US Foreign Policy, Israel and World History (London, Pluto Press, 2010); D Neff, ‘An Updated List of Vetoes Cast by the United Nations to Shield Israel from Criticism by the U.N. Security Council’ Washington Report on Middle East Affairs, May/June 2005, available at wrmea.com/archives/May-June_2005/0505014.html. 128 Ibid. 129 However, it should be noted that this does not preclude the situation appearing before the ICC entirely, given Palestine’s admission to the UN as a non-member State last November, which may potentially give them recourse to the ICC. As acknowledged by the UN Human Rights Council, ‘[r]atification of the statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims’, see UN General Assembly, Human Rights Council, ‘Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem’. 130 Office of the High Commissioner of Human Rights, ‘Statement by the High Commissioner for Human Rights to the Security Council, on 12 February 2013 during the Council’s thematic debate on the Protection of Civilians’, available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12990&LangID=E.

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writing anti-regime slogans on a wall.131 The situation then quickly escalated when Syrian security forces responded with violence, opening fire at a peaceful protest march on 18 March. 132 Government crackdowns failed to repress the unrest, instead triggering larger anti-government protests throughout the country. Although the protests did not originally seek President Assad’s resignation, calls for him to step down quickly followed the escalation of violence.133 Over the subsequent months the violence has only increased, with repeated attacks on civilian populations becoming almost the normality throughout the country. A special session of the Human Rights Council in April 2011 condemned the ‘use of lethal violence against peaceful protesters by the Syrian authorities’ and requested an independent commission of inquiry.134 By November 2011, the United Nations Independent International Commission of Inquiry on the Syrian Arab Republic had documented patterns of ‘summary execution, arbitrary arrest, enforced disappearance, torture, including sexual violence, and violations of children’s rights’,135 and had expressed concerns that crimes against humanity were being committed.136 Armed opposition groups have also been accused of committing violations of international humanitarian law, including hostage-taking and the unlawful killings of captives.137 The humanitarian situation on the ground has been described as ‘nothing short of catastrophic’ by the Director of Operations of the International Committee of the Red Cross,138 with millions displaced and thousands killed, missing or arrested. News reports and the United Nations have also confirmed that the Syrian government has been dispatching chemical weapons, including Sarin and Mustard Gas, against its population.139 The calls for a Security Council referral followed quickly on the heels of the violence. Amnesty International began calling for the situation to be referred as early as April 2011, after documenting systematic and widespread human rights violations committed

131

BBC News, ‘Guide: Syria Crisis’, 9 April 2012, available at www.bbc.co.uk/news/worldmiddle-east-13855203. 132 Ibid. 133 Ibid. 134 UN General Assembly, Human Rights Council, Resolution adopted by the Human Rights Council, S-16/1, ‘The current human rights situation in the Syrian Arab Republic in the context of recent events’, 29 April 2011, UN Doc A/HRC/RES/S-16/1. 135 Annex to the letter dated 14 January 2013 from the Chargé d’affaires of the Permanent Mission of Switzerland to the United Nations addressed to the Secretary-General, 16 January 2013, UN Docs A/67/694, S/2013/19. 136 Ibid. 137 Amnesty International, ‘Dozens of UN members urge immediate ICC referral of ‘desperate’ situation in Syria’, 14 January 2013, available at www.amnesty.org/en/news/dozens-unmembers-urge-immediate-icc-referral-desperate-situation-syria-2013-01-14. 138 International Committee of the Red Cross, ‘Syria: Humanitarian situation catastrophic’, ICRC Press Briefing, available at www.icrc.org/eng/resources/documents/press-briefing/2013/0215-syria-humanitarian-situation.htm. 139 BBC News, ‘Obama voices Syria chemical weapons concern to Putin’, 29 April 2013, available at www.bbc. co.uk/news/world-middle-east-22347669.

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by the Syrian authorities.140 They have continued to assert the need for a referral, with Amnesty International’s UN Representative in New York, stating that: [F]or almost two years, the Security Council has stood by as crimes against humanity, as well as war crimes after the internal armed conflict began, have been committed with complete impunity against the Syrian people ... the continued failure to act would send a disturbing message that the international community has lost the will to protect civilians from harm in conflict.141 In 2012 Navi Pillay, the UN High Commissioner for Human Rights, stated that Syria should be referred to the ICC, ‘in the face of the unspeakable violations that take place every moment’.142 She reiterated this view a year later, referring to the ‘lack of consensus on Syria and the resulting inaction’ as ‘disastrous.’143 On 14 January 2013 a group of UN Member States from Africa, Asia, Europe and Latin America, coordinated by Switzerland, sent a letter requesting that the Security Council refer the situation in Syria to the ICC, stating that the States were: [F]irmly of the view that the Security Council must ensure accountability for the crimes that seem to have been and continue to be committed in the Syrian Arab Republic and send a clear signal to the Syrian authorities.144 Because Syria is not a signatory to the Rome Statute, the Security Council referral procedure is the only way the Court can exercise jurisdiction. The Syrian legal system is not addressing the crimes being committed, and there is no reason to suppose that there would ever be national court trials while the current government is in power. However, despite the calls to act, the Security Council has thus far failed to make a referral, only going as far as making statements that ‘those responsible for the violence should be held accountable’.145 Security Council members France, Britain, Australia, Luxembourg and South Korea have voiced support for a referral.146 On the other hand, Russia, a staunch supporter of President Bashar al-Assad, and China have repeatedly used their 140 Amnesty

International News Releases, ‘UN must refer Syria to International Criminal Court’, 26 April 2011, available at www.amnesty.ie/node/1975. 141 Amnesty International, ‘Dozens of UN members urge immediate ICC referral of “desperate” situation in Syria’, 14 January 2013, available at www.amnesty.org/en/news/dozens-unmembers-urge-immediate-icc-referral-desperate-situation-syria-2013-01-14. 142 Statement by UN High Commissioner for Human Rights Navi Pillay at The Urgent Debate on the Human Rights and Humanitarian Situation in the Syrian Arab Republic at the Human Rights Council 19th Session, Geneva, 28 February 2012. 143 Statement by the High Commissioner for Human Rights to the Security Council, on 12 February 2013 during the Council’s thematic debate on the Protection of Civilians, Office of the High Commissioner of Human Rights, available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12990&LangID=E. 144 Letter dated 14 January 2013 from the Chargé d’affaires a.i. of the Permanent Mission of Switzerland to the United Nations addressed to the Secretary-General, above, n 135. 145 UN News Centre, ‘Syria: Security Council condemns rights abuses and use of force against civilians’ 3 August 2011, available at www.un.org/apps/news/story.asp?NewsID=39229#.UStmIfL09SM. 146 The Hindu, ‘Five Security Council members support Syria referral to ICC’, 19 January 2013, available at www.thehindu.com/news/international/five-security-council-members-supportsyria-referral-to-icc/article4320654.ece.

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veto to block any resolutions, with Russia referring to a referral as being ‘untimely and unconstructive’.147

TO REFER OR NOT TO REFER – COMPARING CASES The case of Syria provides the most recent example of political interference limiting the potential for ICC investigation. In an effort to understand why the Security Council has not referred Syria, it is helpful to compare the cases examined thus far in more detail. This will allow for conclusions to be drawn as to what motivates the Council to refer situations, and why Syria has failed to catalyse such action. The subsequent sections will therefore make a comparative analysis of the differences between Syria and Darfur, Libya, Sri Lanka and Israel.

Syria versus Darfur The humanitarian crisis in Syria is comparable to the situation that took place in Darfur, Sudan. In terms of numbers, the death toll estimates are identical to what critics claim are the most accurate statistics to come out of Darfur.148 Furthermore, in both cases the UN established a Commission of Inquiry, and in both cases concern was expressed over the patterns of violence and the crimes against humanity being committed. The evidence and recommendations generated regarding each situation have been equally as condemning. The politics involved in the Security Council’s decision to refer Sudan to the ICC are quite similar to those that have so far stood in the way of Syria’s referral. Like Sudan, several Security Council members have interests in preserving particular relationships with Syria. China for example, had a vested interest in maintaining its economic ties to Sudan – particularly within the oil industry. It has been revealed that China has similar concerns in Syria. 149 The main difference is the lack of international pressure upon China to support a Security Council referral. The international community was able to use China’s bid for the Olympics as a bargaining chip for the Darfur referral. No comparable situation exists for Syria; thus, China has not been compelled to change their staunch opposition to referral.

147

Reuters, ‘Russia opposes referring Syrians to ICC now: official’, 19 February 2013, available at www.news.yahoo.com/icc-war-crimes-requests-syria-untimely-russian-official120321972.html. 148 See above section on Sudan. 149 CA Buckley, ‘Learning from Libya, Acting in Syria’ (2012) 2 Journal of Strategic Security 5, p 82.

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Syria versus Libya There are many similarities between the events that took place in Libya leading up to an ICC referral and those that have been occurring in Syria. Both conflicts began with protests calling for governmental reform aimed at addressing poverty, the lack of democracy, and widespread corruption.150 Both governments responded to relatively peaceful civilian protests with extreme displays of violence. Like Muammar Gaddafi, Syrian President Bashar al-Assad has released statements denying alleged crimes against humanity taking place at the hands of Syrian forces and refusing to step down as president.151 Accusations of the types of crimes committed by each regime are also very similar, including: the use of violence against peaceful protestors, summary executions, torture, rape and other sexual crimes, unlawful imprisonment, summary executions, and enforced disappearances. An examination of estimated numbers put forth by international organisations provides further proof of the two cases’ comparability. If estimates are accurate, in terms of sheer numbers the situation in Syria has been equal, if not worse than the events leading to the Libyan referral. In Libya, the reported numbers have greatly varied amongst different sources. Amnesty International released a report stating that ‘over 672,000 foreign nationals had fled Libya and not returned.’152 The death toll put forth by rebel officials was approximately 50,000; however, this figure has been ‘revised down to 25,000 dead and 4,000 missing.’153 Meanwhile, the Red Cross estimates that in Syria, ‘millions (have been) displaced and thousands killed, missing or arrested.’154 More specifically, the UN approximates that 70,000 people have been killed in Syria since the uprising began.155 The gravity and types of crimes documented in both Syria and Libya are therefore, at a bare minimum, comparable. While the Security Council is not obliged to refer all instances of international crime to the ICC, when situations appear to comprise a similar gravity of threat to international peace and security, it is worth considering why one case would be referred and not the other. Given the similarities between these situations, it seems likely that politics have played a pivotal role in the decision making processes within the Security Council. Providing further support to this is the fact that the UN has now confirmed Syria’s use of chemical weapons against its population.156 This development increases the threat to international peace and security, as the use of chemical weapons is prohibited by international treaty, it is likely to increase the refugee crises, and risks further destabilizing the region. We argue that the lack of Security Council support for a Syrian referral is closely related to the political interests of particular P5 150

Ibid., p 88. Ibid., pp 87-88. 152 Amnesty International, ‘The battle for Libya: Killings, disappearances and torture’, 13 September 2011, available at www.amnesty.org/en/library/info/MDE19/025/2011. 153 The Guardian, ‘Libyan revolution casualties lower than expected, says new government’, 8 January 2013, available at www.guardian.co.uk/world/2013/jan/08/libyan-revolutioncasualties-lower-expected-government. 154 International Committee for the Red Cross, ‘Syria: Humanitarian situation catastrophic’. 155 Reuters, ‘Syria death toll likely near 70,000, says U.N. rights chief’, 12 February 2013, available at www.reuters.com/article/2013/02/12/us-syria-crisis-unidUSBRE91B19C20130212. 156 BBC News, ‘Syria Profile’, available at http://www.bbc.co.uk/news/world-middle-east14703995. 151

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nations. While Libya lacked powerful allies or economically beneficial relationships with P5 members, Syria has both. Furthermore, several powerful nations had an interest in gaining access to Libya’s oil and were therefore strategically interested in exacting regime change, while Syria has already permitted access to oil for certain countries through trade agreements.157 Russia and China both have interests in maintaining the current power regime in Syria.158 The relationship between Russia and the Syrian government benefits Russia both militarily and economically.159 Militarily, Syria is a strategically important ally, as Russia’s final remaining base outside of the former Soviet Union rests on Syrian soil.160 Russia has also supported the Syrian militarily by supplying it with ‘advanced air defence systems’;161 this relationship has become even more important for Russia economically with the overturn of former ‘customers’ after interventions in Iraq and Libya. Economically, both China and Russia benefit from trade relationships that include Syrian oil exportation and ties with other major industries.162 These political and military interests have caused Russia and China to express ‘major opposition’ to any proposed interventions with the Syrian State. Aiding Libya’s referral to the ICC was also the fact that Gaddafi was not well liked within the international community, as evidenced by Libya’s lack of powerful allies. As outlined by Forsythe, ‘the political fact seemed to be that Kaddafi was more of a pariah than Assad, and weaker, in the eyes of most of the P5’.163 Libya’s lack of interest in placating the international community, or building alliances with any powerful P5 nations meant that it became an easier target for international intervention.164 Syria’s strong ties with Russia, China, and even Iran have prevented the same level of support for a referral. Intra-P5 power politics also come into play, with Russia growing weary of witnessing Western leaders’ selective moralising. Furthermore, it is important to recognise the possibility that the Security Council has also been motivated by legitimate concerns over the possibility of a peaceful resolution in Syria and the effect that an ICC referral might have on this process. After witnessing the use of a referral in Libya as a method of overthrowing Gaddafi, they may be justifiably wary of supporting a similar approach in Syria.165 Indicting Gaddafi most likely precluded any potential for a peaceful resolution featuring Gaddafi stepping down. Thus, States may fear a similar deadlock being created in the case of Syria.166 The threat of an ICC referral is unlikely to encourage Assad to enter into negotiations or risk any 157

Buckley, above, n 149 , p 82. Forsythe, above, n 25 p 853. 159 Buckley, above, n 149, p 82. 160 Ibid. 161 Ibid. 162 Ibid. 163 Ibid. 164 Ibid., p 82-83. 165 D Treisman, Special to CNN, ’Why Russia protects Syria’s Assad’, 3 February 2012, available at, www.edition.cnn.com/2012/02/02/opinion/treisman-russia-syria/index.html. 166 The Guardian, ‘Referring Syria to the international criminal court is a justified gamble’, 16 January 2013, available at http://www.theguardian.com/commentisfree/2013/jan/16/syriainternational-criminal-court-justified-gamble. 158

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further loss of control over Syria. However, the lack of public acknowledgement of this risk, and the clear links between members of the P5 and the Syrian government, and the longstanding habit amongst the P5 of protecting their friends, make it hard to have faith in the Council’s good intentions. Despite the international attention that the conflict has received, and the many calls for Syria to be referred to the ICC, at this point it seems unlikely. While there is a possibility that the increased bloodshed and international pressure might influence the Security Council’s stance, the impunity that the world has witnessed in places like Israel and Sri Lanka demonstrate that this may not be enough.

Syria versus Israel and Sri Lanka Comparing Israel and Si Lanka with the current conflict in Syria presents a disheartening picture of what is likely to continue without sustained international pressure on the Security Council. As aforementioned, suspected reasons for the failure to refer either Sri Lanka or Israel include their relationships with powerful nations, or at least the interests those States have in their affairs. The crimes that have been perpetrated by these countries are on par with those committed by Libya and within Darfur, but have not attracted the same level of international attention. Both Israel and Sri Lanka have ties to P5 members: Israel is a major strategic ally for the US in the Middle East, and both China and Russia have significant economic interests within Sri Lanka. The same can be said of Syria. Russia has allegedly been supplying weapons to the Syrian regime.167 Like Russia, China has also supported the Syrian regime throughout the conflict, including their use of veto power at the Security Council. Additionally, as in the case of Sri Lanka, both Russia and China refuse to support a referral of Syria to the ICC, this could be partially attributed to the potential impact on their economic interests within the country. As in the cases of Sri Lanka and Israel, the political interests of the P5 may stand in the way of utilising the Court as a response to the humanitarian atrocities taking place in Syria.

CONCLUSION This article has sought to expose the political motivations behind Security Council referrals and identify some of the reoccurring themes linking political interests with decisions on whether or not to refer. Recognising that political motivations are an important component of Security Council decisions and that not all political concerns are illegitimate or motivated by State interests, we would still argue that this political component of the ICC referral process is an impediment to its ability to combat impunity. By examining the two cases that have been referred to the ICC and several of those that have been overlooked, we have revealed the realistic possibilities that decisions are often motivated by the alliances and economic interests of the P5 members as well as concerns over international crime. The comparative studies have revealed possible motivations that

167

Policy Mic, ‘China is responsible for the carnage occurring in the Syrian Civil War’, available at, www.policymic.com/articles/12947/china-is-responsible-for-the-carnage-occurring-inthe-syrian-civil-war.

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drive Security Council action, including existing trade agreements. For example, powerful states may be reluctant to see trade agreements disrupted by a regime change that could come with prosecution of a head of state. International alliances also play a large part in determining Security Council involvement. Unpopular leaders without powerful advocates on the Council are more likely to find themselves on the end of an arrest warrant. The case of Libya, when compared with that of Israel, highlights the value of P5 relationships. While Gaddafi had increasingly isolated himself from the international community, Israel can rely on unconditional US support and will therefore continue to be protected from international accountability. The importance of military considerations is also demonstrated by Russia’s protection of Syria. Syria represents Russia’s last stronghold in the Middle East and Russia is likely to continue to oppose any kind of intervention, including ICC referrals. As well as potentially impacting the ICC’s ability to deliver on its mandate, allowing realpolitik concerns to influence decisions to refer negatively impacts the perceived legitimacy of the Security Council as primary organization responsible for international peace and security. In turn this has a knock on detrimental effect on the perceived legitimacy of the ICC itself. The reluctance of several states and the African Union to cooperate with referrals may demonstrate the damage that political motivations have had on Security Council referrals to the Court. If the Court’s ability to prosecute Non-State Actors is limited to those who lack friends amongst the P5, then it will be difficult for the Court to be seen as an impartial institution. The situation in Kenya demonstrates the practical implications of this lack of impartiality, with Kenyan leaders decrying the Court as racially biased and a western tool.168 While these criticisms are not new, with Al-Bashir making similar claims, the Kenyan leaders have been more successful at garnering support from the African Union. Although their attempts to gain immunity for acting heads of State have failed, Kenya’s leaders have pushed for and gained procedural amendments that make it possible for them to miss some Court sessions and attend others remotely through video link.169 These moves are symptomatic of a lack of respect for the Court’s work and a disinclination to cooperate with its trial procedure. The very fact that political motivations, such as economic interests, military strongholds, and protecting allies, influence Security Council referrals means that all is not lost in the case of Syria. It should be noted that China has reversed its objection to ICC referrals twice in the past and may do so again if it considered doing so to be in its interests or if lobbied by States on whom China relies for resources. Russia’s position is not fixed either, as it is unlikely to keep backing Assad while his ability to hold on to power slips further and further away. Furthermore the human rights violations and the use of chemical weapons on the civilian population are receiving ever-increasing attention from the media and civil society. This makes it more difficult for powerful States to justify the continuing lack of accountability. However, while politics and the Court are 168

The New York Times ‘Kenya and the International Criminal Court’, 9 November 2013, available at www.nytimes.com/2013/11/10/opinion/sunday/kenya-and-the-internationalcriminal-court.html?_r=0. 169 The Washington Post, ‘African leaders complain of bias at ICC as Kenya trials get underway’, 5 December 2013, available at www.washingtonpost.com/world/europe/african-leaderscomplain-of-bias-at-icc-as-kenya-trials-are-underway/2013/12/05/0c52fc7a-56cb-11e3-bdbf097ab2a3dc2b_story.html.

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inextricably linked, relying on political pressure alone is not an ideal situation for international criminal law as the law is meant to stand alone from political considerations. The principle of separation of powers is a well-recognised doctrine within legal thought. While this was evidently a concern during the drafting of the Rome Statute, subsequent practice has closed the gap between law and politics.170 Therefore it is worth considering some potential reforms for the referral process that could lead to a more consistent approach when using international criminal law to respond to mass atrocity.

Suggested Reform for Security Council As the UN Secretary General has noted, ‘in many conflicts, it is to a large degree the absence of accountability and, worse still, the lack in many instances of any expectation thereof, that allows violations to thrive’.171 If the ICC is to play a part in countering this trend, it is necessary for the Court to have as wide a jurisdiction as possible. However, merely granting the Court universal jurisdiction would be insufficient, as the Court requires cooperation as well as jurisdiction, and only the Security Council has the power to impose duties of cooperation on Non-Party States. Ideally, Council members would not allow political motivations or allegiances to prevent referral in cases where it appears merit-worthy, and would become members of the Rome Statute if they are not already. The double standards created by the Non-Party status of three of the five Permanent Members are deplorable. Working towards increased ratifications would not only increase the number of States over whose nationals and territory the Court could exert jurisdiction, but could also work to put pressure on those remaining Non-Party States. However, it should be noted that even politically weak states have shown an ability to resist pressure. One of the challenges therefore is to develop more objective criteria for considering possible referrals. The UN High Commissioner for Human Rights has suggested possible triggers for a referral as including a resolution from the Human Rights Council, advice from the ICC Prosecutor, international commission of inquiry reports, and possibly a role for the Office of the High Commissioner for Human Rights as well.172 While it would still remain up to the Security Council to determine the existence of a threat or breach to international peace and security, the establishment of trigger mechanisms could ensure that the situation is given adequate consideration. The role of the Office of the High Commissioner for Human Rights in particular is worth further attention, as its statements are becoming increasingly influential within the Security Council. For example, the draft resolution condemning the ongoing violence in Syria in February 2012, although vetoed by Russia and China, received thirteen votes in favour. It has been suggested that the briefings and statements of the High Commissioner were important in attaining the level of consensus achieved.173 The following month, at the 19th Regular 170

Triffterer, above, n 62, p 568-569. UN Security Council, Report of the Secretary-General on the protection of civilians in armed conflict’, 11 November 2011, UN Doc S/2010/579 para 82. 172 Remarks by Navi Pillay at the Retreat on the Future of the International Criminal Court, Liechtenstein, 16–18 October 2011. 173 Chatham House, ‘“The UN Security Council and the International Criminal Court”, International Law Meeting Summary, with Parliamentarians for Global Action’, 16 March 171

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Session of the Human Rights Council, thirteen States released a joint statement, indicating their reasons for believing that the situation in Syria should be brought before the ICC. The statement cited the High Commission for Human Rights reports, and endorsed the opinion that the situation should be referred.174 A UN workshop in 2011 discussed developing a checklist to consider referrals, which could include reflections on when a situation constituted a threat to international peace and security, considerations of funding, exceptions in the referrals, the Council’s role in ensuring cooperation with the Court by relevant States, and the issue of Article 16 deferrals. Such a list would enable constructive, well-informed debate within the Council and would assist in promoting consistency,175 limiting the influence of political considerations. Furthermore, an elaboration of the criteria would supply civil societies and States with a set of principles with which to put pressure on the Security Council.176 Alternatively, developing a mechanism of procedure that allowed and encouraged the Security Council to take action could be beneficial. For example, the proposal made by Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland, which recommended that the Security Council refrain from using its veto power in situations involving the prevention or ending of genocide, war crimes, and crimes against humanity.177 However, given the past practice of the Security Council, it is unlikely that it would consider objective criteria as part of its decision making process, or a limit to its vetoing power, if it did not suit the political stance of its members. The financing structure is also in need of reform, as the Court cannot hope to fulfil its mandate without adequate financial support. The Security Council’s practice of making referrals while placing sole responsibility for funding on the parties of the Rome Statute is problematic, and in sharp contrast to the Council’s previous work in the area of international criminal justice (as the ad hoc tribunals were paid for by the full membership of the UN). Although it would be difficult to make the Security Council adopt financial responsibility for the ICC’s case load, the Council should not be allowed to expressly forbid the possibility of the General Assembly providing support from the UN budget. A related issue is the Council’s failure to provide any follow up support after referrals. The Court has notified the Council of instances of non-cooperation several

2012, video recording available at www.unmultimedia.org/tv/webcast/2012/03/commissionof-inquiry-follow-up-to-17th-special-session-31st-meeting.html. 174 UN Human Rights Council, Debate on the follow up to the 17th Special Session – Report of the International Commission of Inquiry on the Syrian Arab Republic, 12 March 2012, Joint statement by Austria on behalf of 13 States (Belgium, Botswana, Costa Rica, Croatia, France, Ireland, Liechtenstein, Maldives, New Zealand, Norway, Slovenia, Switzerland, Austria). 175 Highlights from the Workshop on Accountability and Fact-finding Mechanisms for Violations of International Humanitarian Law: The Role of the Security Council – Past and Future, 1 November 2011. 176 Chatham House, above, n 173. 177 UN General Assembly, Measures on working methods recommended for consideration by the Security Council, Annexed to ‘Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland: draft resolution’, 28 March 2012, UN Doc A/66/L.42.

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times without eliciting any responsive action from the Council.178 A response acknowledging such reports and reinforcing the need for cooperation could do much to improve the perceived legitimacy of both the Court and the Council. The Security Council is unlikely to be receptive towards any limits or controls over its powers. However, these are issues that deserve debate and consideration amongst the international community if impunity is to be effectively countered. The current system’s reliance on realpolitik is in opposition to the ICC’s mandate of addressing humanitarian disasters and ensuring universal accountability. As long as this remains the case, perpetrators of international crime will continue to go unpunished, diminishing the legitimacy of international criminal law.

178

See e.g. ICC, Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Ali Abd-AlRahman, Decision informing the United Nations Security Council about the lack of cooperation by the Republic of Sudan, Pre-Trial Chamber I, 26 May 2010, ICC-02/05-01/0757; ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, Pre-Trial Chamber I, 27 August 2010, ICC02/05-01/09-109; ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision Informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s Presence in the Territory of the Republic of Kenya, Pre-Trial Chamber I, 27 August 2010, ICC-02/05-01/09-107;ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision Informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, Pre-Trial Chamber I, 12 May 2011, ICC-02/05-01/09-129; ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, Pre-Trial Chamber I, 12 December 2011, ICC- 02/05-01/09-139.

HUMAN RIGHTS DEVELOPMENTS IN IRELAND 2012

FIONA O’REGAN Law Reform Commission

INTRODUCTION 2012 saw a number of significant positive developments within the human rights sphere in Ireland. Children’s rights were potentially strengthened by the holding of a long gestated referendum on the incorporation of specific children’s rights provisions into the Constitution. In addition, a number of important pieces of legislation relating to vetting and withholding of information were passed which should ensure greater protection for the rights of both children and vulnerable adults. Ireland also took up relevant positions in international institutions, including the chairmanship of the Organisation for Security and Cooperation in Europe (OSCE) and membership of the UN Human Rights Council in 2012. Yet, in this year particular attention was also focused on the continued problematic nature of abortion rights in this state with the high profile Savita Halappanavar case highlighting the unacceptability of the present situation. The frailty of the rights of irregular migrant workers was also exposed in a notable High Court decision, Hussein v The Labour Court.1 Finally, the European Court of Human Rights (ECtHR) again found further violations of Article 6 and the right to a hearing within a reasonable time: an issue which has been the subject of numerous cases concerning Ireland.

LEGISLATIVE AND CONSTITUTIONAL DEVELOPMENTS

Referendum on Children’s Rights On 10 November 2012, a referendum relating to children’s rights was held in Ireland. Strengthening the rights of children in Ireland had become an issue of particular priority in the wake of a number of reports relating to child abuse and neglect.2 In addition, groups including the Constitutional Review Group and the UN Committee on the Rights of the Child have been vocal in calling for greater constitutional protection for children * Researcher, Law Reform Commission. The views expressed in this article are those of the author only. 1 Hussein v The Labour Court [2012] IEHC 364. 2 In particular, the so-called Ryan Report, Commission to Inquire into Child Abuse, The Final Report of the Commission to Inquire into Child Abuse, 20 May 2009 available at http://www.childabusecommission.ie/publications/index.html.

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in Ireland.3 Such groups recognised that the existing provisions of the Constitution failed to adequately protect children’s rights, with emphasis placed on the rights of the family as a unit rather than its individual members. The thirty first amendment to the Constitution thus proposed repealing Article 42.5, which provided that ‘In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child’ and replacing it with Article 42A. Article 42A states: 1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights. 2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child. 2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as maybe prescribed by law in their duty towards the child and where the best interests of the child so require. 3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child. 4 1° Provision shall be made by law that in the resolution of all proceedings— i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration. 2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

3

See The Constitutional Review Group, Report of the Constitutional Review Group (Dublin, Stationary Office, 1996); UN Committee on the Rights of the Child, ‘Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Concluding Observations: Ireland’ (29 September 2006) UN Doc CRC/C/IRL/CO/2 at 6.

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Whilst the decision to hold a referendum on children’s rights was broadly welcomed by human rights and children’s rights organisations,4 the proposed Article 42A nevertheless attracted criticism. On the ‘no’ side, an umbrella group of organisations including The Christian Solidarity Party, Parents for Children and The Alliance for Parents against the State opposed the amendment mainly because they felt it would increase the power of the state to intervene into the lives of children and limit their right to parental protection.5 Yet, even for those organisations in favour of a constitutional amendment, Article 42A presented problems. One of the core recommendations of organisations including the Irish Human Rights Commission (IHRC) was that any proposed constitutional amendment providing for children’s rights should include a specific reference to the UN Convention on the Rights of the Child (CRC), which was ratified by Ireland in 1992.6 Reference to the CRC would enable its use as an interpretative tool which would assist the Courts in enumerating the rights children would hold under Article 42A.1. Instead, this article is vague, referring only to the ‘natural and imprescriptible rights’ of the child without listing any particular rights or including any guiding principles which may aid with the enumeration of such rights. As the IHRC pointed out in its Concluding Observations on the thirty-first amendment, ‘natural’ has been the subject of differing meanings in the Courts and thus more guidance in defining the rights to be included under this article would have been welcome.7 Furthermore, in recommending that Article 42A.1 be revised, the IHRC suggested that ‘the Article be phrased in more absolute terms regarding the obligations of the State’ as the State only ‘recognises and affirms’ the rights of children and shall ‘as far as practicable’ by its laws protect and vindicate those rights.8 This contrasts with the more forceful language found elsewhere in the Constitution, in particular, Article 40.3.1°, whereby the state ‘guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate the personal rights of the citizen’ (emphasis added).9 The IHRC also felt that the four guiding principles of the CRC should be included in the children’s rights Article.10 The first guiding principle relates to the best interests of the child as contained in Article 3 CRC. The IHRC recommended that the best interests of the child should be included as a primary consideration in all actions concerning children and not just in situations described in 42A.2.2° and 42A.4.1° relating to ‘preventing the safety and welfare of any child from being prejudicially affected’ and proceedings related to adoption, guardianship, custody and access.11 This is a core principle of the CRC and failure to provide for it on a more comprehensive basis within Article 42A 4

The Children’s Rights Alliance, an alliance of some 100 organisations concerned with children’s rights in Ireland, advocated for acceptance of the referendum, see http://www.childrensrights.ie/. 5 See Parents for Children http://www.parentsforchildren.eu/; The Alliance for Parents Against the State http://www.aps.ie/. 6 Irish Human Rights Commission, ‘Observations on the Proposed Thirty-first Amendment of the Constitution (Children) Bill’ September 2012 at para 62. 7 Ibid., at para 18. 8 Ibid., at para 20. 9 Ibid. 10 Ibid., at para 62. 11 Ibid., at para 31.

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weakens the protection offered by the proposed Article, in addition to falling short of Ireland’s obligations under the CRC. The IHRC also recommended that the Article ought to include references to the principle of non-discrimination (Article 2 CRC) and the right to development (Article 6 CRC), as well as the right of children to participate in decisions concerning them (Article 12 CRC).12 Whilst Article 42A.4.2° does allow the views of the child to be given and accounted for in the context of proceedings mentioned in Article 42A.4.1°, again a more general application of this principle was called for. Despite the limitations of the proposed Article, the referendum was accepted by 58.01 per cent of voters. However, two days prior to the vote, the Supreme Court ruled in McCrystal v Minister for Children that the government’s information campaign was unconstitutional having regard to Article 46 of the Constitution13 and the principles expressed in the Supreme Court’s judgment in McKenna v An Taoiseach (No 2), which requires that public funds should be used for explaining referendums in an impartial manner.14 The Court concluded that the information campaign conducted by the Minister for Children was not fair, equal, impartial or neutral as it was required to be, but rather advocated for a ‘yes’ vote.15 On the basis of this decision, two individuals brought a High Court challenge seeking to overturn the referendum decision.16 The referendum bill will thus only be signed into law should this petition fail.

Other Legislative Developments The rights of children and vulnerable adults were potentially bolstered by the enactment of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.17 This Act provides for the establishment of a National Vetting Bureau Database System and establishes procedures that are to apply in respect of persons who wish to undertake certain work or activities relating to children or vulnerable persons. The Act fills an important gap by putting in place a statutory framework to govern the administrative system of Garda Vetting which did not exist prior to this. The Act establishes a database which will include a register of ‘relevant organisations’,18 a register of ‘specified information’19 12

Ibid., at paras 28, 40 and 43. Art. 46, ‘Amendment of the Constitution’; McCrystal v Minister for Children &Youth Affairs & Ors [2012] IESC 53. 14 Ibid., at para 77 Denham CJ judgment; McKenna v An Taoiseach (No 2) [1995] 2 IR 10. 15 Ibid., at para 86. 16 Irish Independent, Tim Healy, ‘High Court Challenge to Children’s Referendum “yes” vote’ 19 November 2012 available at http://www.independent.ie/irish-news/courts/high-courtchallenge-to-childrens-referendum-yes-result-28903344.html. The challenge awaits final resolution in the Supreme Court, having been appealed following a High Court decision that will be reported upon in the 2013 report (In the Matter of the Referendum on the Proposal for the Amendment to the Constitution contained in The Thirty First Amendment to the Constitution (Children) Bill 2012 [2013] IEHC 458). 17 National Vetting Bureau (Children and Vulnerable Persons) Act 2012. 18 Ibid., s 8. 19 Ibid., s 10. 13

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(i.e. information other than criminal convictions which gives rise to a bona fide concern that the person may represent a threat to children or vulnerable persons), and a register of vetted persons.20 The vetting services provided by the Bureau can only be carried out on behalf of relevant organisations as defined under the Act, including those engaged in education, training or leisure activities, therapy and counselling, health, accommodation and religious services to children or vulnerable people.21 The Act makes it an offence for a relevant organisation to employ or engage the services of a person unless the organisation receives a vetting disclosure on behalf of that person.22 However, such legislation must balance the rights of individuals to fair procedures against the rights of children and vulnerable people. Thus, the Act provides for notification to the person who is the subject of the application for vetting disclosure before ‘specified information’ can be disclosed and allows them an opportunity to make a submission to the Chief Bureau Officer concerning the information.23 Such an individual has only fourteen days from the date of notification to do this, which may be too brief a period in order to ensure the individual’s rights are protected.24 Nevertheless, in making a decision to disclose the information, the Chief Bureau Officer is required to have regard to ‘whether the rights of the person have been considered and taken account of in a manner that is consistent with fairness and natural justice’ in addition to other factors including the information itself and its relevancy to the type of work involved.25 A person who is subject to a vetting disclosure application also has an opportunity to appeal the determination made by the Chief Bureau Officer, again within a period of fourteen days.26 Children and vulnerable adults are also provided with additional protection through the passing of the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Adults) Act 2012.27 This Act makes it an offence for a person to withhold information on certain serious offences listed under schedule committed against a child or a vulnerable adult.28 The Act replicates a similar offence which exists under the Offences Against the State (Amendment) Act 1998,29 however, that Act specifically excludes sexual offences from the list of offences on which information held is required to be disclosed.30 Thus, the new Act fills an important gap through its expanded 20

Ibid., s 11. Ibid., See Schedule 1, Part 1: Relevant Work or Activities Related to Children, Part 2: Relevant Work or Activities Related to Vulnerable Adults. 22 Ibid., s 12(2). 23 Ibid., s 15. 24 See Irish Human Rights Commission, ‘IHRC Observations on the National Vetting Bureau (Children and Vulnerable Persons) Bill 2012’ October 2012 at para 30. 25 National Vetting Bureau Act (n 17) s 15(4)(f). 26 Ibid., at s 18. 27 Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Adults) Act 2012. 28 Ibid., s 2 (children), s 3 (vulnerable adults). 29 Offences Against the State (Amendment) Act 1998, s 9. 30 The Act only applies to serious offences as defined under s 8(4), which provides, under section 8(4)(b) that the offence must involve ‘loss of human life, serious personal injury (other than 21

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list of offences on which information must be disclosed in the case of offences relating to children or vulnerable adults. Among the offences listed under the new Act are murder, manslaughter (both apply in the case of children only), assault, false imprisonment and trafficking, as well as sexual offences including rape, sexual assault, incest and allowing a child to be used for child pornography.31 The Criminal Justice (Female Genital Mutilation) Act 2012 criminalises the practice of Female Genital Mutilation (FGM) and thus strengthens the human rights of women and girls, particularly migrant women and girls who are more likely to be subject to this practice. The Act makes it an offence for any person to do or attempt to do an act of FGM.32 The Act also makes it an offence for a person to do an act of FGM in a place other than Ireland where that person is an Irish citizen or the act takes place on board an Irish ship or an Irish registered aircraft.33 Finally, the Act makes it an offence for anyone resident in Ireland to take a girl or woman abroad where one of the purposes of doing so is to have FGM performed.34 The Act provides a defence for each of these offences in relation to surgical operations performed by a person qualified to perform such operations where the operation is necessary for protection of physical or mental health or connected to labour or birth.35 However, the Act states that it is not a defence for the accused person ‘to show that he or she believed that the act concerned was consented to by the girl concerned or her parents or guardian, or the woman concerned’ or ‘required or permitted for customary or ritual reason’.36 The introduction of the Act was welcomed in particular by groups concerned with the rights of migrant women and girls such as AkiDwA,37 who estimate that there are currently 3,780 women living in Ireland who have undergone FGM.38 IRELAND BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

injury that constitutes an offence of a sexual nature), false imprisonment or serious loss of or damage to property or a serious risk of any such loss, injury imprisonment or damage’ (emphasis added). Offences Against the State (Amendment) Act 1998, s 8(4)(b). 31 Withholding of Information on Offences against Children and Vulnerable Adults Act, (n 27), Schedule 1 and Schedule 2. Schedule 1 lists the offences against children for the purpose of the offence under section 2, while Schedule 2 lists the offences against vulnerable adults for the purpose of the offence under section 3. 32 Criminal Justice (Female Genital Mutilation) Act 2012, s 2. 33 Ibid., s 4. 34 Ibid., s 3. 35 Ibid., ss 2(2), 3(3) and 4(2) 36 Ibid., ss 2(3), 3(4) and 4(3). 37 According to their website, AkiDwa is ‘a national network of migrant women in Ireland. The organisation was established in 2001 by a group of African women to address, isolation, racism and Gender Based Violence that the women were experiencing at the time.’ See http://www.akidwa.ie/. 38 AkiDwA and Royal College of Surgeons in Ireland, ‘Female Genital Mutilation: Information for Health Care Professionals Working in Ireland’ (2nd edn) (2013) at 4 available at http://www.akidwa.ie/publications/gender-based-violence/female-genital-mutilation/file/43fgm-section-2nd-edition-fgm-information-handbook-for-healthcare-professionals-inireland.html.

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The ECtHR delivered two judgments in relation to Ireland in 2012. Both of these cases related to delay in criminal proceedings and resulted in findings of violations of Article 6 § 1 (entitlement to a hearing within a reasonable time) of the European Convention of Human Rights (ECHR). 39 The first case, O v Ireland, concerned an applicant who claimed that the ‘reasonable time’ requirement under Article 6 § 1 had been violated in the case of the criminal proceedings he was engaged in.40 The proceedings, which related to allegations of sexual abuse carried out by the applicant, who is a priest, lasted for a period of 13 years and 7 months.41 The Government attempted to argue that the case was inadmissible because the applicant had not exhausted domestic remedies by failing to take an action for breach of a constitutional right, but this argument did not succeed. 42 The Court instead relied on its earlier judgment, McFarlane v Ireland, 43 which also revolved around the issue of delay, in stating that ‘the Government had not demonstrated that the remedies proposed by them, including an action for damages for a breach of the constitutional right to reasonable expedition, constituted effective remedies available to the applicant in theory and in practice at the relevant time’.44 In considering the merits of the case, the Court stated that in considering whether the length of the proceedings was reasonable, assessment has to be made in light of all the circumstances of the case and with reference to the complexity of the case and the conduct of the applicant and the relevant authorities.45 Having regard to the case law of the Court on this subject including McFarlane, and the findings of violations of Article 6 § 1 in those cases which raised similar issues to this one, the Court considered that the Government had not put forward any fact or argument capable of persuading it to reach a different decision in this case.46 Thus, the Court found a violation of Article 6 § 1.47 The applicant also made a complaint stating that he would not receive a fair trial because of non-disclosure of the complainant’s records.48 However, as he had been acquitted of the charges in question, the Court held that he cannot claim to be a victim of alleged procedural unfairness and so this part of his application was declared inadmissible.49 In addition, the applicant applied for just satisfaction under Article 41 of the Convention and was awarded €8,500 in non-pecuniary damages in addition to €3,500 in respect of the costs and expenses of the Convention proceedings.50 The second case, C v Ireland, also concerned criminal proceedings brought against an applicant involving sexual offences.51 Again, the applicant claimed that there had 39

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5, Article 6 § 1. 40 O v Ireland, Application No. 43838/07, 19 January 2012. 41 Ibid., at para 17. 42 Ibid., at para 18. 43 McFarlane v Ireland, Application No. 31333/06, 10 September 2010. 44 O v Ireland (n 40), para 19. 45 Ibid., at para 21. 46 Ibid., at para 23. 47 Ibid. 48 Ibid., at para 24. 49 Ibid., at para 25. 50 Ibid., at paras 29 and 32. 51 C v Ireland, Application No. 24643/08, 1 March 2012.

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been a violation of Article 6 § 1 as the proceedings in question had lasted for over eleven years.52 In examining the merits of the complaint, the Court applied the same criteria as it had in O, and as the Government had not put forward any fact or argument capable of persuading it to reach a different decision in this case compared to its earlier case law, a violation of Article 6 § 1 was found.53 The applicant also claimed that continuing with the legal proceedings in question would be unfair given the delay and would thus amount to a violation of Article 6. However, the Court stated that as the applicant had pleaded guilty in the proceedings in question, and had not claimed that his plea was anything other than voluntary and informed, he could not claim to be a victim of procedural unfairness.54 The applicant’s observations on Article 41 were also rejected as they related to the merits of the application only and not to just satisfaction.55 A number of other Irish applications were struck out by the Court in 2012. Among the most notable of the applications struck out were the joined applications of Mc Dermott and others v Ireland and Keegan v Ireland.56 These applications were brought by parents of the victims of the 1981 Stardust disaster, where 48 people lost their lives in a nightclub fire. A number of actions were taken by the State in response to this tragedy, including the establishment of a Tribunal of Inquiry in 1981 and a Compensation Tribunal in 1985. However, no criminal proceedings were ever brought against any individual, despite two separate files being sent to the Director of Public Prosecutions (DPP).57 In addition, the survivors of the disaster and the bereaved strongly objected to the Tribunal of Inquiry’s finding that the fire was most likely caused by arson and campaigned to have a further inquiry established.58 In 2008, the Government decided to review the case for the establishment of a new inquiry and appointed an independent reviewer (Paul Coffey SC) for this purpose. However, the review concluded that as there was no new evidence, a new inquiry could not be justified.59 Thus, the applicants brought their case to the Strasbourg Court, complaining under a range of different Articles (Articles 1, 2, 6, 8, 13, 14 and 17) about deficiencies in the investigation into the deaths of their children which resulted in those responsible not being punished.60 The Government argued that the applications were inadmissible because they were submitted outside the six month time limit provided for under Article 35 § 1 of the Convention.61 In previous case law, the Court established that this time limit begins to run from the date of the final decision, except in a situation where an applicant, after accepting a remedy, subsequently becomes aware of circumstances which render the remedy ineffective. In this latter case, the period begins to run from the date on which the applicant 52

Ibid., at paras 20-22. Ibid., at paras 24-26. 54 Ibid., at paras 27-28. 55 Ibid., at para 30. 56 Mc Dermott and others v Ireland and Keegan v Ireland, Applications Nos. 23213/09 and 62652/09, 25 September 2012. 57 Ibid., at para 14. 58 Ibid., at para 13. 59 Ibid., at paras 25-26. 60 Ibid., at para 34. 61 Ibid., at para 38. 53

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became or ought to have become aware of those circumstances, which in the case of a death, would be the date on which the applicants became aware or should have become aware of the lack of an effective criminal investigation.62 In this case, the applicants argued that the relevant date was January 2009 when the independent review completed its work.63 However, the Court held that the six month period began to run, at the very latest, in 1991 when the Compensation Tribunal published its report.64 It had also become clear at this point that no further investigative action would be taken, as the last file had been sent to the DPP in 1982 and no developments that could have suggested to the applicants that there was a possibility of criminal prosecution took place after that point. Furthermore, the Court did not consider that any new evidence had come to light which would create a fresh obligation to investigate through the review procedure which was established in 2008.65 The review had been established for the express purpose of examining whether such evidence existed and concluded in the negative.66 Thus, by introducing their applications in 2009, the Court concluded that ‘the applicants did not display the diligence required to comply with the requisites derived from the Convention and its case-law on Article 35 § 1 of the Convention’ and thus their applications had to be rejected.67

HUMAN RIGHTS IN THE SUPERIOR COURTS

Consent to Treatment M.X. v HSE & Ors In the High Court decision of M.X. v HSE & Ors a novel argument was raised by the plaintiff, who suggested that the UN Convention on the Rights of Persons with Disabilities (CRPD) is directly applicable within Ireland by virtue of the fact that the European Union (EU) is a signatory to this Convention.68 This case involved a dispute regarding the care regime of the plaintiff, an individual with treatment resistant paranoid schizophrenia. The plaintiff claimed that medical decisions made on her behalf failed to have regard to her equal rights before the law as a citizen, that she should be entitled to an independent review of the decision that she lacks capacity to decide whether or not to receive treatment, and that she should be able to have such decisions regarding her medical treatment made on an ‘assisted decision-making’ basis, whereby weight would be given to her own wishes.69 The plaintiff thus argued that the section of the Mental Health Act 2001 under which she was receiving treatment, s 60, was repugnant to the Constitution and incompatible with both the ECHR and CRPD.70 62

Ibid., at para 40. Ibid., at para 39. 64 Ibid., at para 47. 65 Ibid., at para 48. 66 Ibid. 67 Ibid., at para 52. 68 M.X. v HSE & Ors [2012] IEHC 491 at para 3. 69 Ibid., at para 1. 70 Ibid. 63

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The Court first examined the CRPD argument. On the significance of CRPD, the Court stated that ‘the values enunciated in the Convention constitute a “paradigm shift” in the manner in which persons with disabilities are to be treated by, and before the law’, in particular, the Court noted the emphasis placed in the preamble of the Convention on the diversity of people with disabilities and the need to have regard to the individual circumstances of the individual.71 Of particular interest in this case were Articles 12 (1) and 12(2) of the Convention which provide: 1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.72 The Court then proceeded to consider the legal status of the Convention in Ireland. In questioning whether the plaintiff could rely on the Convention, the Court had to establish whether Article 12 was within the competence of the EU and whether its terms are sufficiently clear, precise and unconditional to be directly applicable. Under Article 44(1) of CRPD, regional integration organisations like the EU are required to declare the extent of their competence under the Convention.73 However, the Court felt that it was not possible to identify from Council Decision 2010/48/EC, under which the EU acceded to the CRPD, which areas of the Convention fall under EU competence and which do not.74 Thus, the Court referred to a Report by the European Foundation Centre which had been ordered by the European Commission on the implementation of the CRPD. This Report clearly states that Article 12 falls solely within the exclusive competence of member states.75 The Court therefore concluded that the EU has not assumed any appreciable competence within the area of mental capacity.76 Thus, it was not necessary for the Court to consider whether Article 12 is capable of being directly applicable. The Court then went on to examine the constitutionality of the review procedure provided for under s 60 of the Mental Health Act 2001. This section provides that where medicine has been administered to a patient for the purposes of ameliorating his or her mental disorder for a period of 3 months, the administration of that medicine shall not be continued unless the patient gives their consent, or, where the patient is unwilling or unable to consent, the continued administration of that medicine is approved by the consultant psychiatrist responsible for the care and treatment of the patient and is authorised by another consultant psychiatrist following referral of the matter to him or her by the

71

Ibid., at para 30. Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3, arts 12(1) and 12(2). 73 Ibid., art 44 (1). 74 M.X (n 68) at para 37. 75 Ibid., at paras 39-41. 76 Ibid., at para 43. 72

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first named psychiatrist.77 This consent or, as the case may be, approval and authorisation shall be valid for a period of 3 months. The plaintiff contended that this review procedure insufficiently vindicated her constitutional rights relating to personal capacity under Article 40.3 (which covers unenumerated rights to bodily integrity, privacy, autonomy and dignity) and Article 40.1 (equality before the law) as well as her rights under the ECHR as it offers ‘substituted decision-making’ rather than the ‘assisted decisionmaking’ such rights would appear to demand.78 The plaintiff also contended that this treatment regime fails to reflect the provisions of the CRPD.79 The Court stated that it was appropriate to have regard to international conventions in interpreting the constitutional rights of persons with disabilities as well as the jurisprudence of the ECtHR. Such an interpretative approach is justified by the Constitution’s status as a ‘living instrument’ which necessitates it being interpreted in ‘light of prevailing ideas and concepts’.80 With regard to the CRPD, and whether it should be used as a ‘guiding principle’ when interpreting the personal capacity rights contained in the Constitution, the Court firstly noted that the values contained in the Convention are not contrary to any provision of the Constitution.81 Instead, the CRPD ‘affirms the contemporary existence of fundamental rights for person with a mental disorder’.82 Thus, the Court concluded that although CRPD is not part of domestic law, ‘it can form a helpful reference point for the identification of “prevailing ideas and concepts” which are to be assessed in harmony with the constitutional requirements of what is “practicable” in mind.’83 In examining the jurisprudence of the ECtHR, the Court recalled the decision in Glor v Switzerland, which the Court felt signalled approval for CRPD by the Strasbourg Court, as the UN Convention was described as indicating ‘the existence of a European and universal consensus on the need to protect persons with disabilities from discriminatory treatment’.84 77

Mental Health Act, 2001 s 60: Where medicine has been administered to a patient for the purposes of ameliorating his or her mental disorder for a continuous period of 3 months, the administration of that medicine shall not be continued unless either— The patient gives his or her consent in writing to the continued administration of that medicine or, Where the patient is unwilling or unable to give such consent – the continued administration of that medicine is approved by the consultant psychiatrist responsible for the care and treatment of the patient, and the continued administration of that medicine is authorised (in a form specified by the Commission) by another consultant psychiatrist following referral of the matter to him or her by the first-mentioned psychiatrist, and the consent, or as the case may be, approval and authorisation shall be valid for a period of 3 months and thereafter for periods of 3 months, if, in respect of each period, the like consent or, as the case may be, approval and authorisation is obtained. 78 M.X (n 68) at para 52. 79 Ibid. 80 Ibid. 81 Ibid., at paras 59-60. 82 Ibid., at para 61. 83 Ibid. 84 Ibid., at para 63; Glor v Switzerland Application No. 13444/04, ECHR, 30 April 2009.

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From its examination of ECtHR case-law, the Court concluded that adequate safeguards have to be placed in legislation permitting involuntary treatment. The Court felt that s 60 contained such safeguards.85 The right to independent review and independent determination of capacity are provided for in the legislation, expert evidence established that every effort is made to engage patients in the decision-making process and when a patient regains sufficient capacity they are again empowered to make decisions regarding their treatment.86 The Court held that it was practical to allow for assisted decisionmaking in cases involving patients who lacked capacity and the duty to provide for this was a positive one under the Constitution.87 However, it was felt that assisted decisionmaking does not require a court procedure in the majority of cases. Instead, the Court held that in order to vindicate the rights in question what was required was a right of access to the courts, independent of any state agency, should that need arise.88 The Court did not think it desirable that such decision-making should be carried out by lawyers; rather it ought to be done by carers, social workers or family members who may be better positioned to aid with such decisions.89 In considering whether the plaintiff had capacity in this case, the Court adopted the functional approach to capacity favoured by the ECtHR and the Irish courts, which involves analysing not only the differences in capacity between patients but also the fluctuations in capacity within individual patients.90 However, the Court felt that the plaintiff had never reached a point where she was capable of making decisions regarding her treatment independently. In reaching this decision, the Court took into account the nature of the decision the plaintiff wished to make in this instance, which would involve a refusal of treatment that would not only place her own life at risk, but also the lives of others, given the violent tendencies that lack of treatment resulted in for the plaintiff.91 Thus, it fell to the Court to make the decision to continue her treatment, employing the best interests of the patient test set down in the High Court decision of in Re a Ward of Court (No 2).92 The Court held that s 60 was not repugnant to the Constitution but that in order for it to be applied in a constitutional manner there should be an independent review and the patient’s choice, whether assisted or not, should be recorded and given regard to.93 Finally, the Court considered whether a s 60 decision necessitated ongoing court review on a mandatory basis in order to vindicate the plaintiff’s rights under the ECHR. The Court held that such a review was not necessary and that such a degree of legal involvement in the field of psychiatry would be both unprecedented and impractical.94 Examination of ECtHR case law suggested that what was required was a right of court access 85

Ibid., at para 73. Ibid. 87 Ibid. 88 Ibid., at para 75. 89 Ibid. 90 Ibid., at para 79. 91 Ibid., at paras 77-78. 92 Ibid., at para 76; In re a Ward of Court (witholding medical treatment) (No 2) 2 IR 79. 93 Ibid., at para 81. 94 Ibid., at para 84. 86

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rather than a right to a court hearing in each case.95 In order to vindicate ECHR rights to privacy and autonomy, the Court stated that what was required was a clearly defined procedure in accordance with law, requirements which s 60 satisfied. Thus the plaintiff was not entitled to a declaration of incompatibility under s 5 of the European Convention on Human Rights Act 2003.96

Proposed Mental Health Law Reform The M.X. case took place against a backdrop of proposed reform in the field of mental health law in Ireland, designed to ensure a more human rights orientated approach in line with the CRPD. The Mental Health Act 2001 is currently subject to review by the Steering Group on the Review of the Mental Health Act, who published an Interim Report in 2012.97 This Report acknowledges the urgent need for reform of the Mental Health Act given the developments that have taken place since its inception which have rendered it outdated. The most notable developments were Ireland’s signing of the CRPD in 2007, in addition to the publication of ‘A Vision for Change’, the report by the Expert Group on Mental Health Policy, in 2006.98 Both the Convention and ‘A Vision for Change’ articulate a human rights approach to mental health which is presently lacking under the regime governed by the Mental Health Act. Although the 2001 Act was designed with a human rights ethos in mind, the Interim Report states that is has been interpreted in a paternalistic manner by the courts with the effect that this human rights ethos has been blunted.99 In particular, the Report notes that the ‘best interests’ test, although intended to result in a new emphasis on the rights of the patient, has instead led to a paternalistic approach within the mental health area rather than the rights based approach found in the CRPD. 100 The Report thus recommended that autonomy and self-determination should be key principles within this area, replacing the notion of ‘best interests’ and that the fundamental rights of a person to participate in care and treatment decision-making processes be respected.101 In parallel with the review of the 2001 Act, a new capacity act was in development in 2012. The Assisted Decision-Making (Capacity) Bill was first published in 2008, but due to criticisms, was not enacted. However, the Oireachtas Joint Committee on Justice, Defence and Equality held hearings in relation to this bill in 2012 with a view to publishing a revised bill.102 The Interim Report recommended that the shortcomings present in the 2001 Act relating to capacity be dealt with by this new legislation, in particular, 95

Ibid., at para 94. Ibid. 97 Department of Health, ‘Interim Report of the Steering Group on the Review of the Mental Health Act 2001’ 27 April 2012. 98 Ibid., at 3; Report of the Expert Group on Mental Health Policy, ‘A Vision for Change’ (2006). 99 Interim Report (n 97) at 4. 100 Ibid., at 9-10. 101 Ibid. 102 Eilionoir Flynn, Human Rights in Ireland, ‘Oireachtas Justice Committee concludes hearings on Capacity legislation’ 29 March 2012 available at http://humanrights.ie/mental-health-lawand-disability-law/oireachtas-justice-committee-concludes-hearings-on-capacity-legislation/. 96

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that all necessary supports be made available for those lacking capacity to be able to avail of assisted decision-making.103 This greater emphasis on assisted decision-making which the reformed legal framework, consisting of an amended Mental Health Act and the new capacity legislation, should ideally provide, may lead to different outcomes in future cases similar to that of M.X. For, while M.X was notable for the High Court’s willingness to draw on the principles of the CRPD, the ultimate decision was disappointing.104 The case was decided in the context of the paternalistic approach to mental health that continues to pervade within Ireland, whereby the autonomy of the individual is not sufficiently emphasised.105 Greater support for assisted decision-making is required so that the rights of individuals like M.X. who lack capacity to make decisions regarding their treatment are nevertheless protected in a manner in line with the CRPD. This would entail provision of supports including reasonable accommodation made to help the person understand the decision, such as exploration of different ways of providing information, advocacy supports, social and community supports and the ability to make an advance directive in respect of future treatment.106 The hope is that the review of the Mental Health Act along with the development of the mental capacity legislation will lead to the development of a legal framework addressing issues of mental disability that better reflects a forward, human rights centred, approach to this area.

Employment Rights of Irregular Migrant Workers A highly significant judgment concerning the employment rights of irregular migrants was handed down by the High Court in the case of Hussein v The Labour Court.107 The effect of the decision is that employment rights protection has been virtually halted for irregular migrant workers, as the Court held that the illegal nature of the employment contract meant that an employee could not gain any relief for breach of employment legislation.

103

Interim Report (n 97) at 19-21. C Murray, ‘Moving Towards Rights-Based Mental Health Law: The Limits of Legislative Reform’ (2013) Irish Jurist 160 at 176. 105 Eilionoir Flynn, Human Rights in Ireland , ‘MX v. HSE- Human Rights and Consent to Treatment’ 30 November 2012 available at http://humanrights.ie/mental-health-law-anddisability-law/mx-v-hse-human-rights-and-consent-to-treatment/. 106 See Essential Principles: Irish Legal Capacity Law (April 2012) available at http://www.amnesty.ie/reports/essential-principles-irish-legal-capacity-law. These Principles were developed by a group of 15 non-governmental organisations including those representing persons with disabilities, older persons, people with mental health problems and acquired brain injury, such as Age Action Ireland, Amnesty International, the Disability Federation of Ireland, Mental Health Ireland and the Centre for Disability Law and Policy NUI Galway. These Principles ‘are informed by best international practice and the guiding ethos of the UN Convention on the Rights of Persons with Disabilities’ see http://www.amnesty.ie/reports/essential-principles-irish-legal-capacity-law. 107 Hussein (n 1). 104

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The case involved Mr Younis, a Pakistani national, who came to Ireland to work in his cousin, Mr Hussein’s restaurant. Mr Younis contended that he was subjected to ‘appalling exploitation’108 as Mr Hussein’s employee, working 77 hour weeks for as little as 55 cent per hour, with no holidays. Mr Younis also stated that Mr Hussein, on whom he was totally reliant, had failed to regularise his position with the relevant authorities, including the Revenue Commissioners.109 As a result, Mr Younis resigned and brought an action under the terms of the Terms of the Employment (Information) Act 1994 (as amended), the Organisation of Working Time Act 1997 and the National Minimum Wage Act 2000. A Rights Commissioner found for Mr Younis under all three acts, but Mr Hussein was not represented at the hearing and did not pay the sums which he was directed to pay.110 The complaints were then referred to the Labour Court, which also found for Mr Younis.111 The present case thus involved judicial review proceedings brought by Mr Hussein regarding the Labour Court decision. The core of Mr Hussein’s case was that Mr Younis had no standing to invoke the protection of the employment legislation of the State because the employment contract in question was illegal due to Mr Younis’ lack of an employment permit.112 Although the Court began by noting that in the case of illegal contracts the courts must ‘where possible avoid applying too severe an approach’ there were certain cases, such as the present one, where the court has no alternative but to hold that the contract is rendered substantively illegal by statute.113 The relevant provisions examined by the Court were sections 2(1)-(4) of the Employment Permits Act, 2003. This Act prohibits a non-national from being employed without an appropriate employment permit. 114 Significantly, this prohibition applies to both the employer and the employee, both of whom are guilty of an offence for contravention of the relevant sections.115 However, an employer is provided with a defence under s 2(4), whereby he or she can claim that they ‘took all such steps as were reasonably open to him or her to ensure compliance’ with the Act.116 No such defence is provided for employees, thus forcing the Court to conclude that the Act creates an absolute offence so far as employees are concerned.117 The Court continued by stating that the very fact that Oireachtas ‘must be taken to have intended’ that an employee to whom the prohibition applies automatically commits an offence if he or she does not have a work permit ‘necessarily has implications so far as the civil law is concerned, in that such a contract of employment must also be taken to be void’.118 Unlike other contracts where the illegality may be incidental, contracts of em-

108

Ibid., at para 23. Ibid., at para 2. 110 Ibid., at para 5. 111 Ibid., at para 6. 112 Ibid., at para 13. 113 Ibid. 114 Employment Permits Act, 2003 ss 2(1) and 2(2). 115 Ibid., s 2(3). 116 Ibid., s 2(4). 117 Hussein (n 1) at para 15. 118 Ibid., at para 16. 109

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ployment involving non-nationals are substantively illegal in the absence of an appropriate employment permit and, therefore, administrative bodies such as the Labour Court are not permitted to give remedies as they would in the case of a legal contract.119 Finally, the Court noted that the 2003 Act contains no saving clauses that might allow an employee to seek effective redress in situations where the failure to obtain a permit was not their fault. Thus, the award from the Labour Court could not stand.120 The Court did express regret at its decision (‘it is not a result which yields much satisfaction’121) given the fact that Mr Younis has been ‘the victim of the most appalling exploitation in respect of which he has no effective redress’ but said it was bound to apply the policy as provided for in the Act.122 Yet, the Court also noted that the Act may have had consequences which were ‘not foreseen or envisaged’, in particular, it may not have been intended by the Oireachtas that undocumented migrant workers-not least a vulnerable migrant such as Mr Younis should be effectively deprived of the benefit of all employment legislation by virtue of his illegal status even though he or she may not be responsible for or even realise the nature of the illegality.123 Such possible unintended consequences prompted the Court to take the unusual step of transmitting a copy of the decision to the Ceann Comhairle, the Cathaoirleach of the Seanad and the Minister for Jobs, Enterprise and Innovation ‘so that the Oireachtas may give consideration-should it think fit to do so- to the policy implications for the 2003 Act as manifested in this judgment.’124 Clearly, the High Court wanted to bring the matter highlighted by this case to the attention of the Oireachtas with the hope that it would address the issue through legislation. However, as it stands, the position of irregular migrant workers in Ireland is precarious and falls short of Ireland’s human rights commitments within this area. Although Ireland is not a party to the International Convention on the Protection of Migrant Workers 1990, which offers particular protection for undocumented workers, there are other instruments to which Ireland is a party which would appear to require improved protection for this vulnerable category of workers. As commentators have noted, Ireland is party to the International Covenant on Economic, Social and Cultural Rights which provides for a right to work and entitlements of just conditions of work which also apply to irregular migrant workers.125 Ireland’s obligations under the ECHR may also be relevant, as the Convention prohibits forced labour and requires state parties to put in place particular sanctions to protect individuals from

119

Ibid., at para 17. Ibid., at para 20. 121 Ibid., at para 22. 122 Ibid., at para 23. 123 Ibid. 124 Ibid., at para 24. 125 Cliodhna Murphy, Human rights in Ireland ‘Irregular Migrant Workers and Employment Rights in Ireland’ 31 August 2012 available at http://humanrights.ie/immigration/irregularmigrant-workers-and-employment-rights-in-ireland/. 120

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forced labour. 126 The Convention also prohibits inhuman and degrading treatment, which may apply in cases like that of Mr Younis. Nonetheless, a private members bill was presented in November 2012 which if enacted would largely close the gap exposed by the Hussein case.127 This bill provides for a defence for employees similar to the defence currently provided for employers, by allowing an employee to attempt to establish that they ‘took all such steps as were reasonably open to him or her’ to ensure compliance with the Act.128 The bill also provides that should an employee establish this defence they are entitled to seek redress pursuant to their contract of employment and enforce their employment rights as if an employment permit had been in place.129 However, as Dewhurst points out, this amendment has limitations; in particular it is limited to irregular migrants who can prove they took all reasonable steps to ensure compliance with the legislation.130 What amounts to ‘reasonable steps’ is unclear, as is whether the defence could be relied on by an irregular migrant who has no knowledge of the illegality of their position.131 As an alternative, Dewhurst advocates dispensing with the illegality doctrine entirely in the case of employment contracts as most other European states have done, and include irregular migrant workers in the definition of ‘employee’ in employment legislation.132 Such a move would offer more comprehensive protection for the employment rights of this class of workers than the amendment suggested by the private members bill.

IRELAND’S MEMBERSHIP OF INTERNATIONAL ORGANISATIONS AND HUMAN RIGHTS TREATY BODIES

The UN Human Rights Council

126

Ibid. Employment Permits (Amendment) Bill 2012, Sponsored by Senator Feargal Quinn; Senator Sean D. Barrett; and Senator John Crown, available at http://www.oireachtas.ie/documents/bills28/bills/2012/10112/b10112s.pdf. 128 Ibid., s 1 proposes to amend s 2 of the Employment Permits Act 2003 by inserting after s 4: ‘(4A) It shall be a defence for a person charged with an offence under subsection (3) consisting of a contravention of subsection (1) to establish that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1). (4B) Notwithstanding the terms of subsection (4), where a foreign national has established that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1) he or she shall be permitted to— (a) seek redress pursuant to his or her contract of employment, and (b) enforce any employment rights derived under any enactment, as if a valid employment permit had been in force.’ 129 Ibid. 130 E Dewhurst ‘Is the Irregularity of an Immigrant a Defence for Employers Charged with Employment-Related Offences?’ (2013) 2 Irish Criminal Law Journal 33 at 42. 131 Ibid. 132 Ibid. 127

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In October 2011, Ireland appeared before the UN Human Rights Council to be examined in relation to its human rights commitments as part of the Universal Periodic Review Process (UPR).133 Following the initial meeting, Ireland accepted 62 recommendations and committed to considering a further 49 recommendations. On 15 March 2012, a further meeting was held where Ireland considered and accepted or partially accepted the majority of these recommendations. Among the recommendations not accepted included one calling for recognition of members of the Travelling community as an official minority and a recommendation that religious discrimination in access to education be eliminated.134 Nonetheless, overall, Ireland accepted 91 of a total of 126 recommendations made by the Council. This strong performance may have influenced Ireland’s election to the Council for the first time in November 2012. Ireland will serve on the Council for a three year period. Ireland’s election to the Council was described by Eamon Gimore, Tánaiste (Deputy Prime Minister) and Minister for Foreign Affairs as a ‘privilege’ and testimony to Ireland’s reputation as a human rights advocate.135 Election to the Council also offers Ireland an opportunity to promote particular human rights issues, with priority areas identified as including the human rights situations in particular states, freedom of expression including freedom of religion and freedom of the media, in particular the internet, human rights and climate change and LGBTI rights.136 However, membership of the Council may also invite additional scrutiny of Ireland’s human rights record, particularly in controversial areas such as abortion rights. This issue, although never far from public discussion, became especially visible in the latter months of 2012 when the Savita Halappanavar case attracted worldwide attention. Savita Halappanavar died as a result of medical complications after a request for a termination of her pregnancy was refused. The case highlighted the devastating consequences of Ireland’s failure to legislate for the X case, a Supreme Court decision handed down twenty years prior which had established a right to a termination of pregnancy where there was a real and substantial risk to the life of the mother.137 The lack of legislation had resulted in an unclear legal situation for medical professionals confronted with requests for terminations, meaning that in practice many were afraid to accede to such requests. This failure to provide for legislation was found to be in breach of Ireland’s commitments under Article 8 of the ECHR in the case of A, B and C v Ireland in 2010,138 but the Irish government had been slow to react, except to establish an Expert Committee to examine the judgment and consider options on how it should be implemented. This committee submitted its report in November 2012.139 The committee was 133

For discussion of the UPR process in 2011 see C Smith ‘Human Rights Developments in Ireland in 2011’ 6 Irish Yearbook of International Law 165 at 177. 134 UNGA ‘Report of the Working Group on the Universal Periodic Review: Ireland (addendum)’ (2012) UN Doc A/HRC/19/9/Add.1. 135 Department of Foreign Affairs and Trade ‘Tánaiste Hails Ireland’s historic election to the UN Human Rights Council’ 12 November 2012 available at http://www.dfa.ie/home/index.aspx?id=88754. 136 Ibid. 137 Attorney General v X [1992] 1 IR 1. 138 A, B and C v Ireland, Application No. 25579/05, 16 December 2010. 139 ‘Report of the Expert Group on the Judgment in A, B and C v Ireland’ (November 2012).

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not empowered to suggest how the judgment should be implemented but rather to outline options, which included guidelines, regulations, legislation or a combination of these. The Government eventually selected the option of introducing legislation in addition to regulations on the basis of the committee’s report.140 This development should bring to an end twenty years of legal uncertainty with regard to the right of access to abortion in cases involving a substantial risk to the life of the mother and go some way towards greater protection for reproductive rights for women in Ireland, albeit still far behind the protection that such rights enjoy in other states. However, it is unfortunate that it took such a tragic case for even this relatively limited progress to take place.

Chairmanship of the OSCE In 2012, Ireland assumed the chairmanship of the Organisation for Security and Cooperation in Europe (OSCE) for the first time. Ireland has been a member of the OSCE since its inception in 1975 (when it was known as the Conference on Security and Cooperation in Europe). The OSCE has a broad mandate, which includes promoting human rights and fundamental freedoms in addition to traditional ‘hard security’ issues such as conflict prevention and economic development.141 On taking up the chairmanship position, the Minister for Foreign Affairs Eamon Gilmore placed particular emphasis on the human rights dimension of the OSCE’s role and Ireland’s intentions to further this aspect of the organisation’s work.142 Among the priorities listed for the Irish chairmanship in connection to this was internet freedom, on which a conference was held in Dublin in June 2012, bringing together representatives from each of the OSCE participating states, members of civil society and the IT and media sectors. This conference can be viewed as one of the most successful aspects of Ireland’s chairmanship, as it focused attention on a growing area of concern to human rights discourse, that is, the need to ensure a common understanding of human rights as they apply both offline and online. An important conference related to conflict resolution focusing on Northern Ireland as a case study of a successful peace process and the lessons that can be applied from this context to other states experiencing conflict was also held.143 Among the other priority areas listed upon Ireland’s taking up of the OSCE chairmanship were racism, discrimination and intolerance in sport, trafficking in human beings, freedom of association and assembly, and freedom of religion or belief.144 Some initiatives did occur in connection to these areas under the Irish chairmanship including training in life skills for individuals

140

Department of Health, ‘Government decision on ABC expert group option’ 18 December 2012 available at http://www.dohc.ie/press/releases/2012/20121218.html. 141 See website of OSCE, Organisation of Security and Cooperation in Europe, ‘What we do’ available at http://www.osce.org/what. 142 See ‘Address by Mr. Eamon Gilmore T.D., Chairperson-in-Office of the OSCE, Tánaiste and Minister for Foreign Affairs and Trade to the Permanent Council’ 12 January 2012 available at http://www.osce.org/cio/86962 [see Document 1 below]. 143 Ibid., the conference was entitled ‘Shared Future: Building and Sustaining Peace, the Northern Ireland case study’ and was held on 27 April 2012. 144 See Address by Eamon Gilmore 12 January 2012 (n 142).

13D.

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at risk of human trafficking.145 Yet, in his letter contained in the 2012 OSCE Report, Eamon Gilmore notes that no decisions were made with regard to the Human Dimension during 2012.146

Signing the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Ireland signed the Optional Protocol to the International Covenant of Economic, Social and Cultural Rights (ICESCR) in March 2012.147 This was an important development as the Optional Protocol provides for an individual petition procedure which enables individuals to bring complaints for alleged violations of their economic, social or cultural rights. Thus, protection for this category of rights has the potential to be significantly strengthened should Ireland ratify this Protocol. This is significant given the historical lack of recognition such rights enjoy in the Irish Constitution and in Irish law more broadly, for, while Ireland signed the ICESCR in 1973, it has not been incorporated into Irish law. Improving protection for economic social and cultural rights in Ireland is important given the present austerity policies in force here which are impacting negatively on all tiers of Irish society especially the economically vulnerable. The Protocol will come into force on 5 May 2013 so should Ireland ratify after that date individuals will immediately have access to a powerful remedy for violation of an essential class of rights.

145

Organisation for Security and Cooperation in Europe, ‘Annual Report 2012’ at 11. Ibid., ‘Letter from Eamon Gilmore’ at 13. 147 Department of Foreign Affairs Press Office ‘Ireland to sign the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ 6 March 2012 available at http://www.dfa.ie/home/index.aspx?id=87596. 146

IRELAND AND INTERNATIONAL LAW 2012

DR. ALAN D.P. BRADY Law Library, Dublin and Trinity College Dublin

INTERNATIONAL AGREEMENTS In June 2012, Ireland ratified the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘the Aarhus Convention’). In announcing the planned ratification to the Minister for the Environment, Community and Local Government said: The convention itself has its origins in Principle No. 10 of the Rio Declaration on Environment and Development 1992 which proclaimed that environmental issues are best handled with the participation of citizens and that individuals should have access to information concerning the environment and the opportunity to participate in decision-making processes. Access to remedial measures and redress should also be provided. The convention has three pillars: access to information, public participation, and access to justice. It has been implemented in the EU by two directives – EU Directive 2003/4/EC on access to information on the environment and EU Directive 2003/35/EC on public participation in environmental decision-making and access to justice. 1 The Minister explained that Ireland had had some difficulty with ratifying the Convention beyond the usual challenges that arise in a dualist legal system. He explained that the European Commission had challenged the compatibility of Ireland’s system of judicial review with the requirements of the public participation directive2 before the

* Law Library, Dublin and Trinity College Dublin. 1 Minister for the Environment, Community and Local Government, Select Sub-Committee on the Environment, Community and Local Government, 12 June 2012. 2 Directive 85/337/EEC of the Council of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 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.

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European Court of Justice.3 Ireland lost the case and ‘[a]ddressing this ECJ judgment was a complex process which adversely impacted the ratification process’.4 Ratification of the Aarhus Convention is a commitment in the programme for Government. The importance of ratifying this convention has been recognised by all parties and has been the subject of numerous parliamentary questions and Oireachtas debates in recent years. With the Rio+20 conference on sustainable development taking place this month and in advance of Ireland’s EU Presidency in 2013, it is important that Ireland ratifies the convention to fulfil its international obligations. Ireland must show its commitment to the Aarhus Convention to underpin our support for improving international environmental governance generally as well as supporting calls for a global treaty based on the Aarhus Convention. As I said last week during the launch of the framework for sustainable development for Ireland, my objective is to make Ireland an environmental leader. Ratification of the Aarhus Convention will be another stepping stone to this goal. As mentioned, the convention has its origins in the first Rio conference and it will be appropriate and timely for the House to approve ratification in advance of the Rio+20 conference.5 The Minister for Justice and Equality told the Dáil that ratification of the Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘OP-CAT’) required further legislation. He said that OP-CAT provides for a system of inspections of places of detention at UN level, and at national level by what the optional protocol refers to as National Preventative Mechanisms. The Deputy will be aware that a number of bodies in this jurisdiction already have responsibility for inspecting places of detention. The Government has approved the drafting of a General Scheme of an Inspection of Places of Detention Bill, which will include provisions to enable ratification of OP-CAT. The Bill will make provision for the designation of National Preventative Mechanisms. Subject to competing legislative priorities, it is expected that the General Scheme will be published in mid 2012. When work on preparation of the General Scheme has been completed, I will be seeking Government approval for its publication to facilitate a consultation process in advance of drafting and publication of the Bill. Arrangements will be made to ratify the optional protocol as soon as possible after the necessary legislation has been enacted.6 The Patents (Amendment) Act 2012 was passed in early 2012. Upon its passage of the final stage in the Dáil, the Minister of State at the Department of Jobs, Enterprise and

3

C-427/07 Commission of the European Communities v Ireland Case [2009] ECR I-6277. Minister for the Environment, Community and Local Government, Select Sub-Committee on the Environment, Community and Local Government, 12 June 2012. 5 Minister for the Environment, Community and Local Government, Select Sub-Committee on the Environment, Community and Local Government, 12 June 2012. 6 Minister for Justice and Equality, Dáil Debates, 8 May 2012, Volume 764, Column 513. 4

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Innovation reiterated the Government’s commitment to ratify the London Agreement to the European Patent Convention: In this instance it is necessary for the corresponding patent rules to be amended to bring them in line with the London Agreement. The proposed amendments to the patent rules 1992 are being drafted. It is my intention to commence the Act and the new patents amendment rules 2012 by way of an order as near to the enactment of the Patents (Amendment) Bill 2011 as possible.7 At the end of the year, the ratification of the London Agreement remained outstanding.8 The Minister for Children and Youth Affairs stated that it was the Government’s intention to ratify the Second Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography in due course following consultation with the Minister for Justice and Equality. She said: I recently discussed the issue of ratification of this Protocol in a meeting with UN Special Representative on Violence Against Children which took place in my Department on 11th June last, during the Special Representative's official visit to Ireland. We agreed that the matter would be prioritised following the Children's Referendum, submission of the State's next report to the UN Committee on the Rights of the Child and the setting up of the new Child and Family Support Agency. The latter will also facilitate ratification of the Protocol which, as you will be aware, can only take place when the Government is satisfied that it able to meet all its obligations under the Protocol.9 The Minister added that many of the criminal law provisions of the Protocol had already been implemented by domestic legislation and she understood that the Minister for Justice and Equality intended to facilitate full compliance with those aspects. A motion endorsing ratification was passed by the Seanad in February 2012.10 The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence was opened for signature in May 2011. The Minister for Justice and Equality responded to Parliamentary questions on when Ireland would ratify the Convention as follows: The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence is a very detailed Convention with a very broad scope across a number of policy areas. Cosc, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence, an executive office within my Department, has examined the Convention and has requested observations on potential policy and legislative implications from 7

Minister of State at the Department of Jobs, Enterprise and Innovation Dáil Debates,12 January 2012, Volume 751, Column 565. 8 Source: European Patent Office website (www.epo.org). 9 Minister for Children and Youth Affairs, Dáil Debates, 19 September 2012, Volume 773, Column 220. 10 Seanad Debates, 29 February 2012, Volume 212, Columns 935-959.

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relevant government departments and state agencies. Following receipt of the observations, consideration will be given to any issues which need to be addressed. It is hoped that this will be quickly followed by a submission to the Government on the question of signature of the Convention by Ireland.11 The Minister for Jobs, Enterprise and Innovation welcomed the successful agreement of the International Labour Organisation Domestic Workers Convention (No 189). He said: The final text of the draft Convention was one that the Irish Government was in a position to support. … The issue of ratification by Ireland of this Convention is being considered in the context of our standard approach to the ratification of international instruments. In this regard, the Convention will be examined from the perspective of any changes that may be required to existing domestic legislation. However, it is important to note that domestic workers are protected by virtue of the fact that the full suite of employment rights legislation, including that of redress for violations of their employment rights, apply to domestic workers in the same way as they apply to other categories of employees in Ireland. 12

Prior to ratification, he noted that a voluntary code of practice was in place in the State to provide some protection for domestic workers: A voluntary Code of Practice for Persons Employed in Other People’s Homes was developed under the Industrial Relations Act 1990. The Code sets out certain employment rights and practices for persons employed in other people’s homes and encourages good practice and compliance with the law in such employment situations. In any proceedings before a court, or a workplace relations dispute resolution body, a code of practice shall be admissible in evidence and any provision of the code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question.13 The Minister of State at the Department of Arts Heritage and the Gaelteacht expressed the Government’s intention to ratify the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The Minister told the Seanad: In essence, the convention we are discussing sets down a wide definition of cultural property including property of artistic interest, property relating to history, including scientific, technological, military and social history, the 11

Minister for Justice and Equality, Dáil Debates, 14 February 2012, Volume 755, Column 553. Minister for Jobs, Enterprise and Innovation, Dáil Debates, 22 May 2012, Volume 766, Column 221. 13 Minister for Jobs, Enterprise and Innovation, Dáil Debates, 6 March 2012, Volume 758, Column 166. 12

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lives of national leaders, thinkers, scientists and artists, and events of national importance. It then sets out the obligations and the structure that states should put in place to prevent the illegal import and transfer of ownership of cultural property. The State has not yet ratified the convention. However, a new monuments Bill is being prepared by the Department of Arts, Heritage and the Gaeltacht. The Bill proposes to put in place the necessary provisions to ratify the UNESCO convention. The Senator will be pleased to hear the monuments Bill is with the Parliamentary Counsel for drafting, with publication expected in early 2013.14 The government reiterated its long-standing intention to ratify the United Nations Convention on the Rights of People with Disabilities. The Minister for Justice and Equality said: The ongoing implementation of our National Disability Strategy in many respects comprehends many of the provisions of the Convention. In addition, the Inter-Departmental Committee on the UNCRPD monitors the remaining legislative and administrative actions required to enable ratification. At the Committee’s request, the National Disability Authority, the lead statutory agency for the sector, are in the process of assisting the Committee to assess the remaining requirements for ratification so as to ensure conclusively that all such issues will be addressed. One of the key requirements in this regard is the enactment of mental capacity legislation. The Government’s Legislation Programme as announced on 11 January 2012, indicates that the Mental Capacity Bill is expected to be published in the current Dáil session. The Bill will replace the Wards of Court system with a modern statutory framework governing decision-making on behalf of adults who lack capacity. The passage of this Bill will add substantially to the overall progress on implementation of the requirements towards ratification of the Convention.15 The intention to ratify the Convention has been repeatedly expressed for some years by the current government and its predecessor. The delays in ratifying the Convention were criticised in the Seanad by opposition Senator Mark Daly: Unfortunately, action on the Government's commitment to introduce legislation on the UN Convention on the Rights of Persons with Disabilities is long overdue. In response to questions on when the convention would be ratified, all Ministers who have held portfolios on this topic have said they want legislation in place beforehand. While we have signed up for ratification, we have not addressed all the elements required. While our aspiration to ratify the treaty is noble, we do not recognise the urgency of doing so. I acknowledge this was also the case under the previous Government. Although strides were made under former Minister of State, Mr. John Moloney, to implement a new strategy on disability and mental illness, they were not enough. I ask the Minister of State, Deputy Perry, to ensure legislation is put 14

Minister of State at the Department of Arts Heritage and the Gaeleacht, Seanad Debates, 19 June 2012, Volume 216, Column 17. 15 Minister for Justice and Equality, Dáil Debates, 22 May 2012, Volume 766, Column 302.

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in place in this regard. While many of its provisions will require financial assistance, it must be acknowledged that rights do not always have financial consequences for the Exchequer. There are many rights enshrined in the UN convention that are not upheld at present.16 The Tánaiste and Minister for Foreign Affairs and Trade told the Dáil that the Government had made a decision to sign the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on 21 February. He added: Arrangements are now being made for signature, which will take place shortly. Ratification of the Optional Protocol is a separate step, which must be preceded by a thorough screening of the obligations to be assumed, and will be considered in due course. The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights opened for signature in New York in September 2009. To date thirty nine (39) States have signed. Nine European Union member states have signed. Seven States have ratified the Optional Protocol: Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia and Spain. The Optional Protocol will come into force three months after the deposit with the United Nations Secretary General of the tenth instrument of ratification or accession. As only seven States have ratified the Optional Protocol so far it has not yet come into force.17

FOREIGN C ONFLICTS The Syrian conflict continued during 2012. The Tánaiste and Minister for Foreign Affairs and Trade, speaking at an international conference on the issue in Tunis was critical of the lack of agreement on the subject at the United Nations Security Council. He said: It is deeply regrettable that the Security Council has been unable to act and speak with a common voice. This has only served to deepen and intensify the tragedy we are now observing, and has clearly emboldened the Syrian regime to intensify its campaign of indiscriminate violence. My clear message at today’s meeting was that Security Council must display leadership and take the lead in matters of international peace and security.18 In the wake of a subsequent massacre in the Hama district of Syria, the Minister renewed his call for action at the Security Council. He said: The need for a strong UN Security Council Resolution, under Chapter VII, is now long overdue. I urge all those members of the Security Council, and particularly Russia, who may have reservations about such a Resolution to look coldly and candidly at the facts of what is now taking place in Syria. If 16

Senator Mark Daly, Seanad Debates, 24 October 2012, Volume 218, Column 172. Tánaiste and Minister for Foreign Affairs and Trade, Dáil Debates, 6 March 2012, Volume 758, Column 115. 18 ‘Ireland joins international action to help Syrian people’ Department of Foreign Affairs and Trade, Press Release, 24 February 2012. 17

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they do so, they must realise that the need for effective action on the part of the Council, imposing sanctions on those who continue to wage war on innocent civilians and fail to meet their obligations under the Annan Plan, is absolutely vital at this stage19 The Minister raised the Syrian conflict with the United Nations Secretary General, emphasising in particular the lack of a Security Council resolution addressing matters, when visiting the UN General Assembly in September 2012.20 In addition, the Minister of State at the Department of Foreign Affairs and Trade addressed the UN Human Rights Council on the issue of Syria stating that ‘[t]he actions of the Assad regime and the Syrian forces against their own people can almost certainly be described as crimes against humanity.’21 The Tánaiste and Minister for Foreign Affairs and Trade subsequently attended meetings EU Foreign Ministers on the issue, which agreed to strengthen existing EU sanctions on Syria.22 The Minister commented: We cannot stand aside and allow what is happening in Syria. The situation there is appalling, with over 8,000 people killed, 70,000 in detention and up to three million people in need of food, medical and other humanitarian assistance. I strongly urged the EU to step up diplomatic and political pressure on Syria. I welcome the decision to impose new EU sanctions. These are designed to maintain pressure on the Assad regime to end the violence. We need to have a cessation of the hostilities in order to allow humanitarian aid to be delivered and to allow the UN-Arab League’s special envoy Kofi Annan to continue his work to implement the Arab League’s peace plan.23 Later in the year, the Minister of State at the Department of Foreign Affairs and Trade visited a Syrian refugee camp in Jordan.24 He reported on the visit to the Seanad as follows: 19

‘Tánaiste calls for accountability for the series of massacres in Syria’ Department of Foreign Affairs and Trade, Press Release, 14 July 2012. 20 ‘Tánaiste raises Syria with United Nations Secretary General Ban Ki-moon’ Department of Foreign Affairs and Trade, Press Release, 29 September 2012. 21 ‘Minister Creighton condemns “violent and vicious” actions of Syrian regime at Human Rights Council’ Department of Foreign Affairs and Trade, Press Release, 29 February 2012. 22 See Council Regulation (EU) 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011; Council Regulation 168/2012 of 27 February 2012 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria; and Council Regulation 545/2012 of 25 June 2012 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria. 23 ‘Tánaiste joins other EU Foreign Ministers in increasing pressure on Syria to end violence’ Department of Foreign Affairs and Trade, Press Release, 27 February 2012. See also ‘Tánaiste welcomes increased EU pressure on Syria’ Department of Foreign Affairs and Trade, Press Release, 25 June 2012. 24 ‘Minister Costello makes humanitarian visit to Syrian refugee camp’ Department of Foreign Affairs and Trade, Press Release, 25 September 2012.

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This is a humanitarian crisis arising from an underlying political conflict. Over the last 18 months, our efforts and those of international partners have been directed at ending the violence and repression inflicted upon the people of Syria. We must continue to promote a peaceful settlement with the ultimate aim of political transition in Syria. Ireland is fully supportive of the newly appointed UN/Arab League Joint Special Representative, Lakhdar Brahimi, and his efforts to negotiate a ceasefire and chart a political path forward. In parallel, international pressure needs to be maintained to bring an end to the violence and compel the Syrian regime to stop its bloody repression. Ireland, along with our international partners, has been advocating for a strong UN Security Council Resolution. I believe that this is now long overdue.25 The Minister of State at the Department of Foreign Affairs and Trade commented on the situation in the Democratic Republic of Congo: Along with our EU colleagues, Ireland has been monitoring the situation in the DRC closely and we are deeply concerned at the widespread allegations of serious violence and fraud. Six Irish experts participated in the EU Election Observer Mission which monitored the recent elections. Their preliminary report is highly critical of the process and pointed to irregularities and a lack of transparency in the elections. I was pleased to meet with the representatives of the Congolese community and hear their views of the political situation in DRC and to discuss Ireland’s role in supporting democratic progress and assisting communities who have been affected by ongoing conflict. Through Irish Aid, we have provided significant humanitarian assistance to vulnerable communities in DRC, including €13 million over the past two years. Ireland has repeatedly condemned the war crimes and serious human rights violations which have blighted the lives of so many Congolese. We fully support international efforts to bring those responsible to justice, including through the International Criminal Court. Ireland is currently campaigning for a seat on the Human Rights Council. Tackling human rights abuses such as those which have devastated so many families in DRC will be among our priorities.26 The Tánaiste and Minister for Foreign Affairs and Trade condemned the bombings in Kano, Nigeria in January 2012, describing them as ‘a heinous and cowardly act of mass murder’.27

DIPLOMATIC MATTERS 25

Minister of State at the Department of Foreign Affairs and Trade, Seanad Debates, 25 September 2012 Volume 217, Column 169. 26 ‘Minister Costello expresses concern at situation in the Democratic Republic of Congo’ Department of Foreign Affairs and Trade, Press Release, 16 January 2012. 27 ‘Tánaiste condemns Nigeria killings’ Department of Foreign Affairs and Trade, Press Release, 23 January 2012.

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In late 2011, the Department of Foreign Affairs and Trade closed the Irish Embassy to the Holy See.28 In February 2012, the Minister of State at the Department of Health made a statement to the Dáil on behalf of the Tánaiste and Minister for Foreign Affairs and Trade. She said: It is important to make clear that we have not cut off diplomatic relations with the Holy See. We have simply decided that in the present circumstances our ambassador will operate on a non-residential basis. This decision to change our representation to the Holy See to non-resident status was driven by economic factors derived from our need to cut public expenditure and to focus the modest resources of our diplomatic service on economic recovery. Notwithstanding the differences that arose between successive Irish Governments and the Holy See in recent years, the decision to close the embassy was not taken in response to these differences. If the Government had wanted to make such a statement it would have done so far more clearly and at the time.29 The Tánaiste and Minister for Foreign Affairs and Trade visited the Middle East in January 2012. While there, he urged Israel to change its policy in relation to Gaza and end its blockade of the territory. He said: It is dispiriting to see how little real change there has been in Gaza since the end of the Israeli military operation against Gaza three years ago. What I have seen today has reinforced my belief that it is utterly unjust as well as counterproductive to subject Gaza to these restrictions, to choke off its economy, and to reduce its people to a state of complete dependency. I will be raising the situation in Gaza when I meet with Israeli government representatives in the coming days and reiterating the need to end the blockade and make progress towards a comprehensive peace agreement. This ultimately offers the most effective means of addressing the serious problems and inequities which the people of Gaza and the rest of the Palestinian territories currently face. I want to pay tribute to the people of Gaza whose spirit remains undiminished by the conditions they are compelled to endure. It has been a particular pleasure to meet with many young people in Gaza today and hear how they only wish to be given the opportunity to pursue their education and to create some sort of decent future for themselves in Gaza.30

28

See Brady, A.D.P. ‘Ireland and International Law 2011’ (2011) 6 Irish Yearbook of International Law 87, pp. 93-94. 29 Minister of State at the Department of Health, Dáil Debates, 9 February 2012, Volume 755, Column 68. 30 ‘Tánaiste Visits Gaza, Renews Call for Lifting of Blockade’ Department of Foreign Affairs and Trade, Press Release, 27 January 2012.

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During the visit, the Minister met with the President of the Palestinian Authority.31 Shortly after the visit, there was an increase in violence in Gaza and southern Israel. The Minister said: Having recently visited the region, I know for myself that there remains no greater priority in the Middle East than ending the conflict between Israeli and Palestinian and promoting a comprehensive and just political settlement, based on the two-State solution. I therefore appeal on all sides to halt the violence and instead concentrate on the truly vital task of promoting the conditions in which substantive direct peace talks can resume and make real progress towards that peace agreement which is so urgently needed.32 The Tánaiste and Minister for Foreign Affairs and Trade supported an EU Council of Foreign Ministers conclusion urging a prompt resumption of political negotiations between Israel and the Palestinian Authority.33 He said: I welcome the fact that, for the first time, the EU Foreign Affairs Council has set out what these threats are, particularly in regard to the marked acceleration in Israeli settlement activity in the West Bank and East Jerusalem and the worsening of the living conditions of the Palestinian population. The EU has also condemned in unequivocal terms violence and intimidation by Israeli settlers. We also stressed that a way must be found through negotiations to resolve the status of Jerusalem as a future capital of two states.34 Later in the year, the Minister criticised Israel’s plan to expand settlements in the West Bank.35 He said: I am extremely concerned at the Israeli Government’s plans to construct 3,000 new settlement units in the Occupied Palestinian Territory. The scale of these plans suggests that Israel has no real intention of desisting from expanding and building new settlements, which, it is important to recall, are illegal under international law. This latest announcement conflicts very much with the stated commitment of Prime Minister Netanyahu and his Government to making progress through peace talks and achieving a two-state solution.36

31

‘Tánaiste meets with Palestinian President Abbas’ Department of Foreign Affairs and Trade, Press Release, 28 January 2012. 32 ‘Tánaiste Voices Concern over Escalation of Violence in Gaza and Southern Israel’ Department of Foreign Affairs and Trade, Press Release, 12 March 2012. 33 Council conclusions on the Middle East Peace Process, 3166th Foreign Affairs Council meeting, Brussels, 14 May 2012. 34 ‘Tánaiste welcomes strong EU Statement on the Middle East’ Department of Foreign Affairs and Trade, Press Release, 14 May 2012. 35 ‘Tánaiste condemns Israeli settlement expansion’ Department of Foreign Affairs and Trade, Press Release, 8 November 2012. 36 ‘Tánaiste criticises Israel decision to construct new settlement’ Department of Foreign Affairs and Trade, Press Release, 3 December 2012.

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During 2012, the President of Ireland received credentials from ambassadors representing: Montenegro, Jordan, 37 Mozambique, North Korea, Laos, 38 United Kingdom, Portugal, the Russian Federation,39 Bahrain, Tanzania, Indonesia, Armenia,40 the Netherlands, Pakistan, Panama,41 Zambia, Honduras, Côte d’Ivoire,42 Austria, Costa Rica, Bosnia and Herzegovina.43

BILATERAL RELATIONS, CONSULAR SERVICES AND THE DIASPORA The Tánaiste and Minister for Foreign Affairs and Trade published a progress report on the Second Global Irish Economic Forum which was held in Dublin in 2011.44 He said: The Government’s robust and outcomes-focussed approach clearly demonstrates that we have moved quickly to ensure that the energy and determination shown by participants at the 2011 Global Irish Economic Forum has been translated into actions by Government Departments and State Agencies. I would like to reiterate the Government’s deep appreciation the members of the Global Irish Network and to the wider Diaspora for their direct assistance with our efforts to deliver economic recovery.45 In June 2012, the re-trials of eighteen medical professionals in Bahrain concluded. The defendants included Dr Ali al-Ekri, who trained at the Royal College of Surgeons in Ireland. Dr al-Ekri received a five year prison sentence at the re-trial. The Tánaiste and Minister for Foreign Affairs and Trade appealed for clemency for Dr al-Ekri and the other convicted medical professionals ‘[g]iven the great concerns and doubts which have surrounded this case from the start, and in the wider interests of promoting urgently needed reconciliation within Bahrain’.46 He also expressed his hope that the convicted individuals would not be re-arrested pending their appeal to the Court of Cassation. During 2012, Ireland signed new bilateral taxation agreements with Egypt, Qatar and Uzbekistan and agreed a protocol to the taxation agreement with Switzerland. The Minister for Finance told the Dáil that negotiations with Azerbaijan and Thailand were nearing completion.47

37

Department of Foreign Affairs and Trade, Press Release, 16 February 2012. Department of Foreign Affairs and Trade, Press Release, 14 March 2012. 39 Department of Foreign Affairs and Trade, Press Release, 19 April 2012. 40 Department of Foreign Affairs and Trade, Press Release, 23 May 2012. 41 Department of Foreign Affairs and Trade, Press Release, 13 September 2012. 42 Department of Foreign Affairs and Trade, Press Release, 23 October 2012. 43 Department of Foreign Affairs and Trade, Press Release, 14 November 2012. 44 See Brady, A.D.P. ‘Ireland and International Law 2011’ (2011) 6 Irish Yearbook of International Law 87, pp. 96-97. 45 ‘Mr. Eamon Gilmore, T.D., publishes Progress Report on the Global Irish Economic Forum 2011’ Department of Foreign Affairs and Trade, Press Release, 11 March 2012. 46 ‘Tánaiste urges clemency for Medical Professionals convicted in Bahrain’ Department of Foreign Affairs and Trade, Press Release, 15 June 2012. 47 Minister for Finance, Dáil Debates, Volume 786, Columns 887-889. 38

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OVERSEAS D EVELOPMENT AID The review of the 2006 White Paper on Irish Aid that had been announced in 2011 began in 2012. In January, a consultation process was announced by the Minister for Trade and Development, who stated: The aim of the public consultation process is to have a national discussion on the future direction of Ireland’s aid programme. This review provides us with an opportunity to take stock of the progress that has been made since 2006. It will also help us understand the changing context in which we operate.48 The consultation process was informed by a consultation paper published in late 2011 on the topic.49 During 2012, Irish Aid conducted operations in Ethiopia, Lesotho, Malawi, Mozambique, Tanzania, Timor Leste, Vietnam, Zambia, Sierra Leone, Liberia, South Africa, Palestine and Zimbabwe.50 Humanitarian aid was provided by Ireland to Syria51 and to South Sudan. When announcing an increase in funding of €7.25 million for South Sudan, the Minister of State at the Department of Foreign Affairs and Trade said: South Sudan, the world’s newest State, faces enormous development challenges. More than 80% percent of the population live on less than US$1 per day and insecurity - both in the border areas with the north, and internally has led to mass movement of people. This has compounded the effects of a poor harvest last October. The cereal deficit in South Sudan in 2012 is likely to be double that of 2011, with close to 3 million people expected to require emergency food assistance this year. This funding to the United Nations will support its agencies to respond to the urgent needs for food, water and emergency healthcare.52 Ongoing aid to Uganda was suspended after revelations from the Auditor General of Uganda that funds had been misappropriated. The Tánaiste and Minister for Foreign Affairs and Trade said: The Auditor General has found that funding received from Ireland, Norway, Sweden and Denmark last year was transferred to unauthorised accounts. His draft report states that up to €4 million in Irish Aid funding provided in 2011

48

‘Minister Costello Announces Public Consultation on Review of Irish Aid White Paper’ Department of Foreign Affairs and Trade, Press Release, 31 January 2012. Details of the consultation process are summarised in the revised White Paper: One World, One Future, Ireland’s Policy for International Development, Government of Ireland, May 2013. 49 Irish Aid, Consultation Paper for the Review of the White Paper on Irish Aid, December 2011. 50 Irish Aid, Annual Report 2012. 51 ‘Ireland to dispatch emergency supplies to aid Syrian refugees’ Department of Foreign Affairs and Trade, Press Release 30 September 2012. 52 ‘Minister Costello announces €7.25 million in emergency assistance for Sahel, Sudan and South Sudan’ Department of Foreign Affairs and Trade, Press Release, 24 May 2012.

Correspondent Reports – Brady 181

was transferred to an unauthorised account of the Office of the Prime Minister.53 The Minister subsequently welcomed a commitment from the Government of Uganda to repay the misappropriated funds, although the funding that was due to go to Uganda during the final months of 2012 remained suspended.54 DISARMAMENT The Tánaiste and Minister for Foreign Affairs and Trade gave a statement to the Dáil on nuclear disarmament and non-proliferation issues. He was critical of the lack of ratification of the Comprehensive Nuclear Test Ban Treaty: More than 15 years after it opened for signature, the Comprehensive NuclearTest-Ban Treaty, CTBT, is not yet in force. The treaty prohibits all nuclear weapons test explosions and all other nuclear explosions, and thereby impedes the development and qualitative improvement of these weapons and the technological advancement of new types of nuclear weapons. It must enter into force without further delay. The provocative nuclear tests conducted by the Democratic People’s Republic of Korea in 2006 and 2009 clearly demonstrate that there is an urgent need for such a treaty.55 He went on to note the procedural difficulties with the United Nations Conference on Disarmament: Since Ireland joined the Conference on Disarmament in 1999, the conference has been paralysed by its own rules of procedure. A rule whereby all decisions must be taken by consensus has created an effective right of veto. This cannot continue. Among the proposed programme of work is a treaty that would ban the production of fissile material for nuclear weapons. Negotiations on such a treaty are long overdue and must begin at the earliest opportunity. 56 A United Nations conference seeking to agree a text on an Arms Trade Treaty was held in July 2012. Prior to the conference, the Tánaiste and Minister for Foreign Affairs and Trade expressed the Government’s support for such a treaty: Ireland’s objective is to secure a legally-binding and comprehensive treaty with universal application, one that is as robust as possible, and which takes full account of human rights obligations and international humanitarian law. While I am not in a position to comment on the negotiating positions which 53

‘Tánaiste suspends aid to Ugandan Government and announces investigation of fraud allegations’ Department of Foreign Affairs and Trade, Press Release 25 October 2012. 54 ‘Tánaiste welcomes commitment from Government of Uganda to repay funds misappropriated from Irish Aid’ Department of Foreign Affairs and Trade, Press Release 5 November 2012. 55 Tánaiste and Minister for Foreign Affairs and Trade, Dáil Debates, 21 June 2012, Volume 769, Column 565. 56 Tánaiste and Minister for Foreign Affairs and Trade, Dáil Debates, 21 June 2012, Volume 769, Column 565.

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will be taken by other countries going into the July Diplomatic Conference, I can assure the Deputy that Ireland’s objective has not altered since this process began, and that we will continue to work actively, with EU and other like minded partners, to agree an instrument establishing common international standards for the import, export and transfer of conventional arms.57 Agreement on a final text was not successful at the July conference.58 PEACE SUPPORT OPERATIONS During 2012, over 800 members of the Permanent Defence Force were deployed to various missions including postings with the UN, EU, OSCE and NATO/PfP.59 The largest deployment was to Southern Lebanon as part of the UNIFIL mission. The Minister for Defence described the status of the deployment in December as follows: The deployment to UNIFIL was Ireland's largest deployment overseas since the withdrawal of the Irish contingent from the MINURCAT mission in Chad in May 2010. Reflecting the high regard in which Irish peacekeepers are held, Brigadier General Patrick Phelan took up the appointment of Deputy Force Commander of UNIFIL for an initial period of one year in April 2012. In June 2012, the Irish contingent was downsized to some 360 personnel following the deployment of some 170 personnel of the Finnish armed forces to UNIFIL and the formation of a joint Irish-Finnish battalion. Partnership with other like-minded states has become an increasing element of our overseas peacekeeping operations. I would like again to thank the Government and armed forces of Finland for participating in this mission with Ireland. In the absence of partners such as Finland, the range and nature of overseas operations Ireland could undertake in support of international peace and security would be significantly curtailed. Such joint deployments further support interoperability, build experience and further deepen the excellent bilateral relationship between our countries.60 The overall total commitment to Peace Support operations, by mission, during 2012 was as follows:61 Mission

1 Jan 2012

31 Dec 12

UNTSO (Middle East)

12

12

MINURSO (Western Sahara)

3

3

57

Tánaiste and Minister for Foreign Affairs and Trade, Dáil Debates, 21 February 2012, Volume 756, Column 315. 58 See United Nations General Assembly, Sixty-Seventh Session, Resolution 67/234, 24 December 2012. 59 Department of Defence, Annual Report 2012, p. 37. 60 Minister for Defence, Select Committee on Justice, Defence and Equality, 19 December 2012. 61 Source: Department of Defence Annual Report 2012.

Correspondent Reports – Brady 183

MONUC (Democratic Rep of Congo)

3

3

UNOCI (Cote d’Ivoire)

2

2

UNIFIL HQ (Lebanon)

10

16

UNIFIL Infantry Battalion (Lebanon)

437

337

UNIFIL Sector West HQ (Lebanon)

8

8

EUFOR (Bosnia Herzegovina)

7

7

EU Austro-German Battlegroup

1

1

EUTM (Somalia)

7

10

KFOR HQ (Kosovo)

12

12

ISAF (Afghanistan)

7

7

OSCE

4

4

UNNY (New York)

1

1

EUMS (Brussels)

7

4

NATO/PfP(Belgium)

5

5

Irish Delegation to OSCE (Vienna)

2

2

ESDP/PSC (Brussels)

8

9

Total Personnel Overseas:

536

443

The Minister for Defence explained to the Dáil the funding mechanisms for funding participation in the EU battlegroups: In 2010 the Government approved Ireland’s participation in the Austro-German Battlegroup, which will be on stand-by for the second six months of 2012. The other members of the Austro-German Battlegroup are Austria, Germany, Czech Republic, Croatia and the Former Yugoslav Republic of Macedonia (FYROM). Each country contributing to this or any other Battlegroup pays its own costs. However, there are certain common costs, for EU missions including Battlegroups, which are financed by the ATHENA mech-

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anism. ATHENA is the mechanism which administers the financing of common costs of EU operations having military or defence implications, on behalf of EU Member States contributing to the financing of EU military operations. These costs can include transport, infrastructure, and medical services, as well as the Nation Borne Costs, which include lodging, fuel, and similar costs linked to the national contingents.62 He went on to confirm that, as no battlegroup had yet been deployed, the costs of funding same had not arisen.

62

Minister for Defence, Dáil Debates, 14 March 2012, Volume 759, Column 539.

IRELAND AND THE EUROPEAN UNION 2012

STEPHEN COUTTS European University Institute, Florence

INTRODUCTION While the drama of the Eurocrisis somewhat abated in 2012, its impact is still being played out with major legal consequences for both the EU and Ireland. The immediate subject matter of these developments is budgetary, but the ramifications for the state’s general sovereignty, an increasingly difficult term to use in this context, are significant. These crystallised in the form of two international treaties, the Treaty on Stability, Coordination and Growth (TSCG) and the European Stability Mechanism Treaty (ESM Treaty), both of which, while not part of Union law proper, are intimately linked to the new structures of Euro governance. These treaties were tested before the people of Ireland in a referendum on the TSCG and before the Supreme Court in the case of Pringle. In terms of substantive law, criminal law and asylum law continued to figure prominently before the Supreme Court and to highlight difficulties in Ireland’s implementation of Union law measures. Meanwhile, continued failure to implement attracted the censure of the Court of Justice in a pair of environmental cases, the latest in a series of infringements of Union environmental law.

The following report is divided into two sections. Section one deals with the continued impact of the Eurocrisis on Ireland and Irish law and gives a general account of these measures and describes the legal and political debates that surrounded the implementation of both the TSCG and the ESM Treaty in Ireland. Section two details the development of some areas of substantive Union law in Ireland selected based on the presence of legislation and Supreme Court judgments in 2012. Those are criminal law, asylum law, citizenship and environmental law. The following gives an account of the major developments in those areas with respect to Union law and, where appropriate, indicates wider implications of the treatment of Union law in the Irish legal system.

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SECTION 1 – THE EUROCRISIS AND IRELAND1 The crisis in the Eurozone continued to dominate European politics and generated significant legal developments in 2012. Efforts were made to strengthen the legal framework of economic governance through bolstering budgetary discipline amongst Member States and through the creation of a permanent bailout mechanism. Ireland found itself at the centre of the constitutional debate in relation to both. It was the only state to hold a referendum on the TSCG, a choice that surprised many commentators and one that many believed the Treaty had been drafted specifically to avoid. Additionally, an independent TD, Thomas Pringle, challenged the European Stability Mechanism (ESM) and the treaty amendment designed to underpin it legally, thereby lending his name to what will surely become a classic case in Union law. The case moved swiftly through the Irish Courts and promptly arrived before the Court of Justice, pre-empting a similar challenge before the German Constitutional Court.2 The following details the political debates and legal implementation in Ireland of both the ESM and the TSCG, while giving an overview of their implications for broader European constitutional law.

THE EUROPEAN STABILITY MECHANISM AND AMENDMENT OF ARTICLE 136(3) TFEU Initial responses to the collapse in the economic fortunes of peripheral Eurozone economies took the shape of ad hoc or temporary bailout mechanisms. Greece’s first bailout consisted of a series of bilateral inter-governmental loans coordinated by the European Commission. Subsequently temporary facilities were established to provide funds for any future Eurozone economies that found themselves in difficulties. The European Financial Stability Mechanism (EFSM) was an instrument established under Union law and administered by the European Commission. Alongside the EFSM the Eurozone states established the more substantial European Financial Stability Facility (EFSF), a private company created under Luxembourg law. The Member States were shareholders of the company whose purpose was to raise moneys on the international markets and provide funding to troubled Eurozone states. Both the EFSF and EFSM, alongside the IMF and bilateral loans from non-Eurozone states, were subsequently used in providing financial assistance to both Ireland and Portugal. That both of these mechanisms were considered temporary, indeed emergency, responses to the crisis engulfing the Eurozone can be partially explained by the legal context. Wary of establishing a ‘transfer union’ within the Economic and Monetary Union 1

Much of the research on which this section is based draws directly from a report completed as part of a broader project being undertaken in the European University Institute and funded by the European Commission investigating the impact of the Eurocrisis on sovereignty and national parliaments to be launched in late March 2014. 2 Pringle v The Government of Ireland [2012] IEHC 296 and Pringle v Government of Ireland [2012] IESC 47. See Michael Waibel, ‘Dublin, Karlsruhe and Luxembourg in Dialogue’ (EJIL: Talk!, 6 August 2012) http://www.ejiltalk.org/dublin-karlsruhe-and-luxembourg-indialogue/ (accessed 23 November 2013).

Correspondent Reports – Coutts 187

(EMU) and keen to maintain the disciplining effect of ‘moral hazard’, the drafters of the Treaty of Maastricht inserted the now famous ‘no bailout clause’ into the section of the Treaty dealing with EMU. Article 125 of the Treaty on the Functioning of the European Union (TFEU) 3 provides that neither the Union nor the Member States shall assume liabilities for each other. As has become evident, the disciplining effect of Article 125 TFEU on governments failed. Despite the prohibition on bailouts, interest rates for Eurozone Member States tended to converge after the establishment of the Euro leading some national governments to borrow excessively and build up what have become unsustainable national debts. The lack of an established inter-Euro fund to correct imbalances was acutely felt with the commencement of the financial crisis and the collapse in confidence in the ability of Greece to sustain its debt. In 2011 and 2012 Member States sought to remedy this flaw in the architecture of the Eurozone through the establishment of a substantial and permanent bailout mechanism, in effect a regional equivalent of the International Monetary Fund (IMF), and remove any doubts regarding its compatibility with the Treaties by amending the provisions on EMU. Using the simplified revision procedure provided for in Article 48(6) of the Treaty on European Union (TEU) the European Council adopted Decision 2011/199/EU4 on 25 March 2011. After approval by Member States in accordance with their constitutional requirements, Decision 2011/199/EU would add a new paragraph 3 to Article 136 TFEU providing that: 3. The Member States whose currency is the euro may establish a stability mechanism to be activated in indispensible to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality. That mechanism was to take the form of the European Stability Mechanism (ESM). The ESM is an international organisation established through an international agreement, the Treaty establishing the European Stability Mechanism (ESM Treaty), a revised version of which was signed on 2 February 2012.5 Ireland as a Member State of the EU and a Eurozone state was necessarily involved in both Decision 2011/199/EU and the ESM Treaty, which were incorporated into Irish law in 2012. From statements in the Dáil it would appear that the Irish Government was broadly in favour of both developments.6 While it was hoped that Ireland would be able to independently raise money on the international markets upon exit of its programme of financial assistance it was felt that such an outcome was not guaranteed. A permanently 3

Ex-Article 101 of the Treaty establishing the European Community (TEC). European Council Decision 2011/199/EU 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 [2011] OJ L 91/1. 5 For a description of the structures and proposed operations of the ESM see S Coutts, ‘Ireland and the European Union 2011’ (2011) 6 Irish Yearbook of International Law 127, 129. 6 ‘Throughout the referendum campaign the Government made clear our strong view that the coming into force of the ESM is very much in Ireland’s interests. It follows logically that providing for the amendment to Article 136 of the TFEU, which underpins it, is also strongly in our national interest’, Tánaiste and Minister for Foreign Affairs, Eamon Gilmore, Dáil Debates, 6 June 2012, Vol 767 No 1, 72-73. 4

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established bailout mechanism was seen to be in Ireland’s economic interests and any measure designed to facilitate this or place it on more secure legal grounds, including an amendment to the Treaty, was to be welcomed. Ireland therefore supported both measures from a pragmatic perspective and, in addition to broader concerns regarding stability in the Eurozone, was motivated by its own particular interest in having a source of secure funding. The ESM (and by implication the amendment of Article 136 TFEU) were seen as providing confidence in Ireland’s funding capabilities, thereby ensuring a lower interest rate and effective access to private funding or, in the alternative, actually being the source of funding. Conflating both points when making a case in favour of ratification the Minister for Finance, Michael Noonan argued that: [the] Government believes the availability to Ireland of a credible funding backup as provided by the ESM Treaty will be very important in terms of market re-entry and leaving the EU-IMF programme of support. There is no clear answer to the question as to where else financial assistance could be found were a situation to evolve in which we require further assistance. Enacting the ESM Bill 2012 and ratifying the ESM Treaty will ensure that Ireland has access to this funding safety net if our efforts to re-access the market are delayed in any way and we need to resort to further assistance.7 The amendment of Article 136 TFEU and the ratification of the ESM Treaty were both achieved in Irish law in 2012 through legislative means, the former via the European Communities (Amendment) Act 2012 and the latter via the European Stability Mechanism Act 2012. The EC (Amendment) Act 2012 amended the European Communities Act 1972 to include Decision 2011/199/EU in the definition of ‘treaties governing the European Union’ for the purposes of Irish law and received the signature of the President on 3 July 2012. Notification of ratification was transmitted to the European Council on 1 August 2012. Meanwhile the ESM Treaty was incorporated into Irish law through the passage of the European Stability Mechanism Act 2012, which received the signature of the President on 3 July 2012. Both measures were the subject of judicial challenges taking place within the politically charged period of the referendum on the TSCG (see below). In Doherty v Referendum Commission 8 Deputy Pearse Doherty challenged a statement made by the chairperson of the Referendum Commission. During the referendum on the TSCG a number of opposition TDs and other groups opposing ratification claimed that Ireland, by refusing to ratify Decision 2011/199/EU, could somehow veto the establishment of the ESM itself. According to this logic the resulting negotiating leverage could then to be applied to alter the terms under which funding could be accessed from that mechanism. In contrast, the chairperson of the Referendum Commission, Mr Justice Feenly made a remark on radio, later reiterated in a written statement, that Ireland after agreeing in the European Council to the adoption of Decision

7 8

Dáil Debates, 7 June 2012, Vol 767 No 2, 600. Doherty v The Referendum Commission [2012] IEHC 211.

Correspondent Reports – Coutts 189

2011/199/EU could no longer oppose its coming into force. Mr Doherty TD contested this assertion and sought judicial review of the statement before the High Court. Article 48(6) TEU provides that any decision adopted thereunder ‘shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.’ At the time of Justice Feenly’s statement Decision 2011/199/EU had been adopted by the European Council but the European Communities (Amendment) Bill (later the EC (Amendment) Act 2012) was still pending before the Oireachtas. Hogan J, dealing with a preliminary issue regarding the admissibility of the claim found that the Referendum Commission was in fact a body corporate and its actions were challengeable before a Court.9 An initial claim that, in dealing with the question of the ESM in the context of a referendum on the TSCG, the Referendum Commission was acting ultra vires was rejected at an early stage given that ‘the ESM and the TSCG are inextricably interlined’ and that ‘certainly, one could not realistically seek to explain the likely impact of the TSCG without reference to the question of the ESM.’10 Two substantive legal questions remained. Firstly, regarding the extent to which statements made by the Referendum Commission were subject to judicial review and secondly whether or not Ireland did in fact enjoy discretion in approving a decision of the European Council under Article 48(6) TEU. In relation to the first question the Court found that the Commission’s statements are in fact amenable to judicial review but in carrying out such a review the Court would afford the Commission a significant degree of discretion and ‘only interfere where the statement was plainly wrong or…“manifestly inaccurate or misleading”.’11 In relation to the issue of substance, Deputy Doherty argued that Decision 2011/199/EU ought to be treated as a normal international agreement under Article 29 of Bunreacht na hÉireann. It was therefore entirely within the Government’s executive power to approve or not approve the Decision. The Attorney General, intervening, and the Referendum Commission both argued that decisions under Article 48(6) TEU were not in fact ordinary international treaties and were subject to special considerations of Union law. The AG in particular argued on the basis of a joint reading of Article 228 TFEU providing that decisions were to be binding in their entirety and Article 4(3) TEU establishing a duty of sincere cooperation that Ireland had in fact already approved the decision and that legislation was only necessary to implement the binding European Council Decision in Irish law. Hogan J came to the opinion that all three positions of the parties were valid and worthy interpretations. Any definitive judgment would require a reference to the Court of Justice under Article 267 TFEU. Given the complexity and novelty of the legal question, Hogan J limited himself to stating that the opinion as stated by the Referendum Commission was not ‘plainly wrong’ and would therefore not be struck down by the Court. Decision 2011/199/EU is the first and only time the simplified amendment procedure, introduced in the Treaty of Lisbon, has been employed and the conditions and details of

9

The chairperson of the Referendum Commission Justice Feenly, who was initially joined as a defendant in the event that the Commission itself was not capable of being the object of an action, was subsequently removed as a party from the proceedings. 10 Doherty v The Referendum Commission (n 8), para 29. 11 Ibid., para 38.

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its interaction with national constitutional law are still in need of judicial interpretation.12 European Council decisions under Article 48 (6) TEU are taken by unanimity. In practice therefore any Decision validly adopted under Union law will have received the acquiescence of heads of government or state of every Member State. The question of the extent to which Decisions of the Council are binding on Member states where a condition for their entry into force is the fulfilment of national ‘constitutional requirements’ is certainly intriguing. However, its practical impact will necessarily depend on the exact ‘constitutional requirements’ of any given Member State and the degree of control the head of government (or state) has over the procedure. Given Ireland’s constitutional arrangements and in particular the dominance of the Government over the Dáil, the question in practice amounts to whether approval of a Decision adopted under Article 48 TFEU can take place by legislative means or whether a constitutional amendment is required. That question, amongst others, was raised in the singular case of Pringle v Ireland. Presumably concerned by the developments in the Eurozone Ireland’s for sovereignty, democratic control over the budgetary process and the ramifications of unorthodox measures and responses for the coherence of the Union political and legal order, Mr Pringle, an independent TD, challenged the TSCG, the ESM Treaty and the Decision amending Article 136 TFEU before the High Court in April of 2012.13 Following the adoption of the TSCG by popular referendum at the end of May 2012 aspects of the claim relating to that instrument were dropped. In the remaining challenges against the Decision and the ESM Mr Pringle raised issues of both national constitutional law and Union law. Under national law Mr Pringle asserted that Decision 2011/199/EU should have been ratified by constitutional amendment rather than legislative means, that the ESM Treaty involved an unconstitutional delegation of sovereignty by the executive to an international organisation per Crotty 14 and that finally the ESM Act involved an unconstitutional delegation of legislative power to the Minister thereby breaching Article 15 Bunreacht na hÉireann. Under Union law Mr Pringle argued that the Decision amending Article 136 TFEU was invalid and such an amendment should have been adopted under the ordinary revision procedure contained in Article 48 TEU and that by concluding the ESM Treaty the Member States had breached their obligations under Union Law. Before the High Court Laffoy J accepted for the most part the arguments presented by the Government and dismissed almost all the claims of the plaintiff. In particular she found that subsequent to the constitutional amendment facilitating Irish ratification of the Lisbon Treaty no further constitutional amendments were required when the simplified amendment procedure introduced under that Treaty was employed. Approving Decision 2011/199/EU through legislative means was therefore permissible. Furthermore she found that the Decision, and by implication a body established under it (in this case the ESM), did not empower the Union to establish a bailout fund and did not therefore expand the competences of the Union. Rather it merely confirmed a pre-existing power of the 12

Indeed as far as this author is aware, Doherty v Referendum Commission is the only judicial pronouncement on the matter (excepting Feenly J’s comment in his extrajudicial capacity as chairperson of the Referendum Commission). 13 Pringle v The Government of Ireland (High Court) (n 2). 14 Crotty v An Taoiseach [1987] IESC 4 [1987] IR 713.

Correspondent Reports – Coutts 191

Member States to establish such a fund amongst themselves. While for the most part accepting the legality of the Decision, the ESM Treaty and the ESM Act, Laffoy J was troubled by what she termed the ‘temporal aspect’ of the claim, namely the fact that the Decision amending the TFEU entered into force subsequent to the establishment of the ESM itself. She decided therefore to order a preliminary reference to the Court of Justice under Article 267 TFEU. That order was overtaken by an appeal to the Supreme Court. The Supreme Court heard the case on the 24 and 26 July, 2012 and decided to divide the legal questions into three groups: issues of Union law; issues of Irish law deemed to be urgent and issues of Irish law not deemed to be urgent.15 The first group comprised the question of whether Union law allowed Member States to become members of the ESM Treaty, the validity of Decision 2011/199/EU and finally the relationship between the ESM Treaty and the Decision. The second group focused on the State’s ability to enter into an agreement such as the ESM in light of the restrictions established under Crotty.16 The final question relating to the unconstitutional delegation of legislative power to the Minister under the ESM Act did not concern Ireland’s membership of that institution but rather how to give effect to it in the Irish legal system and was deemed not to be urgent. The Court decided to refer the first group of questions to the Court of Justice, deal with the second group as a matter of urgency and finally deal with the final question in the normal sequence of events. It delivered judgment on the second group of questions namely whether the ESM constituted an unconstitutional delegation of authority to an international institution and therefore prohibited under Bunreacht na hÉireann on 19 October 2012. The majority contrasted the international treaty at issue with that considered in Crotty, namely Title III of the SEA dealing with coordination between members of the EC in the conduct of their foreign policies with the ESM Treaty. Crotty found that under the Irish constitution sovereignty flowed from the Irish people. This sovereignty was exercised by various organs established by the Constitution in accordance with the provisions of the constitution. The government had a wide discretion in the exercise of foreign policy. This discretion did not however include the ability to limit or delegate that power. Title III of the SEA was an open-ended, vague and wide-ranging commitment to adjust the State’s foreign policy in accordance with the concerns and actions of other states. As such it was a delegation of the Government’s freedom to direct the State’s foreign policy and an unconstitutional delegation of sovereign authority to an international institution. The ESM Treaty by contrast had a clearly defined scope. It was a narrow, if important, commitment on behalf of the state. The policy, namely the maintenance of stability in the Eurozone by the provision of appropriate financial assistance to members of the ESM, was defined and set down by the parties to the Treaty. The institution itself only implemented this policy. As stated by MacKechnie J ‘[i]n effect the fundamental difference between [Title III of the SEA and the ESM Treaty] is the fact that the ESM Treaty is essentially policy implementing and not policy making.’ Furthermore it was not an open-ended financial commitment. The liability of Ireland was limited and any increase in the capital would have to be approved by the Oireachtas by legislation. Finally the limited circumstances in which Ireland would not exercise its voting rights (in the 15 16

Pringle v Government of Ireland (Supreme Court) (n 2). Crotty v An Taoiseach (n 14).

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event of a failure to meet its commitments or in the event that a threat existed to the sustainability of the Eurozone) would not represent instances of policy making. Hardiman J wrote the sole dissenting judgment. After an assessment of the various judgments in Crotty he came to a different conclusion to the majority regarding its finding that the essence of that judgment was the point of reference for which the sovereign powers of the state should be exercised. In particular he found that when exercising its powers the State was to have reference to the ‘common good’ as mentioned in Article 6 of the Irish constitution, where that ‘common good’ was to mean the common good of the Irish people.17 By contrast, the ESM Treaty delegated decision making power over a considerable sum of money of the Irish people to be disbursed in the interest of maintaining the stability of the Eurozone as a whole; an interest that may, or may not, coincide with the ‘common good’ of the Irish people. Furthermore, he found that under the ESM the Irish government would be obliged to submit to decisions regarding expenditure according to ‘particular procedures’, something that amounted to a delegation of sovereignty within the meaning of Crotty. Finally, Hardiman J had ‘considerable doubts’ regarding whether the procedures of the ESM and in particular the accountability of the Minister for Finance when exercising his powers as a member of the Board of Governors of the ESM. The reference from the Supreme Court regarding Union law matters was received by the Court of Justice on 3 August 2012. Following a request in that reference the Court of Justice applied an expedited procedure justified by potential harm to the financial stability of the Eurozone in the event that uncertainty persisted over the legality of the ESM.18 Exceptionally sitting as a full court of twenty seven, the Court of Justice heard the case on the 23 October 2012 and delivered judgment on the 27 November 2012.19 Regarding Decision 2011/199/EU the Court found that it did in fact have jurisdiction to decide on the legality or otherwise of a decision amending primary law a point that was contested by a number of governments and marks a first in the jurisprudence of the Court.20 The Court noted that under Article 48(6) TFEU the simplified revision procedure could be employed subject to two conditions. Firstly that it only amended Part III of the TFEU and secondly that it did not increase the competences of the Union. In relation to the first criteria the Court found that the effects of any such decision must be limited to Part III. While it was clear that while the changes introduced by Decision 2011/199/EU only amended Article 136 TFEU and hence Part III of that treaty the Court should also ensure that the Decision did not affect other parts of the Treaties, in the present case Article 3(1)(c) TFEU relating to the exclusive competences of the Union in monetary 17

Denham CJ made a similar point without it playing as central a role in her reasoning. See Case C-370/12 Pringle v Government of Ireland (Order of the President of the Court, 4 October 2012). 19 Case C-370/12 Pringle v Government of Ireland and others (Court of Justice, 27 Novemeber 2012). 20 See T Beukers and B de Witte, ‘The Court of Justice approves the creation of the European Stability Mechanism outside the EU legal order: Pringle’ (2013) 50 Criminal Law Review 805. It should of course be noted that this was also the first time a simplified revision procedure, based on a decision of a Union institution (rather than an agreement between Member states) had been discussed. 18

Correspondent Reports – Coutts 193

policy for Member states using the Euro. In light of the ESM’s objectives, the Court found that any mechanism to be established under the amendment related not to monetary policy but rather economic policy.21 In relation to the second criteria, whether the amendment increased the competences of the Union, the Court found that the Decision merely confirmed a pre-existing power of the Member States, and not the Union, to establish such a mechanism and ‘creates no legal basis for the Union to be able to undertake any action which was not possible before the entry into force of the amendment of the FEU Treaty’.22 Indeed, it would seem that Article 122(2) TFEU, the provision under which the EFSM was based (relating to emergency aid to Member States), does not confer a competence on the Union to establish a permanent financing mechanism.23 In relation to the ESM itself, or more precisely whether Union law prohibited Member States from joining an organisation such as the ESM, the Court agreed with the claim by national governments that they were not in fact prohibited by Union law from establishing the ESM. Member States when acting in their capacity as members of the ESM must be in compliance with Union law. Thus, in effect the ESM itself must comply with Union law despite technically being a creature of international law. Building on its response to the question regarding the Decision the Court found that the ESM did not in fact infringe on the competences of the Union in economic matters. Economic policy being a shared, rather than an exclusive competence, the Union’s powers in this area were reserved to the coordination of economic policy. The conditionality attached to any programmes administered by the ESM, while certainly overlapping with Union measures in the field of economic policy coordination, did not themselves amount to coordination of economic policies.24 Squaring the circle of the compatibility of the ESM, in effect a bailout fund, with Article 125 TFEU, the ‘no-bail clause’ proved perhaps the most contentious aspect of the judgment. The Court opted for a narrow reading of Article 125 TFEU arguing that it prohibited the direct assumption by the Union and Member States of other Member States’ financial liabilities. It did not prohibit any and all financial assistance. This was achieved by looking to the objective of the provision and a combination of interpretive techniques including teleological, systematic, textual, historic and ultima ratio.25 Thus the objective of Article 125 TFEU was found to be maintaining budgetary discipline amongst Member states with the ultimate aim of safeguarding financial stability in the Union. Under this reading of Article 125 TFEU the existence of a mechanism for financial assistance was permitted provided it did not amount to the Union or Member States directly assuming the liabilities of other Member States, it was accompanied by strict conditionality and was indispensible to protect the financial stability of the Eurozone.26 Furthermore, the use of Union institutions, in particular the Commission, the Court of Justice and the European Central Bank (ECB), was compatible with Union law. Finally, given the finding 21

Pringle (Court of Justice) (n 18), para 60. Ibid., para 70. 23 Ibid., para 65. 24 Indeed under the terms of the ESM Treaty any such measures must be compatible with Union measures in the field, ESM Treaty, art 13(3). 25 See Beukers and de Witte, ‘The Court of Justice approves the creation of the European Stability Mechanism outside the EU legal order: Pringle’ (n 20), 838 ff. 26 Pringle (Court of Justice) (n 18), paras 129 ff. 22

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that Decision 2011/199/EU merely confirmed a pre-existing power of the Member States to create an institution such as the ESM, the fact that it entered into force prior to the entry into force of Decision 2011/199/EU did not affect its validity.27 The judgment is rich, touches on a variety of legal questions and has already provided the subject matter of lengthy commentaries. 28 A couple of general points can be highlighted here. Firstly in responding to the actions of Member States acting outside or amending the treaties under the simplified revision procedure the Court of Justice was careful not to renounce its jurisdiction. Instead it affirmed its power, indeed its duty, to control the legality of the actions of Member States, even when acting as masters of the Treaties in the European Council or outside the Treaties. It asserted its power to review both as a matter of procedure and substance the use of the simplified revision procedure. In doing so, it protected the prerogatives of other actors such as the European Parliament and national parliaments under the ordinary revision procedure who might be bypassed by an illegitimate recourse to Article 48(6) TFEU. 29 Similarly it reaffirmed the need for Member States to respect Union law even when acting under a separate international organisation, ensuring that they do not circumvent the obligations and prohibitions contained in the Treaties. This is not a new point of law but its reaffirmation in the context of increased fragmentation in the Union legal order and a fast moving crisis throwing up unorthodox legal mechanisms is to be welcomed. Secondly the Court, while asserting its own power of review, was careful not to obstruct policies of political actors in their response to what might be termed as an existential crisis facing the Union. Thus the ESM was read as conducting economic policy rather than monetary policy and that economic policy was carefully characterised as complementing and not infringing on the competences of the Union in this area. Finally the conditionality contained in both the amendment to Article 136 TFEU and the ESM Treaty itself played a role in both parts of the judgment. The inclusion of conditionality was central to the Court’s reasoning both in relation to competences and in relation to Article 125 TFEU. Provisions in the ESM Treaty ensuring that conditions would mirror those found in Union instruments on economic policy coordination allowed the Court to underline the fact that in its operation the ESM would not in fact infringe the Union’s competence in this area. Conditionality was also central to the Court’s construction of Article 125 TFEU and in particular a teleological approach based on the objective of maintaining budgetary stability. This use of the concept of conditionality is not without its difficulties, particularly when relating it to the Union’s competence in relation to economic coordination.30 27

Ibid., paras 184-185. See ex Beukers and de Witte, ‘The Court of Justice approves the creation of the European Stability Mechanism outside the EU legal order: Pringle’ (n 20) and PA van Mallenghem, ‘Pringle: A Paradigm Shift in the European monetary constituion’ (2013) 14 German Law Journal 141. 29 Indeed in the case of Ireland the prerogative of the national people itself to accept or reject a Treaty radically changing the form of the Union. 30 On this point see Beukers and de Witte, ‘The Court of Justice approves the creation of the European Stability Mechanism outside the EU legal order: Pringle’ (n 20), 835 ff. 28

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In light of the then political and economic climate, the finding of the Court of Justice that the Decision and the ESM were valid in light of Union law is not surprising. Indeed writing prior to the judgment Weiler and Eijbouts could confidently assert that ‘[p]olitically speaking… the die is cast and the treaties are in safe harbour. For whatever the merits of a sharp distinction between constitutional law and politics, neither the Bundesverfassungsgerict nor the Court of Justice, nor any other court, is in a position to block or hamper the treaties any more – and perhaps they never were. The political (and financial stakes) are simply too high.’ 31 Given the misgivings amongst academics regarding the legality of bailouts in light of Article 125 TFEU 32 the Court certainly managed to square a particularly awkward legal circle with political and economic realities. Furthermore it managed this with not a small degree of elegance under conditions of considerable time and institutional pressures. Beukers and de Witte in a clear, thorough and insightful analysis of the case have rightly pointed out the argumentation of the Court is convincing on a number of points, not least regarding the core question of competence and compatibility with the chapter on EMU and in particular Article 125 TFEU.33 This was achieved while maintaining a degree of coherence between the interpretation of the Decision and the ESM and with an eye on political realities of the Eurozone crisis and concerns in creditor Member States regarding the need to maintain in so far as possible the philosophy of budgetary discipline lying at the heart of the chapter on EMU.34 The Court has thus ‘given, in Pringle, a well-reasoned judgment expressing a good mixture of legal principle and political pragmatism.’35 At the same time one cannot avoid the feeling that the Court has engaged in, albeit very skilful, jurisprudential gymnastics in order to match a question of legal interpretation to the prevailing political reality. As pointed out by Tomkin the prevailing purpose of Member States in creating extra-Union instruments was precisely to avoid legal obligations contained in the Treaties and to circumvent the spirit, if not the letter, or the constitutional settlement in relation to EMU.36 The outcome could thus be described as undermining the rule of law in the Union and democratic guarantees contained in a carefully balanced institutional arrangement. However, one cannot deny the fact that is above all a reflection on the deficiencies of Union law, not the machinations of powerhungry national governments. Thus: The fact remains that, when the euro area countries wanted to set up a major rescue fund in order to preserve the stability of the euro area (a decision 31

Willem Eijsbouts and Joseph Weiler, ‘Editorial’ (2012) 8 European Constitutional Law Review 367, 368. 32 See ex JV Louis, ‘Guest Editorial: The No-Bailout Clause and Rescue Packages’ (2010) 47 Criminal Law Review 971. 33 Beukers and de Witte, ‘The Court of Justice approves the creation of the European Stability Mechanism outside the EU legal order: Pringle’ (n 20). 34 ‘[B]y requiring strict conditionality the Court shows that it is aware of the very delicate context of Article 125 TFEU in especially Germany, illustrated by the fact that it is best known – not only in Germany – as the “no-bailout” clause’. Ibid., 839. 35 Ibid., 848. 36 J Tomkin, ‘Contradiction, Circumvention and Conceptual Gymnastics: The Impact of the Adoption of the ESM Treaty on the State of European Democracy’ (2013) 14 German Law Journal 169.

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which seems very reasonable) EU law did not provide them with sufficient legal and financial resources so that ‘going outside’ and setting up a separate international organisation was the only available solution. The creation of the ESM should therefore, not be seen as an ‘intergovernmental plot’ through which the euro area governments sought to escape from the constraints o EU law and to exclude any involvement of the Commission and the Parliament. Indeed, they sought to preserve a number of links with the EU legal order through the borrowing of EU institutions.37

ECONOMIC GOVERNANCE The ‘no bailout’ provisions contained in Articles 123 to 125 TFEU and their implicit use of market forces in the interests of discipline were one side of the coin to manage the economic aspect of EMU. The other side is a set of provisions that speak directly to the need to coordinate economic and budgetary policies, of which a central aspect is the maintenance of budgetary discipline. Article 121 TFEU contains a system for the multilateral surveillance of economic policies between Member States and Article 126 TFEU contains a detailed procedure for detecting and addressing excessive deficits in Member States’ budgets. The latter includes the (eventual) possibility of punitive measures, notably fines, in order to bolster enforcement. Both provisions also contain legal bases for secondary legislation in order to promote economic and budgetary coordination amongst Member States. That secondary legislation took the form of the ‘Stability and Growth Pact’ (SGP), the legislative dimension of which originally consisted of two regulations adopted in 1997 focusing on the prevention and correction of budgetary imbalances.38 After the SGP’s deficiencies became apparent around the turn of this decade, policy makers sought their overhaul through the adoption of five regulations and a single directive, known as the ‘six-pack’ in late 2011. The six pack strengthened both the corrective and preventative elements of budgetary coordination and control, strengthened enforcement further through the creation of a system of deposits and finally created a framework to detect and correct macro-economic imbalances.39 Germany in particular was of the opinion that the strengthening of secondary legislation was insufficient and sought a change in primary legislation to tighten coordination and controls over national budgetary and economic policies. While not all Member States, including Ireland,40 shared the view that primary legislation was required, 37

Beukers and de Witte, ‘The Court of Justice approves the creation of the European Stability Mechanism outside the EU legal order: Pringle’ (n 20), 847-848. 38 Council Regulation 1466/97/EC on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [1997] OJ L 209/1 and Regulation 1467/97/EC on speeding up and clarifying the implementation of the excessive deficit procedure [1997] OJ L 209/61. 39 See generally Coutts, ‘Ireland and the European Union 2011’ (n 5), 132 ff. 40 Indeed in repeated statements members of the Irish government took the position that it was best to achieve what was already possible within the existing structures rather than seek an amendment (and hence renegotiation) of the Treaties. See Minister for Finance Michael

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most appeared willing to accede to German demands perhaps believing it would facilitate acceptance of bailout measures in the German political and legal circles. However, another Member State faced its own internal political constraints. In light of growing Euroscepticism among Tory backbenchers, the British Prime Minister had made pledges to extract concessions, in particular repatriation of certain competences, in return for any amendment to the Treaties. Finding his demands rebuffed he vetoed any amendment of the TEU or TFEU.41 The remaining Member States decided to proceed outside the Union framework and adopt a separate international treaty amongst themselves. The Treaty on Stability Coordination and Growth, also known as the Fiscal Compact,42 was the result. It was negotiated in the early months of 2012 and a final version was signed on 2 March 2012 by 25 Member States with the Czech Republic joining the United Kingdom outside the new arrangement. As per its Article 14(2) it entered into force on 1 January 2013 after ratification by the twelfth Eurozone Member State (Finland).43

THE TREATY ON STABILITY COORDINATION AND GROWTH The Treaty covers both budgetary discipline and the coordination of economic policies with more detailed rules with respect to the former objective. Title III contains rules relating to the fiscal policies of signatory states and contains two substantive rules and one procedural rule. Firstly, parties must keep their annual budgets either balanced or in surplus.44 Secondly, they undertake to maintain their overall debt levels at 60% of GDP or to move towards that target. 45 Article 3(2) TSCG obliges parties to introduce an ‘automatic correction mechanism’ into national law in order to ensure compliance with the balanced budget rule. Such a mechanism is to take the form of ‘provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the budgetary processes.’46 The provisions on economic policy coordination and convergence are contained in Title IV and are, on the

Noonan, Dáil Debates, 2 November 2011, Vol 745 No 2, 279 and Minister for State Lucinda Creighton, Seanad Debates, 8 November 2011, Vol 211 No 4, 321. Such a position is likely to have been influenced by the laborious constitutional and political process surrounding the ratification of new EU Treaties in Ireland, a process that has not always been successfully navigated. 41 See Alex Barker and George Parker, ‘Cameron's use of Treaty Veto leaves Britain an outsider in new Union’ Financial Times (London, 10 December, 2011) 2. 42 Unfortunately technically speaking ‘Fiscal Compact’ refers only to one of the titles of the new Treaty even if in common parlance the Treaty as a whole is often called the ‘Fiscal Compact’. Given the potential for confusion the full name of the Treaty or its acronym (TSCG) will be used here. 43 See http://www.european-council.europa.eu/home-page/highlights/fiscal-compact-enters-intoforce-on-1-january-2013?lang=en (accessed 7 February 2014). 44 TSCG, art 3. 45 Ibid., art 4. 46 Ibid., art 3(2).

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whole, less detailed that those in relation to fiscal policy and are heavily based on Union law. Somewhat vague language commits contracting parties to take necessary actions and measures in all the areas which are essential to the proper functioning of the euro area in pursuit of the objectives of fostering competitiveness, promoting employment, contributing further to the sustainability of public finances and reinforcing financial stability.47 Provision is made for the monitoring and enforcement of the commitments contained in the Treaty by the European Commission and the Court of Justice of the European Union (Court of Justice). Furthermore the TSCG makes reference to an informal institutional arrangement, ‘the Euro Summit’ that has been taking place since 2008. It is composed of the heads of state or Government of states whose currency is the euro and is designed to complement the Eurogroup: the meetings of Ministers of Finance from the Eurozone Member States. Under the TSCG a minimum of two Euro Summits is to take place every year and a President is to be elected. That election is to take place at the same time as the election of the President of the European Council. It is envisaged that the same person shall hold both offices with the implication that the President of the European Council will more than likely always be a person from a Eurozone state.48 The TSCG can only be fully understood as part of the broader legal response to the Euro crisis or, as the Treaty itself puts it, the ‘global strategy to strengthen the economic and monetary Union’.49 It is therefore intimately related to both Union law proper, in particular to provisions in both primary and secondary law on EMU, and the bailout mechanisms, especially the ESM. As befitting an instrument that was originally intended to form part of Union law the TSCG both relies on Union institutions and Union measures 50 and must be interpreted in line with Union law.51 Its provisions are to be monitored by the European Commission and enforced before the Court of Justice. Furthermore recitals to the TSCG contain an explicit hope that its provisions shall be incorporated into the main Union treaties as soon as possible. Finally, in a provision that proved to be contentious in the Irish context, access to any financial programme under the ESM is to be made conditional on a state’s ratification of the TSCG and adherence to its provisions, a provision that is mirrored in the ESM Treaty.52

47

Ibid., art 9. See comments by Anna Hyvärinen in Anna Kocharov (ed), ‘Another Legal Monster? An EUI Debate on the Fiscal Compact Treaty’, 2012 EUI Working Papers LAW 2012/09, 14. Indeed this has been the case in the first (and thus far only) President of the Euro Summit, Mr Herman Van Rompuy was elected in March of 2012. 49 TSCG recitals. 50 Ex under the Fiscal Compact the medium term objective to which national budgets must converge is that which is developed in the context of the Stability and Growth Pact (TSCG, art 3(1)(b)) and the implementing of an excessive deficit procedure against a Member State is to take place under Union law (TSCG, art 5). While under Title IV the coordination of economic policies shall involve the institutions of the European Union as required by European Union law.’ (TSGC, art 11). 51 TSCG, art 2. 52 Mallak v Minister for Justice, Equality and Law Reform [2011] IEHC 306. 48

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While it is an innovative legal solution, drafted and implemented in what was for a European Treaty a remarkably short period of time, the TSCG is not without its critics. Most problematic aspects of the TSCG stem from its extra-EU nature that itself originates in the political difficulties experienced at its creation. Faced with the British veto of what was seen by the German government as a politically important measure, the overwhelming majority of Member States were willing to go outside the normal constitutional framework and negotiate and conclude an international agreement that relates almost exclusively to matters of Union law and relies on Union institutions for both its application and enforcement.53 Three related problems can be identified with this approach: its circumvention of Union law, the resulting fragmentation of Union law and finally the problematic use of Union institutions in non-Union contexts. Firstly, such a procedure circumvents and arguably undermines the constitutional framework of the Union. The Treaties as agreed by all parties contain specific provisions for their revision and even a ‘simplified’ revision requires unanimity amongst the Member States. These are, in the words of Craig, ‘the rules of the game’ as agreed by all players. 54 Unable to fulfil these conditions the majority of states went ahead and concluded a separate treaty amongst themselves, thereby ignoring the spirit if not the letter of the law. Secondly, it opens the door to further fragmentation of Union law. ‘Differentiated integration’ has become somewhat normalised and must at this stage be accepted as a fact of EU legal and political life, particularly in light of the revamped enhanced cooperation provisions contained in the Treaty of Lisbon.55 Nor should this be seen as some grotesque affront to the federalising vocation or legal unity of the Union. Rather enhanced cooperation is reasonably common in federal systems particularly those characterised by a significant degree of legal, political or cultural heterogeneity.56 In the context of the European Union it is seen as a technique that can bypass temporary political blockages in the broader interests of progressing integration.57 Indeed EMU is itself an area in which not all Member States participate. Nonetheless, other instances of enhanced cooperation do take place under the aegis of Union law. They are designed to minimise any negative impact on the legal coherence of the Union and the exclusion of non-participating parties. Opt-outs in EMU and the Area of Freedom, Security and Justice (AFSJ) are regulated by rules established under the Union Treaties and their protocols. Furthermore ad hoc instances of ‘enhanced cooperation’ are provided for by the Treaty and are similarly designed so as to minimise any threats to the overall coherence of the Union legal framework. They maintain rights for those Member States outside the process both in its 53

It should be noted that the object of the TSCG is economic policy, a competence that is shared between Member States and the Union. In light of Pringle (Court of Justice) (n 19) it is likely that coordination by Member States outside the main framework of Union law for a shared competence is permissible under the Treaties. 54 P Craig, ‘The Stability, Coordination and Governance Treaty: Principle, Politics and Pragmatism’ (2012) 37 European Law Review 231. 55 See arts 326-332, TFEU. 56 CM Cantore and G Martinico, ‘Asymmetry or Dis-Integration? A Few Considerations on the New “Treaty on Stability, Coordination and Governance in the Economic and Monetary Union”’ (2013) 19 European Public Law 463, 468. 57 Ibid., 469.

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authorisation, elaboration and eventually in joining the core group. The TSCG by contrast creates what is in practice further integration amongst a core group of Member States entirely outside the framework of Union law and only replicates to a minimal degree the controls and safeguards found in Union law to prevent excessive fragmentation and disintegration.58 At the same time we should be careful not to exaggerate either the novelty or the danger of fragmentation posed by the TSCG. Firstly it is not entirely unknown for a (large) group of Member States to develop further integration in an area closely related to Union law via an international treaty that is later incorporated into the main set of Union Treaties. Indeed the opt-outs currently enjoyed by the UK and Ireland in the AFSJ in part stem directly from such an instance, namely the Schengen Convention. Secondly, EMU itself is already a fragmented area of integration with the United Kingdom already enjoying a derogation from almost all the rules contained in relation to EMU. Finally, as was mentioned above the drafters of the TSCG went to some length to ensure its compatibility with Union law. Finally, while the unorthodox legal techniques of the TSCG and the problems they pose for Union law are important we should not lose sight of the substance of the new Treaty. The substantive rules differ only to a limited extent from those already found in various provisions of primary and secondary law.59 The true innovation of the TSCG is to imbed such rules in national constitutional law. This has the two-fold effect of imposing obligations of a constitutional nature on Member States and more specifically requiring the constitutionalisation of an economic policy, if not orthodoxy. Such an occurrence is not entirely innovative; membership of the Union has not been without constitutional implications and compromises for Member States (not least of all for Ireland)60 while a liberal economic policy of restrained budgets, competitive markets and supply side economics was built into EMU from its inception.61 Furthermore there has been a trend in recent years to insert such rules into national constitutional law. 62 Nonetheless, in explicitly requiring Member States to enact provisions of constitutional law and secondly in adjusting the balance between law and politics in budgetary matters, it is arguable that the TSCG does represent a shift in the current constitutional makeup of European Union and its democratic legitimacy.63 58

Ibid., 475 ff. Perhaps the most significant difference is the lower ceiling of 0.5% for budget deficits provided for in the SGP as opposed to 1% in the SGP. 60 See Editorial, ‘The Fiscal Compact and the European Constitutions: "Europe Speaking German"’ (2012) 8 European Constitutional Law Review 1, 5. 61 Thus the economic policy of the Union is to be ‘conducted in accordance with the principle of an open market economy with free competition’ (Article 119(1) TFEU) and ‘shall entail compliance with the following guiding principles: stable prices, sound public finances and monetary conditions and a sustainable balance of payments’ (Article 119(3) TFEU). 62 In particular Spain and Germany have both introduced constitutional amendments pre-empting the TSCG. 63 ‘The Fiscal Compact, however, strikes at the heart of the institutions of parliamentary democracy by dislocating as a matter of constitutional principle the budgetary autonomy of the member states.’ Editorial, ‘The Fiscal Compact and the European Constitutions: "Europe Speaking German"’ (n 60). 59

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Implementation in Ireland As with most measures relating to the strengthening of EMU Ireland appeared a willing participant in negotiation of the TSCG. One of its key concerns was that the TSGC mirror Union law as closely as possible64 and as a small Member State probably welcomed the role given the European institutions. Ireland sought, and obtained, a provision that the parameters of the existing EU/IMF programme would not be affected by the TSGC.65 Finally, on perhaps the most contentious aspect of the TSCG in Ireland – recital 5 making ratification and implementation of the TSGC a condition for accessing the ESM statements – while the Irish Government did not actively seek its inclusion, Ministers are on record as stating that they did not consider it to be an unreasonable provision believing that budgetary discipline is the necessary quid pro quo for any future aid.66

THE REFERENDUM ON THE TREATY ON STABILITY COORDINATION AND GROWTH On 28 February 2012 following advice received from the Attorney General Máire Whelan and discussed by the Cabinet that morning, the Taoiseach announced in the Dáil that a constitutional referendum would be held on the new Treaty.67 According to newspaper reports and statements of the Taoiseach, ‘on balance’ an amendment to the constitution was advised by the Attorney General in light of its non-EU status. It was assumed by Barrett that this advice likely referred to the fact that the Fiscal Treaty could not be considered a measure necessitated by EU membership within the meaning of Article 29 of Bunreacht na hÉireann and accordingly might be subject to challenge under the

64

Minister for Foreign Affairs and Trade Eamon Gilmore, Dáil Debates, 20 April 2012, Vol 762 No 2, 247. 65 Minister for State at the Department of Foreign Affairs and Trade Joe Costello, Seanad Debates, 23 April 2012, Vol 214 No 14, 884. 66 Thus Minister for Justice and Defence, Alan Shatter queried if ‘it [is] not reasonable for citizens of other EU states to ask if we need additional funding why should we receive it in the absence of bring debt under control and supporting the essential legal architecture being put in place to ensure we do not get into similar difficulties in future?’ Minister for Justice and Defence, Alan Shatter, Dáil Debates, 19 April 2012, Vol 762 No 1, 92-93. Similarly: ‘Some opponents of this treaty try to argue that linking the ESM to the treaty is some form of blackmail. This is fundamentally disingenuous in my view. Let me be very clear about this. Ireland did not seek this link in the negotiations but, if I am asked if it is unreasonable, I say that it is not. It is logical that those who are prepared to offer financial support in time of difficulty should be assured that those receiving it are prepared to run sound and sensible policies.’ Minister for State at the Department of Health Róisín Shorthall, Seanad Debates, 23 April 2012, Vol 214 No 14, 913. Contained as it is in a recital and mirrored in a recital to the ESM Treaty, the legal nature of this condition is questionable. See S Peers, ‘The Stability Treaty: Permanent Austerity or Gesture Politics?’ (2012) 8 European Constitutional Law Review 404, 408. 67 ‘Referendum to be held on Fiscal Treaty’ (RTE News, 2 March 2012) http://www.rte.ie/news/2012/0228/referendum.html accessed 7 February 2014. See also Stephen Collins, ‘Dáil members confounded by news of referendum’ The Irish Times (Dublin, 1 March 2012) 9.

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constitutional provisions relating to sovereignty as interpreted in Crotty.68 The Treaty was specifically drafted to avoid a referendum in Ireland.69 In particular a provision in the initial draft requiring the correction mechanism to be implemented through constitutional means was later modified to ‘preferably constitutional or guaranteed to be respected throughout the budgetary process.’ The decision to hold a referendum therefore came as something of a surprise to many both inside and outside Ireland.70 In the ensuing debate Government parties Fine Gael and Labour and the largest opposition party, Fianna Fáil, supported the Treaty while Sinn Féin, the United Left Alliance (ULA), a number of independent politicians supported by civic organisations opposed it. Arguments in favour of the Fiscal Compact significantly overlapped with the debate on the ESM, itself concentrating on the desirability of budgetary discipline71 and access to ESM funding. A further argument that was frequently raised related to the likely impact of ratification on the investment policies of multinational corporations a reflection of the usual argument that ratification of ‘European’ Treaties is in the interests of the economy.72 Opposition to the Treaty was based on two related grounds; a general opposition to an economic policy of austerity that was seen as being locked in by the Treaty and the allegedly anti-democratic character of the TSGC.73 These arguments were perhaps best expressed by Clare Daly of the ULA who described the TSCG as ‘a fundamental attack on the basic democratic right to elect a Government and have that Government decide on budgetary and economic strategy.’74 In particular she pointed to the balanced budget rule, ‘which effectively ties the hands of future Governments to the same economic policies as this one. In principle we are being wedded to neoliberalism and austerity’ and Article 5 68

G Barrett, ‘Sovereignty clause a likely reason for referendum’ The Irish Times (Dublin, 1 March 2012) 14. See also G Barrett, ‘The Evolving door to Europe: Reflections on an eventful forty years for Article 29.4 of the Irish Constitution’ (2012) 48 Irish Jurist 132, 169. 69 See ‘Questions on the new treaty loom large for the coalition’ Sunday Business Post (Dublin, 26 February 2012) Home. 70 Collins, ‘Dáil members confounded by news of referendum’ (n 67) and Stephen Collins, Harry McGee and Derek Scally, ‘Decision to hold referendum surprises many accross EU’ The Irish Times (Dublin, 29 February 2012) 1. 71 Some members hoped that it would put an end to ‘auction politics’, see ex Mary Mitchell O’Connor, Dáil Debates, 19 April 2012, Vol 762 No 1, 101. 72 ‘Mr. O’Neill the managing director of IBM Ireland, speaking on behalf of the US multinationals in Ireland said a “Yes” vote will promote stability, investment and growth in the economy. By voting “Yes” we will maintain our position as an attractive location for investment, continue to put in place the necessary economic and budgetary reforms and preserve our strategically important place in Europe’, Senator Mary White, Seanad Debates, 23 April 2012, Vol 214 No 14, 886. Similarly see the contribution of Dan Neville TD, ‘This is a treaty on stability and is about ensuring a stable currency for Ireland; ensuring a stable euro. It is about confidence abroad and maintaining and enhancing the influence which we have built up with many investors. We have seen progress in that area in recent weeks and month in international companies looking to invest in the country…’, Dáil Debates, 19 April 2012, Vol 762 No 1, 107. 73 See in particular the contribution of the Sinn Féin spokesperson Padraig Mac Lochlain TD, Dáil Debates, 19 April 2012, Vol 762 No 1, 101 ff. 74 Ibid., 109.

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of the TSGC, described by Deputy Daly as a ‘mechanism for countries to be effectively placed into administration.’75 In response, the Minister for Foreign Affairs and Trade, Eamonn Gilmore pointed to Articles 12 and 13 of the TSGC providing for involvement of the European Parliament and national parliaments76 provisions that were described by Richard Boyd Barrett TD, a colleague of Deputy Daly in the ULA, as ‘a democratic fig leaf.’77 Concerns regarding the potential social implications of the Treaty were also raised by commentators during the campaign.78 Some limited discussion in the Oireachtas related to the nature of the legal techniques being employed to implement the Treaty in Irish law. Mirroring similar debates that took place in relation to Article 29.4.10° granting European law constitutional immunity,79 Catherine Murphy TD sought the removal of the so-called ‘necessitated’ clause80 arguing that the TSGC was an ordinary international agreement that did not warrant such constitutional immunity. Indeed, the reasoning behind inclusion of this clause was not elaborated upon at length by the government, bar statements that it was on foot of advice of the Attorney General. Minister of State at the Department of Foreign Affairs and Trade, Joe Costello TD did suggest that it would at least cover the Fiscal Responsibility Bill (now the Fiscal Responsibility Act 2012) discussed further below.81 Despite some fluctuations in polling data support for the Treaty remained relatively high at 60%.82 On 31 May 2012 the referendum was passed by a majority of 60% of the votes cast. 83 The Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Act 2012 was

75

Ibid., 109-110. Ibid., 250. 77 Ibid., 251. 78 See Vincent Browne, ‘Fiscal Treaty will increase gap between rich and poor’ Irish Times (Dublin, 4 April 2012) 14 and Patrick Kinsella, ‘Treaty is a social, political and economic threat’ Irish Times (Dublin, 24 May 2012) 14. 79 See Elaine Fahey, EU Law in Ireland (Dublin, Clarus Press, 2010), 46. 80 Namely that ‘no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State’. 81 ‘The second sentence of the amendment is intended simply to facilitate the introduction of legislation in accordance with the treaty, namely the laws we will design such as the fiscal responsibility Bill.’ Minister of State, Joe Costello TD, Seanad Debates, 24 April 2012, Vol 214 No 15, 960. Given the Act is also designed to implement Directive 2011/85/EU, a piece of ordinary Union legislation, it is arguable that it already enjoys constitutional immunity under Article 29.4.10° Bunreacht na hÉireann. 82 ‘How the Yes was Won’ Sunday Business Post (Dublin, 3 June 2012). Thus ‘[i]n the long contest between fear and anger, fear was the winner. Fear of the consequences of a No vote won the day for the Yes campaign – fear for the future of the euro, fear about voters’ own circumstances and fear – above all – that the country would be cut off from future funding proved decisive in the end.’ ‘When fear outgunned anger’ Sunday Business Post (Dublin, 3 June 2012). 83 ‘Ireland passes fiscal treaty referendum by 60.3% to 39.7%’ (RTE News, 26 July 2012) http://www.rte.ie/news/2012/0601/fiscal-treaty-referendum-count-to-begin.html accessed 7 February 2014. 76

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enacted on 27 July 2012 and inserted a new section 10 into Article 29 of Bunreacht na hÉireann: 10. The State may ratify the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State. It will be noted that Article 29.10 achieves three things. Firstly it allows the state to ratify the TSCG, secondly it grants immunity to any measures of the state necessitated by its obligations under the TSCG and finally grants immunity to any measures adopted by bodies competent under the TSCG.84 It does not incorporate either the TSCG or more specifically the balanced budget rule into Bunreacht na hÉireann.

THE FISCAL RESPONSIBILITY ACT 2012 Instead the balanced budget rule contained in Article 3(2) TSGC is implemented in Ireland through the Fiscal Responsibility Act 2012, in particular its sections 3 and 4. It is an ordinary piece of legislation and can be repealed or amended by the Oireachtas (Parliament) at any time according to the ordinary legislative process. The Government does appear to be of the view that it will enjoy immunity from constitutional challenge per the second clause of Article 29.10 of the constitution.85 However, it is far from certain that particular piece of legal engineering complies with the requirement of the TSCG that the balanced budget rule be contained in ‘provisions of binding force and permanent character, preferably constitutional or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes’, 86 a provision that implies the need for some sort of quasi-constitutional or organic law. The Fiscal Responsibility Act 2012 also serves to implement Directive 2011/85/EU and contains two fiscal rules effectively mirroring the requirements of Articles 3 and 4 of the TSCG. 87 Firstly, a budgetary rule requires the Government to either maintain its budgetary position in balance or surplus (the ‘budget condition’)88 or to ensure that the annual structural general government balance is converging towards the medium term 84

Thus it is analogous to Article 29.4.6° dealing with European Treaties see Barrett, ‘The Evolving door to Europe: Reflections on an eventful forty years for Article 29.4 of the Irish Constitution’ (n 69), 132-133. Given the lack of any new institutional framework, bar the informal and consultative Eurosummit, Article 29.10 does not refer to institutions established under or of the TSCG but rather those competences under the TSCG. ie the European Commission and the European Court of Justice. 85 See comments by Minister of State at the Department of Foreign Affairs and Trade, Joe Costello TD, Seanad Debates, 24 April 2012, Vol 214 No 15. 86 TSCG art 3(2). 87 The Fiscal Responsibility Act was described as implementing the requirements of the Fiscal Compact. However its provisions equally implement Directive 2011/85/EU. 88 Fiscal Responsability Act 2012 s 3(2).

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budgetary framework as set out in accordance with the Regulation 1467/97/EC as amended (Excessive Deficit Regulation) (the ‘adjustment condition’).89 Secondly, a debt rule applies when the government debt to GDP ration exceeds 60% and requires that the ratio be reduced in accordance with the Excessive Deficit Regulation. 90 Finally, provisions for the medium term budgetary framework contained in both Directive 2011/85/EU and the TSCG are contained in the Ministers and Secretaries (Amendment) Act 2013.91 In addition to introducing the fiscal rules, the Fiscal Responsibility Act 2012 also placed the Irish Fiscal Advisory Council (IFAC), established in June of 2011, on a statutory footing. 92 The IFAC was established as part of a reform of Irish budgetary procedures under the EU-IMF programme of financial assistance and the establishment of such an institution is also a requirement of Directive 2011/85/EU.93 The Council is composed of five members of national or international standing for terms of four years. Its independence is assured by a fixed budget of €800,000 provided for by statute and index linked to inflation. Independence is also guaranteed by security of tenure. Removal shall be for stated reasons of incapacity or stated misbehaviour and shall only take place upon a resolution of the Dáil (lower house of parliament). Its main functions are to conduct and publish periodic reviews of official economic forecasts, Government budgetary policies and of Government compliance with the fiscal rules contained in the Fiscal Responsibility Act 2012.94 It is likely that direct responsibility for macro-economic forecasting will be transferred to the IFAC under the forthcoming ‘Two-pack’ legislation.95

SECTION TWO – POLICY AREAS

89

Ibid., s 3(3). Ibid., s 4. 91 The Ministers and Secretaries (Amendment) Act 2013 amends s 17 of the Ministers and Secretaries (Amendment) Act 2011. Under the new s 17 the Government, upon a proposal of the Minister for Finance, shall make an annual decision fixing the upper limit of government expenditure for the subsequent three years, broken down per year. At the same time annual expenditure ceilings will be provided for individual departments. 92 Fiscal Responsability Act 2012, pt 3. 93 Directive (EU) 2011/85 on requirements for budgetary frameworks of the Member States [2011] OJ L 306/41, art 4(5). 94 Fiscal Responsability Act 2012, s 8. 95 Regulation 472/2013/EU on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability [2013] OJ L 140/1 and Regulation 473/2013/EU on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro Area [2013] OJ L 140/11. In relation to the role of the IFAC in macro-economic forecasting see comments by Aidan Carrigan, Department of Finance Official, Joint Committee on Finance, Public Expenditure and Reform, Six Month EU Scrutiny Report: Discussion with Department of Finance, 9 May 2013, 10. 90

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The second half of this report moves away from the historic drama of the Euro crisis and concentrates on the development of substantive areas of Union law within the Irish legal order. In doing so it has focused on a number of key areas that saw the most legislative and judicial development, namely criminal law, asylum, citizenship and environmental law. While there has been little in the way of legislation, the case law of the Court of Justice and the Supreme Court highlights the sometimes deeply problematic implementation of Union law in Ireland, not least of all the European Arrest Warrant and international protection procedures with potentially severe consequences for the fundamental rights of the most vulnerable.

CRIMINAL LAW On the legislative side 2012 saw the adoption of some important legislative instruments in the area of criminal law including legislation at a Union level and implementing legislation in Ireland. While the core area of mutual recognition of judicial decisions and in particular the ‘flagship’ measure of the European Arrest Warrant still figured prominently in the case law of the Supreme Court, other legislative provisions reflected a shift in focus in EU criminal law cooperation towards rights for individuals and placing judicial cooperation and the underlying mutual trust on a more secure legal basis. At a Union level two measures on the rights of the accused or suspects and victims were adopted. Both can be seen as part of a general pattern shifting the focus of European criminal law away from cooperation between prosecuting and judicial authorities and towards the needs of the individual.96 Ireland, alongside the United Kingdom, opted into both measures.97 Directive 2012/13/EU on the right to information in criminal proceedings 98 was adopted on 22 May 2012 and has 5 June 2014 as a deadline for transposition.99 The directive obliges Member States to provide individuals accused or suspected of having committed crimes with information regarding their rights. The Directive does not therefore harmonise procedural rights, although a number of core procedural rights are explicitly referred to, implying recognition of an existing basic level of de facto harmonisation. 100 Instead, it obliges Member States to inform accused individuals or suspects of their rights and outlines the minimum information to which individuals are entitled in order to ensure an adequate defence. Regarding the former obligation Member

96

See V Mitsilegas, ‘The Limits of Mutual Trust in Europe's Area of Freedom, Security and Justice: From Automatic Inter-State Cooperation to the Slow Emergence of the Individual’ (2012) 31 Yearbook of European Law 319. 97 See recital 44 Directive 2012/13/EU on the right to information in criminal proceedings [2013] OJ L 142/1 and recital 70 Directive 2012/29/EU establishing minimum standards on the rights, support and proction of victims of crime and replacing Council Framework Decision 2001/220/JHA [2012] OJ L 315/57 (Directive on Victims’ Rights). 98 Directive 2012/13/EU on the right to information in criminal proceedings [2013] OJ L 142/1. 99 Ibid., art 11. 100 Ex the right of access to a lawyer and the right to remain silent (art 3).

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States are obliged to inform individuals about their rights at both the time of arrest101 and furnish them with a written ‘Letter of Rights’ outlining basic procedural rights. 102 Additionally, the Directive creates rights to be informed of all the circumstances of the crime and to have access to all the materials of the case in possession of the authorities.103 As is evident from its recitals the Directive has an instrumental quality and is part of a wider effort to create or ensure ‘mutual trust’ between jurisdictions, thereby removing any potential obstacles to greater transnational judicial cooperation.104 As required by measures adopted on the basis of Article 83(1) TFEU, harmonisation is of a minimal nature. Having said that, the directive does prevent Member States from using the opportunity of transposition to lower standards by the inclusion of a ‘non-regression’ clause.105 Finally, in a somewhat unusual reference, the recitals provide that transposition of the Directive need not necessarily take the form of legislation or even regulatory measures but that administrative or police practice may in fact be sufficient to implement at least certain elements of the directive. In principle a directive indicates the policy to be adopted and leaves the nature and form of its implementation to the discretion of Member States and indicating the form of national law required or otherwise to implement such legislation is somewhat unusual. Regardless of the recitals, it is safe to say that Member States will still be obliged to ensure that their transposition of the rights provided for in the Directive comply with the principle of effectiveness. Any transposition by ‘administrative practice’ will therefore likely have to be a properly developed, implemented and monitored policy. Moving from individuals accused of committing crimes, Directive 2012/29/EU deals with the rights of victims of crimes. It should probably be read as ‘immediate victim’ of crime with the ratio personae of the directive being limited to natural persons who have suffered harm, be it physical, mental, emotional or economic, as the direct result of a criminal offence and, in the case of homicides, the immediate family of the deceased.106 It is intended to harmonise the rights of victims before, during and after the trial, primarily in the field of victim support, rights to information, the provision of restorative justice and in laying down principles regarding the treatment of victims by authorities. As such it does not alter or change the role of the victim in the criminal justice process as indeed is indicated by the numerous instances of the formula ‘in accordance with the role of the victim in the criminal justice system’.107 There is however a right to be heard during the procedure and provide evidence108 and a right to challenge a decision not to prosecute

101

Directive 2012/13/EU on the right to information in criminal proceedings [2013] OJ L 142/1, art 3. 102 Ibid., art 4. 103 Ibid., art 7. There are some limited derogations relating to the possibility of prejudicing legal proceedings, endangering the rights or safety of others or questions of national security. 104 Ibid., recitals 1–4. 105 Ibid., art 10. 106 Directive on Victims' Rights (n 97), art 2 (1). 107 Ibid., art 6(2) and art 7(3). 108 Ibid., art 10. Note that art 10(2) provides that ‘the procedural rules under which victims may be heard during criminal proceedings and may provide evidence shall be determined by national law’.

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(although this does not cover settlements or plea bargains).109 Of interest is the particular care that seems to have been taken for victims finding themselves resident in another state than that in which the case is being prosecuted; a sign of the transnational vocation of EU criminal cooperation and an effort to protect the position of the mobile citizen.110 Finally, as is appropriate in a directive dealing with the rights of victims, particular care also appears to have been taken to take into account to support especially vulnerable victims such as children, victims of domestic violence or gender specific crimes.111 At a national level Ireland passed two pieces of legislation in the area of criminal law and a number of statutory instruments designed to implement financial sanctions in the context of anti-terrorist measures adopted at by the European Union.112 The European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 was presented before the Dáil on 8 August 2011, was passed by the Dáil and the Seanad on 5 July 2012 and 18 July 2012 respectively and received the signature of the President on 24 July 2012. The 2012 Act has a number of aims. Firstly, it allows the EAW system to be applied between Ireland and a third country by order of the Minister for Justice. This will occur only after a subsequent decision at Union level that will presuppose a high level of trust between the EU and the non-EU jurisdiction. Secondly, the Act amends provisions in domestic legislation in relation to detention periods, both in respect of consensual and non-consensual surrender and to avoid potential practical problems in relation to excessively strict or tight deadlines. As a technical matter the Act deletes a number of references to the Framework Decision establishing the EAW, in order to underline the fact that the Framework Decision itself does not have direct effect in Irish law. While Framework Decisions do not and never have enjoyed direct effect under Union law national courts are still under an obligation to interpret national law in so far as possible in conformity with their provisions, the principle of conform interpretation.113 This duty will remain despite the elimination of explicit references to the Framework Decision in the EAW Act. Finally, and most importantly, the Act implements Framework Decision 2009/229/JHA on in absentia trials114 a contentious issue under the legal system of a

109

Ibid., art 11(1). See Ibid., art 7 on the right to interpretation and translation and art 17 on the rights of victims resident in another Member State. 111 See generally Ibid., Ch 4. 112 Criminal Justice (Terrorist Offences) Act 2005 (Section 42(2)) (Counter Terrorism) (Financial Sanctions) (No 2) Regulations 2012 SI 2012/18, Criminal Justice (Terrorist Offences) Act 2005 (Section 42(6)) (Counter Terrorism) (Financial Sanctions) (No 2) Regulations 2012 SI 2012/19, Criminal Justice (Terrorist Offences) Act 2005 (Section 42(2)) (Counter Terrorism) (Financial Sanctions) (No 2) Regulations 2012 SI 2012/427 and Criminal Justice (Terrorist Offences) Act 2005 (Section 42(6)) (Counter Terrorism) (Financial Sanctions) (No 2) Regulations 2012 SI 2012/428. 113 Case C-105/03 Maria Pupino [2005] ECR I-5309. 114 Council Framework Decision 2009/299/JHA amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L 81/24. Incidentally according to its art 8(1) the transposition deadline for the 110

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number of Member States.115 The amending Framework Decision and the implementing legislation in Ireland establish the principle that a person shall not be surrendered to serve a sentence handing down in the case of an in absentia trial. However a number of exceptions are provided for that should in practice limit significantly the instances of such a refusal. Member States may not refuse surrender where an individual was either informed of or represented in the original trial.116 Similarly surrender may not be refused where he or she has a right to a retrial or has waived such a right.117 The second major piece of legislation of European origin adopted by the Oireachtas in 2012 in the area of criminal law was the Europol Act 2012 implementing Council Decision 2009/371/JHA118 replacing and repealing the Europol Act 1997. Europol was established by a convention adopted in 1995 that entered into force in 1999 and was subsequently supplemented by various protocols. The Council Decision codifies and rationalises the convention and protocols and established Europol as a distinct body under Union law and subject to EU procedures including budgetary procedures thereby ensuring greater accountability before the European Parliament, a matter of concern as greater cooperation in police matters at a supranational risks bypassing national democratic controls. 119 Europol’s main tasks are the sharing of information and the coordination (including requesting the initiation) of investigations in the areas of ‘serious’ organised crime and those whose investigation requires, or would benefit from, crossborder cooperation.120 The Europol Act 2009 provides for the creation of the Europol National Authority under the ultimate control of the Garda Commissioner (although personnel from other government entities may be appointed, in particular the Revenue Commissioners) and for the secondment of Irish representatives to the Europol office in The Hague. It also lays out rules regarding the sharing and protection of information in the context of the Europol Information System (EIS) and the responsibility of the Data Protection Commissioner in this regard. The European Arrest Warrant once again produced an impressive amount of case law before the Irish courts in 2012. Rather than dealing exhaustively with all cases in which Framework Decision was 28 March 2011, meaning Ireland was technically in breach of its obligations for over a year. 115 See Case C-399/11 Stefano Melloni v Ministerio Fiscal (Court of Justice, 26 February 2013) on the application of a principle of Spanish constitutional law prohibiting extradition or surrender in the case of in absentia trials. 116 Council Framework Decision on the European arrest warrant and the surrender procedures between Member States [2002] OJ L 190/1 as amended by Framework Decision 2009/299/JHA, art 4(a)(1)(a) and (b) and European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, s 23 amending s 45 of the European Arrest Warrant Act 2003. 117 EAW Framework Decision (Consolidated), art 4(a)(1)(c) and (d) and European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, s 23 amending s 45 of the European Arrest Warrant Act 2003. 118 Council Decision 2009/371/JHA establishing the European Police Office (Europol) [2009] OJ L 121/37. 119 See generally Valsamis Mitsilegas, EU Criminal Law (Oxford, Hart Publishing, 2009) at Ch 4. 120 For a general account of Europol see Steve Peers, EU Justice and Home Affairs Law (3rd edition, OUP, 2011), pp 930-34.

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the instrument was at issue, the following will concentrate on significant High and Supreme Court decisions.

THE EAW BEFORE THE HIGH C OURT Relying on recital 12 of the EAW Framework Decision the Irish implementing legislation, the European Arrest Warrant Act 2003, contains a section 37 refusing surrender if it would involve the breach of an individual’s fundamental rights under the European Convention on Human Rights (ECHR) or the Irish Constitution. Whether recital 12 actual creates a grounds of refusal on the basis of fundamental rights concerns, in addition to those stipulated in Article 4 of the Framework Decision, is a matter of contention and the Court of Justice would appear to recently have rejected such a reading of the recital. 121 In relation to the Irish provision the Commission has noted that the broad sweep of section 37 is wider than comparable provisions in other Member States and has voiced concerns that it goes beyond the text of the Framework Decision and is likely to constitute an incorrect implementation.122 However, given the fact that the Commission is barred from bringing infringement proceedings in relation to Framework Decisions and the Irish Courts are similarly prevented from making a preliminary reference due to the failure of the Irish State to make a declaration to that effect, there has been no actual finding that section 37 breaches the terms of the Framework Decision. The Government has tempered somewhat the potentially broad sweep of section 37 by inserting a new provision, section 4A, providing for a presumption that other Member States compliance with the Framework Decision.123 Interestingly in Attorney General v O’Gara124 Edwards J applied an analogous, if differently operating, presumption to normal extradition agreements finding that an extradition agreement with a particular state raised a presumption that it in fact complied with fundamental rights as established in the constitution and the ECHR. Exporting, in a significantly modified form, the presumption of fundamental rights compliance found in section 4A of the 2003 Act to extradition agreements generally Edwards J cited the Supreme Court decisions in Stapleton125 (an EAW decision) and found that: the making of bilateral extradition arrangements implies at least some level of mutual political trust and, at the judicial level, confidence in the legal systems of the co-operating states. However in conventional extradition cases the presumption is much weaker and is much more easily rebutted than is the presumption that arises under the European arrest warrant system. This is because the whole European arrest warrant system is built and predicated upon

121

See Melloni (n 115). Fahey, EU Law in Ireland (n 79), 110. 123 Criminal Justice (Terrorist Offences) Act 2005, s 69. Although it should be noted that in its judgments the Supreme Court had already reduced the significance of s 37 as a grounds to refuse surrender. See Fahey, EU Law in Ireland (n 79), 110-12. 124 Attorney General v O'Gara [2012] IEHC 179. 125 Minister for Justice, Equality and Law Reform v Stapleton [2008] 1 IR 669. 122

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the notions of mutual trust and confidence between member states, and mutual recognition of judicial decisions.126 In O’Gara the respondent, wanted for prosecution in New York for armed bank robbery, sought to establish a potential breach of his rights to protection from torture and inhumane treatment under the Constitution and Article 3 ECHR by virtue of the conditions of US prisons and in particular the incidence of sexual assault including rape. While successful in rebutting the presumption that the US actually complied with fundamental rights in this regard and thus putting the Court on notice, he was unable to provide proof of a real and existing threat that he would in fact be subject to treatment that would amount to a breach of Article 3 ECHR. The question of prison conditions and their potential for constituting a breach of Article 3 ECHR was again raised in the case of Minister for Justice and Equality v Rajki127 this time in the context of an EAW issued from Hungary. As with O’Gara however the respondent was unable to establish a real risk that his rights under Article 3 ECHR would be breached in the event of surrender. While the outcome in the two cases is the same. the consideration of the evidence and the reasoning of the Court are strikingly different. In O’Gara the respondent submitted a report by a criminologist based in the US on prison conditions there who in turn cited a large volume of literature on the subject, all of a general nature. The Court engaged in a lengthy and thorough review of all the expert and scholarly evidence adduced by the respondent in an effort to establish the risk of inhumane treatment in a US prison, filtering out irrelevant studies and subjecting the remainder to a detailed critique relying on social scientific methodologies. In Rajki on the other hand, the evidence was arguably more specific, up to date and authoritative. In particular, reference was made to two recent European Court of Human Rights (ECrtHR) cases finding a breach of Article 3 ECHR due to conditions in Hungarian prisons, in particular over crowding. Nonetheless, the treatment of the ECrtHR cases and other evidence by the High Court was cursory in nature stating that the evidence was not of a sufficient ‘cogency’ to establish a real risk, in particular in relation to the ‘present day situation’ a perspective that was mandated by s 37 of the 2003 Act, which was ‘forward looking’ in nature. While never explicitly framed as such, the difference in how the presumption of compliance operates in EAW cases and non-EAW cases can explain this markedly different treatment. General academic evidence, some of which was poorly referenced, anecdotal and very much out of date was subjected to a rigorous treatment by Court and deemed sufficient to rebut the presumption that an individual’s Article 3 rights were not threatened in a US prison. On the other hand recent judgments of the ECHR on precisely the question of Hungarian prison conditions and Article 3 ECHR rights, 128 personal testimony of the respondent and statements by the Hungarian Prison Service itself 126

Attorney General v O'Gara (n 124) , para 10.3. Minister for Justice Equality v Rajki [2012] IEHC 270. 128 Deemed to have an evidential quality by the Court of Justice in the analogous operation of the Dublin system of asylum applicant transfer in Joined Cases C-411/10 and C-493/10 NS v Secretary of State for the Home Dept (Court of Justice 21 December 2011). See Coutts, ‘Ireland and the European Union 2011’ (n 5). 127

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regarding over crowding, were not deemed sufficient to rebut the presumption contained in s 4 A, particularly in light of the ‘forward looking nature’ of s 37. In a separate but related matter Edwards J accepted the effective existence of a ‘proportionality’ exception to the EAW system as it operates in Ireland thereby confirming Minister for Justice, Equality and Law Reform v O’Gorman.129 In Minister for Justice and Law Reform v Ostrowski (No. 2)130 Edwards J distinguished between a proportionality review of the EAW, a decision of the issuing state, and a review of the decision to surrender, a decision of the executing state, in this case Ireland. While it would be inappropriate in light of the nature and purpose of the EAW system and in particular the principle of mutual confidence to review the proportionality of the issuing state’s decision, there was a political duty and a legal duty, based on the general principle of proportionality in EU law,131 on the Court to review the proportionality of the decision to surrender. He based this finding on a review of cases from England and Germany and the 2007 implementation report of the European Commission that noted the general consensus in the European Council on the desirability to apply a proportionality assessment when issuing an EAW. Relying on a decision of a German Court in particular, Edwards J mentioned the following factors to be taken into account in favour of refusing surrender: the deprivation of liberty, both that which had already occurred and likely future deprivation; the fact that the applicant had been lulled into ‘a false sense of security’ by the actions and delays of authorities and the consequential greater stress; the burden on him and his family; the expenses that would incurred by both the respondent, his family and the two states involved and finally the breach of his right to family life that would inevitably occur. Balanced against these various considerations of the individual’s interest was the significant public interest in the right of the issuing state to prosecute crimes. Overshadowing the entire judgment was the de minimis question. The respondent was being prosecuted for possession of a mere 0.75g of cannabis, had conducted himself in an exemplary fashion and had cooperated fully at all times with the authorities. He had, in the words of his counsel, come to the case with completely clean hands. Accordingly, while the offence carried with it a maximum of not less that 12 months and therefore met the threshold established by the Framework Decision, it was highly unlikely he would in fact receive any custodial sentence. Edwards J rejected any general de minimis exception pointing out that it was already provided for in the Framework Decision and it would be inappropriate for the High Court to speculate on the likely sentence that would be awarded by a foreign court. At the same time the minor nature of the crime does, perhaps inevitably, feed into the general proportionality analysis. In assessing the seriousness of the deprivation of liberty already and likely to be suffered by the respondent the Court noted that this was in light of the fact that ‘it is inherently unlikely that the respondent will receive a custodial sentenced if returned’.132 Furthermore, in assessing the breach of 129

Minister for Justice, Equality and Law Reform v O'Gorman [2010] 3 IR 583. Minister for Justice v Ostrowski [2012] IEHC 57. 131 ‘Perhaps more importantly it is also a legal obligation because the Framework Decision creating the European arrest warrant is part of the whole corpus of EU law, in application of which member states must have regard to the core principles of proportionality and subsidiarity.’ Ibid., section 7. 132 Ibid., section 7. 130

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his right to a family life Edwards J noted that while in normal extradition proceeds such a breach could be considered proportionate in the circumstances ‘this case has unusual features, and is arguably in a different category, in as much as the Court accepts that he is unlikely to receive a custodial sentence if returned to Poland and also that he is not a fugitive in the usual sense of that term.’ 133 Finally, the report of the European Commission identifies precisely the fact of the issuance of EAWs for trivial or minor offences and the consequential undermining of mutual confidence as a reason for the application of a proportionality assessment, confirming that the role the minor or trivial nature of an offence might play in a proportionality assessment in this area. The confirmation of the ‘proportionality’ exception in Irish EAW law is noteworthy. It should be borne in mind that while the judgment in Ostrowski is at pains to stress the exceptional nature of the circumstances, it is undeniable that the justification and use of a proportionality review is its defining feature. It is fair to say that it does establish or confirm the existence of such a test. A proportionality review has some merit, it allows judges to exercise an element of discretion and take note of particular circumstances of a case. It therefore might avoid some of the more egregious effects that may arise from the automatic nature of cooperation between national authorities envisaged by the EAW decision and result in more just and equitable outcomes.134 At the same time it should be noted that the Court of Justice has found that the list of exceptions provided by the Framework Decision is exhaustive135 and such a list does not include refusal on the basis of proportionality, a fact noted by the Commission.136 Nonetheless, such a rule is being applied by a number of jurisdictions, as noted by the High Court, and certainly seems to be advocated by the Commission and academics.

Bailey Minister for Equality, Law Reform v Bailey was the first of two high profile EAW cases dealt with by the Supreme Court in 2012.137 The case centred on the investigation of Mr Bailey, a British journalist for the murder of a French citizen, Mme Sophie Toscan du Plantier in West Cork in 1996. Despite repeated Gardaí enquiries in 1997 the DPP declined to prosecute Mr Bailey on the ground of insufficient evidence and repeated that decision on a number of occasions. France exercises extra-territorial jurisdiction for serious offences committed against its nationals and subsequently issued a European 133

Ibid. This is particularly in the case of EAWs issued by states operating a system with reduced prosecutorial discretion regarding the commencement of proceedings that may result in the issuance of EAWs for very minor offences. In such cases the burdens both in terms of detention, administration and financial expenses incurred by various parties in surrender proceedings may indeed by unjustified by the prosecution of such a minor offence. 135 Case C-261/09 Gaetano Mantello [2010] ECR I-11477, para 37. 136 Hence its request in the report that proportionality be applied where discretion does exist ie for the issuing state when deciding to issue an EAW, rather than as a grounds of refusing an already issued EAW. See Report from the Commission on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States COM(2011) 175 final, 7-8. 137 Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16. 134

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Arrest Warrant for the surrender of Mr Bailey in order for him to appear before the juge d’instruction as part of the preliminary phase d’instruction of a criminal trial under French law. Peart J in the High Court ordered Mr Bailey’s surrender, a decision that was appealed to the Supreme Court. Four issues were raised. Firstly whether the extra-territorial nature of the French offence precluded surrender; secondly, whether in fact a decision had been made to charge and try Mr Bailey in accordance with the EAW Act; thirdly, whether the decision of the DPP not to proceed with prosecution was relevant and finally whether, given irregularities in the investigation, surrender was prohibited on fundamental rights grounds, in particular an abuse of process. At the request of the state, the Court agreed to consider the final issue only if surrender was not prevented under any of the first three grounds. Furthermore, the third issue, on the legal effect of the DPP’s decision to prosecute was dealt with relatively quickly. Given the fact that there was no specific ‘right not to be surrendered’, the DPP’s decision not to prosecute did not created any vested rights on behalf of Mr Bailey that survived the repeal of the provision that would have prevented his surrender. Most discussion centred on the remaining two grounds ie the extra-territorial issue and the issue relating to the decision, or lack thereof, on the part of the French authorities, to charge and try Mr Bailey. A majority found in favour of Mr Bailey in relation to the first ground. While Ireland had not implemented the ‘opt-out’ contained in article 4(7)(a) of the Framework Decision relating to offences committed in whole or in part on the territory of the executing state, it had implemented part (b) of that section, allowing a Member State to refuse surrender for extra-territorial offences, where it did not prosecute in similar situations. While criticising the convoluted and confusing nature of the relevant Irish provision, section 44 of the EAW Act, a majority found, following the Framework Decision itself, that the provision was based on the notion of reciprocity. Furthermore, it required reciprocity not simply in relation to the category of offence, i.e. murder, but also in relation to the basis that jurisdiction was exercised. In this case France exercised extra-territorial jurisdiction where the victim was of French nationality (sometimes called passive extra-territorial jurisdiction). Ireland, conversely, only exercises extra-territorial jurisdiction for murder where the suspect or offender is Irish (active extra-territorial jurisdiction). Accordingly, Ireland did not exercise extra-territorial jurisdiction for the same offence and surrender was refused on this ground. O’Donnell J was the sole dissenter on this matter arguing that reciprocity was not an underlying principle of the Framework Decision and in any case reciprocity in extradition or surrender matters referred not to reciprocity of the offences but reciprocity of conditions of extradition or surrender. According to O’Donnell J what the majority were proposing was in fact the reintroduction of the principle of double criminality in the specific area of extra-territorial offences, whereas the main innovation of the Framework Decision was precisely the abolition of double criminality. Instead, he proposed an interpretation of article 4(7)(b) and section 44 that would prevent surrender only where the offence in general was not prosecuted extra-territorially by the executing state, and did not require absolute identity in terms of the basis of jurisdiction. Mr Bailey also succeeded on the basis of section 21A of the EAW Act, prohibiting surrender if it was proved that no decision had been taken to charge and try the individual in question. As was revealed in expert evidence submitted rather late in the trial, further

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investigations by the juge d’instruction would be carried out. Unlike the situation in Olsen138 where the investigatory stage of the proceedings had been completed and the presence of the accused was necessary in order for the case to proceed to the next stage (what might be termed trial) in Bailey, as was made clear by submissions by the French state prosecutor, the procedure had reached the stage where Mr Bailey could be said to have been charged, but not necessarily tried (mis en examen). This evidence in the words of Hardiman J took ‘the ground from under the Minister’s case as it was argued.’ While the interpretation of section 21A in Olsen and Bailey is strikingly different, the end result is the same. Olsen displayed a rather broad, purposive and flexible approach to accommodate sometimes radical divergences in criminal proceedings in the EAW system. On the other hand, the judgments in Bailey focus very much on the narrow phrase ‘to charge and try’, and applies an interpretation of those words in the light of the Irish legal system. Nonetheless the two cases find common ground on the fact that section 21A was designed to prevent surrender of individuals for the sole purpose of investigation or further questioning. Two comments can be made in relation to the EU law in Ireland following Bailey. In relation to the question of conforming interpretation, Fennelly and O’Donnell JJ in particular differed somewhat in their understanding of what the principle implied for the interpretation of national provisions implementing ‘opt outs’, in this case the option for Member States to refuse to surrender individuals where they themselves do not exercise extra-territorial jurisdiction for the same offence. According to Fennelly J the principle did in fact apply to ‘opt-outs’ and the ‘conforming interpretation’ was to be made in relation to the specific provision that the opt-out was implementing, here article 4(7)(b) of the EAW Framework Decision that was itself derived from a principle of reciprocity. O’Donnell on the other hand, while agreeing that the national provision was to be interpreted in relation to the specific EU provision and that furthermore that a purposive interpretation was to be applied to the interpretation of article 4(7)(b), ‘to understand the purpose of Article 4(7)(b) it is necessary to set out its context, which is the Framework Decision as a whole and to acknowledge that in this case, the thrust of that decision was to significantly increase cooperation on extradition matters, by removing technical objections to surrender where there was a broad consensus as to the nature of the many well known offences.’139 Thus both agreed that a conforming interpretation was to be applied to implemented opt-outs and that this was to be a purposive interpretation. Where they differed was in how to identify that very purpose, by reference to the specific provision or the degree to which they were willing to read the opt-out in the context of the legislation as a whole. Also of interest is reference made to the implementing acts of other Member States in applying the principle of conforming interpretation. Thus it seems legitimate for Courts to draw not only on the ‘parent’ directive but also on corresponding implementation measures by other Member States. Fennelly J refers to the UK act extensively and Hardiman J refers to the French legislation. Thus ‘it may be useful… to consider how the Framework Decision including Article 4.7 has been transposed into the law of another Member State.’ This extends to the interpretation of specific provisions that are ‘enacted 138 139

Minister for Justice, Equality and Law Reform v Olsson [2011] IESC 1. Bailey (Supreme Court) (n 137), O’Donnell J, para 51.

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to the same end’. Furthermore it is precisely because both acts stem from the same ‘parent’ EU act that the comparison carries authority. According to Hardiman J ‘[t[he French provision is both more elegantly and more precisely worded, and therefore easier to construe. But that, in itself, would mean nothing. What it signifies is that the Irish and French provisions are each attempts to implement the same part of the Framework Decisions.’140 As is evident from the above quote, the second point that Bailey highlights is the continuing problems caused by the poorly drafted nature of the Irish implementing legislation, a failing that is compounded by the inability of the Irish courts to seek interpretative aid from the Court of Justice via a preliminary reference. The problems of the Irish legislation highlighted by this case are numerous. Firstly, Ireland failed to implement the option contained in article 4(7)(a) of the EAW Framework Decision that would have prevented surrender in cases where the alleged offence took place on Irish territory. The existence of such a provision would have been far more protective of Irish sovereignty in this matter and far more straightforward in its application to the facts of the case. Secondly, the opt-out that was implemented, article 4(7)(b), was drafted in a particularly confusing manner, a fact that was remarked upon by more than one justice. Indeed, a number simply rearranged the words in order to make initial sense of the provision and even then its meaning was far from clear. Furthermore while not dealt with explicitly, it would appear that the implementation of section 21A, requiring an individual to be ‘charged and tried’ is somewhat different from the provisions of the Framework Decision that simply require the warrant to be issued for the purposes of a prosecution. Section 21 A therefore provides for a grounds for refusal under Irish law that is may not be warranted by the Framework Decision, a fact that was alluded to by Murray J, stating that ‘the prohibition against surrendering a requested person where the Court is satisfied that no decision has been made to try him is a creature of the act of 2003 as amended and not the Framework Decision.’ All of these problems of interpretation are compounded by the continuing inability of the Supreme Court to make a preliminary reference to the Court of Justice to resolve these issues, a debility that was pointed out by Fennelly J in this case: ‘[t]he Act of 2003 must be interpreted in conformity with the Framework Decision. However this Court has not been given the authority to refer questions of interpretation to that Court. It will not have that power until 2014… Thus, this Court must interpret the Framework Decision and the Irish implementing Act, without the assistance of the Court to which final interpretative authority has been assigned.’141

Tobin (No 2) The second and equally dramatic EAW saga to reach the Supreme Court in 2012 was the case of Minister for Justice, Equality and Law Reform v Tobin (No 2). As the case title indicates this was not the first time Mr Tobin founds himself contesting surrender on the basis of a European Arrest Warrant before the High Court or indeed before the Supreme Court.142 In 2000 Mr Tobin, then posted abroad in Hungary, knocked down and tragically 140

Ibid., Hardiman J. Ibid., Fennelly J, para 5. 142 Minister for Justice Equality and Law Reform v Tobin (No 1) [2008] IESC 3. 141

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killed two young children while driving slightly above the speed limit. Having given a statement and appointed counsel he returned to Ireland, with the consent of the authorities, some time later. He was later convicted and sentenced in absentia. Hungary originally sought his arrest through an international arrest warrant. Upon accession of Hungary to the European Union that international warrant was supplemented by a European Arrest Warrant. While contesting the conviction, Mr Tobin was willing to serve the sentence in Ireland, a solution that was acceptable to Hungary. However, Ireland had not made use of the exception provided for in Article 4(6) of the EAW Framework Decision143 allowing a Member State to refuse to surrender a national or resident, instead allowing him or her to serve the sentence at home. Ireland had however, in all likelihood in breach of the Framework Decision, 144 inserted, in section 10 of the im-plementing act, a provision limiting the application of the Act to persons who had ‘fled’ the issuing state. In Minister for Justice, Equality and Law Reform v Tobin (No 1) Mr Tobin relied upon that provision before the High and Supreme Courts and successfully resisted surrender. 145 Section 10 of the 2003 Act was later amended to delete the reference to ‘fled’, partially as a response to the Tobin case.146 Hungary issued a fresh warrant for the same offence and Mr Tobin was again arrested. In the absence of the ‘fled’ requirement, Mr Tobin’s surrender was ordered by the High Court. That Court did however have a number of questions it certified as matters of exceptional public importance and allowed an appeal to the Supreme Court. Upon arrest Mr Tobin was reported to have said ‘I thought it was all over after the Supreme Court.’ As put by O’Donnell J ‘[t]o a large extent, the question… is whether Mr. Tobin’s immediate and understandable reaction to his arrest and caution was correct as a matter of law’.147 There was much sympathy amongst the Court for Mr Tobin’s situation. In committing the offence Mr Tobin was negligent at most and had shown clear remorse for the consequences of his actions to the point of being willing to serve the sentence in Ireland and even voluntarily foregoing bail during the EAW proceedings in an effort to have that period counted against any time to be served in a Hungarian prison. Moreover, there were alleged deficiencies in the Hungarian proceedings and he had been subject to or threatened by proceedings for a total of 12 years. At the same time, there didn’t appear to be any obvious and indisputable grounds on which to refuse his surrender. None of the optional or mandatory grounds for refusal of surrender found in Article 4 of the Framework Decision were applicable148 and in the absence of these grounds surrender is in theory obligatory. Moreover, authorities are entitled to reissue warrants to correct deficiencies. An EAW is considered a procedural matter and is to be decided under the 143

Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States [2002] OJ L 190/1. 144 See Fahey, EU Law in Ireland, (n 79), 110. Although this could never be tested before the Court of Justice due to the limitations on its jurisdiction in relation to Third Pillar instruments. 145 See Tobin (No 1) (n 142). 146 Criminal Justice (Miscellaneous Provisions) Act 2009, s 6(c)(ii). 147 Minister for Justice, Equality and Law Reform v Tobin (No 2) [2012] IESC 37, O’Donnell J, para 8. 148 Notably Ireland had not implemented the option of refusing surrender to allow a national or resident to serve a sentence in Ireland.

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law at the time of its execution. Thus, while a majority did find in favour of Mr Tobin, refusing his surrender, the ratio of the judgment is not particularly clear, with the majority finding in favour of the respondent on different grounds and a number stressing the exceptional nature on the case. A clear majority rejected the respondent’s arguments in relation to defects in the warrant under section 11 of the Act, objections based on a breach of his fundamental rights, in particular his right to a family life, under section 37 of the Act and finally, and most notably, a majority clearly rejected questioning the validity of the Hungarian conviction underlying the EAW. As put by Fennelly J, ‘it is not open to this Court to go behind that judgment or to question its correctness.’ This point highlights the Irish Supreme Court’s basic commitment to the automatic nature of the EAW system, based on mutual trust and confidence. The single dissenting judgment on this matter was Hardiman J who, while not feeling the need to rule on the issue, certainly appeared to fire a shot across the bows of the application of this key element of the EAW system, implying serious deficiencies in the Hungarian trial and when discussing the possibility of adjudicating on Mr Tobin’s fundamental rights complaints stated: I wish say only that, if the issues resolved in favour of Mr Tobin in the judgment had been resolved against him, I might well have felt it necessary to look into these complaints… I do not consider that any consideration arises along the lines of ‘mutual trust and confidence’ on the basis of Hungary now subscribing to the European Arrest Warrant system or being a member of the European Union (it was not such a member at the time of the accident) to exclude such an enquiry… There is in my view at present no basis for prescinding from this exercise on the basis of an entirely notional respect and confidence which in practice co-exists with an absolute ignorance of the system involved. But I reserve a definitive resolution of this issue to a case where it necessarily arises.149 Around the central issue of the validity of re-arresting and re-attempting his surrender after a change in the applicable legislation, three inter-related grounds were raised; an abuse of powers complaint; a separation of powers complaint and finally an acquired or vested rights complaint under section 27 of the Interpretation Act 2005. Unfortunately for the purposes of a clear ratio, no single ground for refusal attracted the support of a majority of the Court. Both Hardiman and Fennelly JJ found in favour of the respondent on the first ground and Hardiman and O’Donnell JJ found in favour of the respondent on the third ground. The abuse of process claim was rejected by a majority (O’Donnell, Murray JJ and Denham CJ) as was the section 27 claim (Fennelly, Murray JJ and Denham CJ). Similarly the separation of powers claim was rejected by O’Donnell J and Denham CJ, with Murray J concurring. Thus while the respondent was ultimately successful on a combination of the ‘abuse of process’/ ‘acquired right’ grounds, there was a divergence amongst the majority on precisely which grounds motivated the refusal of his surrender with result that a clear ratio is difficult to isolate. Nonetheless certain implications can be drawn for the EAW system and Union law generally in Ireland. In relation to the EAW system Tobin (No 2) stresses the Irish Supreme Court’s commitment to the EAW system’s automatic character with a majority refusing to 149

Minister for Justice, Equality and Law Reform v Tobin (No 2) (n 147), Hardiman J.

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question the validity or procedural correctness of the Hungarian decision. It confirms Fahey’s view that section 37 of the 2003 Act, allowing refusal on fundamental rights grounds, has not had a significant impact on the Supreme Court’s approach to the EAW.150 Having said that, Hardiman J’s strident warning is noteworthy and indicates a willingness on the part of at least one member of the Court to question the mutual trust that lies at the heart of the system. Secondly, it puts to bed the saga of the anomalous ‘fled’ requirement in the Irish implementing legislation that generated interpretative confusion and was certainly in breach of the spirit of the Framework Decision and in all likelihood its text. More broadly the case highlights yet again the questionable quality of the Irish implementing legislation. Not only should the ‘fled’ requirement never have been included, but Mr Tobin’s admirable willingness not to contest his surrender but to serve his sentence in Ireland was not possible due to the failure on Ireland’s part to implement the relevant exception. In an ironic twist and to add to the confusion, precisely because he had not ‘fled’ Hungary, Mr Tobin was unable to avail of the Transfer of Execution of Sentences Act 2005. In order to benefit from the provisions of that Act he would have to return to Hungary and there request to be transferred to Ireland, a process that normally takes between 12 and 18 months.151 While there is not a huge amount of significance in relation to the status of Union law in Ireland, the judgment of Murray J is interesting in implying that certain principles of Union law, in particularly the binding nature of Union instruments and the principle of conform interpretation, may have an impact on how implementing measures are interpreted under the Interpretation Act 2005. In particular the binding nature of the Framework Decision was grounds to conclude that, in deleting the ‘fled’ requirement and thereby rectifying the Irish implementing act, the legislator implicitly intended rights acquired thereunder to be revoked. Furthermore, the principle of conform interpretation allows a Court, by its own initiative and not on the basis of evidence raised by a party, to rebut the presumption crated by the 2005 Act that the legislator did not intend, by amending legislation, to revoke acquired rights. Finally Tobin (No 2), along with Bailey, illustrates yet again the problems generated by Ireland’s unwillingness to grant the Court of Justice any jurisdiction in third pillar matters and in particular in relation to the EAW. The EAW raises very sensitive constitutional and procedural issues in the context of very hard cases. The lack of an forum for judicial dialogue between the Supreme Court and the Court of Justice on this matter not only prevents the Supreme Court having the benefit of the Court of Justice’s expertise on European law but also prevents the Court of Justice from having the opportunity to become aware of and deal with the major problems raised by mutual recognition in national contexts and with the benefit of illumination by national courts, a fact that has not gone unnoticed by Fennelly J: [I]t is apparent that the decision to decline jurisdiction to the Court of Justice is rooted in objection to the enlargement of the powers to the Court. It is difficult 150 151

Fahey, EU Law in Ireland (n 79), 112. Minister for Justice, Equality and Law Reform v Tobin (No 2) (n 147), Denham CJ, paras 82 ff.

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to see how the policy serves the presumed purpose…The most fundamental aspects of criminal procedure such as the burden and method of proof, the right to bail, trial by jury may be at stake…The absence of capacity to consult the Court of Justice may have the consequence that the Court of Justice is less likely to become aware of specific concerns.152

CITIZENSHIP The Citizens’ Initiative In an innovative move the Treaty of Lisbon introduced for the first time an element of direct democracy at a European level and the new Article 11(4) TEU provides for a Citizens’ Initiative (CI). At its most basic a CI will invite, rather than compel, the Commission to table a legislative proposal. It is therefore primarily of a persuasive rather than binding nature. Nonetheless given the importance that has been attributed to it, any successful initiative is likely to be considered. It is hoped that the Citizens Initiative will contribute both directly and indirectly to democracy at a European level. Directly it will engage citizens in the Union’s legislative process. Indirectly it is hoped that this engagement will lead to a pan-European political consciousness and contribute somewhat to the creation of the elusive ‘European demos’. However, as ever, much will depend on its implementation and reception. Article 11(4) TEU has been implemented ‘at a pace which (at least for the Union) could almost be described as breakneck’153 via Regulation 211/2011/EU.154 A successful CI will require the establishment of a ‘citizens committee’ composed of a minimum of seven persons from seven separate Member States.155 The committee will then lodge a proposed initiative with the Commission who will register or reject it. Rejection may only take place for stated reasons such as the proposal being manifestly contrary to the Union’s values, manifestly vexatious or manifestly outside the Commission’s powers. 156 The Citizens Committee will then need to collect at least one million signatures from Union citizens 157 within a 12 month period 158 before submitting the initiative to the Commission.159 The Commission will then publish and examine the initiative, meet with the organisers and within three months communicate the action it intends to take with appropriate legal and political reasoning.160 152

N Fennelly, ‘Preliminary Reference Procedure: A Factual and Legal Review’ (2006) 13 Irish Journal of European Law 55, 80 as quoted in Fahey, EU Law in Ireland (n 79), 127. 153 M Dougan, ‘What are we to make of the Citizens' Initiative’ (2011) 48 Criminal Law Review 1807, 1810. 154 Regulation 211/2011/EU on the citizens' initiative [2011] OJ L65/1 (Citizens Initiative Regulation) see also for technical requirements on data collection and storage Ministers and Secretaries (Amendment) Bill 2012. 155 Citizens Initative Regulation (n 154), art 3(2). 156 Ibid., art 4(2). 157 Ibid., art 2(1) and (2). 158 Ibid., art 5(5). 159 Ibid., art 9. 160 Ibid., art 10.

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The CI was implemented in Ireland via Statutory Instrument no 79/2012.161 As befits the nature of a regulation much of the detail is already contained in Regulation 211/2011/EU and it is primarily administrative matters that are dealt with in SI No 79/2012. The SI essentially grafts the CI onto the existing electoral administration designating the Minister for the Environment, Community and Local Government the competent national authority162 and allocating responsibility for keeping the electoral roll to the local Registration Authorities.163 It also creates various offences regarding electoral fraud or enforcing the obligations of CI organisers.164 Union Citizenship and in particular the right to non-discrimination on grounds of nationality was raised by a British citizen in Douglas v Minister for Social Protection.165 The appellant, having moved to Ireland in November of 2011 to pursue a post-graduate legal course in DCU, applied for job seekers allowance and supplementary income allowance in December of 2011. The Department of Social Protection refused both applications on the basis that the appellant was not available for work and (of particular relevance for the supplementary income allowance) was not habitually resident. Ms Douglas claimed that the criteria applied by the Department to determine whether someone was habitually resident or otherwise, were discriminatory on the grounds of nationality and hence contrary to Union law. Citing the case of Grzelczyk,166 Charleton J found against the appellant noting that the habitual residence test was not based on nationality but rather on objective criteria such as main centre of interest, length and continuity of residence and the person’s future intentions. These criteria were effectively the same as those outlined by the Court of Justice in determining the meaning to be attributed to the term habitual residence for the purposes of Regulation 1408/71/EEC.167 The Court of Justice has developed a by now long established doctrine, tying an individual’s rights under Union citizenship law to their degree of integration in the host Member State, particularly in relation to social benefits.168 Given the appellant’s situation, namely of having resided in the UK for 49 years, of having only very recently moved to Ireland and not displaying any particular strong ties to Irish society or the labour market bar a stated intention to remain there, it must be concluded that Charleton J’s decision in this case perfectly reflects the current state of the law on Union citizenship and rights to social benefits.

161

European Union (Citizens' Initiative) Regulations 2012. Ibid., s 3. 163 Ibid., s 5(2). 164 Ibid., s 6. 165 Douglas v Minister for Social Protection [2012] IEHC 27. 166 Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193. 167 Council Regulation 1408/71/EC on the application of social security schemes to employed persons, to self-employed persons and to members of their fmailies moving within the Community [1971] OJ L 149/2 as interpreted in Case C-90/97 Robin Swaddling v Adjudication Officer [1999] ECR I -01075. 168 The landmark case being Case C-209/03 The Queen (on the application of Dany Bidar) v London Borough v Ealing, Secretary of State for Education and Skills [2005] ECR I-02119 Court of Justice. 162

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ASYLUM Ireland’s implementation of Directive 2004/38/EC on granting international protection (the ‘Qualification Directive’) continued to cause difficulties before the Irish Courts and the Court of Justice in 2012. The Qualification Directive lays down the rules for the granting of international protection and the rights that attach to that status.169 International protection consists of two complementary statuses: refugee status based on the Geneva Convention and ‘subsidiary protection’, a complementary status to that of ‘refugee’ that is available to those who, while not qualifying for refugee status, still face persecution or threats. Ireland, unique amongst the Member States, has established two separate procedures for the granting these two statuses rather than a single ‘one-stop-shop’. The separate but related nature of the two procedures in Ireland has a number of consequences. Firstly, in order to apply for subsidiary protection an individual must first apply for, and fail to obtain, refugee status. Secondly, while separate, the assessment of the application for subsidiary protection is largely a continuation of the asylum determination, relying on the same submissions and the same set of facts for the same person, the difference being in the legal assessment rather than the factual circumstances. Accordingly, only if there is relevant new information is the individual consulted. EU asylum law give rise to a further complication. The Qualification Directive lays down the criteria used for the grant of, and the rights attaching to, the two statuses contained in international protection. It does not provide for procedural harmonisation. Instead, that is provided for by Directive 2005/85/EC (the ‘Procedures Directive’). 170 While, the Procedures Directive applies principally to applications for asylum it also applies to subsidiary protection applications if a single procedure is used for both asylum and subsidiary protection claims.171 Ireland is the only Member State not to provide for a single procedure and therefore is unique amongst Member States in that the Procedures Directive does not apply to applications for subsidiary protection. Two difficulties arising from the Irish international protection procedures were questioned before the Courts in 2012. Firstly, the question of what, if any, impact Union law might have on the procedure for subsidiary protection was raised before both the

169

Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L 304/12 (the ‘Qualification Directive). That directive has since been replaced by Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugess or for persons eligible for subsidiary protection, and for the content of the protection granted [2011] OJ L 337/9. Ireland, along with the UK, has not opted into the new Directive, meaning the provisions of the 2004 Directive will continue to apply with respect to Ireland. See recital 50. 170 Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status [2005] OJ L 326/13 (Procedures Directive). 171 By contrast, the new ‘recast’ Procedures Directive, Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast) [2013] OJ L 180/60 (Qualification Directive).

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Supreme Court and the Court of Justice. Secondly, the requirement to apply for and fail to obtain refugee status was raised before the Supreme Court in H.N.172 The impact that Union law might have on the procedure to award subsidiary protection in Ireland was raised, and partially resolved in 2012. Despite the nonapplication of the Procedures Directive to subsidiary protection, over the last number of years applicants have sought to invoke the protection of Union law, relying in particular on Article 4(1) of the Qualification Directive that assessments of applications for international protection be made ‘in cooperation with the applicant’. 173 Whether this requirement entailed procedural rights, in particular a right that the applicant be informed of, and have the opportunity to comment on, a decision prior to its final adoption was raised a number of times before the Irish courts in the course of 2011.174 The argument was generally unfavourably received by the courts and it was rejected in a number of cases. However, on the basis that a Dutch court had taken different view of the matter and that there was a risk of divergence between Member States on this matter, Hogan J agreed to refer the matter to the Court of Justice in MM v Minister for Justice, Equality and Law Reform.175 While that decision was pending the issue was raised again before the High Court. In OJ (Nigeria) v Minister for Justice and Equality176 Cross J, after a review of the Irish precedence on this matter, found that ‘there is absolutely nothing in this case to distinguish it from any of the other decisions on this point’ and rejected the argument.177 Cooke J took a similar view in AA (Iraq) v Minister for Justice and Equality. 178 Furthermore in dealing with a plea raised in relation to the Charter of Fundamental Rights, Cooke J noted that according to its Article 51 the Charter only applied to Member States when they were implementing Union law. In the context of applications for international protection the procedural rights outlined in the Charter were detailed in the Procedures Directive. In accordance with the split procedure that directive did not apply to applications for subsidiary protection in Ireland but only to the application for asylum.179 The reference of Hogan J was decided by the Court of Justice in November of 2012. In his opinion Advocate General Bot essentially agreed with the position of the Irish Government and the Irish courts. He accepted where two separate procedures existed the Procedures Directive did not apply to applications for subsidiary protection. However, he stated that the requirement contained in Article 4(1) of the Qualification Directive that the assessment be done ‘in cooperation with the applicant’ was nonetheless informed by the Procedures Directive and by the general principles of Union law as expressed in the Charter of Fundamental Rights. Despite this he accepted the related nature of the asylum and subsidiary protection assessments and found that the individual’s rights were sufficiently protected under a joint reading of the two procedures. 172

HN v Minister for Justice, Equality and Law Reform [2012] IESC 58. Qualification Directive, art 4(1). 174 See Coutts, ‘Ireland and the European Union 2011’ (n 5), 144-145. 175 MM v MJELR (Unreported, High Court, 18 May 2011). 176 OJ (Nigeria) v Minister for Justice and Equality [2012] IEHC 71. 177 Ibid., para 27. 178 AA (Iraq) v Minister for Justice and Equality [2012] IEHC 222. 179 Ibid., paras 13-15. 173

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The Court of Justice likewise quickly arrived at the conclusion that Article 4(1) of the Qualifications Directive did not create the specific right sought by the applicant, namely to be informed of and to have the opportunity of commenting on any draft decision, finding that ‘a requirement of that kind in no way results from the wording of the provision in question. If the EU legislature had intended to impose on Member States obligations such as those advocated by Mr M, it would certainly have done so expressly.’180 ‘Cooperation’ in this sense referred only to the collection of facts, not to their legal assessment. It underlined the nature of the international protection system as consisting of two complementary directives, one laying down the criteria for the granting of international protection and the substance of that protection, and another establishing minimum standards in procedures. The Qualification Directive does not therefore lay down specific rules of procedure. However, in direct contrast to the finding of Cooke J, the Court of Justice found that while the specific provisions of the Procedures Directive do not apply to subsidiary protection claims in a system such as Ireland’s, general principles of Union law as expressed in the Charter for Fundamental Rights (CFR) do181 Subsidiary protection, as a constituent part of international protection regime, is a status created under the Common European Asylum System and when granting it Member States can be said to be implementing Union law. In particular it pointed to Articles 47 and 48 of the CFR on the rights of the defence and Article 41(2) on the right to good administration.182 It rejected the argument raised by the Irish Government that these rights were protected in the preceding asylum procedure, not least of all because the two different statuses, being based on different criteria and entailing different rights, required two different determinations. The applicant was accordingly entitled to be heard in relation to both decisions.183 In HN the Supreme Court was presented with an individual who in his own opinion did not qualify for refugee status but did claim subsidiary protection. As described above, under Irish law a failed asylum application was a prerequisite for any application for subsidiary protection. Aside from the practical inconveniences of making a detailed application for a status he did not seek, HN objected to the fact that he would, in effect, be obliged to make a fraudulent claim and would, moreover, subsequently be labelled a ‘failed asylum seeker’. The Supreme Court dealt with the issue quickly noting that as a court of final appeal it was obliged to make a reference to the Court of Justice if the Union law question was not an acte clair. In the opinion of the Court whether Ireland was entitled under the Directive to impose an obligation of first applying for refugee status before an application for subsidiary protection could be made was not clear. It therefore made a reference to the Court of Justice.184

180

Case C-277/11 MM v Minister for Justice, Equality and Law Reform et al (Court of Justice, 22 November 2012), para 61. 181 Ibid., para 81 ff. 182 Ibid., para 82. 183 Ibid., paras 89-93. 184 Currently pending before the Court as Case C-604/12 HN v Minister for Justice, Equality and Law Reform [2013] OJ C 86/14.

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The Opinion of Advocate General Bot was delivered on 7 November 2013.185 The AG began by echoing his earlier opinion in MM and reading the Qualification Directive and the Procedures Directive as complementary and as part of an overall system. Thus, despite the lack of a reference in the Supreme Court’s referral, he included the Procedures Directive in his legal assessment. While noting that Ireland enjoyed procedural autonomy in the area of subsidiary protection he noted that this autonomy was subject to the principles of equivalence and effectiveness and the CFR and in particular the right to good administration. Given that the principle of equivalence 186 did not apply in the present case he proceeded to analyse under the principle of effectiveness the compatibility of the requirement that an individual apply and fail to obtain asylum before an application for subsidiary protection could be made. As with his previous Opinion in MM, the result advocated by the AG was supportive of the Irish Government, finding that subsidiary protection was, as the name might suggest, a secondary form of protection only to be awarded if the individual did not qualify for asylum. The principle of effectiveness therefore implied not simply an option but the obligation to first assess any possible right an individual might enjoy to asylum prior to a determination of their status under the subsidiary protection provisions. This was based on a need to maintain the primacy of the Geneva convention and the status of refugee, the need to establish a single exhaustive system and remove the possibility of secondary movements or ‘asylum shopping’ as it is sometime referred to and finally, and most importantly, to ensure that the individual is awarded the status most appropriate to his situation.187 Also he found that the rule requiring a prior application for asylum did not entail a breach of the right to good administration. While there were inordinate delays in the Irish system this was not caused by that particular rule but rather flowed from other problems. A number of interesting points arise from the judgments of the Court of Justice and the Opinions of AG Bot in relation to the Irish procedure for procedural protection. Firstly, the general principles of Union law and the Charter of Fundamental Rights, and in particular those rights relating to good administration apply to applications of subsidiary protection. This is despite the Irish legislative choice creating two separate processes for asylum and subsidiary protection. Going even further, AG Bot is quite explicit in applying the Procedures directive itself in both cases, stating ‘I shall assess the compatibility of the legislation in question with EU law not only in the light of the wording and purpose of Directive 2004/83, but also having regard to the provisions laid down in Directive 2005/85’. 188 Nonetheless, it is never quite clear the role that the Procedures Directive plays in his legal reasoning bar informing the interpretation of general procedural rights. The Court of Justice takes a rather more straightforward approach noting that while the Procedures Directive does not apply to subsidiary protection applications in Ireland, general principles of Union law and in particular the right to be heard do. Thus, despite splitting the procedure Ireland does not escape entirely 185

Case C-604/12 HN v Minister for Justice, Equality and Law Reform (Opinion of AG Bot, 7 November 2013). 186 There being no equivalent national procedure. 187 HN (Opinion) (n 185), paras 52-54. 188 Ibid., para 29.

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the control of Union law in the area of procedural rights. Underlying this reasoning is an affirmation that when granting subsidiary protection Ireland was in fact ‘implementing Union law’ for the purposes of the Charter of Fundamental Rights. International protection is a Union status, when granting it the Member States are, in a sense, acting for the Union and must comply with Union standards of fundamental rights. Ireland’s anomalous procedural framework does not permit it to escape this basic obligation. Secondly the two cases give the impression of the individual seeker of international protection as a somewhat disempowered, passive figure, obliged to cooperate with the administration in the task of establishing the facts but being incapable of properly assessing legally his or her status, a task that is left to the administration. Thus in MM the Court of Justice underlines the fact that: [i]t is clear that Article 4(1) of Directive 2004/38 relates only to the first stage… concerning the determination of the facts and the circumstances qua evidence which may substantiate the asylum application…an examination of the merits of an asylum application is solely the responsibility of the competent national authority.189 This exclusion of the applicant from the legal assessment is also a feature of the Opinion in HN with the AG finding that ‘it is not for the applicant for asylum to determine the status most appropriate to his situation. This falls within the exclusive competence of the determining national authority which, on the basis of the information obtained from the person concerned and from its staff, examines the application in accordance with the rules laid down in Directives 2004/83 and 2005/85.’190 While this position is motivated from an interest to secure the most beneficial status for the individual, the reasoning is based on an assumption that an individual, for a variety of reasons, will quite simply be incapable of properly assessing his or her own legally situation.191 Rather, it is for the administration alone to carry out the legal assessment, granting or refusing a status based on its own expertise. While there may certainly be valid reasons for such an approach, some of which are highlighted by the AG, it would appear to run against the spirit, if not the letter of the provision that assessments be made ‘in cooperation’ with the applicant. Finally while not the immediate subject of the cases, the deficiencies in Ireland’s asylum system were noted by the AG, who was clearly unhappy with the ‘inordinate length of procedures in Ireland’192 a situation that was harmful ‘not only to the applicant’s legal certainty but also to his integration.’193 He went perhaps even further in this regard in his Opinion in MM noting that a right to a prompt decision would lie within the scope of the right to good administration, a general principle of Union law that applied to subsidiary protection procedures. While leaving the issue to be determined by national courts he did express the opinion that the length of time in the applicant’s case between the asylum application and the determination of a right to subsidiary protection of two years and three months ‘seems…to be manifestly unreasonably.’194 Based on the view of 189

MM (n 180), paras 68-70. HN (Opinion) (n 185), para 48. 191 Ibid., para 49. 192 Ibid., para 67. 193 Ibid., para 69. 194 MM (Opinion) (n 180), para 114. 190

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the Advocate General there would certainly appear to be grounds to claim that the length of Irish procedures in the area of asylum breach the Union law right to good administration, applicable to both asylum and subsidiary protection claims.

ENVIRONMENT Ireland’s consistently poor record in implementing environmental legislation caught up with it in a pair of judgments issued by the Court of Justice at the end of 2012. In both cases the Commission successfully prosecuted Ireland for failure to comply with earlier judgments finding Ireland in breach of its Union law obligations by failing to correctly implement environmental legislation. In Case C-279/11 European Commission v Ireland,195 the Commission applied to the Court of Justice to impose financial penalties for an on-going infringement established by the Court of Justice in 2008.196 That original judgment had found Ireland in breach of Directive 85/337/EEC on environmental impact assessments. In Case C-279/11 the Commission relied on the fact that Ireland took two and a half years to adopt the necessary regulations after the 2008 case and a further 2 months to publish the regulations, a situation the Commission claimed could jeopardise the effectiveness of the regulations and hence the Directive. The Court found in favour of the Commission in relation to the two and a half year period in which no regulations existed but refused to apply a penalty for the two months in which they were not published, finding that the Commission had failed to prove any detrimental impact on the operation of the scheme during that period. The septic tank saga continued in Case C-374/11 European Commission v Ireland.197 The Commission claimed that Ireland had failed to comply with a judgment issued by the Court in October of 2009 finding a failure to establish an effective regime for the inspection of septic tanks. 198 It claimed that the measures adopted in response to the judgment, namely the Water Services (Amendment) Act 2012, did not remedy the defect in particular pointing to the lack of binding effect of certain provisions and the need for further Ministerial regulations. The Court agreed with the Commission and imposed both penalty payments and a lump sum on Ireland. It also rejected Ireland’s argument that the Commission’s action was premature, arguing that the 21 months that had elapsed between the initial judgment of the Court and the commencement of the Commission’s action was more than sufficient time for Ireland to take appropriate measures. The two judgments, issued on the same day highlighted two separate questions in the fining practice of the Court of Justice. Firstly, in both cases the Court applied a recidivist logic and underlined that repeated findings of breaches of Union law in a particular area would be an aggravating factor in imposing a fine. As pointed out in previous reports199 195

Case C-279/11 European Commission v Ireland (Environmental Impact Assessments) (Court of Justice, 19 December 2012). 196 Case C-66/06 European Commission v Ireland [2008] ECR I-158. 197 Case C-374/11 European Commission v Ireland (Septic Tanks) (Court of Justice, 19 December 2012). For an account of the earlier judgment see S Coutts, ‘Ireland and the European Union 2009-2010’ (2009-2010) 4-5 Irish Yearbook of International Law 285, 298. 198 Case C-188/08 European Commission v Ireland [2009] ECR I-172. 199 See Coutts, ‘Ireland and the European Union 2011’ (n 5), 150.

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Ireland has a poor track record before the Court of Justice on environmental issues, a fact that did not escape the Court’s notice.200 Secondly, in the opposite direction the Court was willing to take a lenient line on Ireland’s ability to pay, substantially reducing the fine requested by the Commission in European Commission v Ireland (Environmental Impact Assessment) and mentioning it as an alleviating factor in European Commission v Ireland (Septic Tanks). In doing so it accepted Ireland’s more up-to-date economic data rather than the Commission’s 2008 figures as the basis on which to impose the fine and specifically mentioned the impact of the economic crisis on the Irish public finances.201 In the Irish courts the application of the Aarhus Convention on public participation and access to justice in environmental matters was raised before the High Court in August of 2012. In O’Connor v the Environmental Protection Agency202 the applicant made a rather unusual claim seeking an ex parte and ex ante order regarding costs that would not be ‘prohibitively expensive’. Noting that the Aarhus Convention did not apply to Ireland at the time of application due to the fact that Ireland had not at the relevant period ratified the instrument and secondly the lack of domestic legislation on the matter, Hogan J concluded that ‘insofar as the Convention has binding force as part of the domestic law of this State it is only by virtue of the force of and within the proper scope of application of European Union law’ 203 pointing in particular to Directive 2003/35/EC 204 and Directive 2011/92/EU. 205 Nonetheless, even within the scope Union law Hogan J identified a significant degree of uncertainty surrounding the notion ‘not prohibitively expensive’ and awaited clarification from the Court of Justice on that matter based on a recent referral by the UK Supreme Court.206 It was also unclear whether the costs should in fact be determined ex ante or whether the administrative action in question, namely the granting of a licence to release lines of genetically modified potatoes, even fell within the scope of the relevant provision. Given the uncertainty surrounding the status of the law, the scope of the law and the meaning of the obligation contained in the provision, Hogan J declined to make the requested order in an ex parte decision. This was reinforced by the

200

See European Commission v Ireland (Environmental Impact Assessments) (n 195), para 70 and European Commission v Ireland (Septic Tanks) (n 197), para 49. 201European Commission v Ireland (Septic Tanks) (n 197), para 44 and European Commission v Ireland (Environmental Impact Assessments) (n 195), para 79. 202 O'Connor v Environmental Protection Agency [2012] IEHC 370, see also the related case of NO2GM v Environmental Protection Agency [2012] IEHC 369, taken by the corporation rather than an individual. The judgments are identical in almost all respects. 203 Ibid., paras 10-12. 204 Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment with regard to public participation and access to justice [2003] OJ L 156/17. 205 Direcitve 2011/92/EU on the assessment of the effects of certain public and provate projects on the environment (codification) [2011] OJ L 26/1. 206 O'Connor v Environmental Protection Agency (n 202), para 16. The referred case being Case C-260/11 R (Edwards) v Environmental Agency (Court of Justice, 11 April 2013) in which the Court of Justice, relying on an effectiveness rationale interpreted ‘not prohibitively expensive’ as implying ‘that the persons covered by those provisions should not be prevented from seeking, or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial burden that might arise as a result.’, para 35.

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obligation to respect fair procedures and the right of other interested parties to be heard contained in the Constitution, the ECHR and the Charter of Fundamental rights.207

CONCLUSION A common feature of Irish and EU case law in 2012 was deficiencies in Ireland’s implementation, including continual failure to implement environmental legislation, a poorly drafted EAW Act lacking the necessary safeguards and a complex and problematic procedure for awarding international protection. In Bailey the combination of the particular status of a DPP decision, France’s personal criminal jurisdiction and above all Ireland’s failure to implement the relevant option contained in the Framework Decision lead to a situation where the necessary safeguards of an increasingly transnational prosecutorial regime failed to operate. Mr Bailey avoided what was in effect a parallel prosecution under two criminal justice systems by a rather convoluted and less than clear Supreme Court decision. Similarly in Tobin Ireland’s failure to allow for the possibility contained in the Framework Decision of the accused to serve his sentence in Ireland lay at the heart of another particularly hard case. The flaws in the asylum system stem from a more systematic failing, that of the structure of the international protection procedure and in particular that of subsidiary protection. For whatever reason, Ireland has not implemented a one-stop-shop leading to questions being raised regarding the quality of the procedure for awarding subsidiary protection. While acknowledging per the wording of the Directive that due to Ireland’s particular piece of legal engineering the Procedures Directive itself does not apply to subsidiary protection, the Court of Justice and in particular its Advocate General were at pains to ensure that in this crucial area, despite the anomalous (if legitimate) implementation, Ireland cannot escape its fundamental rights obligations under Union law. Meanwhile at the level of international politics Ireland finds its sovereignty altered once again through the ramifications of the Eurocrisis. What is noteworthy about the developments in 2012 is their rather novel and problematic legal nature from the perspective of Union law. While the content of the ‘six-pack’ of 2011 was striking, the legal form, five regulations and a directive, was not and fitted squarely within the chapter of the TFEU on economic and monetary union. The instruments of 2012, namely the Treaty on Stability, Coordination and Growth and the ESM Treaty were concluded outside the Union framework while remaining intimately linked to the policies and institutional structures of the Union, a fact that lead to various constitutional questions. These questions manifested themselves in Ireland in a particularly visible fashion with the holding of a referendum on the TSCG and a highly publicised constitutional challenge to the ESM. While given the economic and political stakes, it was unlikely these would result in the failure of either treaty, their very occurrence highlights their legal significance and difficulties associated with such novel legal instruments. On a domestic level it is worth noting the clarity with which the ESM Treaty passed the Crotty test and the acceptance by the Supreme Court that a referendum was not required for an 207

O'Connor v Environmental Protection Agency (n 202), para 21.

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amendment adopted under the simplified revision procedure. While the politics of EU referenda are a separate question, these findings might lead to an easing of the referendum requirement from a legal perspective in Ireland and strengthen the hands of future governments in dealing with constitutional changes in Europe.

HUMAN RIGHTS IN NORTHERN IRELAND 2012

BRICE DICKSON Queen’s University Belfast

INTRODUCTION In 2012 there was a relative dearth of new legislation explicitly protecting human rights in Northern Ireland, but there was a good deal of litigation in which the finer points of existing legislation and common law were teased out in court judgments. This was particularly so as regards the right to life, the right to a fair trial and the right to a private and family life. Applications for judicial review raising human rights arguments abounded, many of them relating to issues arising out of the troubles. In addition, various statutory organisations (such as the Human Rights and Equality Commissions) and civil society groups (such as the Committee on the Administration of Justice and the Rainbow Project) continued their valuable work in promoting human rights awareness. There remains a very vibrant human rights ‘community’ in Northern Ireland. Such is the extent of the relevant developments that there has not been sufficient room in this report to mention all contributions.

STILL NO BILL OF RIGHTS Throughout 2012 there were great concerns that the Commission which was set up by the UK government in 2011 to consider the arguments for a Bill of Rights for the UK might recommend that the Human Rights Act 1998 should be repealed and that something less ‘European’ should be put in its place. In the end, the report published by the Commission in December 2012 did not go anywhere near that far. In fact it displayed very little consensus on any way forward in this area. It did, however, adopt a hands-off approach to the debate over a Bill of Rights for Northern Ireland: In particular we recognise the distinctive Northern Ireland Bill of Rights process and its importance to the peace process in Northern Ireland. We do not wish to interfere in that process in any way nor for any of the conclusions

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that we reach to be interpreted or used in such a way as to interfere in, or delay, the Northern Ireland Bill of Rights process.1 The Northern Ireland Human Rights Commission welcomed this statement,2 as it seemed to be based on an assumption that there would be some kind of Bill of Rights for Northern Ireland at a future date. The reality, unfortunately, is that during 2012 the Northern Ireland Bill of Rights process was virtually non-existent. There was ongoing campaigning by the Human Rights Consortium,3 and the Human Rights Commission tried to re-energise the debate by publishing a booklet entitled Is That Right?, but the UK and Northern Ireland governments were almost completely silent on the matter,4 even when the Chief Commissioner, Michael O’Flaherty, tried to sell the process as essential to the establishment of proper peace in Northern Ireland: The Bill of Rights is unfinished business. There are many issues such as dealing with the past and promoting good community relations to which a Bill would make a crucial contribution. This potential was recognised in 1998 by the architects of the peace process. Not having a bill of rights denies the people of Northern Ireland an important tool for making progress to a shared and better future for all.5 In December 2012 a decision was taken at Belfast City Council that the Union flag should no longer be flown from the City Hall on every day of the year but only on designated days. This was a compromise position put forward by the Alliance Party, the unionist parties having expressed a wish for a flag to be flown every day and the nationalists preferring it not to be flown at all (or only alongside the Irish flag). The decision provoked an immediate backlash in many loyalist areas, with innumerable street protests and rallies during December and thereafter. The Police Service of Northern Ireland (PSNI) managed to contain the disturbances by not over-reacting. Instead they filmed many of the violent agitators and brought them to court days or weeks later. Some might argue that ‘the flags protest’ is exactly the kind of confrontation that could be avoided by putting in place a tailor-made Bill of Rights dealing with the special circumstances of Northern Ireland, but there seems no likelihood of such a Bill materialising in the foreseeable future.

THE RIGHT TO LIFE

1

A UK Bill of Rights? The Choice Before Us, Vol 1, para 75. The Commission regretted that, alone amongst the three devolved administrations in the UK, the Northern Ireland Executive refused to appoint any local advisers to the Commission. 2 http://www.nihrc.org/index.php/news/item/670-chief-commissioner-responds-to-uk-bill-ofrights-report. 3 http://www.billofrightsni.org. 4 In a speech given at the Alliance Party’s Annual Conference by the Tánaiste, Eamon Gilmore, he expressed Irish government support for a Bill of Rights: http://rightsni.org/2012/04/tanaiste-eamon-gilmore-calls-for-northern-ireland-bill-of-rights. 5 Professor O’Flaherty also delivered a lecture on the Bill of Rights process at the University of Ulster at Magee: http://www.nihrc.org/index.php/news/item/247-bill-of-rights-for-northernireland-where-we-are-now.

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According to police statistics, from April 2011 to March 2012 there were 16 murders and 7 manslaughter offences committed in Northern Ireland.6 This is a homicide rate of 12.7 per million in the population and compares with rates of 9.8 per million for England and Wales and 17 per million for Scotland.7 From April 2012 to March 2013 there were 17 murders and just three manslaughter offences. Over these two years, therefore, the murder rate in Northern Ireland was lower than it has been since the late 1990s. In 2012 two of the murders were troubles-related: Danny McKay was a civilian who died in what looked like a paramilitary and drugs-related attack, while a few days later David Black, a prison officer, was gunned down while driving to work. Both men seem to have been the victims of dissident republican groups. In January, Colin Duffy was acquitted of the murder of two British soldiers at Masserene Barracks in 2009, but Brian Shivers was convicted;8 a year later, however, Shivers won his appeal on the basis that the evidence against him was too weak to prove his guilt beyond reasonable doubt.9 In March, two other men were convicted of the first murder of a member of the PSNI, Constable Stephen Carroll, in 2009.10 Brendan McConville received a minimum sentence of 25 years and John Paul Wootton a minimum sentence of 14 years. There were adverse comments about the apparent leniency of these sentences and Girvan LJ took the unusual step of making additional remarks a few days later to explain that he had followed sentencing guidelines contained in a Practice Direction issued by the Court of Appeal of Northern Ireland in 2002; he added that in his view the Court of Appeal should review those guidelines.11 As regards so-called legacy cases – unsolved deaths from the period of conflict between 1968 and 1998 – a report released in December 2012 by Sir Desmond da Silva into the death of solicitor Pat Finucane in 1989 revealed that there had indeed been active collusion in the murder by state agents, but that no government Minister had known of the planned killing in advance. Prime Minister David Cameron apologised to Mr Finucane’s family but the deceased’s widow called the da Silva report ‘a sham... a whitewash... a confidence trick’.12 The leader of the Labour Party, Ed Miliband, supported Mrs Finucane’s renewed call for a public inquiry into the murder, as did the Northern Ireland Human Rights commission and Amnesty International. Mrs Finucane’s application for judicial review of the UK government’s decision not to hold such an inquiry continued during the year. Legacy inquests continued to cause some legal difficulties. The next-of-kin of Martin McCaughey, a member of the IRA who was shot by British soldiers in 1990, applied for judicial review of a coroner’s decision not to disclose documents relating to the involvement of the same soldiers in other lethal force incidents. Weatherup J said he might have 6

http://www.psni.police.uk/monthly_crime_bulletin_apr-mar_12_13.pdf. See citizensreportuk.org. 8 R v Duffy and Shivers [2012] NICC 1 and 37, [2012] 3 BNIL 37 and 38. 9 [2013] NICA 4. 10 R v Wootton and McConville [2012] NICC 10. At the time of writing a decision by the Court of Appeal in this case is pending. 11 [2012] NICC 19, [2012] 5 BNIL 86. 12 http://www.huffingtonpost.co.uk/2012/12/12/pat-finucane-murder-report-familywhitewash_n_2284265.html. 7

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granted the application if the inquest had not already begun, but in view of the fact that the coroner had stated that he had not yet made a final decision on whether the documents were relevant to the inquest it would be inappropriate to grant the judicial review application at this stage.13 A Police Ombudsman’s report into the police handling of the investigation of the killing of six people in the Heights Bar at Loughinisland in 1994 was quashed by the High Court in December,14 apparently because it had not been conducted thoroughly enough. The families of the victims hailed this as a triumph for their long-running campaign to discover if there had been any collusion by state forces in the killings. Earlier in the year they also won the right to have their legal proceedings funded by legal aid.15 In December, following the publication of the Saville Inquiry Report in 2010, the PSNI announced that in 2013 it would be commencing a criminal investigation into the killings on ‘Bloody Sunday’ in 1972. The PSNI’s Historical Enquiries Team, which was set up in 2005, continued its work into unresolved killings occurring between 1968 and 1998, but concerns raised by research conducted by Dr Patricia Lundy at the University of Ulster were serious enough to prompt the Northern Ireland Policing Board to call for an inspection of the HET by HM Inspectorate of Constabulary. The inspection was well under way by the end of 2012. Meanwhile one of the cases which had been brought to court on the back of a review conducted by the HET reached the Court of Appeal. Robert Clarke was appealing against his conviction in 2011 of the murder of Alfredo Fusco in his fish and chip ship in 1973, but he was unsuccessful.16 The duty to protect life arose in other contexts too. In Re Officers C and others Deeny J issued a long judgment concerning an application by 12 current or former police officers who wanted to remain anonymous when giving evidence at the inquest into the killing of Pearse Jordan, a member of the IRA who was shot in 1992.17 The judge meticulously analysed the current law and held that 10 of the officers should indeed be granted anonymity, and screened off while testifying. A similar decision was reached by McCloskey J in Re a Police Officer’s Application,18 where the applicant had resigned from the police just before a misconduct hearing against him was due to begin. He argued that his identity should continue to be hidden because his life would otherwise be at risk from paramilitaries. The judge carefully considered the test for protecting the right to life laid down by the European Court of Human Rights in Osman v UK19 and by the

13

Re McCaughey’s Application [2012] NIQB 20, [2012] 4 BNIL 8. The decision appears to be unreported, but see http://www.bbc.co.uk/news/uk-northernireland-20788396. 15 Re Green’s Application [2012] NIQB 48, [2012] 6 BNIL 48. 16 [2012] NICA 2, [2012] 4 BNIL 37. At the time of writing, out of approximately 1800 reviews conducted by the HET, three other men have been tried and convicted of murder. 17 [2012] NIQB 62. 18 [2012] NIQB 3, [2012] 4 BNIL 61. The judge cited X v Mental Health Review Tribunal [2012] NIQB 1, an application by a detained mental patient seeking permission to bring court proceedings where, after balancing the applicant’s Article 8 rights and the court’s Article 6 duties, Stephens J granted anonymity to the applicant. 19 (2000) 29 EHRR 245. 14

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House of Lords in Re Officer L.20 Strangely, despite holding that the test was not met in this case, he ordered that, in order not to waste any more court time and resources on the matter, he would accede to the applicant’s request for continuing anonymity. In a highly publicised case concerning the PSNI’s request that Boston College in the USA should disclose tapes of interviews with former paramilitaries, Treacy J rejected the argument that disclosure would materially increase the risk to life of one of the individuals who had conducted the interviews, Anthony McIntyre.21 In fact the judge said that not requesting the tapes could itself be a breach of the state’s duty to thoroughly investigate murders (in this case the disappearance of Mrs Jean McConville in 1972). In Re Sunday Newspapers Ltd’s Application an attempt was made by a newspaper to lift a court order restricting any publication of the identity of an individual who had unsuccessfully applied for judicial review of the Secretary of State’s decision to revoke his firearms certificate.22 The order had been imposed because of the risk to the individual’s life if it were to become known that he no longer had a personal protection weapon. Weatherup J held that the order should remain in place for the time being: while the individual could not have a reasonable and legitimate expectation that it be made permanent, the judge could not assume that the risk which previously existed had now disappeared. In Re MacMahon’s Application the former partner of a man who had been stabbed to death in 2006 challenged the decision of the Public Prosecution Service to discontinue murder proceedings against five individuals and to accept their guilty pleas to lesser charges.23 The applicant relied on Articles 2 and 8, but Treacy J held that, while the PPS had breached its own policy relating to communication with families of victims, it had not breached Convention rights. The European Court does not oblige states to prosecute particular offences nor to disclose to families of victims all the material collected by the prosecutors. In McGeough v Secretary of State for Northern Ireland24 the claimant had been convicted in 2011 of the murder of a British soldier in 1981, which, under the Belfast (Good Friday) Agreement25 and the Northern Ireland (Sentences) Act 1998,26 made him eligible for ‘accelerated release’ after just two years in prison. He argued that, because he had already spent several years in prison in both Germany and the USA on account of his IRA activities, he should not have to spend any further time in a prison in Northern Ireland. He accordingly applied for the prerogative of mercy, but this was refused by the Secretary of State (that being where the power to exercise the prerogative lies in terrorist cases). The Court of Appeal, affirming Treacy J, rejected McGeough’s judicial review of this refusal. While acknowledging that courts did have the power to review decisions relating to the prerogative of mercy, the Court of Appeal could see nothing irrational in

20

[2007] UKHL 36, [2007] 1 WLR 2135. Re McIntyre’s Application [2012] NIQB 65. 22 [2012] NIQB 26, [2012] 5 BNIL 72. For the original court order see [2011] NIQB 136. 23 [2012] NIQB 60. 24 [2012] NICA 28, [2012] 8 BNIL 41. 25 Section on ‘Prisoners’, para 3. 26 s 10. 21

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the decision to refuse to apply the prerogative on these facts. Mr McGeough would otherwise have spent no time at all in prison for the murder he committed. In 2012 at least three prisoners died in Northern Ireland’s prisons (one apparently from natural causes and two through suicide). Reports were issued by the Prisoner Ombudsman into these deaths as well as into six earlier deaths. In Rabone v Pennine Care NHS Trust the UK Supreme Court ruled that a duty to protect life is owed by the state to a person who is a voluntary patient in a mental hospital. Here the patient had been allowed home for a weekend, during which time she killed herself.27 The decision went beyond how even the European Court of Human Rights had interpreted Article 2 at that time. During the year the Attorney General for Northern Ireland issued draft human rights guidance for Forensic Science Northern Ireland and the Northern Ireland State Pathologist and by the end of the year he was about to issue more general guidance for criminal justice agencies on how to protect the right to life.28 Such documents are issued pursuant to section 8 of the Justice (NI) Act 2004 and drafts are first considered by the Justice Committee at the Northern Ireland Assembly. Road deaths were the lowest ever in 2012, at 48 (compared to 59 in 2011). The dramatic reduction in recent years is evidence that hard-hitting advertisements highlighting the dangers of speeding and drink-driving can have an effect. As regards deaths at work, the Health and Safety Executive reported that in each of 2011-12 and 2012-13 there were 17 fatal incidents, more than 50 per cent occurring on farms. In May a court in Northern Ireland had the first opportunity to sentence a company for the relatively new crime of corporate manslaughter: it imposed a fine of £187,500 in relation to the death of a man who was killed while cleaning farm equipment.29 The fine would have been one-third higher had the company not pleaded guilty. The judge set out the factors that should be taken into account when establishing the appropriate sentence for such fatalities. Suicide rates remained high in Northern Ireland. The figure for 2012 was 278, slightly down on the figure for 2011 at 289, but these levels are considerably beyond those of 10 and 20 years earlier (in 2002 there were 183 suicides and in 1992 there were 128). The large majority of the victims are young males. In November 2012 the Northern Ireland Commissioner for Children and Young People published a research report on the extent to which young people often continue to be badly affected by experiences they had as young children.30 There can also be little doubt that ease of access to drugs is facilitating more such deaths.

27

[2012] UKSC 2, [2012] 2 AC 72. http://www.attorneygeneralni.gov.uk/index/publications.htm. 29 R v JMW Farm Ltd [2012] NICC 17, [2012] 6 BNIL 62. The offence was created by the Corporate Manslaughter and Corporate Homicide Act 2007. 30 John Devaney et al, Still Vulnerable. The Impact of early Childhood Experiences on Adolescent Suicide and Accidental Death (Belfast: NICCY), available at http://www.niccy.org/uploaded_docs/2012/Publications/Adolescent%20Suicide%20Report% 20(adult)%20final%20Nov%2012.pdf. 28

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THE RIGHT NOT TO BE ILL - TREATED In 2011-12 the PSNI reported 25,196 incidents of domestic abuse, a rise of 2,511 (9%) on the previous year; in 2012-13 the number had risen by a further 7.9% to 27,190.31 In June 2012 the UK signed the Council of Europe’s Convention on Combating and Preventing Violence Against Women and Domestic Violence (the Istanbul Convention),32 but even at the time of writing the Convention has not acquired the 10 ratifications required for its entry into force. It focuses on the prevention of domestic violence, requiring states, for example, to regularly run awareness-raising campaigns, to set up treatment programmes for perpetrators, and to involve the media and the private sector in eradicating gender stereotypes. It remains to be seen whether the law of Northern Ireland will need to be modified in order to comply with the Convention. In May the First and Deputy First Ministers announced that there would be an independent inquiry into historical institutional child abuse in Northern Ireland. A Bill to bring this about was debated in the Assembly towards the end of the year and enacted early in 2013.33 The Inquiry is due to begin hearing testimony from victims in 2014 and to issue its report in 2016. It will investigate allegations of abuse by people who, as children, were held in the care of institutions (other than schools) run by the state, a church or a voluntary organisation at any time between 1922 and 1995. The Inquiry will also take evidence from the institutions themselves. One significant difference from comparable inquiries in the Republic of Ireland is that the Northern Ireland Inquiry will be able to transmit evidence of criminality to the police for further investigation and possible prosecution. During the course of the year the Northern Ireland Human Rights Commission launched an investigation into racially motivated hate crimes and published a report on the human rights of older people in nursing homes.34 It also condemned the increasing number of attacks on journalists.35 One positive legislative development was the coming into operation of the Safeguarding Board for Northern Ireland,36 the body which replaced the Regional Child Protection Committee. It comprises various organisations from the statutory, community and voluntary sectors concerned about the well-being of children. It will seek to coordinate the activities of those organisations more effectively so that children are kept as safe as possible. Throughout 2012 there was considerable debate as to what effect proposed changes to the welfare reform system might have on people who are poor, vulnerable and/or unemployed. Social security is a devolved issue but there is an expectation that Northern Ireland (as well as Scotland) will not deviate unduly from the system that is agreed for England and Wales. The Northern Ireland Human Rights Commission expressed views

31

See the statistics section on the PSNI’s website: www.psni.police.uk. For an analysis of the potential of this Convention see Ronagh McQuigg, ‘What potential does the Council of Europe Convention on Violence against Women hold as regards domestic violence?’(2012) 16 International Journal of Human Rights 947. 33 Historical Institutional Abuse Act (NI) 2013. See too http://www.hiainquiry.org/index.htm. 34 In Defence of Dignity (March 2012). 35 http://www.nihrc.org/index.php/news/item/671. 36 Established under the Safeguarding Board Act (NI) 2011. 32

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on the human rights implications of some of the proposed reforms37 and in April two reports on the impact of the proposed changes on children and young people were produced by the Northern Ireland Commissioner for Children and Young People.38 By the year’s end, however, the politicians were still far from agreeing the best way forward for Northern Ireland. Hate crime continued to be relatively common. In 2011-12 there were 1,344 sectarian incidents, 696 racist incidents and 200 homophobic incidents; in 2012-13 those figures rose to 1,372, 750 and 246 respectively. Just as alarmingly, the detection rate was very low, varying between 15% and 18%. In March 2012 the Northern Ireland Policing Board published Policing with and for Lesbian, Gay, Bisexual and Transgender Individuals,39 which made 18 recommendations to the PSNI. In RT (Zimbabwe) v Secretary of State for the Home Department40 the UK Supreme Court applied its leading decision in HJ (Iran) v Home Secretary41 and held that people should not be denied asylum on grounds of fear of persecution merely because they could in theory return to their home country and pretend not to have the political beliefs they actually have.

THE RIGHT NOT TO BE SUBJECTED TO FORCED LABOUR Under the Council of Europe’s Convention on Action against Trafficking in Human Beings 2005, which has been in force for the UK since 2009, states are required to set up a system for protecting trafficked persons. In Re W’s Application a woman who had been refused categorisation as a trafficked person in Northern Ireland challenged the compatibility of the UK’s ‘National Referral Mechanism Policy’ relating to trafficking with Article 4 of the European Convention on Human Rights, the provision which has been interpreted as imposing positive obligations on states to prevent trafficking, protect the victims and punish the perpetrators. After an extensive analysis of the policy in question (which requires cases to be referred to the police if there are indications that a person has been the victim of trafficking), Treacy J found no failure to comply with Article 4.42 Consultation began on new human trafficking offences, set out in a draft Criminal Justice Bill. They address the trafficking of persons outside the United Kingdom for the purposes of sexual or other forms of exploitation. Such activities will be criminal in

37

See, e.g., the Commission’s advice given to the Assembly’s Committee for Social Development on 30 October 2012, available at http://www.niassembly.gov.uk/AssemblyBusiness/Official-Report/Committee-Minutes-of-Evidence/Session-2012-2013/October2012/Welfare-Reform-Bill-Briefing-by-the-Northern-Ireland-Human-Rights-Commission. 38 Goretti Horgan and Marina Monteith, Making Children Visible:Addressing the Impact on Children; and Barry Fitzpatrick and Noreen Burrows, Making Children Visible: The Parity Question (Belfast: NICCY), available at http://www.niccy.org/Publications/policyandresearchreportsandpapers/PolicyandresearchRep ortsbytheme/poverty/NICCYWelfareReformReport. 39 Available at http://www.nipolicingboard.org.uk/lgb_t_thematic_review.pdf. 40 [2012] UKSC 38, [2013] 1 AC 152. 41 [2010] UKSC 31, [2011] 1 AC 596. 42 [2012] NIQB 37, [2012] 7 BNIL 30.

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Northern Ireland if committed by a British citizen or by someone habitually resident in Northern Ireland at the time of the offence. The Bill became an Act in 2013.43 A further sign of how much more transparent the criminal justice system of Northern Ireland has become in recent years was the publication by the Public Prosecution Service in September 2012 of a consultation document on its policy for prosecuting cases of human trafficking.

THE RIGHT TO LIBERTY In May, the maximum permissible pre-charge detention period for suspected terrorists was reduced from 28 to 14 days throughout the UK,44 but Parliament can still extend the period to 28 days in an emergency.45 The new ‘terrorist prevention and investigation mechanisms’ (TPIMs),46 which replaced control orders, no longer permit suspects to be forcibly relocated and they are subject to stricter time limits than control orders. They still permit electronic tagging and overnight residence restrictions and the decisions to issue them can still be taken partly on the basis of evidence which is not disclosed to the person affected by the measure.47 In Re Corey’s Application48 Treacy J found that a former life sentence prisoner who, having been released on licence in 1992 after serving 19 years in prison, had been returned to prison in 2010 on the basis of intelligence that he was involved in dissident republican activity and was a serious risk to the public, had suffered a violation of his rights under Article 5(4) of the European Convention in that he had not been given access to the intelligence information in question and therefore could not undermine it. The information had been disclosed to a ‘special advocate’, who was able to challenge it on the prisoner’s behalf but could not consult with him about its content. The judge felt that the Parole Commissioners had identified the right test to apply when considering if the prisoner had been told enough about the allegations against him (citing A v UK49) but that they had then misapplied the test by finding that the ‘gist’ of the allegations had been conveyed to him. This was an important decision, going to the root of the rule of law. Treacy J also ordered the release of the prisoner on bail pending an appeal, but the very next day the Court of Appeal overturned that order and later in the year it allowed the Parole Commissioners’ appeal on the substantive issue too.50

43

Criminal Justice Act (NI) 2013, ss 6-8. Protection of Freedoms Act 2012, s 57. 45 Ibid., s 58. 46 Provided for by the Terrorism Prevention and Investigation Measures Act 2011. 47 For a critique by the NGO Liberty see http://www.liberty-human-rights.org.uk/humanrights/terrorism/control-orders/index.php. See too the annual review of TPIMs conducted by David Anderson QC, the Independent Reviewer of Terrorism Legislation. His report on 2012 is available at https://terrorismlegislationreviewer.independent.gov.uk/wpcontent/uploads/2013/04/first-report-tpims.pdf. 48 [2012] NIQB 56, [2012] 10 BNIL 80. 49 (2009) 49 EHRR 29. 50 [2012] NICA 57. The Supreme Court gave leave to appeal on the bail point but eventually dismissed the appeal: [2013] UKSC 76, [2013] 3 WLR 1612. 44

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The whole topic of the law on bail, and in particular its compatibility with the European Convention on Human Rights, was the subject of a report by the Northern Ireland Law Commission.51 This made 55 recommendations, the main one being that a unified Bail Act should be introduced to govern bail decisions made by the police or by any court (but terrorist cases are not included, as terrorism falls outside the Law Commission’s remit). The Commission proposes a new definition of bail, a qualified statutory right to bail, and a distinction between pre-charge and post-charge bail. It also suggests a new system of ‘bail guarantors’ but rejects the idea that a new offence of ‘breaching bail conditions’ should be created. In Re Canning’s Application52 a challenge was raised to the compatibility with Article 5 of the European Convention of the police’s anti-terrorist powers to stop and question and to stop and search.53 The European Court of Human Rights had held in Gillan and Quinton v UK that similar powers in the Terrorism Act 2000 were in violation of Article 8 of the Convention because they were not sufficiently circumscribed nor subjected to adequate safeguards against abuse, but that Court made no ruling in relation to Article 5.54 In Canning Treacy J reviewed the safeguards available under the 2007 Act (regular review by an independent reviewer, oversight by the Policing Board, complaint to the Police Ombudsman, judicial review, etc) and concluded that they were adequate. He stressed that the powers were vital tools for the police to use when discharging their duties under Article 2 of the Convention to protect the public against real and immediate risks to life. It appears that the absence of any code of practice to guide the police in their use of these powers was not thought relevant either by the lawyers or by the judge at this stage of the proceedings, but when the case reached the Court of Appeal a year later that was the basis on which the powers were struck down.55 A code of practice was put in place in May 2013. In its Human Rights Annual Report for 2012 the Northern Ireland Policing Board recommended that the police should conduct a review of the provision of health care in police custody suites and that an explanation should be provided for why some immigrants were still being detained in police custody rather than held in the separate premises designated for that category of detainee (Larne House). The Northern Ireland Commissioner for Children and Young People published a research report on the importance of ‘significant adults’ as regards children and young people who get caught up in the criminal justice system of Northern Ireland.56

51

NILC 14 (September 2012). See in particular ch 5. [2012] NIQB 49, [2012] 9 NIJB 58. 53 Justice and Security (NI) Act 2007, ss 21, 24 and sch 3, para 4(1). 54 (2010) 50 EHRR 45. 55 Re Canning’s Application [2013] NICA 19. 56 Agnieszka Martynowicz, Linda Moore and Azrini Wahidin, ‘She's a Legend’ – The Role of Significant Adults in the Lives of Children and Young People in Contact with the Criminal Justice System (Belfast: NICCY; December 2012). 52

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THE RIGHT TO A FAIR TRIAL The provisions allowing for juryless trials of paramilitary-related suspects continued to apply throughout 2012.57 January also saw the conclusion of the first ‘supergrass’ trial to take place in Northern Ireland in many years. It had run for 72 days at the end of 2011 and the prosecution relied heavily on the evidence of two brothers (the Stewart brothers) who had become ‘assisting offenders’ under the Serious Organised Crime and Police Act 2005.58 This meant they had pleaded guilty to the same offences as those now being alleged against others but had promised to testify against their former accomplices in return for reduced sentences. In the end, Gillen J disbelieved nearly all of what the Stewart brothers said in court and he acquitted 12 of the 13 defendants.59 He stopped short of saying that the prosecution should never have been brought in the first place, intimating that less flawed assisting offenders might well lead to the conviction of serious offenders in future, but doubt must now hang over the workability of the whole assisting offender strategy, much as it did over the ‘supergrass’ strategy during the 1980s. In another case, R v Holden, the Court of Appeal of Northern Ireland considered a conviction which had been referred by the Criminal Cases Review Commission. It concerned an individual who in 1973 had been found guilty in a jury trial in Belfast of the murder of a British soldier the previous year.60 The only evidence against him was his confession, which he had made during interrogation by soldiers and again when he was later interviewed by the police. He alleged that he had been ill-treated while in army custody but the trial judge, Lowry LCJ, did not believe him. Holden was sentenced to be hanged – the last such person in Northern Ireland, as the death penalty was abolished later that year61 – but this was commuted to life imprisonment and he served 17 years in prison. The CCRC had unearthed documentation showing that the soldiers who interrogated Holden probably knew that they had no powers to do so at that time because three months earlier the Attorney General had made it clear to the Ministry of Defence that if soldiers interrogated arrested persons for any purpose other than establishing their identity this would be unlawful as only police officers were authorised to conduct such questioning. On this basis the Court of Appeal in 2012 quashed Holden’s conviction. The journalist Ian Cobain supports Holden’s claim that British soldiers subjected him to water-boarding back in 1972.62 In a different case the Court of Appeal laid down a simpler, but not necessarily better, test regarding the sustainability of old convictions obtained in breach of what were then

57

Under the Justice and Security (NI) Act 2007 (Extension of duration of non-jury trial provisions) Order 2011. They were renewed for a further two years in 2013. 58 ss 71-75. 59 R v Haddock and others [2012] NICC 5, [2012] 2 BNIL 33. 60 It was one of the last jury trials to be held in troubles-related cases, prior to the introduction of ‘Diplock courts’. 61 Northern Ireland (Emergency Provisions) Act 1973, s 1(1). The last hanging had occurred in 1961. 62 See http://www.theguardian.com/uk/2009/dec/21/british-army-northern-ireland-interrogations; see too Ian Cobain, Cruel Britannia: A Secret History of Torture (London, Portobello Books, 2012), chs 5 and 6.

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called the Judges’ Rules. This was in R v Brown, where four separate appeals were considered as a result of references by the CCCRC.63 The appellants were all aged 15 or 16 when they were convicted in the 1970s of involvement in attacks on British soldiers. They had admitted their guilt while being questioned by the police in the absence of a parent, guardian or solicitor. In the case of two of them the Court of Appeal felt such a sense of unease about the reliability of the convictions that it quashed them as unsafe, but in the other two cases the surrounding circumstances, including the facts that the boys had made their admissions relatively soon after questioning had begun and had not then challenged the truthfulness of their admissions during their trials, suggested that the convictions were safe. There is obviously a degree of subjectivity in this approach based as it is on ‘unease’, though some might argue that this is inevitable in any retrospective consideration of events that occurred almost 40 years earlier.64

THE RIGHT TO A PRIVATE AND FAMILY LIFE AND HOME Only certain sections of the Protection of Freedoms Act 2012, passed at Westminster, apply in Northern Ireland.65 Among them, from 1 November 2012, are those regarding data collection, directed surveillance and covert human intelligence sources. They impose tighter requirements for judicial approval before various activities can be conducted. The Act also reformed the police’s anti-terrorist search powers throughout the UK: an authorisation from a senior police officer was made a prerequisite to any such powers being applied and strict safeguards were introduced concerning the extent and duration of any authorisation. A code of practice on the use of some anti-terrorist stop and search powers in Northern Ireland was issued too,66 and the powers of the independent reviewer of terrorism (David Anderson QC) were extended so as to include making an assessment of whether appropriate requirements have been adhered to in relation to people who have been detained on reasonable suspicion of involvement in terrorism.67 This means that the reviewer can now visit places of detention (such as the Antrim Serious Crime Suite in Northern Ireland) and ask to speak with any such person detained there. In its Human Rights Annual Report for 2012 the Policing Board recommended that the PSNI should improve the way in which they collect and disaggregate statistics on the use of their antiterrorist powers. The police were also asked to consider producing an explanatory card (similar to one already developed for young people) which could be handed to anyone who is stopped and searched and/or questioned. In November, the Committee on the Administration of Justice, the leading human rights NGO in Northern Ireland, published

63

[2012] NICA 14, [2012] 7 BNIL 22. For an excellent analysis of this whole area see Hannah Quirk, ‘Don’t mention the war: the Court of Appeal, the Criminal Cases Review Commission and dealing with the past in Northern Ireland’ (2013) 76 MLR 949. 65 Its provisions on the regulation of CCTV (ss 29-36), for instance, were not extended to Northern Ireland. 66 Under the Terrorism Act 2000, s 47AB(2), inserted by the Protection of Freedoms Act 2012. The new code took effect on 9 May 2012. As noted earlier, no such code of practice was issued for powers conferred by the Justice and Security (NI) Act 2007 until 2013. 67 Under the Terrorism Act 2000, s 41. 64

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a valuable analysis of current powers to stop, search and question which suggested that they were being widely misused.68 Amendments were also made to the code of practice on the exercise of PSNI powers of stop and search in non-terrorist cases. These allowed police officers the option of recording the details of any stop and search operation electronically and of issuing a receipt instead of a full record of the incident at the time it occurs, provided the receipt indicates how a full record can be obtained later.69 There was an important decision by the European Court of Human Rights on an application from Northern Ireland concerning the PSNI’s indefinite retention of information in ‘cautions’.70 The applicant had been given the caution (which means that she admitted the offence) for briefly abducting her grandson in 2000, her motive at the time being to encourage her son and his girlfriend to settle their differences so that the girlfriend would not return to her native Australia and take the grandson with her. The applicant was told in 2003 that the caution would be retained until 2005 but later discovered that police policy had changed and that all cautions relating to offences against children were being retained indefinitely. The European Court held that this policy was a violation of the applicant’s right to a private life because it was not ‘in accordance with law’. It noted ‘the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data’. It further referred to ‘the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to [statute]’.71 The PSNI also lost in the case of Re JR59’s Application,72 where they were found to have mishandled an application for an Enhanced Criminal Record Certificate in a way which disproportionately interfered with Article 8 rights. They had prematurely disclosed information about the applicant’s arrest many years earlier for indecent assault and gross indecency with a child to a prospective employer. In the High Court of Northern Ireland there was a significant decision by McCloskey J granting interim injunctions against Facebook Ireland based on the applicant’s Article 3 and 8 rights.73 In England and Wales the Court of Appeal decided in R (Press Association) v Cambridge Crown Court that a court cannot prohibit the publication of the name of a person accused of a sexual offence merely to ensure that the identity of the complainant is not revealed: the duty not to reveal the names of victims lies on those who are

68

Still Part of Life Here?(Belfast, CAJ, 2012, Reference 63), available at http://www.caj.org.uk/files/2013/05/01/No._63_Still_Part_Of_Life_Here,_November_2012_ .pdf. 69 Police and Criminal Evidence (1989 Order) (Codes of Practice) (Temporary Modification to Code A) Order (NI) 2012. 70 MM v UK App No 24029/07, judgment of 13 October 2012. 71 Ibid., para 206. 72 [2012] NIQB 66 (Treacy J). 73 XY v Facebook Ireland [2012] NIQB 96. The injunctions were discharged a year later: J19 and J20 v Facebook Ireland [2013] NIQB 113 (Gillen J).

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reporting the trial, not on the court.74 While not strictly bound by this decision, it is likely that courts in Northern Ireland will follow it. The very strict conditions which the law imposes on disclosure of personal medical information were well illustrated in O’Hara v Belfast Health and Social Care Trust,75 where the QC (now High Court judge) who was chairing an inquiry into hypnotraemiarelated deaths had to apply for a court order before being able to get access to medical records of various patients. Gillen J’s judgment is a good example of the reasoning that has to be employed before even anonymised versions of such documents can be publically released. The Department of Justice in Northern Ireland ran a consultation process to collect people’s views on how communities which have been affected by a serious offence might contribute to the compilation of a community impact statement for the benefit of a court which is trying someone for that offence.76 Early in 2013 a non-statutory system was put in place to allow for such statements. The Department ran a parallel consultation in 2012 to gather views on its draft five-year strategy for victims and witnesses of crime, but changes to law or practice had not emerged by the end of the year. As part of the draft Criminal Justice Bill reforms were also suggested to laws concerning retention of fingerprints and DNA samples but they too were not expected to take effect until 2013.77 At the UK level, an attempt to confer greater information-gathering powers on the government and other agencies through the Communications Data Bill was abandoned in December, on the back of critical remarks by the Parliamentary Joint Committee on Human Rights and a pledge from the Liberal Democrats that they would not support such an intrusive Bill. A new version is to be introduced with less interventionist powers. In November, stalking was made a criminal offence in England and Wales,78 but no such change was made in Northern Ireland. An Act was also passed at Westminster allowing interference with phone calls made from prisons,79 but that too was not extended to Northern Ireland. The Home Affairs Committee of the House of Commons published a report into the way in which private investigators go about their business.80 Amongst many other recommendations, it proposed that private investigators should be subjected to a licensing and regulation system. A Code of Conduct for Private Investigators was also suggested, as was an increase in the maximum penalty for unlawfully obtaining personal data,81 which at that time was a derisory £100. THE RIGHT TO FREEDOM OF EXPRESSION

74

[2012] EWCA 2434. [2012] NIQB 75. 76 For a leaflet answering frequently asked questions on this topic see http://www.dojni.gov.uk/index/publications/publication-categories/pubs-criminal-justice/cisfaqs-_jan-13_.pdf. 77 Criminal Justice Act (NI) 2013, s 9 and schs 2 and 3. 78 Under the Protection of Freedoms Act 2012, s 111. 79 Prisons (Interference with Wireless Telegraphy) Act 2012. 80 4th Report of 2012-13. 81 Data Protection Act 1998, s 55. 75

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In 2012 the Westminster Parliament spent a lot of time debating a Defamation Bill, which eventually received Royal Assent in April 2013. One of the effects of this legislation is to make it more difficult for people to claim that they have been defamed, thereby enhancing the right to freedom of speech. It later transpired82 that the Department of Finance and Personnel in Northern Ireland had refused to ask the Northern Ireland Executive to consider whether this Bill should be extended to Northern Ireland, as it could have been under the ‘legislative consent motion’ procedure.83 There was speculation that the refusal was motivated by a reluctance on the part of the relevant DUP Minister to give up some of the protection he currently enjoyed under the existing defamation laws, but this cannot be verified. The fact remains that Northern Ireland has been left as potentially the ‘libel capital’ of the world, it being easier to win a case of defamation there than virtually anywhere else. In the Spring of 2012 the Northern Ireland Legal Quarterly published a special issue devoted almost entirely to the reform of libel law;84 it includes an article by Mr Justice Gillen.85 One context in which the right to freedom of expression was granted some further protection during 2012 was that of whistle-blowing: an expanded list was drawn up of the persons to whom a qualifying disclosure can be made by an employee without leaving him- or herself open to adverse consequences at their place of employment.86 In BBC v PSNI a judge rejected an application by the police for a court order requiring the BBC to hand over unbroadcast film taken at an event organised by the 32 County Sovereignty Movement where a masked man supposedly representing the Real IRA had read a speech.87 The police had decided not to be present at the event and the recording they made of it from a helicopter was not clear. They wanted the BBC’s footage so as to be able to subject it to facial mapping, voice recognition and gait analysis. But the judge held that the police had not done enough to convince him that the material would be ‘of

82

See http://inforrm.wordpress.com/2013/05/05/northern-ireland-and-the-mystery-of-themissing-defamation-act. 83 Such motions reflect the constitutional convention, nowhere enshrined in legislation, that Westminster will not enact legislation dealing with devolved issues unless the devolved legislature consents (the so-called Sewel convention). The convention was written into the Memorandum of Understanding drawn up between the UK government and the devolved administrations in 2000 (Cmnd 4806) and updated in 2001 (Cmnd 5240). This states: ‘The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government’. The Northern Ireland Assembly’s Committee on Procedures issued a report on legislative consent motions in 2009, where it made several recommendations as to how they should be handled: http://archive.niassembly.gov.uk/procedures/2007mandate/reports/2009/Report34_08_09R.ht m#3. Two legislative consent motions were passed by the Assembly to allow provisions in the Protection of Freedoms Act 2012 to extend to Northern Ireland. 84 (2012) 63(1) NILQ. 85 ‘Everything should be as simple as possible but not simpler: practice and procedure in defamation proceedings’ (2012) 63 NILQ 137. 86 Public Interest Disclosure (Prescribed Persons) (Amendment) Order (NI) 2012. 87 [2012] NICty 1, [2012] 1 BNIL 17 (Judge Burgess).

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substantial value’ to their investigation, which is one of the conditions laid down for the granting of such a court order in terrorist cases.88 Article 10 of the European Convention also protects the right of access to information. In its Human Rights Annual Report for 2012 the Policing Board urged the police to revert to publishing on their website the various policies which they have developed to guide their actions. These had been removed from the website to undergo review, but had not yet reappeared. In December 2012 the Committee on the Administration of Justice published a report entitled The Policing You Don’t See, which argued that five years after the transfer of ‘national security’ primacy to MI5 there was still an accountability gap regarding covert policing in Northern Ireland.

THE RIGHT TO FREEDOM OF ASSEMBLY AND ASSOCIATION There was the usual spate of challenges to decisions of the Parades Commission in 2012, but again none was successful. In Re Ballymaconnolly Sons of Conquerors Flute Band’s Application Weatherup J rejected a claim that a condition limiting the number of bands permitted at a parade to 25 was a violation of Article 11 of the European Convention.89 He held it to be a proportionate restriction, especially given that the organisers of the parade had failed to communicate with the local community as the Parades Commission had requested them to do the previous year.

THE RIGHT TO BE FREE FROM DISCRIMINATION At the Equality Commission for Northern Ireland Bob Collins stood down as Chief Commissioner after more than six years in the post. He was succeeded a month later by Dr Michael Wardlow. In the Commission’s Annual Report for 2011-12 Dr Wardlow lamented that Northern Ireland was not as strong as other parts of the United Kingdom when it comes to equality protection: We remain concerned that Northern Ireland’s equality laws have now begun to fall behind the law in Great Britain, where previously we had more far-reaching and more developed equality legislation than elsewhere in the United Kingdom. In the Equality Commission’s most recent Equality Awareness Survey more than three quarters of respondents (77%) agreed that Northern Ireland equality law should be strengthened to match those in Great Britain.90 In 2012 the Equality Commission published its 22nd Monitoring Report on the composition of the workforce in Northern Ireland, which showed that the distribution of jobs was broadly in line with the community shares of those available for work: the Catholic share of the workforce had risen by 6 percentage points between 2001 and 2011 to 46.3%.91 A majority of the applicants for jobs in 2011 were Catholics (51.6%), as were 88

Terrorism Act 2000, sch 5, para 5. [2012] NIQB 63. 90 Equality Commission Press Release, 26 September 2012. 91 From the 23rd Report published in 2013 we know that the Catholic share increased again during 2012 to 46.6%. 89

Correspondent Reports – Dickson 247

those who were appointed to jobs (52.1%). There were also more women than men in the monitored workforce (52.7% as opposed to 47.3%). In 2011-12, 56 discrimination cases involving the Equality Commission were concluded and the total amount of compensation recovered on behalf of complainants was £360,000. In 2012-13 the figures were 75 cases concluded and £652,000 recovered as compensation. Every three years registered employers in Northern Ireland must conduct a review of the composition of their workforce and employment practices (so-called ‘Article 55 reviews’92) to assess whether members of the Protestant and Catholic communities are enjoying fair participation in employment. In 2012 the Commission commented on the reviews it had received during the previous three years and noted that, of the 219 employers with whom it had worked to promote affirmative action, ‘60% were broadly affording fair participation to both communities, 28% had some under-representation of Protestants and 12% some under-representation of Roman Catholics’. In Lennon v Department for Rural Development93 a Protestant man won his claim for discrimination when he failed to be appointed as Chair of Northern Ireland Water. On the basis of statistics which showed that during the tenure of the current Sinn Féin Minister Catholics were twice as likely as Protestants to be appointed to positions within the Department, the tribunal held that there was a material bias against Protestants. In Re Northern Ireland Human Rights Commission’s Application Treacy J granted judicial review of the failure of the Department of Health, Social Services and Public Safety to ensure that unmarried couples – whether heterosexual or homosexual – should be allowed to apply to adopt in Northern Ireland.94 Four years earlier the House of Lords had declared Article 14 of the Adoption (NI) Order 1987 to be incompatible with Article 8 of the European Convention, taken in conjunction with Article 14,95 but nothing had been done locally to enforce that judgment. Treacy J therefore declared that the Adoption (NI) Order could not be used to ban such applications and that guidance from the Department should reflect his judgent. The DUP Minister for Health, Edwin Poots, announced that he would appeal this decision.96 The High Court also held that it was a breach of Article 14 of the European Convention, taken in conjunction with Article 1 of Protocol 1 on the right to property, to deny a pension to the co-habiting partner of a local government worker but yet grant it to a partner who was married.97 In March the Equality Commission issued a report setting out the changes it would like to see made to disability equality law.98 These include the introduction of protection against indirect discrimination and discrimination arising from disability. In November 92

Fair Employment and Treatment (NI) Order 1998, art 55. [2012] NIIT 75/11, [2012] 7 BNIL 14. 94 [2012] NIQB 77. 95 In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173. 96 He did so in 2013, but unsuccessfully: [2013] NICA 37. The UK Supreme Court denied the Minister permission to appeal further. 97 Re Brewster’s Application [2012] NIQB 85. Treacy J followed Re Morrison’s Application [2010] NI 194, which was decided on the basis of the Police Pension (NI) Regs 2007. 98http://www.equalityni.org/archive/pdf/Strengthening_protection_for_disabled_people0312.pdf. 93

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Disability Action and the Rainbow Project published a joint report examining the experiences of people with disabilities who also identify as lesbian, gay, bisexual or transgender.99 Allegations of disability discrimination featured in McGrath v Presley, where a joiner had been dismissed after being sick for six months, during which time he suffered a stroke and became further disabled. The industrial tribunal found not only that he had been unfairly dismissed but also that the employer had failed to consider making reasonable adjustments in order to retain the claimant in less arduous part-time work.100 The case is a good illustration of how the duty to make reasonable adjustments can make all the difference to the success or failure of a claim for disability discrimination. Had it not been applicable in this case the claimant would have lost. Late in the year the legislation empowering the Commissioner for Older People came into effect. Northern Ireland then became the second part of the United Kingdom, after Wales, to have such an office. Interestingly, the Commissioner is obliged, when considering what constitutes the interests of older persons and how his or her functions should be exercised, to ‘have regard to’ the Principles for Older Persons adopted by the UN General Assembly in 1991.101 The UK Supreme Court issued its first decision on age discrimination too, in Seldon v Clarkson Wright and Jakes.102 A solicitor complained that his fellow partners had discriminated against him by seeking to enforce a clause in their partnership agreement that he should retire at the end of the year in which he turned 65. The remaining partners justified their decision on the basis of six aims. The Supreme Court held that at least three of these aims were legitimate (e.g. that the firm wanted to limit the need to expel partners on the basis of their poor performance), but it remitted the case to the employment tribunal for a decision on whether a compulsory retirement age of 65 was a necessary, proportionate and appropriate means of achieving any of those aims. On the International Day Against Racism (21 March) the Commission highlighted respects in which, again, the law in Northern Ireland is less protective than the law in Great Britain. For instance, Northern Ireland does not have the same level of protection concerning discrimination or harassment based on colour and nationality as it does for such treatment based on race, ethnic origin or national origin, and in Northern Ireland there is less discretion than there is in Great Britain for employers, service providers and public authorities to take positive action in pursuit of race equality.

99

Simon McClenahan, Multiple Identity; Multiple Exclusions and Human Rights: The experiences of people with disabilities who identify as Lesbian, Gay, Bisexual and Transgender people living in Northern Ireland (Belfast: Rainbow Project and Disability Action), available at http://www.rainbowproject.org/assets/publications/Multiple%20Identity%20Multiple%20Exclusions%20and%2 0Human%20Rights.pdf. 100 [2012] NIIT 2980/11, [2012] 9 BNIL 19. 101 Commissioner for Older People Act (NI) 2011, s 2(3). 102 [2012] UKSC 16, [2012] 3 All ER 1301.

Correspondent Reports – Dickson 249

THE RIGHT TO EDUCATION Discrimination on the basis of language was one of the issues in Re Colaiste Feirste’s Application,103 where a member of the Board of Governors of an Irish-medium secondary school challenged the refusal by the Department of Education to provide transport assistance for pupils who were attending the school. The Department argued that such assistance would not be cost-effective and that it would set a precedent which other types of school might try to exploit. Treacy J accepted that the Department was under a statutory duty to encourage and facilitate the development of Irish-medium education,104 that this duty embodied a commitment in the Belfast (Good Friday) Agreement,105 and that it was intended to have practical consequences. What was, in effect, a type of ‘positive’ discrimination did not, he said, create a precedent for other types of school in relation to which no comparable statutory duty existed.106 He therefore ordered the Department to reconsider its decision. The same judge held in Re L’s Application that one of the regional Boards of Education had unlawfully failed to support a nine-year-old boy who had dyslexia.107 The Board had argued that it could not prioritise any particular category of disability as being more urgently in need of attention than any other, but the judge disagreed. He found that, if the failure to use a power of intervention actively contributed to the seriousness of a child’s learning difficulty, this would be a breach of the Board’s statutory duty to determine the special educational provision which any learning difficulty may call for.108 As there was evidence to show that intervention for numeracy and literacy difficulties had a 80% success rate if provided to children at the age of six or seven, while there was only a 20% success rate if intervention was delayed until the child was 10, the Board had adopted an incorrect approach. In Re Loreto Grammar School’s Application the Court of Appeal upheld the school’s complaint that the decision by the Minister of Education to deny the school’s eligibility for development money was flawed because the school had been led to believe that it did not need to provide a full economic assessment of the project in question.109 However the court also said that the school could not rely on a ‘legitimate expectation’ that it would definitely receive the development money (£14.6 million). The matter was sent back to the Department of Education for reconsideration.

103

[2012] NIQB 98, [2012] 4 BNIL 20. Education (NI) Order 1998, art 89. 105 Section on ‘Economic, Social and Cultural Issues’, para 4. 106 Such a duty also exists in relation to religiously integrated schools: see Education Reform (NI) Order 1989, art 64(1). 107 [2012] NIQB 18, [2012] 4 BNIL 21. 108 Education (NI) Order 1996, art 13(2)(b). 109 [2012] NICA 1, [2012] 1 BNIL 27. 104

IRISH STATE PRACTICE ON THE LAW OF THE SEA 2012

RONÁN LONG National University of Ireland, Galway

INTRODUCTION The Irish delegation under the leadership of the late Ambassador Mahon Hayes played a significant role at the Third United Nations Conference on the Law of the Sea (19731982).1 The report year thus has a certain resonance for those concerned with the progressive development of the rule of law as it applies to maritime affairs as it marks the thirtieth anniversary of the opening for signature of the United Nations Convention on the Law of the Sea (hereinafter the 1982 Convention).2 This instrument has stood the passage of time and provides a flexible legal framework addressing uses of the ocean and the resources that it supports. The continued importance of the 1982 Convention in Ireland was evident during 2012, with considerable developments on the legal landscape including the coordination of Irish Government policy; the licensing and administration of the foreshore; the response by the Irish Coast Guard to ship casualty incidents and vessel source pollution, the saving of life at sea, as well as the power of the State to grant or refuse a place of refuge to a vessel in distress; the response of the Irish superior courts in dealing with cases concerning the management of fisheries and the regulation of catadromous fish species in particular; the efforts undertaken by the Naval Service to enforce national and EU fisheries law, as well as to undertake foreign missions to fly the flag for diplomatic, cultural and trade purposes; the publication of an integrated marine plan for Ireland; the designation of marine special areas of conservation under EU biodiversity instruments; the implementation of the Aarhus Convention; offshore renewable energy; the laying of seabed cables; fiscal and revenue related measures governing offshore oil and gas; the legal duty on a vessel mortgagee under Korean law; as well as several capacity building initiatives in Ireland and further afield regarding the implementation of the 1982 Convention. These matters raised a veritable mélange of legal issues concerning uses of the ocean and its resources in sea areas both within and beyond Ireland’s exclusive jurisdiction in accordance with international, EU and national law. 1

Mahon Hayes, The Law of the Sea: The Role of the Irish Delegation at the Third UN Conference (Dublin: Royal Irish Academy, 2010). 2 Irish Treaty Series No. 1 of 1998.

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ADMINISTRATION OF MARITIME AFFAIRS As reported upon previously, over two-dozen government departments and agencies are vested with wide-ranging statutory functions concerning the administration, management and regulation of maritime affairs in Ireland. 3 The plurality of bodies presents its own challenges to the effective formulation and administration of public policy, particularly when it concerns the implementation of obligations that stem from international and European law. In recent years, however, a concerted effort has been made to establish specialist cross-departmental committees that are tasked with a number of matters including the coordination of the government’s legislative programme and with ensuring greater cross-departmental coherence in addressing the challenges posed by the administration of maritime affairs in Ireland. Chief among these bodies is the ‘Inter-Departmental Marine Coordination Group’, established in 2009, which is chaired by the Minister for Agriculture, Food and the Marine and convened by the Department of the Taoiseach. The Group meets regularly to discuss policy matters on marine issues that require some form of cross-departmental response. In general, members of the Group are at Assistant Secretary level (the second most senior grade in the Irish public service) across nine government departments, namely: Taoiseach; Agriculture, Food and the Marine; Defence; Communications, Energy and Natural Resources; Arts, Heritage and the Gaeltacht; Environment, Community and Local Government; Jobs, Enterprise and Innovation; Public Expenditure and Reform; Transport, Tourism and Sport, as well as representatives from the Attorney General’s Office and the Marine Institute. The focus of the Group is clearly international and European in scope as evidenced by the appointment of a Marine Coordination Attaché who is based in the Permanent Representation in Brussels. This coordinated and integrated approach to the formulation and implementation of Irish and EU policy is fully consistent with the premise underpinning the United Nations Convention on the Law of the Sea (hereinafter the 1982 Convention) that ‘the problems of ocean space are closely interrelated’ and must therefore be ‘considered as a whole’.4 That said, the fact that the Marine Coordination Group is made-up of senior public servants and there appears to be few opportunities for other interested parties concerned with the operational, educational and industry related aspects of maritime affairs, to get more closely involved in the determination and implementation of government policy on key issues. Indeed, this lacuna was picked-up by several of the public submissions that informed the newly published Integrated Marine Plan (IMP) for Ireland (discussed below), which called for the broadening of the membership of this Group to include for example, the Naval Service, academic institutions, non-governmental organisations, and from

3

See, inter alia: R Long, ‘Irish practice on the Law of the Sea 2009-2010, Irish Yearbook of International Law (2012) 251-85; and by the same author, ‘Irish practice on the Law of the Sea 2011’, Irish Yearbook of International Law (2013) 103-26, especially at 103-05. 4 Recital Preamble, United Nations Convention on the Law of the Sea.

Correspondent Reports – Long 253

maritime industry representative bodies.5 The IMP does not, however, address this particular issue directly with a view to broadening the constituency of the Group to ensure that it is fully in line with the general thrust of the 1998 Aarhus Convention, which notes that ‘improved access and public participation in decision-making enhance the quality and the implementation of the decisions’.6 Accordingly, it may be argued that the decision-making structures for marine related matters in Ireland should reflect the International Union for Conservation of Nature (IUCN) principles on good ocean governance, which stress that such structures ought to be transparent, accountable and inclusive.7 Although the operation of a more inclusive system could make the implementation of what are essentially public service functions very complex, there are nonetheless a number of participatory governance models operating at an EU level, such as the Advisory Councils under the common fisheries policy, that could form a useful template for the establishment of a more inclusive approach in Ireland.8

FORESHORE The Minister for the Environment, Community and Local Government is vested with important statutory functions in relation to the foreshore pursuant to the Foreshore Acts 1933-2012. The foreshore extends as far as the outer limits of the territorial sea.9 The foreshore is an important public resource in its own right and the majority of applications for foreshore leases and licences received by the Minister in 2012 related to development and maintenance works close to the shore.10 A brief review of recent consents reveals

5

See discussion of Ireland’s integrated marine plan, infra. Recital 9 of the Preamble to the Aarhus Convention. The EU approved the Convention on 17 February 2005 and many of its provisions are now reflected in many European legal instruments adopted pursuant to Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters. OJ L 124, 17.5.2005, pp. 1–3. Also see para. 38 of the Guidelines adopted by the second meeting of the parties at Almaty, Kazakhstan, in May 2005. United Nations Economic and Social Council Doc. ECE/MP.PP/2005/2/Add.5, 20 June 2005. Available at: http://www.unece.org/env/documents/2005/pp/ece/ece.mp.pp.2005.2.add.5.e.pdf - for transposition of the Directive 2003/35/EC of 26 May 2003, OJ L 156/17, 25.6.2003. 7 Adopted at the IUCN World Conservation Congress, Barcelona, in 2008. Available at: www.iucn.org. For commentary, see D Freestone, ‘Principles Applicable to Modern Oceans Governance’ (2008) 23(3) International Journal of Marine and Coastal Law 385-391; and by the same author, ‘The Modern Principles of High Seas Governance. The Legal Underpinnings’ (2009) 39(1) International Environmental Policy and Law 44-49. 8 See, R Long, ‘The Role of Regional Advisory Councils in the European Common Fisheries Policy: Legal Constraints and Future Options’ (2010) 25(3) International Journal of Marine and Coastal Law, 289-346. 9 Foreshore Act 1933, s.1A as inserted by s.60 of the Maritime Safety Act 2005 (No.11 of 2005). 10 See R Long, Marine Resource Law, (London/Dublin/Toronto/Hong Kong, Thomson Round Hall, 2007) pp. 317-427; A Moore, M Hale, and R Gream Hall, History and Law of the Seashore and Foreshore. With a hitherto unpublished treatise [A narratiue legall and historicall touchinge the customes] (London, Stevens & Haynes, 1888), re-printed in 1993; E J Smyth, The Seashores of Ireland (published privately, Dublin, 1935). 6

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that the exercise by the Minister of certain rights and jurisdictions in relation to the foreshore is fully consistent with the 1982 Convention, which recognises that the sovereignty of the State extends beyond the land territory over the adjacent seabed and subsoil.11 From an international law perspective, the foreshore in Ireland spans both internal waters (areas landward of the baseline) and the territorial sea, which is further seaward of such areas. The application of the foreshore legislation in these maritime zones must therefore respect the right of ships of all States to exercise their right of innocent passage through the territorial sea as codified in the 1982 Convention.12 In general, the granting of foreshore consents under Ireland’s Foreshore Acts 1933-2012 does not impinge upon such rights. The law in this area is subject to further consolidation and reform and it is anticipated that the Maritime Area and Foreshore (Amendment) Bill will be put before the Oireachtas in 2014.13 The importance of the new foreshore legislation in Ireland must now be viewed in light of a proposed EU Directive establishing a framework for maritime spatial planning and integrated coastal management.14 The latter is aimed at providing a framework for taking decisions and preventing conflicts pertaining to many offshore activities including: marine energy sources, maritime transport, the sustainable development and growth of fisheries and aquaculture sectors, the preservation, protection and improvement of the environment, halting the loss of biodiversity and the degradation of ecosystem services, reducing marine pollution risks, and ensuring coastal and marine areas are resilient to the effects of climate change.15 The importance of establishing such a framework in Ireland may be gauged from the controversial nature of applications for foreshore consents in relation to offshore hydrocarbon exploration and development activities in recent years. In 2011, for example, an offshore oil and gas company, Providence Resources Ltd, applied for a foreshore licence in respect of site investigations and the drilling of an exploratory well in the vicinity of the Kish Bank in Dublin Bay.16 In May 2012, the Minister for the Environment, Community and Local Government, Phil Hogan, T.D., informed the Dáil that the application was the subject of environmental assessment by the Marine Licence Vetting Committee, which is an independent group of scientific and technical group that advises the government on all applications for foreshore development and the requisite statutory consents under EU and national legislation.17 The Minister for Communications, Energy and Natural Resources informed the Dáil subsequently that a standard exploration licence had been granted to a consortium of exploration companies including Providence Resources 11 Article

2(2) of the 1982 LOS Convention. Also Maritime Jurisdiction Act 1959, s.2 (since repealed by the Sea–Fisheries and Maritime Jurisdiction Act 2006 (No. 8 of 2006)). 12 Article 17-26, 1982 United Nations Convention on the Law of the Sea. 13 The General Scheme of Maritime Area and Foreshore (Amendment) Bill 2013 which was approved by Government in July 2013. Available at: http://www.environ.ie/en/Foreshore/PublicationsDocuments/FileDownLoad,34315,en.pdf. 14 COM(2013) 133 final, Brussels, 12.3.2013. 15 Paraphrased from Article 5 of the Draft Directive establishing a framework for maritime spatial planning and integrated coastal management, COM(2013) 133 final, Brussels, 12.3.2013. 16 Foreshore Application Reference Number MS51/4/541. 17 Dáil Éireann Debate Vol. 766 No. 1, Col. 24885/12.

Correspondent Reports – Long 255

Ltd., covering an area of approximately 380 square kilometres in the Kish Bank Basin to the east of the Dublin/Wicklow coast.18 The award of this exploration licence conferred on the holder the exclusive right to search for petroleum in the licensed area. In addition to obtaining the relevant foreshore permissions, however, any further development or commercial activities on foot of a discovery under this licence will necessitate the licence holder obtaining several other statutory consents including: a petroleum lease, a plan of development, an integrated pollution prevention and control licence from the Environmental Protection Agency, as well as permission to develop strategic infrastructure from An Bord Pleanála (the Planning Appeals Board). There were a number of media reports that the company has since surrendered voluntarily the foreshore licence relating to the Kish Bank Basin to facilitate the updating of the statute book.19

SHIP CASUALTY I NCIDENTS AND VESSEL SOURCE POLLUTION The Irish Coast Guard and the Marine Survey Office are constituent parts of the Department of Transport, Tourism and Sport and now make-up the Irish Maritime Administration.20 The latter is responsible for the safety of shipping and the prevention of marine pollution by ships and offshore installations. In order to discharge the tasks associated with these functions, designated officers inspect vessels in Irish ports to ensure that they meet international standards concerning safety and environmental protection. The Coast Guard is also responsible for approving port, local authority and offshore installation, oil spill and hazardous and noxious substance contingency plans. At a practical level, much of the day-to-day work of the Coast Guard is concerned with the maintenance of international standards as set down by the International Maritime Organisation (IMO) and European legislative instruments including obligations that arise under the 1974 SOLAS

18

Dáil Éireann Debate Vol. 785 No. 1, Col. 53500/12. 29 November 2012. See, ‘Ireland: Providence Resources announces voluntary surrender of Kish Bank Basin Licence SEL 2/11’, Press Report 12 February 2013. Available at: http://www.energypedia.com/news/ireland/new-153426. 20 Irish Times, 25 July 2013. 19

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and MARPOL 73/78 Conventions,21 the 1979 SAR Convention,22 and the 1989 Salvage Convention,23 the 1990 OPRC Convention,24 as well as the 2000 OPRC-HNS Protocol.25 The Coast Guard monitors shipping movements in sea areas under Ireland’s sovereignty and jurisdiction, and co-ordinates the search and rescue response to emergencies. The onerous nature of such duties should not be underestimated and they place a considerable burden on the limited resources that are available for undertaking surveillance and rescue operations at sea, including supporting the implementation of the West European Tanker Reporting System in the IMO’s Western European Particularly Sensitive Sea Area, which covers sea areas under the sovereignty and jurisdiction of Ireland. The number of tankers that reported directly to the Coast Guard under the West European Tanker Reporting System has increased significantly in recent years from 385 in 2007 to 533 in 2011. 26 Similar to other coastal states and in line with best practice, Ireland ensures compliance with EU and international legislation on double and single hulls through its port state control inspection regime.27 The number of vessel and offshore installations related incidents remains high. By way of example, there were 47 incidents in 2012 relating to vessel or offshore sources of pollution in the Irish exclusive economic zone (EEZ) including 17 instances of the threat of pollution from vessels as a result of grounding or other maritime incidents.28 A number of insightful reports concerning the functions of the Coast Guard were published in 2012. Specifically, a detailed report on the acquisition of an ‘Emergency Towing Vessel’ was published by a specialist firm of UK consultants, which concluded

21

Convention for the Safety of Life at Sea 1974. Accession 29 November 1974. Into force 29 Februry 1984. 1984 Irish Treaty Series No.3. Protocol of 1988 relating to the International Convention for the Safety of Life at Sea 1974. Accession 24 September 2003. Into force 24 December 2003 Irish Treaty Series No.3. International Convention for the Prevention of Pollution from Ships, done at London on 2 November 1973 and Protocol to the International Convention for the Prevention of Pollution from Ships, done at London on 17 February 1978. Into force 6 April 1995 Irish Treaty Series No.11. 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, adopted at London on 26 September 1997. Accession 30 June 2009. Into force 30 September 2009. 2010 Irish Treaty Series No.16. 22 International Convention on Maritime Search and Rescue. 1994 Irish Treaty Series No.2. 23 International Convention on Salvage. Ratification 6 January 1995. Into force 14 May 1996. 1999 Irish Treaty Series No.1. 24 International Convention on Oil Pollution Preparedness, Response and Co-Operation. Accession 26 April 2001. Into force 26 July 2001. 2001 Irish Treaty Series 2001. 25 Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances. 1340 UNTS 61. The role of the Coast Guard in implementing international agreements is examined in previous reports, see: R Long, ‘Irish practice on the Law of the Sea 2009-2010’ (2011) Irish Yearbook of International Law 258-63; by the same author, ‘Irish practice on the Law of the Sea 2011’ (2013) Irish Yearbook of International Law 105-07. 26 Parliamentary Questions Nos. 644 to 646. Dáil Éireann Debate Vol. 759 No. 1, Col. 13785/12. 27 European Communities (Port State Control) Regulations 2010, S.I. No. 656/2010. 28 Coast Guard Pollution and Salvage Branch Pollution Reports 2012 (copy with the author).

Correspondent Reports – Long 257

that such a vessel ‘could provide some assistance in reducing the consequences and frequency of pollution incidents’ in the Irish EEZ.29 The report also noted that there are ‘capability gaps’ in the Irish counter pollution measures.30 On a similar vein, April 2012 saw the publication of the Irish Coast Guard Value For Money Review,31 and the Marine Survey Office (MSO) Value For Money Review.32 The former noted that Ireland does not have a complete legislative base to fulfil its national, EU and international obligations for maritime safety, pollution prevention and control. The Minister recorded his commitment to publish an Action Plan to improve Maritime Safety and Marine Emergency Response Services.33 There were a number of significant publications by EU agencies concerned with maritime matters including by the European Marine Safety Agency (EMSA), which published the EU States Claims Management Guidelines. 34 The Guidelines were developed within the framework of the EMSA Consultative Technical Group for Marine Pollution Preparedness and Response and provide a very useful blueprint on claims management and cost recovery following maritime incidents. They are thus clearly germane to the management of ship casualty incidents and vessel source pollution by foreign vessels in sea areas under Ireland’s sovereignty and jurisdiction.

SAVING LIFE AT SEA The report year was the busiest period on record for the Coast Guard and the total number of incidents increased by close to 10% when compared to 2011. According to the Annual Report, ‘lives saved’ means that the life would have been in all probability lost but for the intervention of the Coast Guard and its rescue resources.35 In 2012, there were 161 ‘lives saved’ and many of incidents shown in Table 1 below related to the needs of foreign flagged merchant vessels and this is attributed by the Coast Guard to an increase in passing traffic rather than any lowering of standards or increase in the risk posed by merchant vessels.36 The Coast Guard took delivery of new aircraft with enhanced capability including an operational range of 270 nautical miles.37

29

PART 2: Review of Pollution Prevention, Preparedness and Response Capabilities, 1.10.2012. Available at: http://www.dttas.ie/sites/default/files/publications/maritime/english/irish-coastguard-publications/etv-report-part2-review-pollution-prevention-preparedness-and-responsecapabilities.pdf. 30 Ibid., at p.147. 31 Available at: http://www.dttas.ie/maritime/publications/english/ircg-value-money-reviewapril-2012-1. 32 Available at: http://www.transport.ie/upload/general/13551MSO_VALUE_FOR_MONEY_REVIEW_APRIL_2012-0.PDF. 33 Press Release, Department of Transport, 25 July 2013. 34 EU States Claims Management Guidelines: Claims arising due to maritime pollution incidents (Lisbon: EMSA, 2012) (updated 11 July 2013). Available at: http://www.emsa.europa.eu/operations/marine-pollution/87-marine-pollution/720-eu-statesclaims-management-guidelines-claims-arising-due-to-maritime-pollution-incidents.html. 35 Coast Guard Annual Report 2012. Copy with the author. 36 Ibid. 37 Id.

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Table 1: Main categories of incidents in the period 2009-2012.38 2009

2010

2011

2012 (to 26th Dec)

Total Number of Incidents

1893

1839

1817

1954

Persons assisted

3127

3570

3563

2593

Pleasure Craft

667

576

580

573

Merchant Craft

47

45

77

65

Fishing Craft

142

188

180

179

Pollution Report

51

41

41

38

IRCG Coastal Units

766

795

912

925

IRCG Helicopters

512

470

553

536

RNLI

709

740

728

717

CRBI

146

122

124

169

False Alarms with good intent

132

144

118

76

Hoax

13

188

369

325

PLACE OF REFUGE The seas around Ireland are some of the busiest in the world and, as seen above, are subject to many maritime incidents every year. In this context, it is important to recall that the duty to render assistance to vessels and persons in distress at sea is a long-standing principle underpinning the law of the sea and has been codified in several international treaties that are legally binding on Ireland.39 Similar to other coastal states, however, Ireland is empowered under international law to regulate the entry of foreign vessels into Irish ports, or internal waters, with a view to controlling pollution of the marine 38

Id.

39 Article

98 of LOS Convention; the SOLAS Convention. For a more detailed description of these obligations, see, R Long, ‘Irish Practice on the Law of the Sea 2011’ (2013) Irish Yearbook of International Law 105-07.

Correspondent Reports – Long 259

environment.40 This particular right comes under the spotlight from time to time in the context of coastal States granting or refusing vessels in distress the right to enter a place of refuge. The latter is defined by the IMO to mean ‘a place where a ship in need of assistance can take action to enable it to stabilize its condition and reduce the hazards to navigation, and to protect human life and the environment.’41 The problems associated with granting a place of refuge to foreign vessels has been an enduring issue of concern for Ireland since a number of high profile pollution incidents in the 1980s including the one stemming from the disastrous consequences that followed loss of the Kowloon Bridge on the pristine coast of west Cork in 1986, which remained the largest shipwreck in Europe prior to the sinking of the Concordia in 2012.42 This was not an isolated incident as many other vessels requiring assistance had sought shelter in Ireland in or about the same time, most notably the Cappo Emma and the MV Tribulus, both of which were granted permission to enter Bantry Bay to effect repairs to their hulls and appurtenances after sustaining major structural damage in Atlantic storms on the south western approaches. 43 Up to that point, unless there were grave reasons to the contrary, Irish government policy was always to provide shelter to vessels seeking assistance or in distress.44 In a landmark decision, however, the MV Toledo was refused entry to Irish territorial waters in 1991.45 This decision was subsequently contested by the owners of the vessel who instituted judicial review proceedings in the High Court after the vessel was lost claiming damages for negligence and compensation on a number of grounds including that the decision of the Minister was in contravention of the vessel's right of refuge according to customary international law. In an erudite judgment, the High Court set out the entitlement of a vessel in distress to enter an Irish port or place of refuge.46 Notably, Barr J. ruled that a vessel in serious distress did not have a customary international law right to a safe haven in the waters of an adjacent State.47 In essence, the right of refuge was not an absolute right and is primarily humanitarian in origin where there is a risk to live involved rather than to the economic interests in the vessel and its cargo.48 In a frequently cited passage, the learned judge further opined that: If safety of life is not a factor, then there is a widely recognised practice among maritime states to have proper regard to their own interests and those of their citizens in deciding whether or not to accede to any such request. Where in a particular case, such as the MV Toledo, there was no risk to life as the crew had abandoned the casualty before a request for 40

Article 211(3), 1982 United Nations Law of the Sea Convention. Para. 1.19 of IMO Guidelines on places of refuge for ships in need of assistance, appended to IMO Resolution A 23/Res.949 5 March 2004. 42 Dáil Eireann Debate Vol. 370 No. 2, Cols 261-272. 43 Dáil Éireann Debates, Vol. 398, Col. 1802. 44 Dáil Éireann Debates, Vol. 395, Col. 631-636, at 632. 45 See C Symmons, Ireland and the Law of the Sea, 2nd ed., (Dublin, Round Hall Sweet and Maxwell, 2000) at 86-87. 46 ACT Shipping (Pte) Ltd v Minister for the Marine and Others [1995] 3 IR 407; [1995] 2 I.L.R.M. 30. 47 [1995] 2 I.L.R.M. 30 at 46. 48 Ibid. 41

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refuge had been made, it seems to me that there can be no doubt that the coastal state, in the interest of defending its own interests and those of its citizens, may lawfully refuse refuge to such a casualty if there are reasonable grounds for believing that there is a significant risk of substantial harm to the state or its citizens if the casualty is given refuge, and that such harm is potentially greater than that which would result if the vessel in distress and/or her cargo were lost through refusal of shelter in the waters of the coastal state.49 The issue of granting a place of refuge in Irish territorial waters arose again in July 2012, after a German flagged container ship of 75,590 gross tonnage, MSC Flaminia, caught fire in a position about 1,000 miles to the west of Ireland, while on passage from the United States to Belgium.50 The incident resulted in the deaths of three crewmembers and the abandoning of the ship prior to the arrival of salvage vessels. Difficulties then arose as Ireland along with the UK, France, Belgium, the Netherlands, Spain and Portugal, all of which were reported by Lloyd’s List as declining the MSC Flaminia a place of refuge after the incident as she presented a serious risk of pollution.51 The Irish Coast Guard has since indicated that due to the unstable state of the vessel and cargo that a place of refuge was not readily available in Ireland.52 The MSC Flaminia, while under tow by the salvage vessels, did however transit the southwest edge of the Irish EEZ. Germany in its role as the flag state ultimately arranged for the MSC Flaminia to enter the port of Willemhaven. Significantly, at the end of August 2012, the Coast Guard reported that containers, which had been lost overboard from the casualty, were adrift in the EEZ and that these were discharging residues of hazardous and noxious substances into the marine environment. These were located and brought to Castletownbere by a salvage vessel with the assistance of the Coast Guard and the Naval Service.53 This incident is very significant and will undoubtedly be reviewed in the specialist literature in the fullness of time.54 For the purpose of this report, however, it is sufficient to note that the response of northern European coastal states, including Ireland, to the MSC Flaminia is generally reflective of trends in coastal state practice within the region over the past two decades, as evidenced by the refusal of France to provide a refuge for

49

[1995] 3 IR 407, at 426. UK Maritime and Coastguard Agency Press Office, 14 July 2012. Available at: http://hmcoastguard.blogspot.co.uk/2012/07/container-vessel-abandoned-mid-atlantic.html. 51 Lloyd’s List, 30 August 2012. 52 Email communication by the author with the Irish Coast Guard. 53 Irish Examiner, 15 September 2012. 54 See inter alia: S Hetherington, ‘Places of Refuge for in Need of assistance: The Work of the Comité Maritime International’ (2010) Ocean Yearbook 331-58; A Chircop, A Linden, (eds), Places of refuge for ships. Emerging environmental concerns of a maritime custom (Leiden, Martinus Nijhoff Publishers, 2006); M Norquist, ‘International law governing places of refuge for tankers threatening pollution of coastal environments’ in T Ndiaye and R Wolfrum, (eds), Mensah, A., Law of the sea, environmental law and settlement of disputes, (Leiden, Martinus Nijhoff, 2007) 497-520; R Shaw, ‘Places of refuge: International law in the making?’ (2003) 9 (2) Journal of International Maritime Law 159-80. 50

Correspondent Reports – Long 261

the Erika in 1999, and the refusal of both Spain and Portugal to grant refuge to the Prestige in 2002.55 Moreover, the law and practice of Ireland accords with the relevant IMO Resolutions and Guidelines, which provide that ‘when permission to access a place of refuge is requested, there is no obligation for the coastal State to grant it, but the coastal State should weigh all the factors and risks in a balanced manner and give shelter whenever reasonably possible.’56 Moreover, Ireland has adopted a comprehensive plan to accommodate ships in distress in accordance with Article 20 of EU Directive 2002/59/EC as since amended, which provides amongst other matters that national authorities must ‘ensure that ships are admitted to a place of refuge if they consider such an accommodation the best course of action for the purposes of the protection of human life or the environment.’57 Although Ireland was subject to the preliminary phase of enforcement proceedings under the EC Treaty by the European Commission for failure to transpose this directive into Irish law by the requisite deadline, 58 this has long been achieved by means of statutory instrument, namely: the European Communities (Vessel Traffic Monitoring and Information System) Regulations 2010. 59 Regulation 19 of the latter sets out the measures that the competent authorities in Ireland can take in the event of exceptionally bad weather or sea conditions, where there is a serious threat of pollution of the shipping areas or coastal zones of the state, or of the shipping areas or coastal zones of other states, or that the safety of human life is in danger. Specifically, they may take, without prejudice to the duty of assistance to ships in distress and in accordance with Regulation 22, any other appropriate measures, which may include ‘a recommendation or a prohibition either for a particular ship or for ships in general to enter or leave the port in the areas affected, until it has been established that there is no longer a risk to human life or to the environment’. 60 Regulation 22 goes on to provide that the Irish Coast Guard may: a.

55

restrict the movement of the ship or direct it, without prejudice to the master’s responsibility for the safe handling of the ship, to follow a specific course,

V Frank, ‘Consequences of the Prestige sinking for European and international law,’ (2009) 15 Journal of International Maritime Law 411, p 420. 56 IMO Resolutions A.949(23) and A.950(23), IMO Guidelines on places of refuge for ships in need of assistance, 5 March 2004. 57 Article 20b of Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system, OJ No. L 208/10, 5.8.2002. As amended as amended by inter alia: Directive 2009/17/EC of the European Parliament and of the Council of 23 April 2009, OJ No. L 131/101, 28.5.2009; Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009, OJ No. L 131/114, 28.5.2009; and Commission Directive 2011/15/EU of 23 February 2011, OJ No. L 163, 25.6.2009. 58 PQ 31145/05. Dáil Eireann Debate Vol. 608 No. 143, 27 October 1995. 59 S.I. No. 573 of 2010. 60 Regulation 19(1)(b) of the European Communities (Vessel Traffic Monitoring and Information System) Regulations 2010.

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b.

give notice to the master of the ship to put an end to the threat to the environment or maritime safety, c. send an evaluation team aboard the ship to assess the degree of any risk, assist the master to remedy the situation, and keep the competent coastal station informed, d. in the event of imminent peril, notwithstanding any other enactment, require (i) the master of the ship to put in at a place of refuge, identified by the authorised officer, or cause the ship to be piloted or towed, (ii) a port authority to accept the ship in a place of refuge, identified by the authorised officer, under his or her control. In other words, Ireland retains considerable statutory discretion in accommodating ships in need of assistance. Moreover, unless life on the stricken vessel is subject to grave and imminent danger, Ireland may refuse to provide refuge until the aforementioned conditions are fully satisfied including compliance with any direction given to the vessel by the Irish Coast Guard. Although the point is somewhat moot in light of the prescriptive nature of EU legislation and IMO Resolutions, the preponderance of state practice in Europe supports the view that any customary international law right regarding the right of a vessel in distress to enter a place or port of refuge is humanitarian in ambit. Significantly, the approach adopted by Ireland in dealing with the MSC Flaminia can be compared to the UK in so far as following the request for a place of refuge on 31 July 2012, the UK Coast Guard carried out an objective analysis of the advantages and disadvantages in allowing the ship to proceed to a place of refuge in close proximity to the UK coast. Although it was subsequently reported in the House of Lords that a list of potential places of refuge were identified by using this process, there was ‘considerable concern that the containers and their contents on fire would result in a further explosion and/or toxic risk compromising the safety of people at the place(s) of refuge.’61 Following an inspection in the English Channel by a safety team, the UK and the other littoral states (namely, France, Belgium and the Netherlands) gave permission for the MSC Flaminia and her escorts to transit their waters on passage to Germany.62 The European Maritime Safety Agency played an important role in coordinating the response of the EU Member States, although any decision to grant a place of refuge remains a matter that is within the exclusive competence of the Member States. With the advent of extreme weather events in the north-east Atlantic and the aged profile of the world’s merchant shipping fleet, the significance of Irish ports or places of refuge is unlikely to diminish in the near future.63 61

PQ, Lord MacKenzie of Culkein. Hansard, Col. WA198, 6 Nov 2012. Ibid. 63As an aside, it may be appropriate to point out at this juncture that the law applicable to vessel source pollution is the focus of an excellent and timely specialist study by Dr. Benedicte Sage-Fuller, University College Cork, with a particular emphasis on the implementation of the precautionary principle when dealing with such vessels. See B. Sage-Fuller, The Precautionary Principle in Marine Environmental Law, with Special Reference to High Risk Vessels (London, Routledge, 2013). 62

Correspondent Reports – Long 263

FISHERIES Commercial sea-fisheries remain a fertile field for litigation in the Irish superior courts. During the report period, the High Court dealt with an application for judicial review made on behalf of the masters and owners of the Irish registered sea fishing vessel, the Carmona, who had been charged with multiple offences relating to log book and landing declarations contrary to Irish and EU regulations at various dates in 2003 and 2004. The gravamen of the challenge in O'Driscoll & Anor v Attorney General & Ors was based primarily on the argument that the relevant statutory offences were void and of no legal effect as a consequence of an impermissible delegation of power by the Oireachtas to the Minister regarding the subject matter or details of the offence as set out in the pertinent regulations.64 In other words, it was claimed that the Minister had acted ultra vires and that the relevant offences should have been created by the Oireachtas. As this particular argument had been rejected previously by the High Court, 65 Hedigan J held that ‘the legislature expressly created machinery and gave power to the Minister for Agriculture, Fisheries and Food, to “implement community law by regulation and to create an indictable offence”’.66 Moreover, in arriving at this decision, the Court points out that the implementation of the relevant EC Regulations was an obligation necessitated by Ireland's EU membership but that the manner in which this was done was a matter for the State, similar to the discretion afforded to other Member States under EU law. By finding that the parent statute ‘clearly and unequivocally’ gave the Minister the requite powers, the decision is foursquare with the outcome of Michael Faherty v Attorney General & Ors,67 as reported previously.68 On the second ground advanced by the applicants, Hedigan J ruled that evidential matters, such as the question whether or not the alleged offences were committed within the exclusive fishery limits of the state, were to be resolved at the criminal trial and not during the course of judicial review proceedings. Although the applicants were unsuccessful in their challenge, the case again raises public awareness about the practice in Ireland of addressing fisheries offences solely by means of criminal proceedings in the criminal courts. There have been a number of initiatives in the Oireachtas to ameliorate this approach in line with international best practice. 69 Instructively, many common law jurisdictions worldwide have adopted a more flexible approach. The UK, for example, has adopted a system of penalty points

64

[2012] IEHC 404. Michael Faherty v Attorney General & Ors [2011] IEHC 222, as well as in Browne v Attorney General [2003] 3 I.R. 205. 66 [2012] IEHC 404. 67 [2011] IEHC 222. 68 See R Long, ‘Irish practice on the Law of the Sea 2011’ (2013) Irish Yearbook of International Law 115-17. 69 See, for example, the Private Members' Bill, Sea Fisheries and Maritime Jurisdiction (Fixed Penalty Notice) Bill 2013, Seanad Éireann Debate, 27 November 2013. 65

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for fisheries related offences, as an alternative to criminal prosecution in circumstances that are clearly prescribed by law.70

EVIDENCE DERIVED FROM VESSEL MONITORING SYSTEM There was inter-jurisdictional collaboration between Ireland and the UK and a notable success regarding the use of technology and evidence derived from a vessel monitoring system (VMS) operated by the Naval Service. In particular, two Spanish fishing companies were prosecuted at Truro Crown Court in the UK in July 2012. 71 In this particular instance, the vessel owners were fined £1.6 million for allowing two of their vessels to fish in Ireland and Scotland contrary to fish quota conservation and management measures. The specific charges related to false entries in fisheries logbooks and failing to record trans-shipments of catch at sea. Elsewhere in the EU, the types of fishery cases in which VMS data has been tendered include: unlawful entry into a restricted area; failure to maintain properly the logbook; illegal fishing; tampering with VMS equipment; and the provision of false information. 72

REGULATING CATADROMOUS FISH SPECIES Catadromous species spawn in the deep-ocean but spend most of their lives in freshwater rivers and lakes before returning to the sea to die. Several important law and policy issues that impinge upon the implementation of international and EU fisheries obligations relating to the conservation of catadromous species in Ireland arose in McArdle & Anor v The Minister for Communications, Energy and Natural Resources.73 The case concerned the regulation and management of European eel belonging to the ancient and venerable species, Anguilla Anguilla. In many ways, the McArdle case and the related regulatory matters demonstrate the close and complex inter-relationship between international law, EU law and national law, when it comes to the management and conservation of fishery resources in aquatic and marine areas that are both within and beyond Ireland’s exclusive jurisdiction. In addition, the case demonstrates the crucial role Ireland can play in the management of human activities that impact upon ecosystems ranging across the Atlantic from the Caribbean as far as continental Europe. Perhaps it is best to start by pointing out a number of salient features in the legal and scientific background to the case. As is well known, Ireland has responsibility under international law for the management of catadromous species and must thus ensure the ingress and egress of migrating fish to the marine environment.74 As an aside, it should be noted that the 18-year life cycle of European eel (the subject matter of this particular 70

See UK Marine Management Organisation, Financial administrative penalties for fisheries offences, 30 August 2012. Available at: http://www.marinemanagement.org.uk/fisheries/monitoring/documents/fap_guidance.pdf. 71 http://www.itv.com/news/westcountry/story/2012-07-26/spanish-fishing-firms-fined/. 72 See B O’Shea and S Thompson, The Innovative Application of Vessel Monitoring Systems for the Effective Fisheries Monitoring Control and Surveillance [ICES, 2006). 73 [2012] IEHC 118. 74 Article 67, United Nations Convention on the Law of the Sea.

Correspondent Reports – Long 265

case) is believed to originate in a single spawning stock in the Sargasso Sea before migrating across the ocean to fresh and coastal waters in Europe including many of Ireland’s inland waters and estuaries.75 Moreover, such species come within the scope of the European common fisheries policy and are subject to specific EU management and regulatory measures.76 In recent years, as a result of scientific advice revealing the catastrophic collapse of the whole fish stock on the Atlantic coast of Europe, 19 EU Member States adopted national management plans further to EU regulation to facilitate the recovery of European eel, whose abundance is estimated by the International Council for the Exploration of the Seas (ICES) to have depleted by 95% over the past three decades with few signs of recovery.77 The overall status and future prospects for European eel in Ireland is also pretty grim with the scientific model indicating the silver eel biomass escapement in the Shannon River Basin District at only 8% by comparison with the 40% threshold set down by EU regulation.78 Anthropogenic factors leading to this decline include fisheries, pollution, loss of habitat and parasites. In response to EU regulatory measures, Ireland has adopted a range of management actions on foot of the precautionary approach including a total ban on eel fishing in the Shannon River and elsewhere. In the case at hand, the applicant, who was a commercial fisherman and a member of Shannon Eel Fishermen's Association, sought a High Court order annulling the instruments closing the fishery on the basis that this would result in the permanent or indefinite closure of fishing for European eel in the Shannon River Basin.79 In an expansive and erudite judgment reviewed the relevant European and Irish laws, as well as international and Irish scientific evidence, Herbert J held that it would be doing ‘impermissible violence’ to the plain language of the enabling statute, the Fisheries (Consolidation) Act 1959, to ‘encompass the permanent or indefinite closure’ of the fishery.80 Furthermore, that the fishery remains extant on the grounds that the State could not ‘govern (regulate), manage (operate and administer), protect (preserve), or improve (make better) a fishery which has been entirely abolished or closed down for some unknown period and with no commitment to its being reopened’. 81 In this context, he accepted the argument advanced on behalf of the Minister that the need to protect the fishery from catastrophic over-fishing led to the decision not to set a fixed date on the re-opening the fishery under the relevant Irish legislation and that such a measure conformed with EU law.82 He also 75

See ICES Joint EIFAAC/ICES WGEEL Report 2012, at p iv. Council Regulation (EC) No. 1100/2007 establishing measures for the recovery of the stock of European eel, OJ L 248/17, 22 September 2007. 77 For scientific advice on national plans, see, European Commission Special Request ICES Advice June 2013. Available at: http://www.ices.dk/sites/pub/Publication%20Reports/Advice/2013/Special%20requests/EU_ eel%20management%20plan.pdf. 78 McArdle & Anor v The Minister for Communications, Energy and Natural Resources, [2012] IEHC 118 at 120. 79 The two instruments at issue were the Conservation of Eel Fishing Bye-Law No. CS 303/2009, and the Conservation of Eel Fishing (Prohibition on Issue of Licences) Bye-Law No. 858/2009. 80 McArdle & Anor v The Minister for Communications, Energy and Natural Resources, [2012] IEHC 118 at 121. 81 Ibid. 82 Id. 76

266 The Irish Yearbook of International Law 2012

found that no useful purpose would have been served by the holding of a public inquiry into the necessity of the management measures as the applicant and other eel fishermen had ample opportunity to participate in the process leading to the formulation of the national eel management plan and the management options set down therein. From international and European law perspectives, the McArdle case is significant for several reasons. As mentioned above, Ireland has primary responsibility for the management of catadromous species under the 1982 Convention and the continuation of an eel fishery would have breached Ireland’s international obligations regarding the rational and sustainable management of the species,83 as well as the express terms of the applicable EU regulation. 84 Secondly, as pointed out by Mr Justice Herbert, this would amount to a failure on the part of the State to properly manage this valuable resource and to discharge the obligations that arise by virtue of Article 10 of the Irish Constitution.85 Thirdly, the citing of the precautionary approach by the court as the principal normative justification for the adoption of EU measures to prevent the catastrophic collapse of the European eel stock is fully consistent with recent trends in both international and EU law, including obligations that arise under the TFEU and the OSPAR Convention.86 Instructively, both the precautionary principle and the precautionary approach have been invoked in many high profile cases before international courts and tribunals including by the International Court of Justice in the Pulp Mills on the River Uruguay case,87 as well as by the International Tribunal for the Law of the Sea (ITLOS) in their first advisory opinion. In the latter, the ITLOS observed ‘that the precautionary approach has been incorporated into a growing number of international treaties and instruments’ and this has initiated ‘a trend towards making this approach part of customary international law’.88 The reference to the precautionary approach in the McArdle case is thus further evidence of the practical application and importance of the principle in marine and aquatic resource management at both EU and national levels. Fourthly, although not flagged specifically in the case, the national eel management plan has an important international dimension in that it has two cross-border elements that facilitate the transboundary management of eels with the Loughs Agency and the relevant statutory bodies in Northern Ireland.89 Fifthly, a review conducted in 2012 of scientific and management advice, as well as the inputs from extensive public consultation, resulted in a decision to continue with the cessation of the commercial eel fishery and closure of the market for the period

83 Article

67, United Nations Convention on the Law of the Sea. Council Regulation (EC) No. 1100/2007 establishing measures for the recovery of the stock of European eel, OJ L 248/17, 22 September 2007. 85 McArdle & Anor v The Minister for Communications, Energy and Natural Resources, [2012] IEHC 118 at 126. 86 Article 191 of the Treaty on the Functioning of the European Union. 87 Para. 164 of Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment of 20 April 2010. 88Para 135 of ITLOS Case 17, Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), 1 February 2011. 89 Written answer to PQ 35649/13. Dáil Reports, 17 July 2013. 84

Correspondent Reports – Long 267

from 2012 to 2015.90 Ireland’s eel management plan is scheduled for further review in 2015. In the interim, the principal management actions will remain in place, namely: cessation of the commercial eel fishery and closure of the market; mitigation of the impact of hydropower; improvement of water quality; and the continuation of comprehensive scientific monitoring and assessment programmes.91 Finally, it should be noted that European eel is included in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Irish management measures should not therefore be seen in isolation as they form an important component of international conservation initiatives.92 One of the highlights of these initiatives is the thorough and well-researched European Parliament report by the Swedish MEP, Isabella Lövin, reviewing the draft European Commission’s legislative proposals establishing measures for the recovery of the European eel stock.93 The report notes that only two European countries, Ireland and Norway, have banned all fisheries for European eel.94 Accordingly, the report strongly recommends to the European Parliament that all European eel fisheries should be suspended until appropriate conservation and management measures are in place to ensure recovery of the entire eel stock to sustainable levels.95 Another noteworthy international initiative is the Saragossa Sea Alliance, undertaken under the auspices of the Government of Bermuda, which is working towards the conclusion of a political agreement in the form of the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea. The Declaration will set out a commitment for collaboration amongst the governments bordering the Sargasso Sea with the range states of important species that spawn or migrate through the Sargasso Sea including European eel. The conclusion of the Hamilton Declaration will thus be of major significance for Ireland.

FISHERIES LAW ENFORCEMENT AND COMPLIANCE Many of the problems that have beset the Common Fisheries Policy (CFP) since its inception have come about as a result of non-compliance by industry with legislative obligations.96 Ireland has always taken its responsibilities to enforce the regulatory framework underpinning the CFP seriously. The Naval Service is the principal fisheries law 90

Written answer to PQ 35649/13. Dáil Reports, 17 July 2013. Ibid. 92 Ratified 8 January 2002. Into force 8 April 2002. Irish Treaty Series No.29 of 2007. 93 See I Lövin, Report on the proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) No 1100/2007 establishing measures for the recovery of the stock of European eel (COM(2012)0413 – C7-0202/2012 – 2012/0201(COD)), European Parliament, PE504.146v03-00, 26 June 2013. 94 Ibid., at p. 19/20. 95 Id. 96 See R Long and P Curran, Enforcing The Common Fisheries Policy, (Oxford, Blackwell Science, 2000), (Malden MA, Blackwell Science Inc, 2000), (Carleton: Australia, 2000), passim; See, inter alia, European Court of Auditors' Special Report n°7/2007, on the control, inspection and sanction systems relating to the rules on conservation of Community fisheries resources together with the Commission’s replies. OJ C317/1 of 28 December 2007; A Berg, 91

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enforcement body at sea and is engaged in a range of operations that includes the monitoring, control and surveillance of all fishing vessel in sea areas under Ireland’s sovereignty and jurisdiction, as well as under the scheme of control and enforcement that applies in the regulatory area of the North East Atlantic Fisheries Commission (NEAFC) from time to time.97 For this purpose, the Naval Service keeps at least three patrol vessels at sea. In addition to fishery protection these vessels undertake other surveillance and security duties including drug interdiction operations. Broadly speaking, fisheries protection enforcement operations entail the boarding and inspection of fishing vessels, detention of such vessels where appropriate, and the formal application of the law by judicial process in Irish courts, which may in turn result in the imposition of sanctions under the Fisheries (Consolidation) Act 1959, as since amended.98 Enforcement activities are undertaken in relation to any vessel engaged or intending to engage in the exploitation of fisheries resources, including vessels engaged in the transhipment processing of fish. Enforcement and compliance activities are also undertaken by the Sea Fisheries Protection Authority, which has an extensive mandate under the Sea-Fisheries and Maritime Jurisdiction Act 2006 and related legislation. Apart from their responsibilities concerning seafood safety, the latter agency also inspects fishing vessels in port.

Table 2: Fisheries vessels boarded, inspected and detained by the Naval Service in 2012.99 2012

Boarding / Inspection

Detentions

Ireland

537

11

Spain

387

4

UK

120

2

France

236

3

6

-

Denmark

Implementing and Enforcing European Fishery Law: The Implementation and Enforcement of the Common Fisheries Policy in the Netherlands and the United Kingdom (The Hague, Kluwer Law, 1999); C Johnson, ‘Fisheries Enforcement in European Community Waters Since 2002—Developments in Non-Flag Enforcement’ (2008) 2 International Journal of Marine and Coastal Law 23, 249–70. 97 This scheme is implemented by means of Commission Implementing Regulation No 433/2012 of 23 May 2012 laying down detailed rules for the application of Regulation (EU) No 1236/2010 of the European Parliament and of the Council laying down a scheme of control and enforcement applicable in the area covered by the Convention on future multilateral cooperation in the North-East Atlantic fisheries, OJ L136/41, 25 May 2012. 98 No. 14 of 1959. 99 Source: Information provided to the author by the Naval Service.

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Russia

6

-

Netherlands

24

-

Germany

6

-

Norway

3

-

Belgium

4

-

1329

20

Total

As mentioned in previous reports, Ireland has demonstrated considerable commitment to the task of ensuring compliance with the EU’s common fisheries policy. Significantly, as can be seen from the information presented in Table 2 above, close to 800 of the vessels inspected in 2012 were vessels flying the flags of other EU Member States such as Spain, the UK and France, as well as to much lesser degree Denmark, the Netherlands, Germany and Belgium. The Naval Service also boarded and inspected vessels from two third countries: Norway and Russia. The Minister of Defence, Deputy Alan Shatter, informed the Dáil that the boarding and inspection of Dutch vessels fishing for mackerel on the south and west coast of Ireland had increased from one in 2007 to 28 in 2011.100 This trend continues in 2012 with 24 inspections of Dutch pelagic vessels. Instructively, the number of detentions remains relatively evenly spread across the number of vessels inspected with 11 Irish vessels detained for fisheries offences compared to nine foreign vessels from Spain (four), France (three) and the UK (two).

FOREIGN VISITS BY NAVAL SERVICE SHIPS In comparative terms, Ireland has a small Naval Service with eight ships in service in 2012. Two new offshore patrol vessels at a cost of €99 million are ordered from the UK.101 These vessels will be a welcome addition to the fleet and will have a special status under international law including the enjoyment of immunity under the 1982 Convention.102 The latter defines the term ‘warship’ restrictively to mean ‘a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.’103 Clearly, ships of the Naval Service meet these requirements and in addition to their day-to-day security

100

Dáil Éireann Debate, Vol. 754 No. 4, Col. 7112/12. Dáil Éireann Debate Vol. 754 No. 4, Col. 6835/12. 102 Article 32 of the United Nations Convention on the Law of the Sea. 103 Article 29 of the United Nations Convention on the Law of the Sea. 101

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and fishery protection tasks described above, frequently represent the state by undertaking foreign visits for diplomatic, economic and cultural purposes. As a matter of practice, the nature and scope of these deployments are decided by the Department of Defence in consultation with the Department of Foreign Affairs and Trade and the Naval Service. From information presented to the Dáil by the Minister for Defence, it appears that these deployments have taken up less than 5 per cent of the Naval Service operational time with this figure varying according to the exigencies of the State from year to year, as well as the constraints imposed on public finances under the fiscal austerity programme.104 In spite of these restrictions, a concerted effort has been made to promote trade and cultural interests of the State by the deployment of Naval Service vessels on foreign visits. In 2011, for example, 54 days out of a total of 1,480 patrol days were committed to this aspect of the Naval Service’s work-programme including visits to a number of ports in the Russian Federation and the Baltic Sea.105 In recent years, diplomatic and trade missions have also been undertaken to China, Singapore, Latin America, as well as to the Black Sea. Visits by Naval Ships to foreign countries and the purpose of such visits are summarised in Table 3 below. There is also a reciprocal nature to such visits with foreign warships calling to Irish ports periodically. Table 3: Foreign and diplomatic visits by Naval Service ships from 2007-2011.106 Year

Country / Region

Purpose of Visit

2007

Norway, Denmark, Poland, Germany

For diplomatic purposes and also both voyages were structured to facilitate high intensity training of Naval Service Cadets and Officers over short period of time

Spain

For diplomatic purposes

Belgium

For cultural purposes (Naval Service invited to attend Belgian Navy Days — a celebration of the Belgian Naval Service)

Netherlands

For diplomatic purposes

UK

For cultural and diplomatic purposes

104

Cost

Dáil Éireann Debate Vol. 754 No. 4, Col. 6836/12. Ibid. 106 Compiled by the author from information presented by the Minister for Defence. Dáil Éireann Debate Vol. 754 No. 4, Col. 6836/12. 105

Correspondent Reports – Long 271

(Naval Service participated in St. Patrick's Day festivities)

2008

Spain

For diplomatic purposes

France

For economic purposes (Requested by Enterprise Ireland)

Canada

For diplomatic, cultural and economic purposes (Opening of Famine Park Toronto)

United States

For economic purposes (Host receptions for business communities attending cruise ship convention)

Mediterranean Sea

For diplomatic and cultural purposes (Maritime Festival)

Black Sea

2009

Canada

For diplomatic and cultural purposes (Quebec 400 celebrations)

Germany

For economic purposes (Kiel Week and Enterprise Ireland event in Hamburg)

Belgium

For cultural purposes

UK

For diplomatic and cultural purposes

Portugal

For operational purposes (Headquarters of “Maritime — Analysis and Operational Centre — Narcotics”)

France

For economic purposes (Annual Boat Show — invite from Fáilte Ireland)

UK

For cultural and diplomatic purposes (Naval Service participated in St. Patrick's Day festivities) For training and operational purposes (Hosting a Fisheries Operations Coordination meeting with the Scottish authorities)

272 The Irish Yearbook of International Law 2012

2010

2011

Finland

For cultural and diplomatic purposes (200th Anniversary of Finnish independence)

UK

For cultural and diplomatic purposes (Tall Ships Atlantic Challenge and commemoration for Admiral Browne)

Portugal

For diplomatic purposes (Standing invitation from Portuguese)

South America — Argentina/Chile/ Mexico/Colombia

For cultural, economic and diplomatic purposes (Requested by Dept of An Taoiseach — Bicentennial celebrations of Argentina and Chile)

€331,257

Belgium

For cultural purposes

€18,535

Denmark

For diplomatic purposes (500th Anniversary of Danish Navy)

€6,602

France

For economic purposes

€7,721

Germany

For diplomatic, cultural and economic purposes (Requested by Dept of Foreign Affairs and Trade).

€44,093

France

For economic purposes

€7,721

Germany

For diplomatic, cultural and economic purposes (Requested by Dept of Foreign Affairs and Trade).

€44,093

Finland

For diplomatic, cultural and economic purposes (Requested by Dept of Foreign Affairs and Trade — Helsinki visit built on the success of previous visit in 2009. Tallinn was European Capital of Culture in 2011. Riga was a stopover).

Russian Federation Latvia Estonia France

For operational and training purposes (Joint Deployment Patrol with the Community Fisheries Control Agency (CFCA))

€5,508

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UK

For cultural purposes (Tall Ships communications vessel)

€4,722

France

For operational and training purposes (North Atlantic Coast Guard Forum (NACGF) exercises)

€6,072

IRELAND’S INTEGRATED MARINE PLAN Amid some fanfare and as part of a national strategic approach aimed at strengthening government policy on the marine, the Taoiseach Mr. Enda Kenny, TD, launched a report entitled’Harnessing Our Ocean Wealth – An Integrated Marine Plan for Ireland’ (the ‘Plan’) in July 2012.107 Essentially, this report provides an overview of the various industries that make-up the sector and sets down for the first time strategic objectives in the form of a Plan, as well as various actions, with a view to engendering economic growth over the immediate period 2012-2014 and well beyond over the coming two decades. The Plan draws from extensive submissions received from the public as well as various interest groups concerned with developing Ireland’s maritime economy.108 In a European and international context, similar initiatives have been taken elsewhere under the chapeau of the European Integrated Maritime Policy,109 the European Strategy for the Atlantic,110 and in response to a whole raft of international initiatives such as Chapter 17 of Agenda 21, which deals specifically with the protection of the ocean. 111 Although its precise legal status is unclear, the Plan is a complex blueprint of sorts, which sets down three fundamental policy goals: developing a ‘thriving maritime economy’, achieving healthy ecosystems, and fostering greater public and presumably government ‘engagement with the sea’.112 In a somewhat disparate fashion, an ambitious hodgepodge of 39 enabling actions are identified in the Plan to achieve these objectives with the ultimate economic goal of increasing the contribution of the maritime sector to

107

Harnessing Our Ocean Wealth – An Integrated Marine Plan for Ireland (Dublin, 2012). Available at: http://www.ouroceanwealth.ie/SiteCollectionDocuments/Harnessing%20Our%20Ocean%20 Wealth%20Report.pdf. 108 Our Ocean Wealth, Towards an Integrated Marine Plan for Ireland, Seeking Your Views on New Ways; New Approaches; New Thinking (Dublin, 2011). 109 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – An Integrated Maritime Policy for the European Union, COM(2007) 574 final, Brussels, 10 October 2007; and Report on progress of the EU’s Integrated Maritime Policy, COM(2012) 491 final, Brussels, 11 September 2012. 110 Developing a Maritime Strategy for the Atlantic Ocean Area, COM(2011) 782 final, Brussels, 21 November 2011. 111 On international developments on ocean governance, see DR Rothwell and T Stephens, The International Law of the Sea (Oxford and Portland, Hart Publishing, 2010) pp. 461-485. 112 An Integrated Marine Plan for Ireland, p. ii.

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2.4% of GDP by 2030.113 The Plan identifies reform of the planning and licensing system for coastal and offshore activities as a priority action under the current legislative programme.114 In addition, there are various governance and regulatory strands running through the Plan such as the commitment to establish independently chaired Task Force(s) to work on the implementation of specific actions in association with government departments and agencies. 115 Within the Plan, there is express recognition of the fact that Irish maritime law and policy does not evolve in a vacuum and is largely reflective of developments at EU and international levels. As a consequence, the Plan speaks about the necessity of developing a collaborative approach with adjacent States to address new and emerging maritime policy issues.116 This of course is a welcome development in Irish policy and a clear acknowledgment of the underlying normative approach that is in existence under European regulatory instruments and policies pertaining to marine resources since the early 1980s.117 Elsewhere, the importance of creating regulatory certainty and a stable legislative environment for business and consumers is stressed in the Plan, as is the adoption of a national marine spatial plan to facilitate spatial and management and planning at a national level in relation to all sea areas under Ireland’s sovereignty and jurisdiction.118 Furthermore, the Plan records a firm political commitment towards the effective implementation of flag and port state inspection regimes in relation to vessel source pollution and improved enforcement of any new legislative standards emanating from the EU and the IMO.119 The text of the Plan is undermined in some ways by the many en-passant references calling for fit-for-purpose regulation, simplified legislation, and the streamlining of administrative and licensing procedures for various sectors such as aquaculture and wind energy.120 In this respect, from a legal perspective, the Plan appears largely aspirational in nature as many of the specific actions lack a solid legal basis, any form of cost benefit analysis, or a clear timeline for their attainment. Moreover, the Plan is silent on the precise mechanisms for resourcing or funding specific enabling actions, other than within the general fiscal framework that is largely decided on a case-by-case basis. On the other hand, it needs to be highlighted that the Plan goes a long way to providing a solid policy plinth for the achievement of the various marine objectives that were outlined in the Programme for Government 2011.121 In this respect, perhaps one of its

113

Ibid. This is also evident in a number of Ministerial statements. See Dáil Éireann Debate Vol. 773 No. 3, Col. 1294. 115 An Integrated Marine Plan for Ireland, p. ii. 116 An Integrated Marine Plan for Ireland, p. 3. 117 See, R Long, ‘Legal Aspects of Ecosystem-Based Marine Management in Europe’ in A Chircop, ML McConnell and S Coffen-Smout (ed), Ocean Yearbook Vol. 26 (Boston/Leiden, Brill Academic Publishers, 2012) pp. 417-84. 118 An Integrated Marine Plan for Ireland, p. 26 and 32. 119 Ibid., p. 35. 120 Id, in particular, pp. 62-65. 121 Available at: http://www.merrionstreet.ie/wpcontent/uploads/2010/05/Programme_for_Government_2011.pdf. 114

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inherent strengths is the solid mechanism proposed for the annual reporting on the implementation of the Plan including the holding of a seminar on annual basis to allow stakeholders to air their views.

MARINE SPECIAL AREAS OF CONSERVATION As a coastal state that straddles the Gulf Stream, Ireland has abundant marine biological diversity and uses a range of regulatory tools and spatial measures to implement international, regional and European commitments that are aimed at protecting vulnerable and fragile marine ecosystems, as well as the habitat of depleted, threatened or endangered species and other forms of marine life.122 As is well documented in the specialist literature, despite its vital importance, the process of protecting marine biodiversity has been fragmented at multilateral and regional levels and has only relatively recently received appropriate consideration in the law of the sea.123 Similarly, conservation efforts in Ireland attracted little attention from the legislature apart from a number of isolated high points driven along by scientific concern about the impacts of offshore activities such as fishing activity on marine ecosystems and oceanic features. Chief among these is the herculean work undertaken by Dr Anthony Grehan at the National University of Ireland Galway, which provided much of the scientific basis for Ireland to become one of the first EU Member States to protect deep-water sites in the offshore environment by designating four biogenic reefs on the Porcupine Bank for protection under the Habitats Directive. 124 That said, the tardy approach taken at national level during the 1990s to the implementation of the marine elements of both the Habitats and Birds Directives,125 as well as the EIA Directive,126 resulted in several enforcement proceedings in the Court of Justice of the European Union.127 In parallel with these proceedings, efforts were made by both the European Commission and OSPAR to improve scientific awareness of the range and number of marine 122

Article 194(5) of the United Nations Convention on the Law of the Sea. Y Tanaka, The International Law of the Sea (Cambridge, Cambridge University Press, 2012) pp. 312-34, at 313. 124 R Long and A Grehan, ‘Marine habitat protection in a coastal Member State of the European Union: the case of deep-water coral conservation in Ireland’ (2002) 17(2) International Journal of Marine and Coastal Law 241-269. See R Long, Marine Resource Law (London/Dublin/Toronto/Hong Kong, Thomson Round Hall, 2007) pp. 674-683. 125 Council Directive 92/43 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22 July 1992, 7-50. Consolidated in 2007; Council Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds, OJ L 20, 26 January 2010, 7–25. 126 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, L26/1, 28 January 2012. 127 Case C-418/04, Commission of the European Communities v Ireland [2007] ECR I-10947; Case C-66/06, Commission v Ireland [2008] ECR I-158. Most significantly, Ireland was before the Court of Justice twice on the same day in two cases that have implications for the implementation of EU Directives in relation to marine environment and facing stiff penalties for failure to comply with previous judgments of the Court. Case C-374/11, Commission v Ireland (alleged failure to implement judgment in Case C-188/08); and Case C-279/11, 123

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species and habitats requiring protection Ireland under EU nature conservation instruments including the convening of a Marine Atlantic Biogeographic Seminar in 2009. The latter concluded that certain habitats and species were insufficiently represented in the list of marine candidate SACs proposed for designation by Ireland. 128 In response to these developments and in a major volte-face to bring Irish law and policy into line with European best practice, the Minister for the Arts, Heritage and the Gaeltacht, Jimmy Deenihan TD, designated six marine areas as candidate special areas of conservation under the Habitats Directive in 2012.129 This is a major step forward in marine environmental protection as the designation process is aimed at protecting dolphins off the Atlantic coast and harbour porpoises in Dublin Bay, as well as sandbanks on the southeast and north coasts, and deep-sea coral reefs further offshore.130 Although legislation is yet to be adopted prohibiting specific activities in the designated areas, the general scheme of protection afforded by the Habitats and Birds Directives from the moment of designation as candidate sites requires that the range, area, structure and functioning of habitats and species must be maintained at a favourable conservation status pro tem. Moreover, an appropriate assessment must be carried out under the Habitats Directive if a plan or project is likely to have a significant effect on the integrity of a site.131 The designation process is thus just one step that must be followed by appropriate assessment, management and monitoring measures. Clearly it is well beyond the scope of this report to comment on the designations more rigorously. Nevertheless, it is instructive to note that over 3,000 marine licence holders and other stakeholders were put on notice in Ireland and informed of their rights regarding the designation process.132 In the longer-term, experience elsewhere in Europe suggests that habitat designation and species protection under nature conservation instruments will have a bearing on the rolling-out of major infrastructure projects that impinges upon the marine environment including port development, offshore wind farms, the laying of telecommunications cables, as well as offshore oil and gas development. In this regard, it is important to note that even if there is negative assessment of a proposed plan or project, it is well established that they may still go ahead, provided there is no alternative solutions and the plan or project is considered to be of overriding public

Commission v Ireland (alleged failure to implement judgment in Case C-66/06, Commission v Ireland [2008] ECR I-158. The latter concerned project thresholds for the application of the EIA Directive to fish farming. 128 Dáil Éireann Debate Vol. 786 No. 3. Written Answer to PQ 113-114. 129 Designation of New Marine Special Areas of Conservation, Press Release Irish Government News Service, 3 December 2012. Available at: http://www.merrionstreet.ie/index.php/2012/12/designation-of-new-marine-special-areas-ofconservation/?cat=12. 130 Namely: Blackwater Bank (Sandbank); West Connacht Coast (Bottlenose Dolphin); Hempton’s Turbot Bank (Sandbank); Rockabill to Dalkey Island (Reefs and Harbour Porpoise); Porcupine Bank (Canyon Reefs); and South-East Rockall Bank (Reefs). 131 Article 6 of Directive. 132 Designation of New Marine Special Areas of Conservation, Press Release Irish Government News Service, 3 December 2012. Available at: http://www.merrionstreet.ie/index.php/2012/12/designation-of-new-marine-special-areas-ofconservation/?cat=12.

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interest. 133 In such instances, however, Ireland must take appropriate compensatory measures to ensure that the overall coherence of the Natura 2000 network is fully protected. Furthermore, scientific monitoring programmes must be established to assess the conservation status of the marine species and habitats that are subject to scheme of protection under EU nature conservation law. The proposed designations of new sites under the Habitats Directive should not be viewed in isolation as they will form an intrinsic part of the pan-European Natura 2000 network and are thus aimed at halting the loss of biodiversity. At a regional level, the 19 marine sites designated for protection in Ireland constitute an important component of the network of marine protected areas that are designated under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic.134 As such, they are a long-overdue regulatory intervention at national and regional level to protect some of Europe’s most sensitive marine habitats and species, as well as distinctive features of one of the world’s finest seascapes.

ACCESS TO INFORMATION, PARTICIPATION AND JUSTICE IN ENVIRONMENTAL MATTERS

In 2012, Ireland became the final EU Member State to ratify the Convention on Access to Information, Participation in Decision-Making and Access to Justice in Environmental Matters agreed in Aarhus on the 25 June 1998.135 Despite the unseemly delay in ratification, Ireland’s role as a signatory State in providing leadership in the Task Force on Public Participation in Decision-making was formally acknowledged at the Meeting of the Parties to the Aarhus Convention in 2011.136 A number of commentators have pointed out that ratification of this wide-ranging and important Convention should in time transform the legal landscape in Ireland pertaining to public participation and stakeholder engagement in environmental matters.137 133

Article 6(4) of Directive. Namely: Ballyness Bay MPA; Belgica Mound Province MPA; Blasket Islands MPA; Cummeen Strand/Drumcliff Bay (Sligo Bay) MPA; Dundalk Bay MPA; Galway Bay Complex MPA; Hovland Mound Province MPA; Kenmare River MPA; Kilkieran Bay and Islands MPA; Kingstown Bay MPA; Malahide Estuary MPA; Mullet/Blacksod Bay Complex MPA; Mulroy Bay MPA; North Dublin Bay MPA; North West Porcupine Bank MPA; Roaringwater Bay and Islands MPA; South West Porcupine Bank MPA; Tralee Bay and Magharees Peninsula, West to Cloghane MPA; Tramore Dunes and Backstrand MPA. 135 Instrument of ratification deposited on 20 June 2012. Entered into force with respect to Ireland on 18 September 2012. Irish Treaty Series No.11 of 2013. At the same time Ireland ratified the Protocol on Pollutant Release and Transfer Registers to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Irish Treaty Series No.11 of 2013. 136 See Report of the fourth session of Meeting of the Parties at Chisinau, 29 June–1 July 2011. ECE/MP.PP/2011/2 at p. 5. Available at: http://www.unece.org/fileadmin/DAM/env/pp/mop4/Documents/Post_Session/ece.mp.pp.20 11.2.eng.pdf. 137 See, inter alia: A Ryall, ‘Aarhus Convention and Access to Justice in Environmental Matters: Some Critical Reflections’ (2013) 20(4) Irish Planning and Environmental Law Journal 165. 134

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In particular, the rights derived from this Convention must be viewed in light of their relevance to industrial developments that take place in the marine environment such as offshore hydrocarbon and wind energy development in sea areas coming Ireland’s sovereignty and jurisdiction. Moreover, the Convention is underpinned by rigorous monitoring and reporting mechanisms that strengthen access to justice in environmental matters including matters that pertain to the marine environment. Indeed, the relevance of the Convention to activities that take place in the marine environment became evident in 2012 when the Aarhus Compliance Committee held that the public authorities in Ireland and the EU had failed to disseminate in a ‘timely, accurate and sufficient manner’, information concerning the national renewable energy programme (specifically, the Renewable Energy Feed In Tariff I), which provided EU fiscal support and the approval of State aid for the electricity inter-connector between Ireland and the UK.138 This finding was subsequently followed by judicial review proceedings in the High Court in Ireland concerning the National Renewable Energy Action Plan and these proceedings were pending at the end of 2012.139

OFFSHORE RENEWABLE ENERGY The Law of the Sea Convention provides a very solid jurisdictional framework governing the production of energy from water, currents and winds by coastal states such as Ireland in the exclusive economic zone (EEZ).140 The EEZ provisions in the Convention, which are both declaratory and enabling, remain an intrinsic component of the bundle of rights and duties that accrue to coastal States under international law. In Europe, they are increasingly significant as major plans are afoot at a pan-regional level concerning the development of offshore renewable energy in the North Sea, Baltic Sea, the Irish Sea, and to a lesser degree in the Mediterranean Sea.141 The principal factors influencing such developments include: international and EU law as well as policies on climate change and energy security; market and fiscal support for the industry from a number of European governments; as well as specific regulatory initiatives by the EU such as the

138

Findings and recommendations with regard to communication ACCC/C/2010/54 concerning compliance by the European Union, 2 October 2012. ECE/MP.PP/C.1/2012/12. Available at: http://www.unece.org/fileadmin/DAM/env/pp/compliance/C201054/Findings/ece_mp.pp_c.1_2012_12_eng.pdf. The project at issue, which was completed in 2012, received €110m under the European Economic Recovery Plan and additional financial support from the European Investment Bank. 139 Pat Swords v Department of Communications, Energy and Natural Resources (Record No 2012/920JR). 140 Article 56 of 1982 United Nations Convention on the Law of the Sea. 141 R Long, ‘Offshore wind energy and ecosystem-based management: Are the EU regulatory answers really blowing in the wind?’ in M Nordquist, J Norton Moore, A Chircop and R Long, The Regulation Of Continental Shelf Development: Rethinking International Standards (Leiden/Boston, Martinus Nijhoff, 2013), pp. 15-52; R Long, ‘Offshore wind energy development in Germany: Actors, legal instruments and decision-making procedures’ in H Koch and D Könnig (eds), Climate Change And Environemtal Hazards Related to Shipping: An International Legal Framework: Proceedings of the Hamburg International Environmental Law Conference 2011 (Leiden/Boston, Martin Nijhoff, 2013), pp. 227-240.

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Renewable Energy Directive 2009/28/EC which sets down mandatory renewable energy targets to be achieved by the Member States by 2020.142 In line with the requirements of the Renewable Energy Directive,143 Ireland submitted a progress report to the European Commission on the national renewable energy programme in January 2012. This report outlined progress on the development of the sector, as well as the various policy and regulatory changes that had been taken to meet the ambitious renewable energy targets set down by the EU that require 16% of gross final consumption in Ireland to come from renewable sources by 2020.144 With respect to developments of the offshore sector, the report notes that strategic environmental assessment under the SEA Directive and an impact assessment under the Habitats Directive were underway during the report period 2009-2011 to evaluate different scenarios for the development of offshore wind, wave and tidal facilities, in accordance with the general scheme set out in the draft Offshore Renewable Energy Development Plan (OREDP).145 The said report concluded that the final OREDP together with the revised licence/consent system would provide for ‘improved strategic decision-making and greater policy cohesion in the marine renewable energy area’ at a national level in due course.146 Although Ireland does not offer the same fiscal support to offshore wind energy projects as it does to their terrestrial equivalents and will meet its 2020 targets from onshore resources, it has nonetheless implemented several capacity building measures including the establishment of Ocean Energy Prototype Development Fund, which is aimed at stimulating investment and research in new technologies and their associated systems. Similarly, it aims to become a leader in the testing of next generation offshore renewable energy equipment and has made a sizeable investment in establishing a cutting-edge specialist research facility, Marine Renewable Energy Ireland, at University College Cork for this purpose. This brings together expertise from 47 industrial partners and a number of specialist public institutes including the National Maritime College of Ireland, the Marine Institute, Teagasc and the Geological Survey of Ireland. A clearer overview of national policy can be obtained from the Government’s Strategy for Renewable Energy 2012-2020. This sets out five strategic goals for Ireland over the coming decade, namely: (1) increasing onshore and offshore wind energy; (2) building a sustainable bioenergy sector; (3) fostering research and development in renewables such as wave and tidal; (4) growing sustainable transport, and: (5) building robust and efficient energy networks. The Strategy highlights that there is considerable potential to export electricity from the offshore wind resource to the United Kingdom and north west 142

Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ L 140/16, 5 June 2009. 143 Article 22 of Directive 2009/28/EC. 144 See First Progress Report, National Renewable Energy Action Plan (NREAP) IRELAND. Submitted by Ireland in January 2012. 145 Directive 2001/42/EE of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, OJ L 197/30, 21 July 2001. 146 Ibid., at p. 13.

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Europe provided that it is ‘economically beneficial’ to Ireland to do so. In this context, it is significant to note that EU regulatory framework allows for energy trading and the export of renewable energy as a means of meeting other Member State targets under their national programme, provided that that such arrangements meet certain notification and other procedural requirements set down by the Renewable Energy Directive 2009/28/EC. 147 Ireland’s renewable energy policy is partly focused on finding the best regional solution to energy security and supply issues in northern Europe. Thus, for example, Ireland is an active participant in the North Seas Countries' Offshore Grid initiative, which is aimed at creating favourable conditions for renewable energy export in northern Europe.148 In 2012, a detailed study was published evaluating the technical, legal and regulatory barriers to the creation of such a grid in the North Sea and Irish Sea.149 Unsurprisingly perhaps, reliance on a flexible trading mechanism at a regional level is a central strand in Irish government energy policy in light of these regional initiatives as well as a number of other factors including: the abundance and quality of the resource; the existence of a well-established all-island electricity market, and; the proximity of energy intensive economies in adjacent countries in the north east Atlantic, most notably the UK. Considerable progress has been made at a bilateral level between Ireland and the UK including the elaboration of an energy work programme by the British Irish Council, which is one of the bodies established under the Belfast/Good Friday Agreement and legally rooted in the British Irish Agreement Act 1999.150 In parallel, the responsible Minister in Ireland has taken a number of steps to realise the full potential of the resource including the negotiation of a memorandum of understanding with the Department of Energy and Climate Change in the UK,151 which is scheduled to be followed by the conclusion of a Bilateral Inter-Governmental Agreement between Ireland and the UK on the same subject matter in 2014. The general scheme of a new foreshore bill is also scheduled for publication in 2013 and this in turn when fully enacted will become a central feature in the regulatory framework applicable to offshore renewable energy development in Ireland over the coming decades.152

SEABED CABLES Seabed cables are used for a number of purposes including the transmission of electricity and telecommunications. Such systems are important for Ireland as an island nation and a notable achievement during the report period was the commissioning of a seabed electricity interconnector between Ireland and the UK, which will facilitate the trading of 147 Article

7 of Directive 2009/28/EC. In order to facilitate this initiative, nine EU Member States (Belgium, Denmark, France, Germany, Ireland, Luxembourg, the Netherlands, Sweden and the United Kingdom) and Norway, signed a Memorandum of Understanding in 2010. 149 http://www.benelux.int/NSCOGI/NSCOGI_WG1_OffshoreGridReport.pdf. 150 Number 1 of 1999. 151 Memorandum of Understanding between the Minister for Communications, Energy and Natural Resources of Ireland and the Department of Energy and Climate Change of the United Kingdom on cooperation in the energy sector. 152 See discussion infra. 148

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electricity between the two countries.153 Similarly, sub-sea fibre optical cables are a crucial means for electronic telecommunications including the Internet. The principal provisions governing seabed cables are set out in the 1982 Convention on the Law of the Sea, as well as in international agreements.154 In 2012, there was a legal dispute in relation to the licensing of a seabed cable in the Irish Sea.155 OFFSHORE OIL AND GAS Ireland exercises sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources. 156 As is well known, Ireland has a broad continental shelf but has only had very modest discoveries of natural gas. Thus it is unsurprising to note that after close to fifty years of exploration activity, there were only four petroleum leases in operation for the Kinsale, Ballycotton, Seven Heads and the Corrib gas fields in 2012. Moreover, the level of on-going exploration activity appears to fare little better with twenty-three offshore petroleum exploration licences in operation at the end of the same year.157 The low level of activity is a concern for government policy and was further highlighted by the Minister for Communications, Energy and Natural Resources, Pat Rabbitt TD, who reported to the Dáil that just over 4% of Ireland‘s designated continental shelf was licensed for exploration or leased for the production of hydrocarbons in 2012, this figure rising to 9% of the sedimentary basins that have resource potential or prospects.158 Trends in exploration activity in 2012 were very similar to previous years with only one to two wells drilled per year over the past decade. Moreover, there is protracted delay

153Available

at: http://www.dcenr.gov.ie/Press+Releases/2012/Minister+Rabbitte+welcomes+€600m+Electri city+Interconnector.htm. 154 The law regulating seabed cables is now subject to a number of specialist texts and there is a significant corpus of case law in a number of common law jurisdictions including Ireland on the rights and duties of States and service providers. See, D Burnett, R Beckman and T Davenport, (eds), Submarine Cables: The Handbook of Law and Policy (Leiden/Boston, Martinus Nijhoff, 2013). 155 In 2012, a company under the name of Sea Fibre Networks Ltd applied for judicial review proceedings against the Minister of the Environment on the grounds that the Minister had granted a licence to another cable owner and service provider, Emerald Bridge Fibres, for a cable route that would cross the Applicant’s cable and thereby putting it at risk. In addition, the Applicant argued that there were a number of administrative and legal defects in the procedure followed by the Minister in granting a foreshore licence under Section 3 of the Foreshore Acts 1933-2012. See, JR Sea Fibre Networks Limited v Minister For The Environment and Another. This case was on High Court Taxing Master's List, 11 December 2013. 156 Article 77(1), UNCLOS. North Sea Continental Shelf cases 1969 ICJ Report 3 (20 February 1969) at 23. 157 Petroleum Exploration and Development Offshore Ireland Acreage Report at 31 December 2012. Available at: http://www.dcenr.gov.ie/NR/rdonlyres/514E6DDA-214B-4C99-9328EFA5499C8A2A/0/AcreageReportat31December2012.pdf. 158 Dáil Éireann Answer to PQ 2623/12, 18 January 2012.

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and additional expense (allegedly €3 billion) in bringing the Corrib field into full production.159 Clearly, offshore hydrocarbon exploration and exploitation activities are influenced by exploration trends worldwide in a highly competitive industry. Moreover, the regulatory regime that applies to the sector in Ireland has evolved steadily in response to developments in international and regional law concerning matters such as coastal State jurisdiction over offshore resources, as well as the toughening-up of safety and environmental standards in response to incidents such as the Piper Alpha disaster in the North Sea in 1998.160 In this respect, the regulatory regime that applies to these matters is largely reflective of external regulatory influences aimed at protecting and preserving the environment. In marked contrast, the fiscal terms that apply to exploration and production of hydrocarbons are decided at national level and are set out in the Finance Acts, which are updated periodically. The operational terms and conditions that apply to exploration companies (referred to as the Licensing Terms) have been reformed on a number of occasions, most notably in 1992 and 2007. In 2012, for instance, thirteen of the exploration licences that were then in operation were subject to the 1992 Licensing Terms and the remaining 10 had been granted under the 2007 Licensing Terms. In general, a corporation tax rate of 25% is applied to profits from all oil and gas production undertaken Ireland. In addition, there is a profit resource rent tax of up to 15% applicable to the sector since 2007.161 In 2012, the position on the write off of expenditures against tax liability in the event of a commercial discovery was stated by the Minister as follows: [the] historic exploration capital expenditures incurred in Ireland in the 25year period prior to the commencement of field production are 100% deductible against corporation tax at the start of production. This includes capital expenditure on exploration activities outside the lease production area but excludes expenditure incurred in other countries.162 The fiscal terms are poorly understood and applied by some media commentators.163 This matter is also the subject of parliamentary scrutiny and debate from time to time. Instructively, the Oireachtas Joint Committee on Communications, Natural Resources and Agriculture brought considerable clarity to this discussion by publishing a comprehensive report on offshore oil and gas exploration, which made 11 recommendations, in May 2012.164 The purpose of the cross-party report is to ‘maximise the return for the

159

Seanad Éireann Debate Vol. 216 No. 5, Cols. 320-339. Petroleum and Other Minerals Development Act 1960 (as since amended), No. 7 of 1960. 161 The revised fiscal terms were implemented in the 2008 Finance Act and apply to production arising from exploration licences granted since 1 January 2007. 162 Dáil Éireann Debate Vol. 766 No. 1. 163 See, for example, F O‘Toole, State must stand up to oil moguls. Irish Times, 16 August 2005. 164 Joint Committee on Communications, Natural Resources and Agriculture (JCCNR&A) Report Offshore Oil and Gas Exploration May 2012. Available at: http://www.oireachtas.ie/parliament/media/Report-on-Offshore-Oil-and-GasExploration.pdf. 160

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Irish people by balancing the need for exploration with the need to ensure a tax regime which provides a good return.’165 The report, which is advisory in nature with a view to shaping government policy, highlights many factors that are influencing the scope for development of the sector including: the importance of a regulatory framework that is fit for purpose, the role of the non-fiscal regulatory regime in promoting the sector, stakeholder engagement in the policy and consent processes, as well as the fiscal measures that ought to apply to future commercial discoveries of offshore hydrocarbons. There is considerable comparative information in the report on the fiscal regime that applies in Norway, Portugal and the UK. Moreover, the Joint Committee was assisted in its deliberations regarding the Norwegian approach to petroleum resources by HE Mr Roald Naess, Ambassador of Norway to Ireland, and by Ms Mette Agerup, Assistant Director of the Norwegian Ministry for Petroleum and Energy. The results of this comparative exercise will be useful if its purpose is to ensure that the fiscal and regulatory regime that applies in Ireland remains regionally competitive.166 Indeed if this is the rationale, then one of the most striking aspects of the report is the recommendation to bring the tax on profits from petroleum production to a similar level as that of the UK and in some instances than that which applies in Norway. Specifically, the Joint Committee recommends as follows: … that the overall tax take should, in the case of future licenses, be increased to a minimum of 40%.2 The profit resource rent tax [PRRT] should increase from existing levels according to a sliding scale based on the rate of profit (i.e. to give an overall tax take of 40% for small commercial discoveries, 60% for medium commercial discoveries and 80% for very large commercial discoveries).167 This would apply to all future agreements and is contingent upon a ‘large increase in the number of commercially viable finds or the size of fields’.168 In this respect, the Joint Committee foresees that future policy will evolve in light of changing circumstances. Again, it is important to note that the report calls for adherence to existing agreements irrespective of changing circumstances. Other recommendations made by the Joint Committee within the report include: the review and reform of the Petroleum and Other Minerals Act 1960; keeping the fiscal and licencing terms under constant parliamentary and ministerial review, particularly before each Licensing Round; applying the principle of unitisation to future explorations activities where warranted; State control of production volumes similar to the approach adopted in Norway; a prohibition on the flaring of gas; greater public consultation at the 165

JCCNR&A Report Offshore Oil and Gas Exploration May 2012 at p. 13. Dáil Éireann Debate Vol. 767 No. 1, Col. 26907/12. As noted by the Minister for ‘a total of 156 exploration and appraisal wells have been drilled to date in Ireland’s offshore, compared with more than 1,200 wells in Norway and 4,000 wells in the United Kingdom. The United Kingdom has in excess of 300 producing fields while Ireland has only three, with a fourth in development’. 167 JCCNR&A Report Offshore Oil and Gas Exploration May 2012 at p. 10. 168 Ibid. 166

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start of exploitation activities including engagement regarding project development plans, this extends to the adoption of a statutory commitment regarding benefit sharing with local communities; the drawing-up of a national strategic policy document for petroleum exploration; the on-going review of best-practice in other countries, such as Norway and Portugal; the establishment of a stakeholder engagement forum to ensure that the benefits of the resource are maximized for Ireland.169 Apart from a number of references to a World Bank Working Paper,170 the Joint Committee does not appear to have canvassed the academic literature on the law and policy of offshore petroleum development in Ireland, or examined how the law has shaped exploration and production activities in other jurisdictions.171 That said, the Joint Committee Report keeps the regime applicable to offshore hydrocarbons under the political spotlight. In this respect, a brief review of the text reveals that the report is premised upon two considerations: firstly, increasing the return from the fiscal regime that is applicable to such activities; and, secondly, enhancing the structures and procedures for stakeholder engagement in decision-making processes. The latter of course is fully consistent with the obligations that arise under the Aarhus Convention and if properly implemented should help to avoid a reoccurrence of similar disputes and controversy that have marred the development of the Corrib field. Regrettably, the report does not highlight the wider aspects of marine resource management or the omission to enact coastal zone management legislation similar to the United States Coastal Zone Management Act of 1972.172 Among a number of other weaknesses in the report is the failure to review how well Ireland implements international best practice on risk assessment, particularly in light of the Deepwater Horizon disaster in the Gulf of Mexico,173 or indeed how Ireland gives effect to the many European instruments that pertain to offshore hydrocarbon activities such as: the Environmental Liability Directive, the Waste Directive, EU Health and Safety legislation, the Seveso Directive, or the various instruments on emergency response. Significantly, the report does not evaluate the EU proposal for a regulation on safety of offshore oil and gas prospection, exploration and production activities.174 There are a number of other developments in Irish law that are relevant to the subject matter of the report. Notably, one of the more pressing issues that arise under international and EU law is the assessment of the environmental impact of offshore renewable energy projects. The primary source of EU legislation on this matter is the EIA Directive, 169

Id. at pp.10-11. See S Tordo, ‘Petroleum Exploration and Production Rights, Allocation Strategies and Design Issues’ (Washington, World Bank Working Paper No. 179, 2010). Available at http://wwwwds.worldbank.org/. 171 See, for instance, R Long, Marine Resource Law (London/Dublin/Toronto/Hong Kong, Thomson Round Hall, 2007) pp. 317-427; T Daintith et al (eds), United Kingdom Oil and Gas Law, Vols 1-3, 3rd edn (London, Thomson Sweet & Maxwell, 2010, with annual supplements (most recent 2012)); T Daintith, Finders Keepers? How the Law of Capture Shaped the World Oil Industry (Washington, DC, Earthscan, 2010) p. 500. 172 16 U.S.C. 1451 et seq. 173 See, M Nordquist, J Norton Moore, A Chircop and R Long, The Regulation of Continental Shelf Development: Rethinking International Standards (Leiden/Boston, Martinus Nijhoff, 2013) passim. 174 COM(2011) 688 final. Brussels, 27 October 2011. 170

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which was subject to further consolidated in 2011.175 In order to give effect to the provisions of this directive as they apply to the assessment of projects pertaining to the energy sector, the Minister for Communications, Energy and Natural Resources, Pat Rabbitte, TD, made the European Union (Environmental Impact Assessment) (Gas) Regulations 2012 and the European Union (Environmental Impact Assessment) (Petroleum) Regulations 2012.176

LEGAL DUTY ON VESSEL MORTGAGEE UNDER KOREAN LAW Issues concerning the application of private maritime law, as well as Belgian and Korean law, arose in SPV SAM Dragon v GE Transportation Finance (Ireland) Limited.177 The facts of the case were described by McGovern J who delivered the judgment of the High Court as unusual in so far as they related to a company incorporated in Panama (SPV SAM Dragon – the plaintiff) who had purchased the vessel MN Sam Dragonas and which subsequently claimed damages and expenses from an Irish financial services company (the mortgagee and defendant). The background of the plaintiff’s claim related to a mortgage default by a Korean company in 2009, the ensuing arrest of the vessel in Belgium at the behest of various creditors, and its sale by public judicial auction for US$71 million. The vessel was purchased free from encumbrances and the defendant’s claim was transferred to the proceeds of sale. The defendant company had security over the vessel in respect of a mortgage created by the previous owners and on foot of legal advice it would not delete voluntarily the charge on the Korean Register until such time as it had received the proceeds from the judicial sale of the ship. The action in the Irish High Court related to the extra fees incurred by the plaintiff as a result of the delay in the deletion of the charge from the Korean Register. Essentially, the Court had to decide ‘whether there is a legal duty on the mortgagee of a vessel to take affirmative steps to delete the entry of the mortgage on the Ship's Register in circumstances where there has been a judicial sale in a country other than the country of registration’.178 One of the arguments addressed by the Court was whether the delay in deleting the mortgage from the Korean Register was unreasonable or unlawful. On this matter, Mr Justice McGovern held that the reasonableness of the defendant's actions would only be relevant if Belgian law applied to the circumstances surrounding thedeletion of the entry from the Register but he determined that Korean law was applicable. Accordingly, the arguments raised by the plaintiff to establish a case against the defendant based on Belgian law were not relevant and even if they were, the Court found ‘no evidence of misrepresentation, abuse of right, infringement of the plaintiff’s liberty of exercising its property rights or the creation of a false impression’.179 Furthermore, 175

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (codification), OJ L26/1, 28 January 2012. 176 S.I. No. 403 of 2012 and No. 404 of 2012. 177 (2012) IEHC 240. 178 Ibid. 179 Id.

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after reviewing the evidence and applicable law on the substantive issue,180 the Court was satisfied that a mortgagee is not obliged under Korean law to ‘voluntarily delete the mortgage entry where there has been a judicial sale of a vessel in another jurisdiction.’181 The case is subject to appeal to the Supreme Court.

INTERNATIONAL TREATIES AND AGREEMENTS International treaties and agreements with a maritime dimension that came into force with respect to Ireland in 2012 include: the International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001 (AFS Convention);182 and the Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims (LLMC) 1976.183 Several other important agreements were published in the Irish Treaty Series in 2012. These include: the Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea,184 and the Protocol on the Privileges and Immunities of the International Seabed Authority,185 as well as the Agreement on the Promotion, Provision and Use of Galileo and GPS Satellite-based Navigation Systems and Related Applications.186 The latter recognises the standards established by the IMO that are applicable to the use of global satellite-based navigation systems for maritime navigation.

ANNIVERSARY OF THE 1982 CONVENTION A number of events were organised to mark the thirtieth anniversary of the opening for signature of the 1982 Convention. These included a plenary meeting of the United Nations General Assembly on 10 and 11 December 2012 devoted to the consideration of the item entitled ‘Oceans and the law of the sea’. Unsurprisingly in light of its considerable attention to global maritime matters and the multilateral process, the EU make a statement at the commemorative meeting on its own behalf as a separate party to the 1982 Convention.187 In a relatively lengthy address, Cyprus did not make reference or speak on behalf of the Presidency of the Council of the European Union. Nevertheless, there were a number of references to the EU by states parties as the sole international 180

The Tremont [1841] I Wm. Rob. 163; Hillside (New Media) Ltd v Bjarte Baasland &, Others [2010] EWHC 3336 (Comm); Dumez France v Hessishche Landesbank [1990] ECR 1-49; The Acrux [1962] 1 Lloyd's Rep. 405; The M/V 'Cerro Colorado' [1993] 1 Lloyd's Rep 58; Marinari v Lloyds Bank plc [1995] ECR 1-2719. 181 Ibid. 182 Into force on 20 January 2012. Irish Treaty Series No. 2 of 2013. 183 Into force on 24 April 2012. Irish Treaty Series No. 7 of 2013. 184 Irish Treaty Series No. 8 of 2012. 185 Irish Treaty Series No. 9 of 2012. 186 Irish Treaty Series No. 30 of 2012. 187 http://www.eu-un.europa.eu/articles/en/article_12949_en.htm. See R Long, ‘The EU and the Law of the Sea Convention at the age of 30’ (2012) 27(4) The International Journal of Marine and Coastal Law pp. 711-721; reprinted in D Freestone, The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Leiden/Boston, Nijhoff, 2013), pp. 37-47.

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organisation that is party to the Convention and Secretary-General Ban Ki-moon in his address noted that the agreement is a testament to the ‘power of international cooperation, multilateral negotiation and consensus-building’, which was nearing the goal of universality with 164 parties including the EU.188 There were a number of other events worldwide to commemorate the signing of the Convention including an international academic conference in Belfast hosted by the British Institute of International and Comparative Law in conjunction with the Law Society of Northern Ireland.

LAW OF THE SEA CAPACITY BUILDING In June 2012, the Center of Oceans Law and Policy at the University of Virginia with support from the Marine and Environmental Law Institute at Dalhousie University, and the National University of Ireland Galway, convened an international conference on ‘The Regulation of Continental Shelf Development: Rethinking International Standards’ in Halifax, Nova Scotia, Canada. Much of the conference agenda was focused on the legal and policy lessons derived from the Deepwater Horizon oil spill at the Macondo Prospect in the Gulf of Mexico in 2010. The conference proceedings are published by Martinus Nijhoff Publishers and are available worldwide.189 The School of Law at the National University of Ireland Galway hosted a research fellow from Guatemala under the United Nations – Nippon Foundation Fellowship Programme 2011-2012. The aim of the programme is to provide mid-career professionals from developing states with the opportunity to undertake advanced research in ocean law and policy topics with a view to assisting their countries of origin in implementing the obligations that arise under the 1982 Convention. Ms Lilian Yon Bosque undertook a thesis on climate change and the protection of Guatemalan marine-coastal ecosystems, which has since been published by the Division for Ocean Affairs and the Law of the Sea at the United Nations. In 2012, the Department of Foreign Affairs and Trade contributed, through Irish Aid, €25,000 to each of two voluntary trust funds established by the United Nations pursuant to General Assembly Resolution 55/7 on Oceans and the Law of the Sea. Namely (i) the Trust Fund for the purposes of facilitating the preparations of submissions to the Commission on the Limits of the Continental Shelf for developing states, in particular the least developed countries and small island developing states, and compliance with Article 76 of the United Nations Convention for the Law of the Sea; and (ii) the Trust Fund for the purpose of defraying the cost of participation of members of the Commission on 188

General Assembly (GA/11323), Sixty-seventh General Assembly Plenary 49th & 50th Meetings, 10 December 2012. 189 M Nordquist, J Norton Moore, A Chircop and R Long, The Regulation Of Continental Shelf Development: Rethinking International Standards (Leiden/Boston, Martinus Nijhoff, 2013), ISBN 9789004256835, pp. 260. Available at: http://www.brill.com/regulation-continentalshelf-development.

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the Limits of the Continental Shelf from developing States in the meetings of the Commission. Ireland has contributed over €700,000 to these two trust funds since 2002.

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COLONIALISM, SLAVERY, REPARATIONS AND TRADE: REMEDYING THE PAST? Fernne Brennan and John Packer (eds), Abingdon, Routledge, 2012 (254 pp) ISBN: 978-0-415-61915-8 (hbk stg £90.00) and ISBN: 978-0-415-83317-2 (pbk stg £24.99)

Colonialism, Slavery, Reparations and Trade can be seen as a microcosm of the standard of research and discourse surrounding the issue of reparations touching on the transatlantic slave trade. This collection is a window on to a world of pseudo-academic writing, where established facts are of little concern and a particular reading of history is mobilised to justify a particular argument. If not for a couple of contributors coming to the rescue and providing an opportunity to discuss the malaise at the heart of reparations debates, there would be little left worth reviewing. The driving force behind this collection is Fernne Brennan, a Senior Lecturer in the School of Law at the University of Essex who, by her own admission, has “one great passion – slave trade reparations – by which I mean reparations for the legacy of the slave trade” (p 196). Her approach to the issue of reparations appears to be quantitative rather than qualitative, as she writes: To tackle the underlying cause of racial discrimination we must locate it in institutional racism, a racism whose bed was first made by the slave trade and slavery. As more and more people write about these problems the more it can be prophesised that the pen, being mightier than the sword, will make a dent in the all too familiar refusal to believe, accept responsibility, apologise and make restitution for a tragedy that we have all lived through and continue so to do (p. 206; emphasis in the original). Colonialism, Slavery, Reparations and Trade takes this approach, and despite providing 252 pages of material on the matter, very little emerges of quality, in the sense of adding new insights or making arguments based on historical facts or sound legal analysis. At the level of editing, the collection is missing both a coherent introduction which sets out the overall aim of the book, and a theme which ties the various contributions to something original to be said about entrenched debates surrounding reparations resulting from the transatlantic slave-trade (for considerations regarding these debates see Alfred Brophy, Reparations Pro & Con, OUP, 2006 and more recently the 2012 special issue of Social & Legal Studies: “Repairing Historical Wrongs” edited by Gerry Johnstone and Joel Quirk). From this perspective, it is not clear why ‘colonialism’ and ‘trade’ are given special status in the title, as these are touched upon in a limited manner in the contributions, and are discussed no more than numerous other topics. The four-page introduction consists of, in the main, a description of the content of the various contributions. The rationale for the collection is set out in the top and tail of the Introduction, where we learn that chapters emerged from a conference held in November 2008. Brennan and Packer write: “How to obtain reparations for the legacy of

the transatlantic slave trade is the main theme of this book”. While there is an acknowledgment that there is no consensus on issues of reparations today, there is a sense that there “is still room to manoeuvre” (p xv). With this in mind, the editors of Colonialism, Slavery, Reparations and Trade, while acknowledging that there is a “strong debate” over reparation claims for the transatlantic slave trade, seek to “mould matters” by “dealing with some of the issues and try to provide solutions”, with the acknowledgment that “this is only the beginning of a long road” (p xviii). Yet, beyond this, there is no coherent narrative which sets out to contextualise this collection within the rather larger pool of writings related to reparations, nor is there a sense of what “issues” will be dealt with and what “solutions” will be forthcoming. For Brennan, much depends on the lead chapter, written by Norma Wittmann. While Wittmann is willing to utilise international law when it serves her purpose (that during the era of the transatlantic slave-trade, African states had international legal personality), she is quick to dismiss it with regard to the slave trade. Wittman argues that it is an “allegation (presented as a fact) that transatlantic slavery would have been ‘legal’ in its time” (p 3). She goes on to say that “the historically-documented legal facts indicate that transatlantic slavery was illicit” (p 4). It might also be noted here that another contributor, Marcus Goffee, an LLM Candidate, who made his presentation on behalf of the Jamaican Rastafari Community, sings from the same hymn book, as he “argues that chattel slavery of this sort and on the scale conducted by the major European nations states over four centuries was not legal at the time, despite it not being expressly illegal according to the West European Westphalian conceptualisation of international law” (p 226). Little space need be given to refute a claim that few, beyond the polemic, would endorse. From time immemorial, slavery was recognised as being contrary to natural law, but a part of jus gentium, manifest in the enslavement of prisoners of war rather than putting them to death (See Allain, Slavery in International Law, 2013, pp 12-13). While it is true that the transatlantic slave-trade was different in form, as it industrialised what had transpired before it; but it has remained the same in substance from before recorded time up to the present. From the historical perspective, Wittmann denies that slavery was part of the fabric of African life before Europeans commenced the transatlantic slave-trade (p 9: “The concept and reality of African ‘slavery’ instead coincided with the meaning of the term ‘servile labour’ or ‘serfdom’”). She also speaks of African collaborators, painting the depopulation of more than 12.5 million Africans as being the result of – and here she quotes the well-respected professor of world history Patrick Manning – “a few greedy or opportunistic persons” (pp 14-15). Yet, in reading Manning in context, he makes plain in his Slavery and African Life, that as a result of the fragmentation of the continent, African traders in slaves were always available and empires came and went, built on the riches gained from supplying prisoners of war from the interior to become slaves on the coast. In other words, the industrial scale of the transatlantic slavetrade, required an industrial level commitment by African leaders to make war and supply captives. Brennan and Packer repeat Wittmann’s assertions discussing her chapter in the Introduction, but also challenge a dedicated piece of research by Dinah Shelton, one of the foremost legal experts on remedies and recent President of the Inter-American Human Rights Commission. In considering the jurisprudence to emerge from the United States

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regarding claims for past mass human rights violations, Shelton notes a number of limitations to success including statutes of limitations and non-retroactivity of law. To this Brennan and Packer add: “we will have already seen in Wittmann’s chapter that the latter can be swept away and as for the former it has previously been argued that reparations for the slave trade should not be subject to the Statute of Limitations” (p xvii. The previous argument cited, which is apparently enough to place in doubt a fundamental pillar of criminal justice is a 2000 word blog-post by a former provincial court judge from Kamloops, British Columbia). In this manner the two fundamental legal obstacles which stand in way of reparations for the transatlantic slave-trade are set to the side; and with it very little serious discussion is to be found in Colonialism, Slavery, Reparations and Trade, but for the pieces by Shelton, Kate Bracegridle and Sheila Dziobon. Instead, this edited collection provides vanity pieces: Lord Anthony Gifford noting that he knows very little about reparations (“I was not an expert in international law” (p 79), having been approached to write a brief by the Jamaican High Commissioner to Nigeria (“who defended Jomo Kenyatta in the 1950s”, p 77); his knowledge of the issue of reparations having come from the British Member of Parliament for Tottenham (“the most radical and outspoken of the four Black MPs elected in 1987”, p 78); while the “catalyst for awaking the concept of reparations in Africa itself was supplied by another larger-than-life individual, Chief Moshood Abiola of Nigeria” (p 78), the politician whose apparent victory in the presidential race was annulled in a coup by General Sani Abacha. So moved by the issue of reparations was Gifford that he decided, despite being “an absentee member of the House of Lords” since moving to Jamaica, to raise the question in the House of Lords where he noted that a fellow Lord said that “I spoke in the tradition of Thomas Clarkson and William Wilberforce” (p 90). Likewise, the inclusion of His Excellency Ambassador Kwesi Quartey, Ghana’s Ambassador to Ethiopia and Permanent Representative to the African Union, has clearly had little more to do with his position, rather than the level of his scholarship, as his contribution is ill-informed and anecdotal in the main. Quartey sets the tone for the level of scholarship and his approach by starting his contribution in the following manner: Many of us have tended to believe that the transatlantic slave trade which took place between 1450 and 1807 when it was abolished by the British parliament was perhaps a series of sporadic events carried out by a few bad people. (p 125) First, the transatlantic slave-trade did not end with its abolition by the British Parliament, as Westminster could not dictate international law to other sovereign powers involved in the slave-trade (See Allain, “Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade” (2008) 78 British Yearbook of International Law 342; and Allain, Slavery in International Law, 2013, pp 57-104). By setting the end of the slavetrade in 1807, Quartey fails to acknowledge the nearly three million Africans enslaved between 1807 and 1866. (See http://www.slavevoyages.org; which notes that 2,893,466 slaves were embarked during this period of time). Further, no serious commentator would say that the slave-trade was “a series of sporadic events carried out by a few bad people” in light of the historical study of the transatlantic slave-trade over the last fortyyears which, in many ways has been the primary area of study of history departments in the United States of America and beyond.

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Of the other contributors, the recommendations put forward for addressing the issues of reparations make no sense (“One possible beginning here would be a rethink by the IMF, the World Bank (eg, to cancel all debts), and those ‘aid’ givers who pay high salaries to endless numbers of ‘advisors’ who then recommend the purchase of what are not the best materials or expertise, but what is available from their own countries” (Sherwood p 34); or set out a path based on the Declaration on the Right to Development, which by Rohan Kariyawasam’s own admission, is not “a legally binding instrument, has suffered from a lack of implementation and the political will required for international cooperation” (p 59). Redemption within Colonialism, Slavery, Reparations and Trade as previously noted, is found in three contributions. Kate Bracegridle considers the English law of restitution as an approach to transatlantic slave-trade reparations with specific reference to unjust enrichment. For Bracegridle, the English context is such that the statute of limitation is “not the most significant problem [...] which would form the basis of a claim of restitution for historical slavery”. Instead, the bigger hurdle would be attempts at a general classification of descendants of slaves and the “disparity in wealth between Black and White people in the West [...] into a very precise legal concept such as unjust enrichment and various torts” (p 161). For Sheila Dziobon, the contribution considers English law beyond Somerset v Stewart which held that English common law did not permit slavery on British soil. Her conclusions of the jurisprudence touching on slaves and the slave-trade from 1729 to 1807, is that the judiciary were part of the landed gentry and as such they reflected the interests of the elite including support for transatlantic slave-trade. Despite the abolitionist movement which ultimately led to 1807, Dziobon makes plain that judicial enlightenment only transpired after the judicial hero of Somerset, Lord Mansfield left the bench. For her part, Dinah Shelton considers the record of reparations claims made in courts of law in the United States and concludes that “the synergies produced by activism, litigation and legislation have produced the greatest success in a direct relationship with how recent the events are to be presented” (p 99). Quoting from a preliminary determination in the 1995 circuit court case of Cato v United States, related to two groups who sought damages for having been enslaved and subsequent discrimination, Shelton makes the point that the path to reparations is not through the law, but by political accommodation:

While plaintiff may be justified in seeking redress for past and present injustices, it is not within the jurisdiction of this Court to grant the requested relief. The legislature, rather than the judiciary, is the appropriate forum for plaintiff’s grievances. (pp 100-101) Shelton provides conclusions which speak to the realities of the legal landscape: that “even where the claims lack a firm legal foundation, experience thus far suggests that reparations may still take place via the political process”. She continues by saying that “demands for reparations will probably only succeed with political pressure and strong, cohesive support from the victims themselves” (p 113).

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Colonialism, Slavery, Reparations and Trade hurts the case for reparations as it provides an incoherent reading of the objects, aims, and outcomes which could then be fostered as a unified approach to claims for repairing the historical wrong which is the transatlantic slave-trade. But for the contributions of Shelton, Bracegridle and Dziobon, the editors have provided a collection which lacks academic rigour.

Jean Allain IYIL Editorial Board

INTERNATIONAL MARITIME SECURITY LAW James Kraska and Raul Pedrozo, Leiden, Martinus Nijhoff, 2013, (939 pp)

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ISBN: 978-90-04-23356-0 (hbk €237)

THE INTERCEPTION OF VESSELS ON THE HIGH SEAS: CONTEMPORARY CHALLENGES TO THE LEGAL ORDER OF THE OCEANS Efthymios Papastavridis, Oxford, Hart Publishing, 2013 (402 pp) ISBN: 978-1-84946-183-2 (hbk stg £65) and ISBN: 978-18-49-46664-6 (pbk stg £30)

In 2013, Ireland’s Naval Service boarded nearly 1,000 vessels, and made as many as 16 detentions, for alleged fishing regulation infringements in the maritime zones under Irish jurisdiction.1 This included the detention in November 2013 of one of the world’s largest fishing vessels, a Dutch-registered “super-trawler”, some 100 nautical miles off the Donegal coast. These activities—which relate to the notion of maritime security— serve as a potent reminder of “the vital importance, for a small country such as Ireland, of internationally agreed rules of conduct among states”, no less so than in matters of law enforcement at sea.2 Maritime security is a fascinating subject because of the wide range of topics that fall within its ambit, including piracy, the proliferation of weapons of mass destruction (WMD), illegal, unreported and unregulated (IUU) fishing, human trafficking, and drug smuggling. The term “maritime security law” may not be susceptible to a universally accepted definition, but can be said to comprise the legal structures directed at preserving freedom of navigation, safeguarding ocean resources, and protecting the nation-state from seaborne threats,3 and recent years have seen a number of important scholarly contributions to this field.4 The two works under review offer further contributions aimed at facilitating our understanding of this dynamic area of international law. Kraska and Pedrozo’s International Maritime Security Law—covering 24 chapters and nearly 1,000 pages—is a massive undertaking. Its authors, distinguished veterans of the US Navy with considerable behind-the-scenes policy expertise inside government, are superbly positioned to address the subject. They have done so in a wide-ranging 1

See Defence Forces Ireland, Naval Service Operations 2013 (31 December 2013), at http://www.military.ie/naval-service/news-and-events/single-view/article/31-december-2013defence-forces-naval-service-operations2013/?cHash=e46dc7089a03f58f4c584a7d3159a456 (last visited 18 February 2014). 2 Statement by An Tánaiste, Eamon Gilmore TD on Ireland and the Law of the Sea, Royal Irish Academy (14 April 2011), at https://www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/internationallaw/statement -law-of-the-sea-april-2011.pdf (last visited 18 February 2014). 3 See, eg, Natalie Klein, Maritime Security and the Law of the Sea 8 (Oxford: Oxford University Press, 2011). 4 Noteworthy examples include Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009); Klein, supra note 3; and James Kraska, Maritime Power and the Law of the Sea (Oxford: Oxford University Press, 2011).

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book that offers a pointedly realpolitik approach to maritime security law, with a particular focus on US policy interests. Kraska and Pedrozo describe “maritime security law” as a “hybrid sub-discipline of international law” that draws principally upon the international law of the sea, international criminal law, human rights law, and the law of naval warfare (p 2). They highlight the most violent threats to maritime security, which include piracy, ship hijacking, and the transport of illicit cargo, as well as the use of the sea by terrorists, organised crime, human traffickers, and “irregular maritime militia” (p 1). They also identify pollution and IUU fishing as problems, but specify their intention to deal with these “non-violent threats … only as they relate to the more violent threats mentioned above” (p 1). From the outset, the authors make clear that the volume is not “focused solely on ‘black letter’ law”, but rather seeks to collect “the most important legal and policy authorities into a single book” and to provide “the political-military context within which [the law] applies by integrating into the text additional material and judgments about international maritime security” (p 3). The authors refer here not to the decisions of courts and tribunals, but instead to their own judgments based on decades of experience. Although selfavowed legal realists, the authors also express their fealty to the liberal internationalist school of international relations (p 4). These twin perspectives are apparent in the text that follows. After a robust introduction to the topic—which emphasises the shift from a legal order aimed at preventing naval warfare to a global framework designed to facilitate cooperation (p 10)—the authors dedicate the next two chapters to providing overviews of US (Chapter 2) and European (Chapter 3) “maritime strategy and policy”. These are followed by detailed examinations of “peacetime zones and control measures” (Chapter 4), marine environmental protection (Chapter 5), and US safety and security zones (Chapter 6). The next chapters cover “Sea Power, Grand Strategy, and Freedom of the Seas” (Chapter 7), freedom of navigation (Chapter 8), and excessive maritime claims in, respectively, the territorial sea, straits, and archipelagos (Chapter 9) and the exclusive economic zone (EEZ) (Chapter 10). Chapter 11 offers a case study on the South China Sea, which picks up on the themes developed in Chapters 7-10. Chapters 12-14 deal with the marine transportation system and discuss port security and ship safety, sometimes on a highly technical level. Chapters 15-18 discuss counter-drug trafficking authorities at the global and US levels. The book then addresses “migrant smuggling” (Chapter 19), piracy and armed robbery at sea (Chapter 20), and maritime terrorism and the transport of WMD (Chapter 21). This is followed by a timely, article-by-article commentary to the 1988 Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention) and its 2005 Protocol, which amends the earlier treaty (Chapter 22). This effort may on its own have merited a stand-alone publication. Finally, the volume concludes with a discussion of “irregular naval warfare and blockade” (Chapter 23) and a relatively brief overview of maritime enforcement on the basis of UN Security Council resolutions (Chapter 24). It goes without saying that Kraska and Pedrozo have covered an extraordinary amount of material. International Maritime Security Law is at its best when the authors use real-world examples to demonstrate the motivations behind particular legal developments or the

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obstacles to implementing the law. For example, in discussing the international obligation to provide assistance to persons in distress at sea, the authors usefully describe how the 2001 M/V Tampa incident, in which Australia attempted to refuse efforts to disembark 438 refugees who had been rescued at sea by a Norwegian freighter, provided impetus for amending the International Convention for the Safety of Life at Sea (pp 67679). This discussion is supplemented by a description of US policy, including incidents between US naval vessels and Vietnamese “boat people”, that demonstrates the practical challenges of meeting humanitarian obligations at sea (pp 682-86). The extended treatment given to excessive maritime claims (ie, claims by coastal States to regulatory or sovereign rights within the EEZ or other waters that go beyond those rights recognised by customary international law and the 1982 UN Convention on the Law of the Sea) is compelling.5 This includes a detailed explanation of the U.S. Freedom of Navigation program, which uses “US warships and military aircraft to assert navigation and overflight rights and freedoms against excessive claims on a worldwide basis” in order to demonstrate “non-acquiescence” (pp 201-14, 255-58). The authors clearly lament that only a handful of such challenges have been conducted annually in recent years, as compared to the 35-40 challenges each year during the height of the Cold War. They attribute this decline to the downsizing of the U.S. fleet, the allocation of resources to conflicts in Iraq and Afghanistan over the past decade, and efforts by the US State Department to push for fewer challenges, since such actions “may sour bilateral relations” (p 203). In this same context, the authors focus on China’s increasingly assertive conduct at sea. They describe how China’s legal arguments aimed at excluding foreign-flagged navies from its EEZ have evolved (for example, through controversial interpretations of what constitutes “maritime scientific research” and the scope of coastal State competence over environmental protection (pp 279-85, 309-12)). They also contrast US-Soviet practice during the Cold War, when the United States “tolerated loitering Soviet intelligence trawlers near its coastline”, with “the aggressive intercepts that have become a feature of China’s excessive EEZ claims” (pp 281-82). The authors pull no punches in describing China’s “search for a new legal rationale to support its position that coastal States can regulate foreign military activities in the EEZ” (p 309)—an approach that the authors view as anathema to the public order of the oceans. The book also includes a detailed account of competing claims in the South China Sea, which focuses more on State practice (eg, incidents between China and other states) than legal argument (pp 313-54). There are many other discussions worth highlighting. For example, the authors examine the rise of “semi-submersible vessels” to transport illegal drugs, and the corresponding efforts to develop the legal authorities to combat this practice. The analysis of the 2008 Drug Trafficking Vessel Interdiction Act, a US law that is applied extra-territorially to this end, is particularly interesting (pp 591-98). The book also includes a balanced account of the advantages and disadvantages of “maritime domain awareness” (MDA)—which refers to international information-sharing about “activities occurring in

5

This is not surprising given that one of the co-authors has authored an excellent monograph focused on excessive claims by coastal States within the EEZ. See Kraska, supra note 4.

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a maritime space” (p 399)—and the related technology referred to as the Automatic Identification System (AIS), which allows for real-time tracking of maritime traffic (pp 40408). Efforts to enhance MDA can contribute to maritime security; the authors point to the 2003 seizure of a massive cargo of explosives after a vessel’s unusual pattern of movement in the Mediterranean raised authorities’ suspicions (p 399). However, the open-source nature of AIS information can leave vessels more vulnerable to piracy, terrorism, or coastal State harassment (p 403). The chapter on piracy is also noteworthy.6 The authors provide a clear overview of UN Security Council resolutions directed at responding to piracy off the Somali coast (pp 701-07) and describe the various counter-piracy operations underway in the region (pp 723-38). The authors also make policy recommendations. First, they argue that naval coalitions are “cost-ineffective” and the “wrong tool” for suppressing piracy, writing that “[t]he answer is not to concentrate high-end warships” in multilateral counterpiracy operations, but rather to develop local capacity (for example, by building up Kenyan naval assets with appropriately sized attack ships and patrol vessels) (pp 709-10). Secondly, they note that countries in the region increasingly have laws on the books to deal with piracy, but that their maritime forces often require the presence of law enforcement officials to take action against pirates. This suggests the need for a “domestic shiprider concept” in which patrol vessels include law enforcement personnel (p 722). Ultimately, however, the authors take the view that Somalia’s piracy problem is unlikely to abate before the situation on land—notably, the internal conflict between Al Shabbab and the transitional government—is brought under control. Overall, International Maritime Security Law constitutes an important reference on its subject. As the authors promise, it focuses less on the doctrinal and more on the realworld experience of maritime security. It exposes readers—who presumably will comprise not only lawyers, scholars, and policy-makers, but also those working directly in the world of international shipping and maritime security—to a wealth of information that other volumes on this topic may not include, including a rich array of primary materials setting forth US policy. The book also highlights the considerable and under-valued role of the International Maritime Organization (IMO), the specialised UN agency responsible for improving the safety and security of international shipping, and includes numerous references to key IMO instruments. In sum, this is a valuable compilation of State practice on several maritime fronts of increasing interest and relevance. That said, some readers may find the approach too US-centric, although the introduction makes clear enough that this is the perspective on offer. The casual reader may also feel at times overwhelmed by the authors’ recourse to the vocabulary and jargon of military policy and equipment, as well as by the nuances (and acronyms) of US interagency decision-making. These discussions sometimes have what the American authors might themselves call an “inside baseball” quality.7 However, the authors’ ability to 6

Kraska has also published extensively on the topic of counter-piracy. See, eg, James Kraska, Contemporary Maritime Piracy: International Law, Strategy and Diplomacy at Sea (Santa Barbara: Praeger, 2011). 7 See William Safire, “On Language: Inside Baseball”, NY Times (19 June 1988) (a term referring to the “minutiae savored by the cognoscenti, delicious details, nuances discussed and dissected by aficionados”).

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offer an insiders’ military perspective distinguishes this volume from other legal literature on the subject. A different concern stems from the book’s organization. There is much of interest here, but the particular sequence of the chapters is puzzling; there is not necessarily a logical progression from one chapter (or grouping of chapters) to the next. Moreover, there is no conclusion at the end of the book that attempts to tie together the huge expanse of material that has come before. For these reasons, International Maritime Security Law resembles a reference book rather than a unified study of the subject. Finally, the book might have benefited from a firmer editorial hand. Although many international law books provide too much “sign-posting”—that is, spelling out in detail what each chapter will cover before getting on with it (and then of course recapitulating those points in the chapter’s conclusion)—International Maritime Security Law suffers from the opposite problem. Individual chapters are full of interesting content, but offer little direction. There is a tendency to meander from one sub-topic to the next, or to repeat the same information at different points (both within individual chapters and from one chapter to the next). In a similar vein, there is sometimes simply too much detail, including lengthy descriptions or recitations of particular legal instruments, but without corresponding analysis. One has the impression that not enough time was spent winnowing down the relevant primary materials in order to provide a more effective, concise and useful presentation of the subject-matter. It is also notable that the book’s footnotes focus on primary sources, press reports, and policy papers, and therefore do not point the reader to the extensive secondary legal literature on many of the topics covered. Efthymios Papastavridis offers a less wide-ranging, and in some ways more accessible, contribution in his book, The Interception of Vessels on the High Seas, which is an updated version of his doctoral dissertation. Papastravridis asserts that despite the centrality of mare liberum (ie, the freedom of the high seas) to the public order of the oceans, certain derogations from that rule have always existed (relating, for example, to combatting piracy and wartime rights) (p 2). His study is a response to more recent efforts to extend the “right of visit” to new situations (the transport of WMD, drug-trafficking, illicit migration) that are not expressly covered by the 1982 UN Convention on the Law of Sea. Papastavridis sets out to examine whether the venerable principle of non-interference on the high seas “can accommodate such claims for enforcement jurisdiction” (p 3). Papastavridis sets the stage for his analysis by revisiting the traditional mare liberum versus mare clausum debate (Chapter 2). Perhaps surprisingly, he takes the position that these two theories “have never been in real discord, but have co-existed and complemented each other”—at least at the level of theory (p 27). He observes, however, a shift in the rationale that underpins most modern-day claims for derogation from the mare liberum. Whereas early proponents of the mare clausum advanced claims by individual states to maritime dominion, modern-day claims have become “internationalized” and are justified by “legitimate concerns . . . [of] the international society as a whole” (p 28).8 8

A similar idea underpins Natalie Klein’s approach to maritime security as an “inclusive claim”. She draws a distinction between “assertions of naval power that serve to benefit the policy goals of a particular state” and those taken in response to “threats that affect the maritime

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Papastavridis concludes that because the freedom of the high seas has “never been an absolute principle”, recent practice should not be seen as having brought about any fundamental changes to the prevailing order (pp 40, 311). Chapter 3 provides an overview of the legal framework that surrounds the contemporary right of visit on the high seas, in wartime and peacetime. It discusses with care the component phases of the right of visit (approach, boarding, and search) (pp 51-52) and explains relevant terminology (for example, distinctions between the terms “interception” and “interdiction”) (pp 60-62). Papastavridis also introduces the applicability of other rules of general international law, including those relating to the use of force and the applicability of international human rights law, to high seas enforcement actions. This is in keeping with one of the themes he seeks to emphasise throughout the book: the principle of la juridicité of the high seas—the idea that “the oceans are regulated not only by the lex specialis of the law of the sea, but also by general international law, where applicable” (pp 309-10). The next several chapters, which cover some familiar ground,9 provide systematic accounts of the relevant sources of legal authority—whether located in customary international law or treaty law—for the interception of vessels on the high seas in different contexts. These include the right of visit in connection with: armed conflict (ie, belligerent rights) or UN Security Council action (Chapter 4); international terrorism and WMD proliferation (Chapter 5); piracy and IUU fishing (Chapter 6); drug trafficking (Chapter 7); and international migration (Chapter 8). These chapters are informative, although the text sometimes suffers from extensive discussions of specific treaty provisions that are nowhere set forth in the text itself or in annexes. Nonetheless, the text is consistently footnoted with helpful references to the primary materials under discussion, in addition to the most relevant secondary sources. At least two themes emerge from these chapters. The first is the continuing preeminence of the flag state’s exclusive jurisdiction in nearly all situations with maritime security implications. In the author’s view, the requirement of flag State consent has not been eroded by the emergence of new threats, although he amply demonstrates the various ways in which new instruments seek to facilitate consent: for example, he compares hard requirements for express authorization with the notion of “tacit consent” when a flag state does not respond to a boarding request within a fixed period of time (typically, four to six hours). He also discusses the innovation of “shiprider” agreements that place personnel from one state (for example, a relevant coastal state) on board the patrol vessel of another state. This theme accords with the author’s premise that recent practice has not reshaped the overall system of oceans governance. The second theme is the incomplete nature of many high seas enforcement regimes. Even if there is legal authority to exercise the right of visit, there may not be jurisdiction to take further action if illicit conduct is uncovered. For example, Papastavridis notes security of a majority of states” and thus reflect a “shared interest”. See Klein, supra note 3, at 19. 9 In particular, there is a certain degree of overlap between the subjects covered here and those addressed by Guilfoyle’s recent work on interdiction (see note 4, supra). Guilfoyle does not, however, cover interdiction in the context of armed conflict. Kraska and Pedrozo also cover many of these topics, but from the different perspective described above.

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that Article 6 of the SUA Convention obliges state parties to establish criminal jurisdiction over certain types of offences committed on or against its own flagged-vessels, within its territorial sea, or by its own nationals (p 130). If a state party obtains consent from another state party (the flag state) to intercept a vessel, the intercepting state may nonetheless lack jurisdiction to detain and prosecute the alleged offender, or to seize the vessel or its cargo, in the absence of “corresponding prescriptive jurisdiction, in the form of domestic legislation” (pp 134, 159). Papastavridis is critical of the amended SUA Convention’s failure to require state parties to enact the domestic legislation that would eliminate that gap. The author further notes that many states engaged in anti-piracy operations (pp 183-86) and counter-narcotic operations (p 245) lack the domestic legal authority to pursue enforcement actions after having successfully intercepted a vessel engaged in unlawful conduct. He makes the similar point that although any state can exercise the right of visit with regard to “stateless vessels”, it is less clear whether the boarding state may, in turn, exercise its enforcement jurisdiction over such vessels (pp 248-52, 264-67). In sum, The Interception of Vessels on the High Seas is a useful scholarly addition to the maritime security literature, even if some aspects of its analysis are not particularly novel or would have benefited from further discussion. The relatively short discussion of efforts to combat IUU fishing (which is unconvincingly circumscribed, see pp 161, 199)10 and the omission of any substantive analysis of interception in the context of marine pollution stand out in this regard. In general, the author’s discussion of different treaty regimes that have developed in response to various seaborne threats is more intethe resting than his efforts to consider non-treaty grounds that might justify high seas interceptions (for example, whether counter-measures or the doctrine of necessity could be invoked). Finally, his effort to discuss the applicability of human rights law in various situations sometimes comes across as forced, although he is on firmer footing, in this regard, in the chapter discussing migration and human trafficking (Chapter 8). These points of criticism do not overly detract, however, from what is otherwise a highly competent survey of contemporary practice. Michael A. Becker The Hague, Netherlands

10

Specifically, Papastavridis states that because “measures taken to combat IUU fishing on the high seas are closely intertwined with the measures that are taken by coastal and port states”, they are beyond the scope of his study (p 191). This explanation is not particularly satisfying in light of the innovative approach that some regional fisheries management organisations (RFMOs), which are discussed only briefly (pp 202-03), have taken with regard to intercepting vessels on the high seas without flag state consent. See Guilfoyle, supra note 4, at pp 116-69; see also, Rosemary Rafuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden: Martinus Nijhoff, 2004). These unaddressed developments seem to contradict certain aspects of Papastavridis’ overall thesis. It should be noted that IUU fishing is also hardly discussed by Kraska and Pedrozo—there is no chapter in their book dedicated to that topic (but see pp 1, 730). This is surprising given apparent links between so-called “eco-terrorism” and IUU fishing, as well as the destabilising effect that IUU fishing may have on certain coastal states.

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Book Reviews 305

AN EQUITABLE FRAMEWORK FOR HUMANITARIAN INTERVENTION Ciarán Burke, Oxford, Hart Publising, 2013 (377 pp) ISBN 978-1-849-46404-8 (hdbk stg £60)

As demonstrated by States’ reactions to the humanitarian crises and civil wars that plague the world, humanitarian intervention is still an issue that refuses to go away. One need only look at the legal position of the UK Government on intervention in Syria for evidence of the belief that humanitarian intervention is a ‘legal basis for military action’1 in the face of the commission of international crimes by a state against its people – and one need only look to the ensuing debates for evidence of the belief that such a legal position is untenable. While inspired by the Kosovo crisis and its aftermath, An Equitable Framework for Humanitarian Intervention tackles a topic that is still, unfortunately, of great current relevance: how to justify humanitarian intervention in situations of gross violations of human rights. The particular interest of the work lies, however, in the radically different approach Ciarán Burke has taken to the problem. As he explains, previous debates on humanitarian intervention have focused on ‘ethical judgments [and] moral stress tests’ (p 2), rather than seeking to justify humanitarian intervention through existing rules of international law. The solution proposed by the author is to look to what he calls the ‘third source’ of international law, namely general principles, and particularly principles of equity, to establish whether these provide a legal avenue for justifying humanitarian intervention. Indeed, in reading this book, one might be forgiven for forgetting it is about humanitarian intervention at all, rather than a quite fascinating examination of how principles of equity operate in national and international legal orders. The tone of the debate around humanitarian intervention is clearly set out in chapter one, where the author conducts a review of the different doctrinal positions concerning the intervention in Kosovo, methodically pointing out their various flaws. This serves to illustrate both the dissatisfaction that existed among international legal scholars at the time in face of the rigidity of the prohibition on the use of force in the face of gross human rights violations (p 82), and the fact that no customary rule that permits humanitarian intervention is emerging (p 88). Having set out the case for looking to general principles to find a basis for humanitarian intervention, chapter two turns to the Statute and case law of the World Court (Permanent Court of International Justice and International Court of Justice) to find examples of general principles in its judgments. Perhaps the only drawback to this interesting overview of the practice of the ICJ is the lack of reference to any recent case law, though some certainly exists, for example on the principle of res iudicata in the Genocide Convention (Bosnia and Herzegovina v Serbia and Montenegro) case.

1

Chemical weapon use by Syrian regime: UK government legal position, 29 August 2013.

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Against this background, chapter three reframes the debate on humanitarian intervention as a collection of attempts by scholars to deal with the legal rigidity of the Charter of the United Nations (p 129). The innovation put forth by Burke, is to propose that there is a well-developed set of principles of equity, which fit within the definition of ‘general principles of law recognised by civilised nations’ as a source of law acknowledged in article 38(1)(d) of the ICJ Statute. He argues that these principles have exactly the purpose of softening the application of the law where it otherwise would lead to an unjust result. The parallels drawn with the development of equity in the English common law (p 131) are quite convincing. An exhaustive analysis of the principles of equity present in the world’s legal systems, illustrates the ‘common core’ of equitable principles to be found in all legal systems (p 198-9). The conclusion that equitable principles clearly fall within the definition of general principles in article 38(1) of the Statute of the ICJ is certainly easy to share. The transferability of these principles to international law is subsequently analysed with reference, again, to the application of equitable principles within the jurisprudence of the World Court. These principles of equity are then applied to humanitarian intervention in chapter five, beginning with an examination of the possible interactions between general principles and other applicable rules of international law. While at first sight the peremptory nature of the prohibition on the use of force may be considered to eliminate the possibility for general principles to intervene as gap-fillers or modifiers of fundamental norms, the author uses examples of ‘unconstitutional constitutional amendments’ (p 268) to prove otherwise. These are cases in which general principles have in essence overridden constitutional law by setting aside formal, procedural rules embodied in a constitutional instrument, in favour of the fundamental values and principles of that legal order. To this end, Burke conducts an in-depth analysis of the Irish Supreme Court’s 1934 judgment in The State (Ryan) v Lennon. This is presented as demonstrating how general principles may, and indeed should, override constitutional amendments which, although in accordance with the letter of the Constitution, are deeply contrary to the fundamental values that underpin the legal order that Constitution is supposed to govern. In the words of Kennedy CJ in State (Ryan) v Lennon, these are ‘statements of fundamental principle in the constitutional sphere’ (cit p 277). Burke refers to ‘the capacity of general principles […] to modify even the highest norms in limited and extreme circumstances’ (p 272); but this begs the question: which are the highest norms? The written, procedural, norms in the constitution, or the fundamental principles governing the legal order? It transpires from the analysis that fundamental principles may maintain a constitutional order by impeding certain modifications of the written letter of the constitution, yet Burke seems to refer to the former as the ‘highest norms’. Although one understands the point being made, this explanation seems to go against what the author wants to establish, namely, that general principles do allow modifications of the constitution. It would perhaps have been beneficial to differentiate between fundamental principles, which may have a constitutional role in a legal system, and other general principles that may simply serve to resolve normative conflicts or otherwise ‘adjust’ the application

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of written law. It remains unclear throughout the analysis whether it is fundamental principles (eg, of human rights) or equitable principles that may ‘override’ written rules. Almost by definition, we might expect peremptory norms of international law to have this effect. Nonetheless, Burke frames principles of equity as being fundamental values, intrinsically necessary for the operation of any sophisticated legal system, and to ensure that legal order is just – and, therefore, capable of overriding formal rules. It would have been fascinating to push the analysis one step further. The subsequent section of the book turns again to the incompatibility between the rules on the use of force and those on human rights. For principles of equity to work to soften the application of specific rules and to fill gaps, it must first be demonstrated that the UN Charter is not a complete, perfect system of law insusceptible of modification by external norms. To this end, Burke begins by demonstrating that the UN Charter has already been ‘softened’ to adapt to situations that it was not intended to cover. The use of troops from Member States instead of a UN standing army in peace operations, and the characterisation of abstention as not being a veto, are examples given as to how the Charter has been adapted to deal with Security Council blockages (p 292-3), and how such Security Council blockage may have highlighted lacunae in the Charter itself. Considering also article 31(3)(c) of the Vienna Convention on the Law of Treaties, which allows for subsequent norms of international law to be used to interpret a treaty, it is argued that this then opens the door for human rights norms to be used to interpret UN Charter provisions (p 296). Here the author indicates how those general principles of equity he has painstakingly pinpointed may apply to situations in which humanitarian intervention should be allowed. The application can be boiled down as follows. Firstly, states ‘using’ the UN Charter to avoid the consequences of their breaches of human rights treaties are acting in bad faith, and therefore are in breach of the Charter rules. Secondly, the principle ubi ius, ubi remedium means there is an implied remedy to deal with violations of human rights norms where no alternative remedy other than humanitarian intervention exists. Estoppel is considered to constitute the nexus between the state that is violating a human rights treaty and other states: the fact that one state has reneged on its undertaking in adhering to a human rights treaty is considered sufficient to allow armed action to be taken in response by those states who relied on the undertaking made by the violating state. Aside from the question as to whether this situation can realistically be construed as giving rise to estoppel, the observation may be made that it seems unnecessary to turn to estoppel as a source of obligation in a situation where customary and treaty law are already in place. Human rights being obligations owed erga omnes, states and indeed the international community as a whole can be held to have a legal interest in their performance as not directly affected states. Yet this does not entail a right to take armed action. Further, the consequences of breaching human rights obligations, which are established by secondary rules of international law, wouldn’t change simply because they are buttressed by estoppel. The author further explains that, thanks to the principle of clean hands, equitable principles also provide a safeguard against the opportunistic window that allowing armed intervention in these circumstances opens. This essentially limits those who qualify for intervention to those states that themselves have not grossly violated human rights. An

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interesting argument is made regarding the maxim of ex re sed non ex nomine, or ‘substance over form’. This asserts that we may look to the substance of the UN Charter, rather than its form, namely, to the purpose of its prohibition on the use of force, ie the prevention of armed conflicts and the protection of people (p 319). The possibility of using force for the purposes of human protection and cessation of armed conflicts would therefore remain open. While this is a point in favour of humanitarian intervention, one could counter that any teleological interpretation of the prohibition on the use of force along these lines would have to disregard the primary purpose of the Charter – ensuring international peace and security – maintained by centralising the use of force in the hands of the Security Council and the General Assembly. This reviewer identifies some obstacles to such an application of equitable principles to justify humanitarian intervention. While the author talks about remedies, there is no mention anywhere of the secondary rules of state responsibility – the existing rules that regulate the consequences of internationally wrongful acts and remedies for them. The remedy of humanitarian intervention may be framed as being a part of the primary rules concerned; but the issue definitely needs to be addressed. Presenting the use of force in humanitarian intervention as a ‘remedy’ essentially equates it to a forceful reprisal – something that is clearly prohibited under international law. Non-directly affected states, as those putative intervening states that are not the direct victims of human rights violations might be, would not, in any case have a right to take reprisals, but only a right to demand cessation of the wrongful act or take other lawful measures.2 The unified nature of the regime of state responsibility means that the fact that the breach is of a general principle, of a treaty, or of a customary norm makes no difference to its consequences. If we admit that force can be used to redress an internationally wrongful act of any description, we are going against a century of development of international law – particularly if we were to accept that ‘violating estoppel’ or acting in bad faith are sufficient bases to permit armed reprisals. The author finally sets out his test for equitable humanitarian intervention, as derived from the principles explained above (pp 326-7). In the end, how acceptable we consider this solution to be also depends on how useful and desirable we believe the use of force to be in putting an end to gross human rights violations, and whether it is the appropriate remedium for the ius in question. But even if we might not accept Burke’s justifications for the use of force for humanitarian purposes, the value of this book lies in its extensive analysis of the principles of equity in national and international law. Equitable principles and their role and function in international law seem to be the real focus of this work, both in terms of the space devoted to them, and their conceptual importance in the text. It is certainly refreshing to find a book that puts so much law into a discussion on humanitarian intervention, and judging from the introduction, this in the end, is exactly what Ciarán Burke set out to do. Arianna Whelan Graduate Institute of International and Development Studies, Geneva

2

ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001, Article 48(2).

DOCUMENT 1 ADDRESS BY MR. EAMON GILMORE T.D., CHAIRPERSON-IN-OFFICE THE OSCE, TÁNAISTE AND MINISTER FOR FOREIGN AFFAIRS AND TRADE OF IRELAND TO THE UNITED NATIONS SECURITY COUNCIL DUBLIN, 9 FEBRUARY 2012 Mr. President, Excellencies, Ladies and Gentlemen, It is a pleasure and an honour to speak before the UN Security Council in my capacity as Chairperson in Office of the OSCE. In my address today, I will outline the main priorities of Ireland’s OSCE Chairmanship and I will also discuss a number of key issues which are common to both of our organisations. With 56 participating states, covering a population of over one billion, the OSCE is the world’s largest regional organisation under Chapter VIII of the UN Charter. The United Nations and the OSCE are founded on core principles and common values. We share a common belief in a comprehensive approach to security, which addresses that challenge in all of its dimensions. Ladies and Gentlemen, In my address to the OSCE’s Permanent Council in January, I underlined that Ireland would adopt a pragmatic, fairminded approach to our Chairmanship responsibilities. I noted that our aim was to elaborate a set of priorities that will ensure a balanced and coherent approach across all three dimensions – Politico-Military, Economic & Environmental and Human. I can assure you today that we will take forward work in all areas in 2012. We will do everything in our power to achieve concrete results and deliver tangible benefits. I am firmly committed to the OSCE’s concept of a common, comprehensive and indivisible security, based on a cross-dimensional set of agreed principles and commitments. Ireland has always attached importance to the Human Dimension and we will have an ambitious agenda this year. The Irish Chairmanship will work closely with the Office for Democratic Institutions and Human Rights (ODIHR), the OSCE High Commissioner on National Minorities and the Office of the Representative on Freedom of the Media to address specific instances where OSCE commitments are not being met, and to take forward a number of key issues. We intend to prioritise the issue of internet freedom. As in other parts of the world, the threat to freedom of expression online is ever-present in the OSCE region and appears to be growing. We will work to ensure that existing OSCE commitments in relation to freedom of expression and freedom of the media apply to all forms and means of their exercise. As part of these efforts, we intend to organise a conference in Dublin next

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June for OSCE participating states, at which we will aim to move towards a common understanding of the issues at stake. Human Dimension events are also planned on a range of other topics. We intend to organise meetings focussed on freedom of association and assembly, freedom of religion and belief, trafficking in human beings and racism and intolerance in Sport. Ireland also intends to maintain the highest standards for OSCE election observation activities. This year will see important elections throughout the OSCE region. In the Politico-Military Dimension, we hope to see continued progress on the updating of confidence and security building measures and enhancement of the conflict prevention capacity of the OSCE. We will take forward work which will enable the OSCE to deepen its involvement in all phases of the conflict cycle and to strengthen its capacity to tackle conflict, from prevention to resolution. In this regard, we will work closely with OSCE Secretary General, Lamberto Zannier on implementation of the conflict cycle Decision which was agreed at the Vilnius Ministerial meeting. We will examine the options available to us to achieve progress in the areas of arms control, conflict prevention and resolution and transnational threats, which pose challenges to all of our societies. In relation to the updating of the Vienna Document, we will work with the chairs of the Forum for Security Cooperation to build on the good results achieved last year. We will also encourage participating States - who are party to the Conventional Forces in Europe Treaty - to strive to overcome the current impasse in this area. A shared challenge for our two organisations is to ensure close and effective cooperation to tackle complex transnational threats. One key area of shared interest is counter-terrorism where the focus of the OSCE’s activity is to support the implementation of UN anti-terrorism instruments. The OSCE also cooperates closely with the UN Office on Drugs and Crime. During our Chairmanship, we will build on our joint efforts to tackle transnational threats such as organised crime, cyber threats including cyber crime, drugs, terrorism and trafficking. Within the Economic & Environmental Dimension, the core theme of the Irish Chairmanship will be the promotion of security and stability through good governance. We firmly believe that weak governance undermines economic development and exposes states to greater security risks. Here too, we see great potential for building on the existing co-operation with the UN in this field. Ireland’s ratification last year of the UN Convention against Corruption signals our determination to further international cooperation in this area. This UN Convention is a comprehensive anti-corruption treaty which

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requires countries to implement legal and regulatory regimes both within the private and public sectors. The OSCE Ministerial Council Decision on Combating Corruption specifically highlights this Convention and encourages OSCE participating States to ratify it.During our Chairmanship, we will promote further dialogue within the OSCE on the role it can play to support and encourage implementation of this Convention. During our Chairmanship, we will focus in particular on measures to counter corruption, money-laundering and terrorist financing. We will also consider the issue of confiscation of the proceeds of criminal activity. In this regard, we intend to highlight the work of Ireland’s Criminal Assets Bureau as a model for other participating States to consider. As Chairperson-in-Office, I will seek ways in which progress can be made towards lasting settlements of a number of conflicts which persist in the OSCE area. Among these are the conflicts in Moldova regarding the territory of Transdniestria; in Georgia regarding the territories of Abkhazia and South Ossetia; and the Nagorno-Karabakh conflict. I have appointed two Special Representatives to assist me in addressing these complex conflicts. As regards Moldova and Transdniestria, we stand ready to build on the momentum achieved by Lithuania with the successful resumption of official “5+2” talks. We look forward to hosting the first official talks under our Chairmanship in Dublin later this month. The situation in Georgia, particularly the humanitarian situation, is a matter of utmost concern. Ireland strongly supports the Geneva Discussions in facilitating engagement and a way forward for all concerned. We very much welcome the rich cooperation with the UN in these discussions and would like to pay tribute to the work of UN Representative for the Geneva International Discussions, Ambassador Antti Turunen, and his team. We also commend the continuing efforts of the OSCE’s Minsk Group in addressing the long-running Nagorno-Karabakh conflict and look forward to working closely with the Co-Chairs and other members of the Minsk Group during the year. In supporting these efforts, we will draw from our own experience of conflict resolution. I will host a conference in Dublin on 27 April which will focus on Northern Ireland as a case study, aiming to explore a number of aspects which might be applicable to conflict situations in the OSCE area. I believe we can encourage those engaged in negotiations elsewhere to persevere in their efforts by showing that it has been possible to create and build peace in Northern Ireland and by explaining how this was achieved and how it is being sustained. I will also share some of Ireland’s experience in this area through the UN Friends of Mediation group, of which Ireland is a member. Let me take this opportunity to welcome the

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vital enhancement in recent years of the UN’s capacity in the area of mediation, which we have been pleased to be able to support on a national basis.

Ladies and Gentlemen, At a time of constrained resources and ever more complex transnational threats, a closer partnership between the OSCE and the UN is indispensable. Our cooperation has advanced not only in the development of common approaches to the challenges we face, but also at the field operational level. The OSCE mission in Kosovo is the first example of the Organisation becoming an integral part of an operation led by the United Nations. That mission has a specific tasking from UNSC Resolution 1244 to take the “lead role in matters relating to institution and democracy building and human rights and the rule of law.” Indeed, the former UN Special Representative for Kosovo and Head of UNMIK, Lamberto Zannier, is now serving as Secretary General of the OSCE: in the valuable contribution which he has made to each, he embodies the ever closer relationship between the two organisations. Close and effective cooperation exists in many of the OSCE’s 16 field missions with many of the UN agencies, notably with the UN High Commissioner for Refugees and the Office of the UN High Commissioner for Human Rights. On Afghanistan, I recall that Secretary General Ban Ki-Moon specifically welcomed greater OSCE involvement when he addressed the OSCE Summit in Astana. I am pleased to confirm that we will promote implementation of the Decision agreed at the Vilnius Ministerial through concrete projects in Afghanistan, in close co-operation with the UN and other international actors in the region. The UN has provided strong leadership on the issue of women, peace and security, reflected in UNSC Resolution 1325. Ireland’s National Action Plan, launched last November, is a powerful statement of our commitment to the rights of women affected by conflict. Within the OSCE context, promotion of Resolution 1325 is carried out by the Forum for Security Cooperation (the FSC). In this regard, a dedicated military officer based at our Permanent Mission to the OSCE in Vienna has been tasked to examine ways that the FSC can support the implementation of this resolution and other resolutions related to gender and security.

Ladies and Gentlemen, A great many tasks lie before us as we direct the work of this organisation across a wide range of activities. It is a signal honour for Ireland to discharge this important multilateral responsibility in 2012.

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As Chair of the OSCE - a key regional partner of the UN - I pledge my full support and partnership. I am confident our cooperation will be richly successful.

Thank you for your time.

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DOCUMENT 2

STATEMENT BY H.E. MS. ANNE ANDERSON, PERMANENT REPRESENTATIVE AT THE UNITED NATIONS SECURITY COUNCIL DEBATE ON WOMEN, PEACE AND SECURITY: "CONFLICT-RELATED SEXUAL VIOLENCE", NEW YORK, 23 FEBRUARY 2012

NEW YORK, 23 FEBRUARY 2012

Mr. President, We appreciate very much that this debate on Conflict-related Sexual Violence is taking place during Togo’s Presidency of the Security Council. We commend the Secretary General for his Report (S/2012/33 of 13 January). It is compelling in its range, clarity and detail. The litany of crimes to which it bears witness is shameful. The challenge is to ensure that our outrage translates into determined and purposeful action, yielding early and measurable results. Before commenting further on the Secretary General’s Report, I would wish to note actions undertaken by my government in the past few months. Our Deputy Prime Minister/Foreign Minister addressed the Security Council two weeks ago in his capacity as Chairperson-in-Office of the Organisation for Security and Co-operation in Europe. In his statement, he made clear that the issue of Women, Peace and Security will receive strong emphasis throughout Ireland’s chairing of the Organisation. A new Special Representative of the OSCE Chairperson-in-Office on Gender Issues, Ms. June Zeitlin, has been appointed. Ireland is also providing a dedicated military officer, based at our Permanent Mission to the OSCE in Vienna, to examine ways in which the OSCE can support the implementation of Resolution 1325 and other Resolutions related to Women, Peace and Security. Ireland has also wished to demonstrate at a national level its strong continuing support for the work of the Special Representative on Sexual Violence in Conflict. As a concrete demonstration of that support, we have made a financial contribution to the Team of Experts on the Rule of Law and Sexual Violence in Conflict. Aware that the Team of Experts relies upon extra-budgetary resources, we were pleased to be able to contribute $135,000 at the end of last year.

Key Role of Special Representative on Sexual Violence in Conflict The Report before us is testament to the need for a dedicated Special Representative on Sexual Violence in Conflict, with the strong mandate which the SRSG

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holds These are crimes surrounded by taboos and silence – consistently underreported and, even when they are reported, unlikely to be followed up. If there is to be any chance of penetrating the darkness, we need a strong and unwavering searchlight. The independent voice and exclusive focus of the Special Representative helps to shine that steady light. This latest Report from the Secretary General validates both the appointment of a dedicated Special Representative and the clarity and scope of her mandate.The Report addresses a range of specific situations spanning four continents, all of them deserving our attention. In some of these situations, conflict still rages; others are post- conflict but still dealing with a poisonous legacy. Côte d’Ivoire, Libya, South Sudan are among the more recent ugly chapters. The sexual violence being unleashed in Syria, with male detainees a particular target, deserves our unequivocal condemnation. However, given the time constraints and the breadth of coverage in earlier interventions in today’s debate, I will limit myself to commenting on three points, illustrated by three case studies.

(I) Ending Impunity: DRC as Case Study We all recognize the simple equation. Impunity for perpetrators of sexual violence guarantees that the virus will spread. Conversely, ending impunity, making the perpetrators pay, will act as a deterrent. The first step in ending impunity is the systematic gathering of credible evidence. The Secretary General’s Report gives a sense of the progress being made in this regard. For the first time in a report of this nature, the Secretary General has named individuals on the basis of credible reports of culpability. In the commentary on the DRC, for example, one finds the names of ten or so individuals. This specificity of data will enable us to measure outcomes. When we next come back to this issue, it will be important to focus on precisely what has happened in these cases. What steps have the national authorities taken? What have we at the United Nations been able or willing to do? The possibility of measuring outcomes will apply not just in the case of the DRC, but also in relation to the list of parties set out in Annex 1 of this Report. The Report has clear recommendations to the Security Council on increasing pressure on perpetrators of conflict-related sexual violence. We look to the Council to show determination in its response. Too many recent headlines from the Security Council have been ones of disunity. On this issue of sexual violence in conflict, the Council has the opportunity to assert itself, to demonstrate that disunity does not define it, and to act decisively: to sanction perpetrators, to refer cases to the ICC, to mandate Commissions of Inquiry and to condemn violations explicitly in resolutions and statements.

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(II) Women are a not a footnote: Somalia as Case Study The Secretary General’s report sets out the scale of sexual violence in Somalia: the crimes of Al-Shabaab; the groups of men in military uniform who prey on women and girls in internally displaced camps in Mogadishu; the rapes and gangrapes in camps in Kenya; the chronic and largely unaddressed sexual violence in “Puntland”. The Conference on Somalia met in London today and we look forward to studying the outcome document. It is worthwhile, however, to mention an initiative of women Ambassadors accredited to the African Union. The cross-regional group of women Ambassadors were concerned that initial preparatory papers for the London Conference lacked any focus on the situation of women in Somalia, despite the gravity of their situation and the shared principle of UNSCR 1325. With AU and UN support, the group undertook meetings with Somali women both in Nairobi and in UNHCR camps in the Ethiopian border region. The statement from the women Ambassadors, produced yesterday, is intended as an input to the London Conference. It outlines issues of concern and concludes with the urging by Somali women that the international community raise issues of gender, including with Somali leaders. Amid the range and gravity of the problems facing Somalia, and the imperative to advance on the political and security front, it is easy to see how specific issues predominantly affecting women may not be prioritised, or may be seen as symptomatic of deeper problems which, if addressed, will help to alleviate the situation of women. But the phenomenon of women as a footnote has been with us far too long. When the international community comes together in a high profile conference, one would hope to see from the outset a strong consciousness of the gender dimension of the conflict. The time has well passed when sexual violence could be viewed as in some sense collateral damage – a regrettable but inevitable by-product of larger forces at work.

(III) Responsibilities of UN Peacekeepers: Chad as Case Study The Secretary General’s Report sets out steps being taken to improve the training of UN peacekeepers with regard to conflict-related sexual violence, and the DPKO-UN Women collaboration in this regard is particularly welcome. The standards for UN Peacekeepers must be the highest. The Blue Helmet is designed to inspire confidence and trust; it is unthinkable that in any circumstance it should instil fear of rape or sexual violence. Recognising that progress is being made, it is still salutary to hear directly from those with firsthand experience. In Ireland’s case, we had an instructive recent experience of peacekeeping in Chad. Ireland had overall command of

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EUFOR, the EU peacekeeping Mission in Chad, and over 400 Irish troops were deployed. Subsequently, when EUFOR was replaced by MINURCAT, our troops continued to serve in the same numbers with MINURCAT until 2010. This transition from EUFOR to MINURCAT afforded us the opportunity to witness differences in approach between the two peacekeeping models. One of the areas where there was a measurable difference was in relation to the gender focus: Mission requirements relating to Resolution 1325 were more specific and detailed during the EUFOR deployment than during the subsequent MINURCAT deployment. This was a specific experience at a specific time and may not be fully representative of today’s circumstances. Yet the Chad experience left a strong imprint on our peacekeepers and an awareness of the challenge confronting the UN in this regard. Seeing the practical outcomes of gender work with EUFOR also further strengthened the commitment to training Irish peacekeepers on gender issues. A number of steps have been taken; I might also mention that, as of May this year, our defence forces will deploy a Gender Advisor and Gender Focal Points in the unit deploying to UNIFIL.

Conclusion Mr. President, The Report before us makes for difficult reading, but it also lays down a challenge. We can no longer claim ignorance of what is happening, or the scale of what is happening; nor can we claim lack of credible evidence as a rationale for inaction. The SRSG, fully backed by the Secretary General, is pursuing her mandate in her characteristic vigorous and clear-sighted way. It is for all of us – in the Security Council, in the General Assembly and across the UN system – to take on our share of responsibility.

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DOCUMENT 3

STATEMENT BY IRELAND AT THE HIGH LEVEL CONFERENCE ON THE FUTURE OF THE EUROPEAN COURT OF HUMAN RIGHTS BRIGHTON, UK, 18-20 APRIL 2012

Mr Chairman Ladies and Gentlemen Please allow me to begin by thanking the United Kingdom authorities for their leadership in organising this High level Conference and for the hospitality extended to us all in Brighton. We have before us a draft Declaration of real substance, and I commend the United Kingdom Chairmanship for their skill and hard work in bringing the text to this advanced stage. The position of my country is clear: Ireland fully endorses and supports the draft Declaration before us today. Just over two years ago at Interlaken, we, the member states of the Council of Europe, committed ourselves to a work programme aimed at securing the long term future of the European Court of Human Rights. Last year in Izmir, at a Conference generously hosted by the Turkish authorities, we resolved to continue that process and build upon the significant work already undertaken by both the Court and our respective Governments. There has been good progress since then. However, the Court’s Annual Report for 2011, and its Statistical Annex, are clear as to the numerical scale and also the diversity of the problems still to be addressed. We are here now as part of our commitment to preparing, by June of this year, specific proposals for measures requiring amendment of the Convention. It is important though to remember that securing the future of the European Court of Human Rights is not about simply agreeing to amend the Convention. Our collective – and I should say successful – experience in implementing Protocol 14 is instructive in that respect. The amendments in that Protocol have not of themselves produced the positive results that are now becoming evident. Rather, it was the commitment, hard work, and determination of all involved in that particular process that made the difference. It is right too that we pay particular tribute to the Court and the Registry for their commitment to both adapting to and maximising the benefit from the new working methods introduced by that Protocol. Ireland is particularly pleased to see the right of individual petition described in the draft declaration as a cornerstone of the Convention system. At Interlaken and Izmir, we confirmed the importance of this right and it is wholly appropriate that we reaffirm this. As the Court has noted in its pre-

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liminary opinion in preparation for the Brighton Conference “It is the individual complaint which triggers the Convention review and enables the Court to identify shortcomings at national level.” At the same time we have to equip the Court to concentrate on those cases that warrant its consideration. Today’s Declaration manages that combination skilfully. The draft Declaration, as we know, proposes a number of amendments to the Convention, the purpose of which are to secure the future of the European Court of Human Rights, not to lessen human rights protectionin Europe. Since Interlaken we have engaged in in-depth analysis and consideration of options and have had the benefit of numerous inputs. We can move with confidence now to the implementation phase. Ireland looks forward to working with others in elaborating the wording of the proposed amendments in good time, as well as giving effect to non- amendment measures. I believe that with today’s work we are on the right track to securing the future of the European Court of Human Rights. We have struck the right balance between much needed reform and the universal objective of the maintenance and further realization of human rights and fundamental freedoms. Thank you.

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DOCUMENT 4

ADDRESS BY THE OSCE CHAIRPERSON-IN-OFFICE, TÁNAISTE AND MINISTER FOR FOREIGN AFFAIRS AND TRADE, EAMON GILMORE T.D., TO THE 21ST ANNUAL SESSION OF THE OSCE PARLIAMENTARY ASSEMBLY

MONACO, 5 JULY 2012

Prime Minister Roger, President of the National Council of Monaco, President Emeritus of the OSCE Parliamentary Assembly, President of the Parliamentary Assembly of the Council of Europe, Secretaries–General, Distinguished Members of Parliament, Ladies and Gentlemen. It is a great pleasure to join you today and to have this opportunity to address the 21st Annual Session of the OSCE Parliamentary Assembly in this fine city of Monte Carlo. Ireland assumed the Chairmanship of the OSCE this year for the first time, and we are now just past the mid-way point of what has been a busy and active Chairmanship so far. I wish, at the outset, to pay tribute to the work carried out by the Parliamentary Assembly, in particular the Assembly’s role in facilitating interparliamentary dialogue across the OSCE region. I have already held a number of meetings this year with office-holders of the Parliamentary Assembly, and was privileged to visit the headquarters of the Assembly in Copenhagen in March, where I met with the dedicated staff. I wish to emphasise once again, the readiness of the Irish Chairmanship to work closely with the Parliamentary Assembly in order to further our common objectives.

Mr. Chairman, As we pass the mid-way mark, it is appropriate to review some of the priorities of the Irish Chairmanship, what we have achieved to date, and what remains ahead of us. In my address to the Permanent Council in January, I emphasized that Ireland would be pragmatic and fair-minded in its approach, and that our aim was to elaborate a set of priorities that would ensure balance and coherence approach across all three dimensions. I also indicated that we would strive to achieve concrete results, through a small and balanced package of decisions and declarations for adoption at the Dublin Ministerial Council in December. These goals remain the same. Ireland has always attached importance to the Human Dimension of the OSCE. Since 1975, the OSCE has developed a large set of commitments in

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the fields of human rights, democracy and the rule of law. These commitments were developed jointly and adopted unanimously by all participating States, making them a powerful tool for change. As reaffirmed in Astana, OSCE participating States are “accountable to [their] citizens and responsible to each other” for the full implementation of their commitments. We must all play our part, Governments and parliamentarians alike, in ensuring that States uphold their commitments. In January 2012, Ireland proposed an ambitious programme of Human Dimension events. The topics were agreed by the Permanent Council on 22 March, and a number of successful meetings have already taken place, including a meeting on ‘Combating Racism, Intolerance and Discrimination in Society through Sport’ in late March, and a seminar on the ‘Rule of Law framework for combating Trafficking in Human Beings’, in Warsaw in midMay. A meeting on ‘Democratic elections and election observation’ will take place in Vienna next week, with the important involvement of parliamentarians. On 18-19 June, Ireland hosted a well-attended and highly interactive Human Dimension event in Dublin. The Dublin Conference on Internet Freedom met our key objective of setting out the basic human rights framework which underpins all activity on the Internet, exploring also many of the key issues and challenges related to internet freedom. The Chairmanship used its prerogative to experiment with the format of the Conference, seeking to introduce greater opportunities for dialogue and interactivity. Feedback from the vast majority of participants was extremely positive. We were particularly pleased to welcome a large number of NGOs, bloggers, internet activists and web journalists to Dublin, all of whom added to the rich debate. The Irish Chairmanship is committed to advancing the issue of internet freedom, with a view to ensuring that the internet remains an open, global and public forum for exercising freedom of opinion and expression and for facilitating the enjoyment of other human rights and fundamental freedoms. Other meetings will take place in the coming months, including the annual Human Dimension Implementation Meeting (HDIM), which is scheduled to take place in Warsaw from 24 September-5 October. This annual meeting provides a vital opportunity for participating States to interact with civil society from throughout the OSCE region on the whole range of Human Dimension topics, as well as on a number of special topics chosen by the Chairmanship. I know that the Parliamentary Assembly is also an active participant. For the remainder of our term, the Irish Chairmanship will also continue to work closely with ODIHR, the OSCE High Commissioner on National Minorities and the Representative on Freedom of the Media to address specific instances where OSCE commitments are not being met. The Parliamentary Assembly can play a significant role in this work, helping to ensure that all channels of communication remain open.

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Mr. Chairman, The Irish Chairmanship is deeply committed to the OSCE’s election observation activities, which are fundamental to our work as a community of States committed to respect for human rights, democracy and the rule of law. This is a common OSCE endeavour between the Parliamentary Assembly and ODIHR, based on the 1997 Co-operation Agreement, and I am pleased to note the high-level of cooperation which has been a feature of election observation missions so far in 2012. As Chair, we committed ourselves to provide all necessary support to the Parliamentary Assembly and ODIHR in this crucial area. We hope that States holding elections in 2012 will continue to issue timely invitations to observe these, in accordance with their OSCE commitments. While on the subject of elections, I might mention that earlier this year the Chairmanship, acting in close consultation with Secretary General Zannier and his field staff, as well as relevant States, assisted in brokering an agreement which facilitated voting in Kosovo in the recent Serbian presidential and parliamentary elections, under OSCE supervision. The elections took place in a peaceful and orderly manner on 6 May and 20 May. The OSCE’s efforts helped to defuse any potential confrontation, and the OSCE demonstrated once again its ability to rise to meet new challenges, to engage all relevant actors and to conduct successfully a demanding operation in a very tight timeframe.

Mr. Chairman, The OSCE continues to play an important role in ensuring peace, stability and security in our region. The confidence and security building measures adopted within the Politico-Military Dimension remain central to the enhancement of security within the OSCE area. Our priority, as Chairmanship, is to see continued progress on updating these measures and on enhancing the conflict prevention capacity of the organisation. The collective goal of the Organisation, as agreed at the 2010 Astana Summit, is to work towards a genuine Euro-Atlantic and Eurasian Security Community which is rooted in agreed principles, shared commitments and common goals. The recent Annual Security Review Conference provided an opportunity to reflect on the building blocks available to us in the areas of arms control, conflict prevention and resolution and trans-national threats. Continued reflection will be required as we take forward work to identify the steps necessary to achieve this security community. One of our Chairmanship priorities is to increase the role and contribution of the OSCE in the field of cyber security. Ensuring a safe and secure cyber environment is of crucial importance to all our societies, as cyber threats have the potential to endanger our national security, public safety and economic competitiveness. I am pleased that progress has been achieved in

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this regard, through the establishment of an Informal Working Group on Information and Communications Technologies. The Working Group, which has begun its work, will elaborate a set of Confidence Building Measures on risk reduction, transparency and attribution, with a view to reducing the risk of misidentification of a cyber incident. Discussions are continuing on the three remaining decisions on transnational threats which were not agreed at Vilnius. These decisions seek to establish a strategic police framework, a concept for combating illicit drugs and to consolidate the OSCE’s counter-terrorism mandates. I hope that delegations will continue to engage in a constructive spirit so that we can adopt these decisions in the period ahead, with a view to taking forward their implementation. We are continuing the good work carried out last year in updating the Vienna Document and are working closely with the three Chairs of the Forum for Security Cooperation during 2012. Conflict resolution remains at the core of the OSCE’s mandate and, together with Secretary General Zannier, we are taking forward the implementation of the Conflict Cycle decision which was agreed at Vilnius. This decision assists the OSCE in deepening its involvement in all phases of the conflict cycle and strengthens its capacity to tackle conflict, from prevention to resolution and post-conflict rehabilitation. As Chair-in-Office, we are continuing efforts to make progress towards lasting settlements of a number of conflicts in the OSCE area. Among these is the conflict in Moldova regarding the territory of Transdniestria; the conflict in Georgia regarding the territories of Abkhazia and South Ossetia; and the conflict which is the subject of the Minsk process. I am assisted in this task by Erwan Fouéré, who is my Special Representative for the Transdniestrian settlement process, and by Pádraig Murphy, my Special Representative for the Southern Caucasus, who is assisted in relation to the Nagorno-Karabakh conflict by my Personal Representative, Ambassador Andrzej Kasprzyk. They are cooperating with international actors on the ground as well as maintaining close contact with the parties. I want to mention the Transdniestria settlement process, where progress has recently been achieved. The agreement at the last session of the talks in April on a principles and procedures text and on an agenda for the talks represents an important landmark in our efforts to seek a lasting political settlement. The increased level of interaction between the Moldovan and Transdniestrian authorities has had a positive impact on the talks process and, when the next round takes place in Vienna next week, I hope that substantive progress will be possible. As part of our support for the 5+2 talks, Moldovan and Transdniestrian negotiators visited Dublin and Belfast in May on a study visit to learn more about the Northern Ireland peace process. In June, the German Government

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hosted an informal conference, which has contributed to the building of trust between the two sides. Turning to the South Caucasus, in mid-June it was my privilege to visit all three countries in that region. I received a warm welcome in each of the three and was able, in talks with political leaders, to get a first hand impression of the situation in the region. I discussed with them how we can best make progress towards resolution of the ‘protracted conflicts’, which have a very negative impact on the lives of the peoples of the region. I urged all concerned to engage constructively in discussions aimed at finding solutions to these conflicts. I also discussed progress in advancing democratic reforms and respect for fundamental freedoms and rights, issues which go to the heart of what the OSCE stands for.

Mr. Chairman, In April, I hosted a high-level conference in Dublin which was entitled ‘Shared Future: Building and Sustaining Peace, the Northern Ireland case study.’ This event brought together over two hundred delegates from across the OSCE region and provided them with a unique opportunity to listen to the experiences of a range of senior political figures with first- hand experience of the peace process. I was pleased to welcome, amongst others, senior political leaders from Northern Ireland. We also heard from former US Senator George Mitchell and had a video message from Secretary of State, Hilary Clinton. The former President of Finland and Nobel Peace Prize winner, Martti Ahtisaari, acted as moderator, bringing his unique experience of conflict resolution and mediation to bear on what were frank and open discussions. I was pleased also that Vice- President Picula was able to participate in this event. I believe the Conference succeeded in our objective of exploring some of the themes common to conflicts in general. The role of international assistance in creating a space for peace was of particular interest to delegations. I hope we will have encouraged those engaged in negotiations elsewhere to persevere in their efforts by showing that peace is possible and by explaining how it was achieved. As regards the Economic and Environmental Dimension, this clearly has a particular resonance today, given the global economic and environmental challenges with which we are all confronted. Within the Economic and Environmental Dimension, Ireland’s core theme is the promotion of security and stability through good governance. The financial crisis has demonstrated how poor governance can lead to economic decline and how good governance must be the foundation for the road to recovery. During the two preparatory conferences, held to date as part of the Economic and Environmental Forum process, we have focussed in particular on measures to counter corruption, money laundering and terrorist financing.

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At the second preparatory conference, held in Dublin from 23-24 April, we highlighted the work of the Irish Criminal Assets Bureau as a model for other participating States to consider. We also explored the linkages between transparency and socio-economic development. Good governance and transparency are central to developing stable and sustainable economies, whereas ineffective governance clearly undermines economic development. The Irish Chairmanship remains committed to a successful Forum process. We welcome the progress made to date and look forward to the concluding Forum meeting in Prague in September. Ultimately, our aim is to prepare a proposal for the Ministerial in December. The task will be to define more clearly the OSCE’s role in maximising its support for international efforts in promoting good governance. Mr. Chairman, in addition to the priorities I have already outlined, the Irish Chairmanship is taking forward a number of other issues, as well as specific taskings given to us by participating States. Building on the Decision of the Vilnius Ministerial Council, we are working to enhance the OSCE’s engagement with the Partners for Co-operation, together with the Lithuanian and Ukrainian Chairs of the Asian and Mediterranean Contact Groups. I know that the Parliamentary Assembly has been very active in reaching out to the Partner countries and I commend your activities in this regard. I can also report that, in follow-up to Vilnius Ministerial Council decision No. 12/11, the Irish Chairmanship is actively taking forward Mongolia’s application to become an OSCE participating State. A familiarization visit to Mongolia was held from 3 to 6 June, led by the Secretary General, Lamberto Zannier, and the Permanent Council Chair, Ambassador O’Leary, who were accompanied by a team of experts from the OSCE Institutions, the Secretariat, and the Chairmanship. The purpose of this visit was to consult with key government officials and representatives of civil society about Mongolia's understanding of, and commitment to, the requirements of OSCE membership. The report on the OSCE’s visit to Mongolia was distributed to participating States and Partners yesterday, and should facilitate discussions on the matter, leading, hopefully, to the adoption of a Ministerial Council decision on Mongolia‘s accession. I very much hope to greet Mongolia as the 57th OSCE participating State at the Dublin Ministerial Council meeting in December. We are also keen to move forward on issues related to the legal status of the OSCE. Our aim is to equip the Organization with the legal protections and status that it requires to achieve its core objectives. To this end, we commissioned Ambassador John Bernhard, the former Permanent Representative of Denmark to the OSCE, to take a fresh look at the issues related to the legal status. We are seeking to move beyond the stalemate of recent years that prevented the Draft Convention on international legal personality, legal capacity and privileges and immunities of the OSCE from being adopted at successive Ministerial Councils. A draft Constituent Document has recently

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been circulated by the Chairmanship and we intend to take forward discussions on this basis. The draft is a short, technical text which illustrates concisely the functions of the OSCE. We believe that if we approach this exercise in a positive spirit, we may have some hope of success. In taking forward this exercise, the Irish Chair will seek to ensure that there is no change to the fundamental character of the OSCE or to the mandate of the various constituent bodies of the OSCE. Another area on which we have been keen to take practical and pragmatic steps is the OSCE’s interaction with other regional and international organisations. At the beginning of this year, the Irish Chairmanship commissioned a report to look at this issue and also highlight the comparative advantages the OSCE can offer. This exercise was not intended to result in a reorganisation of OSCE structures, or question the three security dimensions of the OSCE, but rather to examine the OSCE’s position in the European security architecture and highlight how the OSCE can maintain and strengthen its role as the primary comprehensive security organisation in the Euro-Atlantic and Eurasian region. The report, which was authored by Lars-Erik Lundin, a former EU Ambassador, recommends that co-operation with other organisations should be goal-driven, focussing on certain priority areas of work including the conflict cycle, transnational threats and the Human Dimension. The report also focuses on how synergies could be developed to maximise the use of resources and enable the OSCE to tap additional sources of funding through other international organisations, including through the EU and UN system. These recommendations, which are very much driven by modern management practices, will be discussed at ambassadorial level in Vienna and will feed into the Helsinki + 40 process. We see the study as planting a seed from which the Organisation can build for the future. Finally, as the fortieth anniversary of the Helsinki Final Act beckons in 2015, it is timely to start to reflect on the OSCE’s future work and how to ensure its continuing effectiveness and relevance. The ‘Helsinki + 40 concept’, which the Irish Chairmanship has been advancing in consultation with the Troika and the future Swiss and Serbian Chairmanships, offers an important opportunity to adopt a more forward-looking and strategic approach for the OSCE, moving towards realisation of the common vision agreed at the Astana Summit in 2010, that is to say, a comprehensive, cooperative and indivisible security community throughout the OSCE area. In our view, the overarching goal should be of a security community where the prospect of resolving conflicts by force is unthinkable, where human rights and democratic values are fully embedded, and economic and environmental policies act to reinforce our mutual security.

Mr. Chairman,

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I hope I have given you a flavour of the work already undertaken by the Irish Chairmanship this year, and what is yet to come. Obviously, in the months ahead, our focus will be on the preparations for the Dublin Ministerial meeting, in addition to the programme of work for the second half of the year that I have outlined today. I am confident that, through effective cooperation with all relevant actors, including the Parliamentary Assembly, we can achieve solid and lasting progress during 2012 and beyond.

Thank you for your attention.

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DOCUMENT 5

MINISTERIAL BREAKFAST MEETING ON THE OCCASION OF THE HIGH LEVEL MEETING ON THE RULE OF LAW 24 SEPTEMBER 2012

“Peaceful Settlement of Conflict: the Elegant Way Out” – the Role of the International Court of Justice and the Permanent Court of Arbitration “Ireland’s acceptance of the jurisdiction of the International Court of Justice pursuant to Article 36.2 of its Statute” James Kingston, Legal Adviser, Dept. of Foreign Affairs and Trade of Ireland

Deputy Secretary General, President of the International Court of Justice, Secretary General of the Permanent Court of Arbitration, Prime Ministers, Ministers, your Excellencies, ladies and gentlemen First let me thank our hosts for their kind invitation to address such a distinguished audience. I have been asked to speak to you this morning about Ireland’s declaration of 12 December 2011 accepting the jurisdiction of the International Court of Justice pursuant to Article 36.2 of its Statute. First, I would like to outline Ireland’s general approach to the peaceful settlement of disputes; secondly, I will explain why Ireland did not accept the Court’s compulsory jurisdiction until last year; and finally, I will outline the factors that led to the making of the declaration. Ireland’s general approach is set out in the Constitution adopted in 1937, which affirms Ireland’s commitment to pacific settlement of international disputes by judicial means. (As far back as 1930 the then Irish Free State accepted the jurisdiction of the Permanent Court of International Justice and that acceptance was seen as an important assertion of Irish sovereignty in the first decade of independence.) Why then did Ireland not accept the jurisdiction of the Court until last December? For many years, the key issue was Northern Ireland, which the 1937 Constitution proclaimed to be part of the national territory. (It was felt that the resolution of such a sensitive issue was not something that could be placed in the hands of a judicial body, even one as distinguished as the International Court of Justice.)

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In 1998 the British/Irish Agreement (and accompanying Multiparty Agreement) led to an amendment to the Constitution, recognising that unification would only take place with the consent of the majority of people in both jurisdictions on the island of Ireland. Nonetheless, even then it took more than a decade for Ireland’s declaration to be made. One of the main reasons for this was a feeling that not accepting the Court’s jurisdiction was not doing us any concrete harm. There was also a degree of caution about accepting the jurisdiction of a judicial body which, though very distinguished, was not familiar to policy makers. As is the case in most countries, the day to day business of running a busy Foreign Ministry ate up the time required to analyse carefully the pros and cons of making a declaration. Ultimately three main factors led to the lodging of the declaration: First, increasing familiarity with international settlement of disputes in various fora, as well as growing familiarity with the Court itself – including through our own participation in a number of advisory proceedings (the two nuclear weapons cases (1996), the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2004) and the “Accordance with International Law of the Unilateral Declaration of Independence of Kosovo” (2010)). Secondly, recognition that a broad-based acceptance of the Court’s jurisdiction provides greater opportunities for the peaceful settlement of disputes than a purely ad hoc recourse to arbitral and judicial bodies – it may be difficult, in the midst of a dispute, to agree with those with whom one is having the dispute what issues should be put forward for settlement and before what forum. (Coupled with this was the realisation that acceptance of the Court’s jurisdiction adds another tool to the tool-kit available to the State, but does not preclude it from utilising other means of dispute settlement where appropriate.) Thirdly, the increased emphasis on the rule of law at the international level, most notably the 2004 Report of the United Nations Secretary General on the Rule of Law and the 2005 World Summit. Linked to this was peer support from other states which have accepted the Court’s jurisdiction, most notably our Dutch hosts. Against this background, in April 2011 the Government took a decision in principle that Ireland would accept the Court’s jurisdiction by the end of the year. The making of the declaration in December was a concrete manifestation of Ireland’s support for the rule of law agenda at the United Nations. In this regard, I should say that the two-step approach taken to acceptance worked particularly well – it allowed the Government to take a decision on which there was general agreement, but then allowed time, albeit

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a strictly defined amount of time, to finalise our analysis of the issues involved in making of a declaration and to determine the precise terms in which the declaration was to be made. (The terms of the declaration accept the Court’s jurisdiction with only one exception – namely with respect any dispute with the UK in regard to Northern Ireland, reflecting the excellent relations between the two countries and the considered opinion of the Government that the institutions and mechanisms established by the Good Friday Agreement of 1998 provide the best framework for settling any differences that might arise.) I hope that this explanation of the background to Ireland’s acceptance of the Court’s jurisdiction is helpful and would like to thank our hosts once more for giving me the opportunity to address you.

Annex 15 December 2011 Ireland hereby declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes as specified in Article 36, paragraph 2, with the exception of any legal dispute with the United Kingdom of Great Britain and Northern Ireland in regard to Northern Ireland. The present Declaration shall take effect from the date of its receipt by the Secretary-General of the United Nations. The Government of Ireland reserves the right at any time, by means of a notification addressed to Secretary-General of the United Nations and with effect from the date of such notification, either to amend or withdraw the present Declaration; or to add to, amend or withdraw the foregoing reservation or any other reservations which may subsequently be made.

Dublin, 8 December 2011. (Signed) Eamon Gilmore, T.D. Tánaiste and Minister for Foreign Affairs and Trade of Ireland

.

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DOCUMENT 6

STATEMENT TO UN FIRST COMMITTEE ON NUCLEAR WEAPONS CLUSTER NEW YORK, 19 OCTOBER 2012

IRELAND Statement by Mr. Jim Kelly Deputy Permanent Representative and Head of Delegation First Committee - Nuclear Weapons Cluster Sixty-seventh session of the United Nations General Assembly

New York October 2012

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Mr. Chairman, My delegation aligns itself with the statement delivered on behalf of the EU, the statemeut delivered by Sweden on behalf of the New Agenda Coalition, and that by Switzerland on the humanitarian impact of nuclear weapons. We would like to add the following remarks.

Mr. Chairman, Two and a half years have passed since the 2010 NPT Review Conference agreed by consensus a comprehensive package of outcomes across the Treaty's three pillars and in connection with the Middle East. At the same time, we are now two and a half yews away from the next Review Conference, when NPT States Parties will once again decide how best to take forward the matter of fully implementing the Treaty. At this halfway point, I will focus my statement on three issues which Ireland believes will require attention during the remainder of the 2015 review cycle. The first is confidence-building. Mr. Chairman, We know that failure over several decades to achieve sufficient progress towards the complete elimination of nuclear arsenals by the nuclear weapon states has led some States to claim that the NPT is inherently discriminatory: that it creates classes of "haves" and "have nots". While we do not subscribe to this claim, we believe that if we do not achieve significant progress on disarmament, and soon, this perception of discrimination will exert increasing - perhaps intolerable - pressure upon the Treaty's non-proliferation imperatives. We are deeply concerned by the challenge presented to the objectives of the NPT by the DPRK. We also believe that Iran must answer the many legitimate questions of the international community about the precise nature of its nuclear programme. We remain concerned that three States -India, Israel and Pakistan - choose to remain entirely outside the overwhelming global consensus on NPT adherence. To convince these States, and others that the NPT offers the blueprint for a world free of nuclear weapons, we must demonstrate our collective resolve and determination to achieve complete disarmament at the earliest possible opportunity. The NPT did create "haves" and "have nots". Rather it created categories of "will disarm" and "will forego". The "will foregos" have kept their side of the bargain, and we believe that progress in-kind fiom the "will disarms" is overdue. Ireland does not accept that any of the NPT's three pillars has an inherent claim to priority, or that more progress is required on the treaty's non-proliferation agenda before progress can be achieved on its disarmament agenda. We have consistently maintained that disarmament and non proliferation are mutually reinforcing but, frankly speaking, there has not been enough progress on disarmament. The overwlieltning majority of NPT States Parties took tlie decision to foreswear nuclear weapons four decades ago. They did so in tlie reasonable expectation that the nuclear weapons states would work with deliberate speed to eliminate their arsenals within the temporary time and space which the Treaty gives to them for this purpose. We are still waiting. Failure to make progress

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on disarmament is damaging the Treaty and, as the present review cycle proceeds, Ireland will therefore join those NPT States Parties –and we believe they are very many in number – who will look increasingly to the nuclear weapons states to demonstrate that they are serious about fulfilling their Treaty commitments to disarm. We will also remain staunch in our support for early entry into force of the Comprehensive Nuclear Test Ban Treaty. We believe that ratification of that Treaty by all nuclear capable states which have not yet done so would represent an important confidence buiiding gesture along the road to complete disarmament.

Mr. Chairman, The second issue which Ireland would prioritise within the 2015 NPT Review Cycle is transparency. The 2010 Action plan committed the five nuclear weapons States to report on the implementation of their undertakings under Action 5 to the third PrepCom session in 2014, so that the 2015 RevCon can then "take stock and consider the next steps." We would welcome substantive interim progress reports by the nuclear weapons states between now and 2014. This would build confidence and would enable the wider NPT membership to prepare a follow on set of Actions for the 2015 Review Conference.

Finally, Ms. Chairman, I would like to mention briefly an old discussion which re-emerged anew at this year's NPT PrepCom meeting in Vienna. It concerns the humanitarian dimension of nuclear disarmament. A generation has grown up since the end of the Cold War and, while the tensions of the Cold war period have long dissipated, we face the threat to humanity which existed half a century ago. This was acknowledged at the 2010 NPT Review Conference, which expressed its "deep concern at the continued risk for humanity represented by the possibility that these weapons could be used and the catastrophic humanitarian consequences that would result fiom the use of nuclear weapons." As far back as 1955, the humanitarian consequences of nuclear weapons were considered by people who actually knew what it meant. "The general public," they wrote, "and even many men in positions of authority, have not realized what would be involved in a war with nuclear bombs.. .." They noted that while no one knows exactly how widely lethal radioactive particles might be diffused if one bomb was exploded, (quote) "the best authorities are unanimous in saying that a war with H-bombs might possibly put an end to the human race". These were not the words of politicians or, diplomats, military men or activists pursuing an agenda. They were the words of academics and scientists specialising in related fields who understood, perhaps better than anyone on this planet at the time, the uniquely destructive power of atomic energy harnessed for military purposes: men like Albert Einsteit and Linus Pauling; Joseph Rotblat and Bertrand Russell, to name but a few. Their conclusions are as valid today as they were sixty years ago. Mr. Chairman,

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This sobering assessment reminds us why we need renewed urgency in the disarmament of nuclear weapons. It reminds us why we need to close off any attempts to proliferate these wretched weapons or to achieve the means to do so. And it is why we demand of % state seeking access to nuclear energy for peaceful purposes fulldetails of its nuclear programme through the IAEA safeguards system. We believe that a discussion on the humanitarian dimension of nuclear disarmament will serve as a useful reminder that this is no abstract debate about Treaty implementation. A breach in the NPT could have catastrophic consequences for humanity for generations to come. For this reason, my delegation wishes to see the humanitarian theme developed as the present NPT review cycle progresses.

Mr. Chairman, Ireland remains as intolerant of nuclear weapons as ever. In a debate in our national Parliament this summer, the long-standing cross-party support for nuclear disarmament and a world free of nuclear weapons was again reaffirmed. Ireland is especially protective of the NPT, which remains the world's only bulwark against the danger of nuclear weapons, and we will continue to speak out in its defence on any occasion and to all interlocutors. Our hope is that one day the NPT will not have a disarmament agenda; in other words, that it will not need one. That day, unfortunately, seems a long way off, and for this reason my delegation will be pressing for an ambitious outcome to the 2015 NPT Review Conference.

Thank you, Mr. Chairman.

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DOCUMENT 7

REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 63RD AND 64TH SESSIONS (PART 1) NEW YORK, 2 NOVEMBER 2012

IRELAND

Statement by Mr. James Kinston Legal Advisor Department of Foreign Affairs and Trade

At the Sixth Committee of the United Nations General Assembly 67th Session

New York, 2 November 2012

Agenda Item 79 The Report of the Internal Law Commission on the Work of its 63rd and 64th sessions.

Part 1 – Chapters I-III (Introduction, Summary of Work, Specific Issues), Chapter IV (Expulsion of Aliens), Chapter V (Protection of Persons in the Event of Disasters) and Chapter VI (Other Decisions)

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Mr Chair 1. At the outset, the irish delegation congratulates the menbers of the International Law Commission elected for the present quinquennium and assure them of our continued support. Ireland thanks the Commission for the report to the Sixty-fourth Session and ommends the considerable progress made. I would also like to take this opportunity to join with others in paying tribute to the outgoing Secretary of the Commission, Mr Václav Mikulka, and express our sincere gratitude for his outstanding committment to the Commission’s work since 1999. We wish him all the very best in his future endeavours. Chapter V (Protection of Persons in the Event of Disasters) 2. Turning then to the topic of “The Protection of Persons in the Event of Disasters”, I would like to thanks the Spacial Rapporteur, mr Eduardo Valencia-Ospina, for his ongoing work on this topic, including in particular his Fifth report, which was before the Commission at its last session. Ireland aligns itself with the statement on behalf of the European Union on this topic. 3. I now turn to the draft articles as provisionally adopted by the Drafting Committee at the Commission’s last session. 4. We welcome the work of the Commission on the duty to cooperate. In his elaboration of the duty to cooperate, the Speacial Rapporteur examined a number of key issues. We support his observation that the attempt to provide for assistance while respecting the sovereignty of the affected State is not a novel concept in international law. We also agree with his assessment that the duty to cooperate should be seen as an obligation of conduct rather than of result. However, we could reiterate our view that this is not a legal obligation in customary international law. 5. The Special Rapporteur provides a useful exposition of the categories of cooperation. We welcome the work of the Drafting Committee on Article 5bis. While recognising that the forms of cooperation listed are not intended to be exclusive, we wonder whethere reference might usefully be made to needs assessment in this article. We agree with the Articles on the Law of Transboundary Aquifers and to refer first to humanitarian assistance in this article. However, it might be clearer to the state that “cooperation includes coordination of humanitarian assistance and international relief actions”. We also note the consideration given by the Special Rapporteur to cooperation in disaster preparedness, prevention and mitigation and belive this issue might be dealt with more explicitly. 6. Draft Article 13 is one of a group of articles, beginning with Article 9 that deals with the issue of State soveriegnty, States’ duties, and States’ perogatives in the events of disasters. In exercising their sovereignty, States may place conditions on the provision of external assistance, but in our view it is important that such conditions do not hinder the protection of persons or the provision of disaster relief and assistance. Therefore, we welcome the inclusion by the Drafting Committee of the second sentence of Draft Article 13 which requires that conditions must take into account identified needs and quality of assistance.

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7. In Ireland’s statement on this issue at the 64th session of the general Assembly, we encouraged the Commission to focus on the technical task of building a legal framework to underpin and facilitate disaster relief and highlighted a number of issues in need of examination. We are pleased to see draft Article 14 on the facilitation of external assistance. This draft Article provides a useful indication of the concrete measures to be taken in the event of diaster to ensure that assistance can be delivered as promptly and effectively as possible. 8. We welcome the inclusion of draft Article 15 dealing with the termination of external assistance. We agree with the approach of the Drafting Committee not to draft this provision in terms of granting States a unilateral right of termination and place a great importance on the requirement for consultation set out in this draft article. We recognise that the aim of the Committee was to find a balance between the rights of the affected State and the positions of States and other actors providing assistance, and consider this has been achieved. However, we believe that a reference to the needs of affected persons should also be included. We note the use of the words “assisting actors” and look forward to their definition in an article on the ise of terms. 9. Finally, I would like to make some short remarks on the issue raised in Chapter XII of the Commission’s report. Ireland very much welcomes the work of the Planning group established by the Commission, and in particular we welcome the ambitious work programme for 2013-2016. 10. My delegation also appreciates the consideration given by the Commission to the General Assembly resilution 66/102 of 9 December 2011 on the rule of law at the national and international levels and welcomes the reference to the Commission’s work in the Declaration of the High-level Meeting of 24 September on this topic. We encourage the Commission to maintain an involvement with this important issue. 11. Finally, Mr Chair, Ireland is very pleased to see the publication of the eighth edition of “The Work of the International Law Commission” and joins in welcoming the progress in the eleimination of the backlog in the publication of the Yearbook of the International law Commission. I am pleased to confirm that Ireland has made a modest voluntary contribution this year to the trust fund on the Yearbook.

Thank you.

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DOCUMENT 8

REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 63RD AND 64TH SESSIONS (PART 3) NEW YORK, 5 NOVEMBER 2012

IRELAND Statement by Mr. James Kinston Legal Advisor Department of Foreign Affairs and Trade At the Sixth Committee of the United Nations General Assembly 67th Session New York, 2 November 2012

Agenda Item 79 The Report of the Internal Law Commission on the Work of its 63rd and 64th sessions. Part 3 – Chapters VI (Immunity of State Officials), Chapter VII (Provisional Application of Treaties), Chapter VIII (Formation of Customary International Law), Chapter IX (Extradite or Prosecute), Chapter X (Treaties over Time) and Chapter XI (Most Favoured Nation Clause) PERMANENT MISSION OF IRELAND TO THE UNITED NATIONS 885 SECOND AVENUE, NEW YORK, NY 10017 Ch VI - – Immunity for State Officials from Foreign Jurisdiction

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Mr Chair 1. As this is the first occasion on which Ireland has addressed in detail the topic of immunity of State Officials from Foreign Criminal Jurisdiction, we wish to record our thanks and appreciation for the scholarly work carried out by Mr Roman Kolodkin, as the former Special Rapporteur, as well as for the extremely comprehensive and helpful Memorandum prepared by the Secretariat. There is no doubt but that this body of work will continue to assist our efforts on this complex and sensitive topic. 2. We must, of course, also express our deep thanks to the Special Rapporteur Concepcion Escobar Hernández and commend her for her excellent report, which we believe will provide a firm basis from which to transition to the the next phase of our work. As stated by my delegation last year, Ireland wishes for this topic to be given continued priority by the Commission, and we welcome and support the Special Rapporteur’s detailed workplan for the current quinquennium. 3. My delegation shares the belief of the Special Rapporteur that, given the multiplicity of issues in need of consideration, it is appropriate to adopt a step-by-step approach, considering particular questions in turn. We also welcome the intention, expressed at paragraph 76 of the Special Rapporteur’s report, to continue to update the Memorandum prepared by the Secretariat on an ongoing basis. We believe that this will be an important aid for our discussions. 4. As regards Irish state practice, Ireland has not enacted legislation dealing with the topic of immunity of foreign state officials, but rather the courts apply the rules of customary international law in the field of state immunity, In contrast to immunity from the civil jurisdiction, there has been no occasion on which the Irish courts have had to apply immunity in the context of criminal prosecution against a foreign head of state, head os government or foreign minister, nor as against a sforeign state official. To y delegation’s knowledge, there has only been one occasion on which a member of the public has applied to court seeking to have a warrant issued for the arrest of a foreign state official, namely a deputy prime minister. As the application was refused on other grounds, the question of iimmunity was not considered. 5. Ireland os of the view that the immunity of foreign state officials is procedural only, and not substantive or material in that it does not absolve an official from the obligation to respect the laws of a foreign state in which he or she is present. 6. Ireland considers that immunity ratione personae applies to the troika of head of state, head of government and foreign minister. We consider it an important part of the Commission’s work on this topic to clarify the extent towhich such immunity may apply to any other persons. As regards immunity of other state officials, my delegation concurs that it would be particularly useful to have an internationally agreed definition of “state official” for the purposes of applying the law in relation to immunities. In this regard, we note the observations of the International Court of Justice in paragraphs 181-200 of its judgment in the case of Dijbouti v France which highlight, in our view, the importance of procedural aspects of asserting immunity for foreign officials and the significance of the pre-trial stage. We also note the Court’s comments on the linkages between the assertion of immunity over the acts

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of a state official and the assumption of state responsibility for those same acts, and we encourage the Commission to give detailed consideration to this concept. 7. Turning then to methodological considerations, one of the reasons that the topic is both complex and sensitive is that it is situated at the epicenter of tensions arising from the competeing interests of the international community that are not static, but evolving over time. Our work on this topic addresses what was identified in the Separate Opinion of Judge Higgins, Koojimans and Buergenthal in the Arrest Warrant Case as one of the challenges of present day international law: “to provide for stability of international relations and effective international intercourse while at the same time guaranteeing respect for human rights”. As a consequence, Ireland agrees that it is particularly important that transparency be maintained throughout our work by clearly distinguishing between determinations involving codification and proposals comprising pregressive development of the law. Whilst acknowledging that there is not always a clear divide between the two, my delegation sees the value inhaving an initial focus on the current state of the law, and moving from there to assess propositions involving progressive development. This, in our view, provides a conceptual clarity that should assist in maintaining the greatest possible degree of transparency. 8. Finally, my delegation agrees with an approach which maintains a distinction between the law of immunity and the law governing jurisdiction. As the ICJ stated in the Arrest Warrant Case, jurisdiction does not imply absence of immunity, while absence of immunity of foreign state officials involves a number of concerns which are also relevant to discussions on the exercise of universal jurisdiction to the ILC could be a fruitful approach, allowing for a detailed and expert analysis which, of necessary, could be followed b additional discussion by States in the framework of the Sixth Committee. Ch VII – Provisional Application of Treaties 9. I know turn to the topic of “The Provisional Application of Treaties”. Ireland congratulates Mr Juan Manuel Gómez-Robledo on his appointment as Special Rapporteur for this topic and very much looks forward to reading his first report. We welcome the decision to request form the Secetariat a memorandum bringing toger previous work undertaken on this topic and believe that this will be a valuable aid to our discussions. My delegation regards the issues identified in paragraph 151 of the Commission’s Report on its Sixty-Fourth Session as being highly pertinent and welcomes further elaboration on these questions. We agree that the relevance of the provisional application of treaties in the formation of customary international law might best be considered in the context of the Commission’s work on that separate topic. Ch VIII – Formation and Evidence of Customary International Law 10. Turning to “The Formation and Evidence of Customary International Law”, Ireland warmly welcomes the Note by the Special Rapporteur Michael Wood. In particular, Ireland welcomes the Special Rapporteur’s intended scope for the topic, namely that it should cover both the method of identifying the existence of a rule of customary international law as well as the possible sources such information. Ireland

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supports the Special Rapporteur’s suggestion not to include the issue of jus cogens in the present study at the initial stage, with the option of reverting to the issue at a later point. Ireland is of the view that in many ways jus cogens is a distinct topic, presenting its own complexities in terms of formation, evidence and classification.

Mr Chair, 11. My delegation considers it important to work towards an outcome that is both practical and useful in order to provide guidance, not only to those practicing at the international level, but also those acting in the domestic sphere. We agree that a set of propositions or conclusions with commentaries would be a suitable final outcome, and that such conclusions should not beoverly prescriptive. Ireland welcomes that ambitious plan of work for the quinquennium and very much looks forward to reading the first report of the Special Rapporteur. Ch IX – The Obligation to Extradite or Prosecute 12. Ireland looks forward to the forthcoming working paper by the Chairman on the topic of “The Obligation to Extradite or Prosecute”. In particular, we support the Commission’s in-depth analysis of this topic in light of the recent judgment of the International Court of Justice in the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). Ch X – Treaties Over Time 13. Finally my delegation wishes to welcome the appointment of Mr. George Nolte as Special Rapporteur on the topic “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” following his extensive work as chair of the study group on “treaties over time”. We especially welcome the addition of the six further refolrmualted preliminary conclusions to the nine presented in last year’s report.

Thank you, Mr Chair.

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DOCUMENT 9

PALESTINIAN OBSERVER STATE STATUS: UN PRESS RELEASE

29 NOVEMBER 2012 Tánaiste Welcomes Decision by UN General Assembly The Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore, T.D., has warmly welcomed the adoption of a Resolution by the UN General Assembly this evening to give Observer State status in the UN to Palestine. Ireland voted in favour of the resolution. “We were proud this evening to join with so many fellow members of the UN in voting in favour of Palestine becoming an Observer State within the UN. Ireland has long-championed the cause of Palestinian statehood, as well as the vital importance for the entire Middle East region of a comprehensive peace settlement based on two states, Israel and Palestine, living side-by-side in peace and security. “Tonight’s vote represents an important step for the Palestinian people on their path towards full statehood as well as for all those who look forward to the day when Palestine can rightfully take its place as a full member of the United Nations. That day and the necessity for a just and honourable peace deal between Israel and Palestine are long overdue.” “President Abbas has made clear that tonight’s decision will open the way for him, on behalf of the Palestinian people, to return to substantive peace negotiations with Prime Minister Netanyahu and his government. I welcome this commitment which formed an important element in our decision to vote in favour of this Resolution.” “I urge both sides to now return to the negotiation table and to complete that urgent and historic task with which they are both charged. As recent events in Gaza have so sadly underlined, the need for such a peace deal only grows more urgent and pressing with every passing day.” “No one knows better than the Irish people the onerous responsibility which conflict resolution and peace-building entails and the difficult and painful compromises which it is ultimately likely to involve. However, as I stated in my address to the UN General Assembly last September, both President Abbas and Prime Minister Netanyahu can know they will have the unstinting support of the entire international community if they are prepared to take the necessary risks for peace and negotiate a comprehensive peace deal, resolving all core issues.”