The Irish Yearbook of International Law, Volume 2, 2007 9781472564795, 9781841139593

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Table of Cases Council of Europe Committee on Social Rights International Federation of Human Rights Leagues (IFHR) v Ireland, Complaint No 42 of 2007, Decision on Admissibility, 16 October 2007; Merits, 30 November 2007 .................................................................................187

European Commission Decisions Ryanair/Aer Lingus (Case COMP/M4439) .............................................................156

European Court of Human Rights Abdulaziz et al v UK (1985) 7 EHRR 471 ...............................................................182 Assanidze v Georgia I (App No 71503/01) ECHR 2004-II .......................................83 Austria v Italy (Pfunders case) (App no 788/60), (1961) 4 YECHR 116; (1963) 6 YECHR 740 (ECommHR) .................................................................5, 11 Bankoviç and Others v Belgium and 16 Other Contracting States (2001) 11 BHRC 435 ...............................................................................................83, 191 Chahal v United Kingdom (1997) 23 EHRR 413 .........................82–83, 86, 89–90, 106 Chapman v UK (2001) 33 EHRR 399 .....................................................................185 Codona v UK (App No 484/05), 7 February 2006...................................................185 Cyprus v Turkey (App no 2578/94), ECHR 2001-IV ..................................................5 D v UK (1997) 24 EHRR 423 .................................................................................182 Denmark v Turkey (App no 34382/97), ECHR 2000-IV.............................................5 Denmark, Norway and Sweden v Greece (1970) 13 YECHR 108.................................9 Denmark, Norway, Sweden and the Netherlands v Greece (First Greek case) (App nos 3321/67, 3322/67, 3323/67 and 3344/67), (1968) 12 YECHR 690 (ECommHR)....................................................................................................5, 11 Doorson v Netherlands (1996) 22 EHRR 330..........................................................180 Engel v Netherlands (1976) 1 EHRR 647 ................................................................186 Findlay v UK (1997) 24 EHRR 221 ........................................................................186 First Cyprus case. See Greece v United Kingdom First Greek case. See Denmark, Norway, Sweden and the Netherlands v Greece Foy v An t-Ard Chláraitheoir & Ors, 9 July 2002, unreported .................................184 Gault v UK (App no 1271/05), 20 November 2007 .................................................204 Goodwin v UK (2002) 35 EHRR 18 ........................................................................184 Greece v United Kingdom (First Cyprus case) (App no 176/56), (1955–1956–1957) 1 YECHR 128; (1956–57) 2 YECHR 182; (1958–59) 2 YECHR 186 (ECommHR) ............................................................................5, 16

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Greece v United Kingdom (App no 299/57), (1958–59) 2 YECHR 178 ........................5 Hirst (No 2) v UK (2006) 42 EHRR 41..................................................................204 Ilascu and Ors v Moldova and Russia (2004) 17 BHRC 141 ......................................83 Ireland v United Kingdom (App nos 5310/71 and 5151/72), 1 October 1972, (1972) 41 CD 3 ............................................................................................3, 23, 27 Ireland v United Kingdom (App no 5310/71), (1976) 19 YECHR 512 (ECommHR)....................................................................................................3, 22 Ireland v United Kingdom, 18 January 1978, Series A, no 25 ......................................3 Jordan v UK (2001) 37 EHRR 52 ...........................................................................196 Lawless v Ireland (No 3) 1 EHRR 15 .............................................................4, 19, 27 LCB v United Kingdom (1998) 27 EHRR 212.........................................................181 Öscalan v Turkey (App No 4622/99) ECHR 2005 ....................................................83 Pfunders case. See Austria v Italy Rowe and Davis v United Kingdom (2000) 30 EHRR 1 ...........................................180 Saadi v Italy (App no 37201/06), Judgment of the Grand Chamber, 28 February 2008 ............................................................3, 79–80, 82–83, 85, 88–90 Sand Marper v UK, December 2008 .......................................................................234 Schenk v Switzerland (1988) 13 EHRR 242 ............................................................180 Soering v United Kingdom, Series A no 161, (1989) 11 EHRR 439...82–83, 85, 89, 106 Stocké v Germany [1991] ECHR 25..........................................................................83 Thirteen applications by S McG and others v United Kingdom, Commission Decision of 17 December 1970 .............................................................................21 Van Mechelen and Others v Netherlands (1998) 25 EHRR 647 ...............................180 X and Y v The Netherlands (1986) 8 EHRR 235 .....................................................180

European Court of Justice and Court of First Instance Alphabetical Birds Directive and Habitats Directive Case. See Commission v Ireland (Case C-418/04) Commission v Ireland (Case C-67/02) [2003] ECR I-9019 .......................................147 Commission v Ireland (Case C-507/03) [2008] 1 CMLR 34 .....................................152 Commission v Ireland (Case C-532/03), 18 December 2007 ...............................153–54 Commission v Ireland (Birds Directive and Habitats Directive Case) (Case C-418/04), 13 December 2007 ......................................................146, 150–52 Commission v Ireland (Shellfish Waters Directive Case) (Case C-148/05) [2008] Env LR 7 .................................................................................................147 Commission v Ireland (Case C-183/05) [2007] Env LR 23 .......................................146 Commission v Ireland (Case C-248/05) [2008] Env LR 13..................................149–50 Farrell v Whitty, Minister for the Environment, Ireland, Attorney General and Motor Insurers’ Bureau of Ireland (Case C-356/05) [2007] 2 CMLR 46 .........155–56 Foster v British Gas (Case C-188/89) [1990] ECR I-3313 ........................................156 Ireland v Commission (Case T-50/06), 12 December 2007 .................................154–55 Jia v Migrationsverket (Case C-1/05) [2007] 1 CMLR 41 ..................................145–46 Marleasing SA v La Comercial Internationale de Alimentacion SA (Case C-106/89) [1990] ECR I-4135 ..............................................................................................138

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Pupino (Maria), Criminal Proceedings against (Case C-105/03) [2005] ECR I-5283 ........................................................................................................138 Ryanair v Commission (Case T-342/07), 10 September 2007, [2007] OJ C269/59 ..............................................................................................................157 Secretary of State for the Home Department v Akrich (Case C-109/01) [2003] 3 CMLR 26 ........................................................................................145–46 Shellfish Waters Directive Case. See Commission v Ireland (Case C-148/05) Telaustria and Telefonadress (Case C-324/98) [2000] ECR I-10745.........................152 Chronological C-106/89 Marleasing SA v La Comercial Internationale de Alimentacion SA [1990] ECR I-4135 ........................................................................................138 C-188/89 Foster v British Gas [1990] ECR I-3313 ...................................................156 C-324/98 Telaustria and Telefonadress [2000] ECR I-10745....................................152 C-109/01 Secretary of State for the Home Department v Akrich [2003] 3 CMLR 26...................................................................................................145–46 C-67/02 Commission v Ireland [2003] ECR I-9019 ..................................................147 C-105/03 Pupino (Maria), Criminal Proceedings against [2005] ECR I-5283 .........138 C-507/03 Commission v Ireland [2008] 1 CMLR 34 ................................................152 C-532/03 Commission v Ireland, 18 December 2007 ..........................................153–54 C-418/04 Commission v Ireland (Birds Directive and Habitats Directive Case), 13 December 2007 ......................................................................146, 150–52 C-1/05 Jia v Migrationsverket [2007] 1 CMLR 41 .............................................145–46 C-148/05 Commission v Ireland (Shellfish Waters Directive Case) [2008] Env LR 7............................................................................................................147 C-183/05 Commission v Ireland [2007] Env LR 23 ..................................................146 C-248/05 Commission v Ireland [2008] Env LR 13.............................................149–50 C-356/05 Farrell v Whitty, Minister for the Environment, Ireland, Attorney and Motor Insurers’ Bureau of Ireland [2007] 2 CMLR 46.............................155–56 T-50/06 Ireland v Commission, 12 December 2007 ............................................154–55 T-342/07 Ryanair v Commission, 10 September 2007, [2007] OJ C269/59 ..............157

International Court of Justice Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case.....................................................................................................238 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), 19 December 2005...........................................28 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14 ..................................................93 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4.......................93, 238 Reparations for Injuries Suffered in the Service of the UN, Advisory Opinion of 11 April 1949, ICJ Rep (1949) 174 ............................................................309–11 Tehran Hostages Case ............................................................................................238

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International Criminal Tribunal for the former Yugoslavia Prosecutor v Kordic, Case No IT-95-14/2-Y, P 22 n 39 (Appeals Chamber, 18 September 2000) ..............................................................................................72 Prosecutor v Tadiç, Case No IT-94-1, (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995) ..........98

Ireland Abimbola (Anthony) v Cloverhill Prison and Ors [2007] IESC 56 ...........................138 Agbonlahor and ors v Minister for Justice, Equality and Law Reform and ors [2007] IEHC 166.................................................................................................182 Attorney-General v Anthony Abimbola [2007] IESC 56 ...........................................138 Bode and Others v Minister for Justice, Equality & Law Reform & Others [2006] IEHC 341; [2007] IESC 62 ................................................................182, 188 Browne v Attorney General [2003] IESC 43; [2003] 3 IR 205 .........143–44, 257–58, 273 Cityview Press Ltd v An Chomhairle Oiliúna [1980] IR 381.....................................143 Director of Public Prosecutions v Kelly [2006] 3 IR 115 ..........................................180 Director of Public Prosecutions (at the suit of Detective Garda Barry Walsh) v Cash [2007] IEHC 108 .........................................................................180 Doherty v Dublin South County Council [2007] IEHC 4 ....................................185–86 Foy v An t-Ard Chláraitheoir & Ors [2007] IEHC 470.............................................184 Gotszlik [2007] IEHC 369.......................................................................................141 H v MJELR [2006] IESC 55; [2007] IEHC 277.......................................................141 Kennedy v Attorney General [2005] IESC 36 .................................143–44, 257–58, 273 Maher v Minister for Agriculture, Food and Rural Development [2001] IESC 32; [2001] 2 IR 139; [2001] 2 ILRM 481 ....................................................143 MJELR v Balciunas [2007] IEHC 34; [2007] 1 ILRM 516 ......................................139 MJELR v Brady [2007] IEHC 209 ....................................................................139–40 MJELR v Brennen [2007] IESC 21; [2007] 2 ILRM 241....................................138–40 MJELR v Busjeva [2007] IEHC 341 .......................................................................139 MJELR v Desjatnikovs [2007] IEHC 332 ...............................................................140 MJELR v Ferenca [2007] IEHC 199 .................................................................140–41 MJELR v Gardener [2007] IESC 40 ..................................................................139–40 MJELR v Iqbal [2007] IEHC 133 ...........................................................................137 MJELR v JR [2007] IEHC 25...........................................................................139–40 MJELR v M [2007] IEHC 443 ...............................................................................140 MJELR v McG [2007] IEHC 47 .............................................................................139 MJELR v Pavlovs [2007] IEHC 363 .......................................................................139 MJELR v Racz [2007] IEHC 158 .............................................................................13 MJELR v Raustys [2007] IEHC 370.......................................................................139 MJELR v Sakalauskis [2007] IEHC 364.................................................................139 MJELR v SR [2007] IESC 54 ....................................................................139–40, 181 MJELR v Stapleton [2007] IESC 30 .......................................................................137 MJELR v Stuina [2007] IEHC 220 .........................................................................139

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MJELR v Sulej [2007] IEHC 132 ....................................................................137, 139 MJELR v Tobin [2007] IEHC 15 ......................................................................139–41 O’C v Minister for Education & Science & Ors [2007] IEHC 170 ............................184 O’Donnell v South Dublin County Council [2007] IEHC 204..............................185–86 Ó Fallúin (Micheál) v Governor of Cloverhill Prison and MJELR, In the Matter of the Constitution and of the Habeas Corpus Act 1782: [2007] IESC 20; [2007] 2 ILRM 321 ..............................................................................141 SK and Another v MJELR [2007] IEHC 216.....................................................145–46 The People (Director of Public Prosecutions) v Niall Binéad and Kenneth Donohue [2007] 1 IR 374.....................................................................................180

Irish Human Rights Commission Bode v Minister for Justice, Equality and Law Reform, IHRC, Submission to the Supreme Court, May 2007 .......................................................................188 Legal Aid Board v District Judge Patrick Brady et al, IHRC, Submission to the Supreme Court, March 2007 ....................................................................188

South Africa Bhe and others v Magistrate, Khayelitsha, and others 2005 (1) SA 580 (CC) ...........225

UN Committee against Torture Agiza v Sweden, UN Doc CAT/C/34/D/233/2003, 24 May 2005 ..............................87 Aylor-Davis v France (App No 22742/93), 20 January 2004 .....................................86

UN Transitional Administration in East Timor Prosecutor v Carmone (Carlos Soares) (Case No 3/2000, Judgment of 25 April 2001).......................................................................................................75 Prosecutor v Da Costa (Januario) and Mateus Punef (Case No 22/2003, Judgment of 25 April 2005) ..................................................................................75 Prosecutor v Fernandes (Joao) (Case No 1/2000, Judgment of 25 February 2000) ....................................................................................................................74 Prosecutor v Fernandes (Julio) (Case No 2/2000)....................................................74 Prosecutor v Maubere (Rusdin) (Case No 23/2003, Judgment of 27 May 2004).......71 Prosecutor v Nunes (Damiao da Costa) (Case No 1/2003, Judgment of 10 December 2003)...............................................................................................71 Prosecutor v Pedro (Francisco) (Case No 1/2001, Judgment of 14 April 2005) ....................................................................................................................75 Prosecutor v Tavares (Case No 02/2001, Judgment, Trial Chamber, 28 September 2001) ..............................................................................................71

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Prosecutor v Valente (Jose) (Case No 3/2001, Judgment of 19 June 2001)...............71 X case (1999)............................................................................................................75

United Kingdom Anufrijeva v Southwark LBC [2004] 1 All ER 833...................................................185 AS and DD (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289 ....................................................................................................88 Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91.................................180 Bradley’s Application, In re [2007] NIQB 98, [2008] BNIL 26.................................196 C, A, W, M and McE, In re [2007] NIQB 101.........................................................204 Christian Institute’s Application for Judicial Review [2007] NIQB 66 ......................206 Convery v The Irish News Ltd [2007] NICA 37 .......................................................191 Doherty’s Application, In re [2007] NICA 33 ..........................................................203 Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167 ..................................................................................................190 Jordan v Lord Chancellor [2007] UKHL 14, [2007] 2 AC 226 .................................196 McCaughey v Chief Constable of the Police Service of Northern Ireland [2007] UKHL 14, [2007] 2 AC 226......................................................................196 McCoy v James McGregor & Sons [2008] 2 BNIL 40 .............................................206 McKerr, In re [2004] UKHL 12, [2004] 1 WLR 807 ...............................................196 Miss Behavin’ Ltd v Belfast City Council [2007] UKHL 19, [2007] 1 WLR 1420..................................................................................................190–91 Mullan’s Application, In re [2007] NICA 47, [2008] 3 BNIL 123.............................203 N v Home Secretary [2005] 2 AC 296 .....................................................................182 NICCY, In the matter of an application by [2007] NIQB 115 ..................................208 Officer L, In re [2007] NICA 8; [2007] UKHL 36, [2007] 1 WLR 2135...................198 P (a child), In re [2007] NICA 20...........................................................................208 R v Hooey [2007] NICC 49 .....................................................................................198 R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332 ............................................................................................................191 R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153 ............................................................................................................191 R (Bernard) v Enfield LBC (2003) LGR 423..........................................................185 R (Countryside Alliance) v Attorney-General [2007] UKHL 52, [2008] 1 AC 719 .....205 R (Hurst) v London Northern District Coroner [2007] UKHL 13, [2007] 2 AC 189 ............................................................................................................196 R (SB) v Head Teacher and Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 ............................................................................................190 St Helens Borough Council v Derbyshire [2007] UKHL 16 .....................................205 Secretary of State for the Home Department v E [2007] UKHL 47, [2008] 1 AC 499 ............................................................................................................203 Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385 ............................................................................................................203 Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC 440 ............................................................................................................203

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Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734....................192 Toner and another, Re [2007] NIQB 18...................................................................204 Ward v Police Service of Northern Ireland [2007] UKHL 50, [2007] 1 WLR 3013; [2007] NICA 23 .....................................................................................202–3 Whaley v Lord Advocate [2007] UKHL 53 .............................................................205 YL v Birmingham City Council [2007] UKHL 27, [2008] 1 AC 95 ..........................189

United States Arar v Ashcroft et al, App No 06-421-cv (US Court of Appeal, 2nd District, 30 June 2008)...................................................................................81 Brig Amy Warwick (The); The Schooner Crenshaw; The Barque Hiawatha; The Schooner Brilliante (The Prize Cases) 67 US 635 (1863)........................97, 101 Munaf v Geren 128 S.Ct. 2207 (12 June 2008) ..........................................................88

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Table of Legislation Canada Charter of Fundamental Rights ............................................................................180

European Union Decisions Council Decision 92/510/EEC of 19 October 1992 .................................................154 Commission Decision 2006/323/EC .......................................................................154 Commission Decision of 27 June 2007 declaring a concentration to be incompatible with the common market and the EEA Agreement ...................156 Directives Council Directive (EEC) 79/409 on conservation of wild birds (Birds Directive) [1979] OJ L103/1 as amended by Commission Directive 97/49/EC [1997] OJ L223/9 ......................................................................146, 150 Art 4(1)–(2) ........................................................................................................150 (4) ..............................................................................................................150 Art 10 .................................................................................................................150 Council Directive (EEC) 79/923 on the quality required of shellfish waters (Shellfish Waters Directive) [1979] OJ L281/47 .........................................147–49 Preamble, Recital 6 ................................................................................................148 Art 1 .............................................................................................................147–48 Art 3 .............................................................................................................147–49 (1) ..............................................................................................................148 Arts 4–5 ........................................................................................................147–49 Art 8...................................................................................................................147 Annex.................................................................................................................147 parameters 8–9..............................................................................................148–49 parameter 10 ......................................................................................................148 Council Directive (EEC) 80/68 on the protection of groundwater against pollution caused by certain dangerous substances (Groundwater Directive) [1980] OJ L20/43 as amended by Council Directive (EEC) 91/691 standardising and rationalising reports on the implementation of certain directives relating to the environment [1991] OJ L377/48 ..........................149–50 Art 3(b) ..............................................................................................................149 Art 4...................................................................................................................149 (2) ..............................................................................................................149

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Art 5...................................................................................................................149 Council Directive (EEC) 85/337 on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 ...........................151 Council Directive (EEC) 90/232 on the approximation of laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (Third Directive on insurance against civil liability in respect of the use of motor vehicles) [1990] OJ L129/33..............................................155 Art 1 .............................................................................................................155–56 Council Directive (EEC) 92/43 on the conservation of natural habitats and wild fauna and flora (Habitats Directive) [1992] OJ L206/7 ...................146, 150 Art 6(2)–(4) ...................................................................................................151–52 Art 12 .................................................................................................................146 (1).............................................................................................................146 (d) ........................................................................................................147 Art 16 .................................................................................................................146 Council Directive (EEC) 92/50 relating to the coordination of procedures for the award of public service contracts [1992] OJ L209/1 .............................152–54 Art 9...................................................................................................................152 Art 14 .................................................................................................................152 Art 16 .................................................................................................................152 Annex IB ............................................................................................................152 Council Directive (EEC) 92/81 on the harmonisation of the structures of excise duties on mineral oils [1992] OJ L316/12.........................................................154 Art 8(4)...............................................................................................................154 Council Directive 2000/78/EC on equal treatment in employment .........................206 Parliament and Council Directive (EC) 2001/42 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L297/30.......151 Parliament and Council Directive (EC) 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States amending Regulation (EEC) No 1612/68 and repealing Directive 64/221/EEC, [2004] OJ L158/77 ..................................145–46 Art 2...................................................................................................................146 Council Directive (EC) 2004/83 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 (Qualification Directive) [2004] OJ L 304/12 ................................................................................133, 141–42, 145 Recital 6 .............................................................................................................142 Recital 25 ...........................................................................................................142 Art 15 .................................................................................................................142 (c) .............................................................................................................142 Water Framework Directive ..................................................................................169 Regulations Council Regulation (EC) 659/1999 laying down detailed rules for the application of Art [88 EC] [1999] OJ L83/1.....................................................155

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Art 1(b)(v) ..........................................................................................................155 Council Regulation (EC) 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1.................................................................................145 Art 16(1)(e).........................................................................................................145 Resolutions European Parliament Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners 2006 ................................................................................................................107 India Constitution .....................................................................................................223–25 Arts 14–17 ..........................................................................................................223 Art 46 .................................................................................................................223 Art 330 ...............................................................................................................223 Indonesia Penal Code...............................................................................................................70 Ireland Child Care Act 1991...............................................................................................116 Children’s Act 2001 Pt 12A ................................................................................................................177 s 257B.................................................................................................................178 s 257C.................................................................................................................178 (b) ............................................................................................................178 (7) ........................................................................................................178 (d) ............................................................................................................178 s 257D (b) ............................................................................................................178 (4) ........................................................................................................179 s 257E.................................................................................................................179 (3) ............................................................................................................179 Constitution 1937 (amended 2002) .......................................ix, 116, 119–20, 139, 180, 247, 253, 269, 282, 291–92, 340 Arts 2–3 .................................................................................................................5 Art 5...................................................................................................................291 Art 29.....................................................................................................ix, 119, 291 Art 29.1–29.3 .................................................................................................ix, 119

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Art 29.4.6º ..........................................................................................................137 Art 29.4.10º ........................................................................................................143 Art 40 .................................................................................................................292 Art 40.3.2º ..........................................................................................................140 Art 40.4.2º ..........................................................................................................141 Criminal Justice Act 2006 ......................................................................................177 Pt 11 ...................................................................................................................177 Pt 13 ...................................................................................................................177 s 1(3)...................................................................................................................177 s 113(2) ...............................................................................................................177 (a)–(c) .....................................................................................................177 (3)...............................................................................................................177 s 114 ...................................................................................................................177 (1)...............................................................................................................177 (3)(b) ..........................................................................................................177 (5)–(6).........................................................................................................178 s 115 ...................................................................................................................177 (1)...............................................................................................................178 (3)–(4).........................................................................................................178 (6)...............................................................................................................178 (9)...............................................................................................................178 s 116(1) ...............................................................................................................178 (3)...............................................................................................................178 (6)...............................................................................................................178 s 117(3) ...............................................................................................................178 s 118(2) ...............................................................................................................178 s 159 ...................................................................................................................177 ss 160–161 ..........................................................................................................178 ss 162–164 ..........................................................................................................179 s 186 ...................................................................................................................142 s 257A ................................................................................................................177 Criminal Justice Act 2007 ......................................................................................176 Pts 2–4................................................................................................................176 Criminal Justice (UN Convention Against Torture) Act 2000 ...............................142 s 4(1)...................................................................................................................142 Defence (Amendment) Act 2006 ...............................................................111, 136–37 s 3 .......................................................................................................................136 (f) ...................................................................................................................136 Defence (Amendment) Act 2007 ............................................................................186 Education Act 1998................................................................................................179 EU (Scrutiny) Act 2002..........................................................................................286 European Arrest Warrant Act 2003..................................................................137–40 s 10(d).................................................................................................................140 s 16(3).................................................................................................................141 (4).................................................................................................................137 (5)–(7)...........................................................................................................141 s 22 .....................................................................................................................141

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(1).................................................................................................................141 (2)(b) ............................................................................................................141 s 37(1)(c).............................................................................................................139 (2).................................................................................................................139 s 38 .....................................................................................................................141 European Communities Act 1972 ...................................................................133, 143 s 2 .......................................................................................................................143 s 3 .......................................................................................................................143 (1) ..................................................................................................................143 (3) ..................................................................................................................143 (a)–(b)........................................................................................................144 (5) ..................................................................................................................144 s 3A ....................................................................................................................144 European Communities Act 2007 ..........................143–44, 157, 248, 257–58, 269, 275 s 1 .......................................................................................................................144 s 2 .......................................................................................................................144 (a) ..................................................................................................................144 s 3 .......................................................................................................................144 s 4(1)...................................................................................................................144 s 5 .......................................................................................................................144 European Convention on Human Rights Act 2003 .............................89, 180, 183–85 s 2(1)–(2) ............................................................................................................183 s 3 .......................................................................................................................142 s 5(1)...................................................................................................................183 (2)...................................................................................................................184 (a)–(b) ........................................................................................................183 (c)...............................................................................................................184 (3)...................................................................................................................183 Extradition Act 1965 Pt II ....................................................................................................................138 s 8 .......................................................................................................................138 (7)...................................................................................................................138 Fire Services Act 1981 s 9(1)(a) ..............................................................................................................153 s 25 .....................................................................................................................153 Fisheries (Consolidation) Act 1959 s 223A...........................................................................................................143–44 s 224B.................................................................................................................144 (1) .......................................................................................................143–44 Foreshore Acts.......................................................................................................151 Garda Síochána Act 2005 ......................................................................................281 Garda Síochána (Police Co-operation) Act 2003 ...................................................281 Health Act 1953 s 65(1)(a) ............................................................................................................153 Health Act 1970 s 57 .....................................................................................................................153 Human Rights Commission Act 2000 ....................................................................188

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s 9 .......................................................................................................................188 Human Rights Commission Act 2001 ....................................................................188 Immigration Act 1999 s 3 .......................................................................................................................142 Ministers and Secretaries Act 1924 .................................................................267, 275 National Archives Act 1986 s 8(4) ....................................................................................................................10 Offences against the State Act 1939 .......................................................................180 Offences against the State (Amendment) Act 1940 Pt II........................................................................................................................8 Section 4 ................................................................................................................8 Planning and Development Act 2000 .....................................................................151 Prisons Act 2007 ....................................................................................................179 s 35 .....................................................................................................................179 Prompt Payment of Accounts Act 1997 .................................................................274 Public Service Management Act 1997.............................................................243, 270 Refugee Act 1996 s 5 .......................................................................................................................142 (1)–(2) ............................................................................................................142 Special Powers Act 1922.....................................................................................21, 26 Regulations ..........................................................................................................26 Transfer of Sentenced Persons Act 1995 ...................................................336–37, 339 Transfer of Sentenced Persons (Amendment) Act 1997 ....................................338–39 Wildlife Act 1976 s 11(3).................................................................................................................150 s 22 .....................................................................................................................151 s 23 .....................................................................................................................151 (7)(a)–(c) ......................................................................................................147 s 76 .....................................................................................................................151 Wildlife (Amendment) Act 2000 .....................................................................147, 150 Statutory Instruments European Arrest Warrant Act 2003 (Designated Member States) Order 2007 (SI 18/2007) ............................................................................................276 European Arrest Warrant Act 2003 (Designated Member States) (No 2) Order 2007 (SI 59/2007) ..................................................................................276 European Communities (Amendment) Act 2006 (Commencement) Order 2007 (SI 38/2007) ....................................................................................................276 European Communities (Amendment) Act 2006 (Commencement) Regulations 2007 (SI 39/2007) ............................................................................................276 European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) (Qualification Regulations) .................................................141–42 reg 4(2) ...............................................................................................................142 European Communities (Freedom of Movement of Persons) Regulations 2006 (SI 226/2006).....................................................................................145–46 reg 3 ..............................................................................................................145–46

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European Communities (Late Payment in Commercial Transactions) Regulations 2002 ............................................................................................274 Extradition Act (Application of Part II) Order 2000 (as amended) (SI 474/2000)...................................................................................................138 Extradition Act 1965 (Application of Part II) (Amendment) (No 2) Order 2004 (SI 275/2004) ................................................................................138 Foyle Area and Carlingford Area (Angling) (Amendment No 2) Regulations 2007 ............................................................................................164 Habitats Regulations reg 13..................................................................................................................151 reg 14..................................................................................................................151 (1) .............................................................................................................151 (3) .............................................................................................................151 regs 17–18...........................................................................................................151 regs 27–33...........................................................................................................151 Mackerel (Licensing) Order 1999 ...........................................................................143 Prison Rules 2005....................................................................................175, 179, 323 Sea Fisheries (Drift Nets) Order 1998 ....................................................................143 Tampere Convention (Privileges and Immunities) Order 2007 (SI 553/2007) .........276 Transfer of Execution of Sentences Act 2005 (Designated Countries) Order 2007 (SI 659/2007) ..........................................................................................276

Lebanon Cabinet decision of 27 July 2006 ..............................................................................42 National Pact 1943 ..................................................................................................33

United Kingdom Coroners Act (NI) 1959 s 8 .......................................................................................................................196 Corporate Manslaughter and Corporate Homicide Act 2007 .........................199–200 s 1 .......................................................................................................................199 s 5 .......................................................................................................................200 s 17(b).................................................................................................................199 s 18(1).................................................................................................................199 s 20 .....................................................................................................................199 s 27(1).................................................................................................................200 (3).................................................................................................................199 Disability Discrimination Act 1995 ....................................................................206–7 Equality Act 2006 s 30(3).................................................................................................................194 s 82 .....................................................................................................................206 s 84 .....................................................................................................................191 Forced Marriage (Civil Protection) Act 2007 .........................................................209

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Human Rights Act 1998..................................................89, 185, 189–92, 194–96, 234 s 2(1)...................................................................................................................192 s 6 .......................................................................................................................190 s 7(1)...................................................................................................................194 (5)...................................................................................................................192 Inquiries Act 2005 ............................................................................................197–99 Justice (NI) Act 2004 s 8 .......................................................................................................................202 Justice and Security (NI) Act 2007..............................................................193, 200–2 s 1(6)...................................................................................................................201 s 14 .....................................................................................................................194 (2).................................................................................................................194 ss 15–16 ..............................................................................................................193 ss 21–32 ..............................................................................................................201 Mental Capacity Act 2005......................................................................................207 Northern Ireland Act 1998........................................................................161, 192–93 s 20(1).................................................................................................................194 s 69(2).................................................................................................................193 s 69A ..................................................................................................................193 (4)–(5)........................................................................................................193 (10) ............................................................................................................193 s 69B...................................................................................................................193 (1)(e)..........................................................................................................193 (4)..............................................................................................................193 s 69C ..................................................................................................................193 (4)–(5)........................................................................................................193 (7)..............................................................................................................194 s 69D ..................................................................................................................193 s 71(2).................................................................................................................194 (2A)–(2C) .....................................................................................................194 s 75 .....................................................................................................................191 Sch 9...................................................................................................................191 Northern Ireland (Miscellaneous Provisions) Act 2006..........................................200 Pt IV...................................................................................................................200 Northern Ireland (St Andrews Agreement) Act 2006 .............................................200 s 18(1).................................................................................................................200 Police Act 1997 ......................................................................................................205 Prevention of Terrorism Act 2005 ..........................................................................203 Regulation of Investigatory Powers Act 2000.................................................193, 205 s 65 .....................................................................................................................193 Safeguarding Vulnerable Groups (NI) Act 2006 ....................................................207 Scotland Act 1998 ..................................................................................................205 Sex Discrimination Act 1975 s 76A ..................................................................................................................191 Terrorism Act 2000 Pt VII..............................................................................................................200–2 Terrorism (NI) Act 2006 ........................................................................................200

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Statutory Instruments Adoption (NI) Order 1987 (SI 1987/2203) Art 14 .................................................................................................................208 Employment Equality (Age) Regulations (Northern Ireland) 2006 (SR 2006/261) .................................................................................................206 Equality Act (Sexual Orientation) Regulations (NI) 2006 (SR 2006/439)...............206 Investigatory Powers Tribunal Rules 2000 (SI 2000/2665) .....................................193 Justice and Security (Northern Ireland) Act 2007 (Commencement No 1 and Transitional Provisions) Order 2007 (SI 2007/2045) .......................................200 Law Reform (Miscellaneous Provisions) (NI) Order 2006 .....................................208 Arts 2–3..............................................................................................................208 Art 8...................................................................................................................208 Art 14 .................................................................................................................208 Police and Criminal Evidence (Amendment) (NI) Order 2007 ...............................201 Policing (Miscellaneous Provisions) (NI) Order 2007.............................................201 Safeguarding Vulnerable Groups (NI) Order 2007 (SI 2007/1351) .........................207

United States Constitution...........................................................................................................180 Instructions for the Government of Armies of the United States in the Field, General Order No 100, 24 April 1863 (Lieber Code) ........................................97

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Table of Conventions, Treaties etc Acts of the International Telecommunication and Radio Conferences 1947..........362 Agreement establishing the Agency for International Trade Information and Co-operation as an Intergovernmental Organisation Agreement 2002 ....356 Agreement establishing the Asian Development Bank 1965...................................352 Agreement establishing the European Bank for Reconstruction and Development 1990 ..........................................................................................364 Agreement between the European Community and its Member States of the one part and the Swiss Federation of the other on the free movement of persons 1999 ...............................................................................................355 Agreement establishing the European Molecular Biology Laboratory 1973 ..........356 Agreement between the Government of Ireland and the Government of Canada for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains 2003...............................353 Agreement between the Government of Ireland and the Government of Canada relating to the Canada Pension Plan 1972.......................................................359 Agreement between the Government of Ireland and the Government of the Republic of Bulgaria on Co-operation in Combating Illicit Trafficking in Drugs and Precursors, Money Laundering, Organised Crime, Trafficking in Persons, Terrorism and Other Serious Crime 2002 .....................................353 Agreement between the Government of Ireland and the Government of the Republic of Croatia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Incomes and on Capital Gains 2002 ................................................................................................................355 Agreement between the Government of Ireland and the Government of the Republic of Cyprus on Co-operating in Combating Illicit Drug Trafficking, Money Laundering, Organised Crime, Trafficking in Persons, Terrorism and Other Serious Crime 2002 ........................................................................354 Agreement between the Government of Ireland and the Government of the Republic of Slovenia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Incomes and Capital Gains 2002 .........................................................................................356 Agreement between the Government of Ireland and the Government of the UK 2006 .........................................................................................................352 Agreement between the Government of Ireland and the Government of the UK concerning Mutual Assistance in Relation to Criminal Matters 1998......356 Agreement between the Government of Ireland and the Government of the UK relating to the Transmission of Natural Gas by a Second Pipeline between Ireland and the UK through a Connection to the Isle of Man 2004..353 Agreement with the Government of the Republic of Bulgaria regarding the Readmission of their own Citizens and Third Country Citizens Illegally Residing in the Territories of their Respective States 2002..............................354

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Agreement between the Government of the Republic of Singapore and the Government of Ireland for Air Services between and beyond their Respective Territories 1981.............................................................................359 Agreement between the Government of Sweden and the Government of Ireland on the Reciprocal Holding of Stocks of Crude Oil and/or Petroleum Products 2003 ................................................................................356 Agreement on Illicit Traffic by Sea implementing Art 17 of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1995 ...351 Agreement concerning Insured Letters and Boxes 1964 .........................................362 Agreement establishing the International Fund for Agricultural Development 1976 ..........................................................................................361 Agreement establishing the International Organisation of Vine and Wine 2001 ................................................................................................................355 Agreement relating to the International Telecommunications Satellite Organization 1972 ..........................................................................................363 Agreement for Joint Financing of North Atlantic Ocean Stations 1974.................363 Agreement on Mutual Cooperation concerning Adoption between the Socialist Republic of Vietnam and Ireland 2003 .............................................352 Agreement concerning Postal Parcels 1964 ............................................................362 Agreement on Privileges and Immunities of the International Criminal Court 2002......................................................................................................351 Agreement on Privileges and Immunities for Liaison Officers and other Members of Staff at the Europol Drugs Unit in the Hague between the Kingdom of the Netherlands and Ireland 1995...............................................359 Agreement on Provisional Application between certain Member States of the Convention drawn up on the basis of Article K.3 of the Treaty of the European Union, on the Use of Information Technology for Customs Purposes 1995 .................................................................................................354 Agreement on Social Security between the Government of Ireland and the Government of Australia 2005 .......................................................................351 Agreement concerning Specific Stability Requirements for Ro-Ro Passenger Ships Undertaking Regular Scheduled International Voyages between or to or from Designated Ports in North West Europe and the Baltic Sea 1996..........................................................................................................363 Agreement between the UK Government and the Eire Government amending the Agreement of 1926 (as amended by the Agreement of 1928) in respect of Double Income Tax 1947 ...........................................................................359 Ankara Protocol to the Customs Union ................................................................283 Articles of State Responsibility Arts 40–41 ..........................................................................................................311 Art 55 .................................................................................................................312 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974.....................................................................................................364 1976 Protocol .....................................................................................................364 Basic Principles on the Independence of the Judiciary ...........................................343 Basic Principles on the Role of Lawyers.................................................................343 Basic Principles for the Treatment of Prisoners......................................................342

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Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ..........................................................................................................343 Beijing Declaration and Platform for Action 1995.................................................183 Beijing Rules. See UN Standard Minimum Rules for the Administration of Juvenile Justice Belfast Agreement. See Good Friday Agreement 1998 Bhopal Declaration................................................................................................225 Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment ....................................................................60, 342 Bosnia and Herzegovina Agreement No 1 1992 Art 2(4) ................................................................................................................98 Cairo Agreement......................................................................................................35 Camp David Accords ..............................................................................................44 Chicago Convention. See Convention on International Civil Aviation Code of Conduct for Law Enforcement Officials...................................................343 Communiqué Constituting an Agreement Relating to International Co-operation in the Field of Energy 1974.......................................................364 Constitution of the UN Industrial Development Organization 1979 .....................361 Constitution of the Universal Postal Union 1964...................................................361 Convention on the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, and the Slovak Republic to the Convention on the Elimination of Double Taxation in Connection with the Adjustment of Profits of Associated Enterprises 2004........................................................353 Convention concerning the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the Convention on the Elimination of Double Taxation in Connection with the Adjustment of Profits of Associated Enterprises 1995............................................................352 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency 1986..............................................................................................362 Convention on Biological Diversity Cartagena Protocol on Biosafety 2000 ...................................................................356 Convention on the Elaboration of a European Pharmacopoeia 1964 ....................357 Convention on the Elimination of All Forms of Discrimination Against Women .....................................................................................................59, 235 Convention on the Elimination of Double Taxation in connection with the Adjustment of Profits of Associated Enterprises 1990 Amending Protocol ............................................................................................357 Convention on the Elimination of Racial Discrimination........................................59 Convention on the Establishment of a European Police Office (Europol Convention) 2002 Protocol .....................................................................................................351 2003 Protocol .....................................................................................................351 Convention for the Establishment of a European Organisation for the Exploitation of Meteorological Satellites 1983 ...............................................362 Convention establishing the European Telecommunications Satellite Organization 1982 ..........................................................................................360

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Convention against Genocide and Torture ..............................................................59 Convention between the Government of Ireland and the Government of the Republic of India for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains 2000 .........................................................................................355 Convention on International Civil Aviation 1944 (Chicago Convention)...........106–8 Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment Protocol 2001 .....................................................................................................352 Convention on the International Maritime Organization 1948 ..............................361 1993 Amendment ...............................................................................................363 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (amended 1979) ............................................................................354 Convention between Ireland and the Kingdom of Norway for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital 2000 .................................................................355 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988...............................................................................364 Convention on Jurisdictional Immunities of States and their Property 1994 Art 3(3) ................................................................................................................84 Convention on the Limitation of Liability for Maritime Claims 1976....................364 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter 1972 ....................................................................................363 1996 Protocol .....................................................................................................364 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques 1976 ...............................................361 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects 1980.............................................................................363 Convention on Recognition of Qualifications concerning Higher Education in the European Region 1997..........................................................................357 Convention on the Rights of Persons with Disabilities...........................................294 Convention on the Settlement of Investment Disputes between States and Nationals of other States 1965 ........................................................................362 Convention on the Transfer of Sentenced Persons 1983.........................................357 Additional Protocol excluding Art 3 ..................................................................352 Convention on the Unification of Certain Points of Substantive Law on Patents for Invention 1963..............................................................................358 Convention for the Unification of Certain Rules for International Carriage by Air 1999 .....................................................................................................353 Convention prohibiting the Use, Manufacture and Acquisition of Cluster Munitions 2007...............................................................................................243 Convention on Wetlands of International Importance Especially as Waterfowl Habitat 1971 ...................................................................................................362 Council of Europe Committee of Ministers Resolution 73 (2007) ..........................196 Council of Europe Convention on Action against Trafficking in Human Beings 2005......................................................................................115, 176, 207

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Council of Europe Convention on Cybercrime 2001..............................................116 Council of Europe Convention on the Transfer of Sentenced Persons (Strasbourg Convention) ......................................................329–30, 336, 338–41 Additional Protocol............................................................................................339 Arts 2–3..............................................................................................................339 Council of Europe Framework Convention for the Protection of Minorities ........205 Art 3...................................................................................................................205 Council of Europe Transfer of Sentenced Prisoners Act 95/97 ...............................347 Council Framework Decision 2002/584/HJA of 13 June 2002 on the European Arrest Warrant and Surrender Procedures between Member States...................................................................................137–38, 140 Preamble ............................................................................................................137 Recital 5 .............................................................................................................137 Recital, para 10 ..................................................................................................139 Art 2...................................................................................................................141 (2)..............................................................................................................137 Art 32 .................................................................................................................138 Declaration on Basic Principles for Justice for Victims of Crime and Abuse of Power .........................................................................................................343 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.....................................................................................................342 Declaration on the Protection of All Persons from Enforced Disappearances .......343 Deng Principles. See Guiding Principles on International Displacement EC Treaty .......................................................................................................133, 152 Art 43 .................................................................................................................153 Art 49 .................................................................................................................153 Art 88 .................................................................................................................155 (3).............................................................................................................154 Art 226 ...............................................................................................................147 Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Members States of the one part and the United Mexican States of the other part 1997.............................365 EU Charter of Fundamental Rights ...............................................................134, 232 Title VII .............................................................................................................134 EU Framework Decision on Combating Trafficking in Human Beings 176 Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States of the one part and the Arab Republic of Egypt of the other part 2001.........................................355 Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States of the one part and the Hashemite Kingdom of Jordan on the other part 1997...................................354 Euro-Mediterranean Agreement Establishing an Association between the European Community and its Member States of the one part and the Republic of Lebanon of the other part 2002 ...................................................353 European Agreement on the Exchange of Tissue-Typing Reagents 1974 ...............357 Additional Protocol 1976 ...................................................................................367

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European Agreement Concerning the International Carriage of Dangerous Goods by Road 1957 ......................................................................................352 European Convention on Cinematographic Co-Production 1992 ..........................357 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment .......................................230, 232, 321, 342 Optional Protocol .......................................................................................256, 342 Protocol No 1 1993 ............................................................................................357 Protocol No 2 1993 ............................................................................................358 European Convention for the Protection of Human Rights and Fundamental Freedoms 1955......................3–5, 8–11, 16, 19, 21–22, 25, 28, 82–84, 89–90, 106, 134, 180, 182–86, 191–92, 195–96, 205–6, 209, 293, 321 Section I ...............................................................................................................80 Art 1 ....................................................................................................26, 80, 82–83 Art 2.................................................................11, 18–19, 25–27, 106, 181, 196, 200 Art 3........................3, 11, 16, 18–19, 21, 26–27, 79–80, 82–90, 105–6, 142, 185, 233 Art 5 ..................................................................................................21, 191, 201–2 (2)...............................................................................................................202 (3)...............................................................................................................204 (4)...............................................................................................................203 Art 6 ...............................................................................21, 180, 186, 192, 230, 233 Art 7.....................................................................................................................21 Art 8 .................................................................................21, 145, 182, 184–85, 201 (1) .........................................................................................................182–83 (2)...............................................................................................................182 Art 9.....................................................................................................................21 Art 10...................................................................................................................21 (2) .............................................................................................................191 Art 11...................................................................................................................21 Art 12 .................................................................................................................231 (4) .............................................................................................................187 Art 13...................................................................................................................21 Art 14 .............................................................................................................21, 27 Art 15...................................................................................................................27 (1).................................................................................................................8 (2) ...............................................................................................................19 (3) ...............................................................................................................10 Art 19.....................................................................................................................4 Art 23 .................................................................................................................187 Art 24..........................................................................................................4, 10–11 Arts 25–26 ............................................................................................................11 Art 33.....................................................................................................................4 Art 35...................................................................................................................11 (3) .............................................................................................................231 Art 43(2).............................................................................................................231 Art 46.....................................................................................................................5 Art 47 .................................................................................................................233 Art 48.....................................................................................................................5

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Art 52 .................................................................................................................233 Art 65.....................................................................................................................9 Protocol No 1...................................................................................................4, 10 Art 3.....................................................................................................................21 Protocol No 3 amending Arts 29, 30 and 34 of the Convention 1963 .................357 Protocol No 11 .............................................................................................4–5, 11 Protocol No 12 ...................................................................................................116 Protocol No 14 ...........................................................................................231, 233 European Prison Rules (revised 2006) .................321–23, 328, 334, 340, 344, 346, 348 Pts VII-VIII........................................................................................................323 Art 10(3).............................................................................................................323 Art 17(1).............................................................................................................322 Art 24(5).............................................................................................................322 Art 37..........................................................................................................344, 348 Art 38(2).............................................................................................................346 European Social Charter (Revised) 1996 ........................................................187, 354 Art E ..................................................................................................................187 Additional Protocol Providing for a System of Collective Complaints 1995 ..........354 Exchange of Letters between Belgium and Ireland Constituting an Agreement Concerning the Mutual Recognition of the Validity of Driving Licences 1972 ................................................................................................................359 Exchange of Notes between Argentina and Ireland Constituting an Agreement Concerning the Abolition of Tourist Visas 1965 .............................................359 Exchange of Notes Constituting an International Agreement between Ireland and Spain in Relation to the Extradition of Own Nationals 2003...................356 Exchange of Notes between Ireland and the USA Constituting an Agreement Relating to Air Charter Services 1973.............................................................359 Films Co-production Agreement between the Government of Australia and the Government of Ireland 1998...........................................................................359 Fisheries Partnership Agreement between the EU and Morocco ...........................117 Framework Decision on Combating Sexual Exploitation of Children and Child Pornography 2003 ..........................................................................................115 Geneva Convention 1864 .........................................................................................91 Geneva Convention 1906 .........................................................................................91 Geneva Convention 1929 .........................................................................................91 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949 (First Geneva Convention).................91 Arts 1–3................................................................................................................91 Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea 1949 (Second Geneva Convention).........................................................................................91 Arts 1–3................................................................................................................91 Geneva Convention Relative to the Treatment of Prisoners of War 1949 (Third Geneva Convention) ...................................................................................91, 98 Arts 1–3................................................................................................................91 Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (Fourth Geneva Convention) .............................................................91, 94

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Arts 1–3................................................................................................................91 Art 23 .............................................................................................................94–95 Geneva Conventions 1949 ....................................................91–99, 101, 221, 236, 238 Art 1.....................................................................................................................91 Art 2 ...............................................................................................................91, 95 Art 3........................................................................................................91–98, 101 (1).................................................................................................................92 (a)–(d) ......................................................................................................92 (2).................................................................................................................92 (3) ...........................................................................................................93, 98 (4) ...........................................................................................................96, 98 First Additional Protocol relating to the Protection of Victims of International Armed Conflicts 1977...............................................................94–95, 97–98, 358 Art 70...................................................................................................................95 (4)...............................................................................................................95 Second Additional Protocol relating to the Protection of Victims of NonInternational Armed Conflicts 1977.............................................92–95, 100, 358 Pts II-IV ...............................................................................................................92 Art 1.....................................................................................................................93 Art 18(2)...............................................................................................................95 Geneva Convention on Refugees 1952.....................................................................94 Good Friday Agreement 1998 (Belfast Agreement) ..................x, 5, 120–22, 159, 161, 171–72, 194–95, 243, 247, 250, 269, 277, 279, 298, 324 Guidelines on the Role of Prosecutors ...................................................................343 Guiding Principles on International Displacement (Deng Principles) ......................94 IFI Regulations 2006 .............................................................................................279 Instrument for the Amendment of the Constitution of the ILO 1972.....................361 Intergovernmental Agreement on the Implementation of the Patten Recommendations on Co-operation between the Garda Síochána and the Police Service of Northern Ireland 2002....................................................281 Internal Agreement between Representatives of the Governments of the Member States, meeting within the Council, on the Financing and Administration of Community Aid under the Financial Protocol to the Partnership Agreement between the African, Caribbean and Pacific States and the European Community and its Member States signed in Cotonou (Benin) on 23 June 2000 and the Allocation of Financial Assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty applies 2000.........................................................................................365 Internal Agreement between the Representatives of the Governments of the Member States, meeting within the Council, on Measures to be taken and Procedures to be followed for the Implementation of the ACP-EC Partnership Agreement 2000...........................................................................365 International Agreement on Jute and Jute Products 1982 ......................................360 International Cocoa Agreement 1972 ....................................................................360 International Cocoa Agreement 1980 ....................................................................360 International Cocoa Agreement 1986 ....................................................................360 International Coffee Agreement 1982 ....................................................................360

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International Coffee Agreement 1994 ....................................................................360 International Convention on the Elimination of All Forms of Racial Discrimination 1969 ..........................................................................221, 223–24 Art 1 ...........................................................................................................221, 224 Art 11...................................................................................................................28 International Convention on the Harmonization of Frontier Control of Goods 1982 ................................................................................................363 International Convention on the Harmonized Commodity Description and Coding System 1983 .......................................................................................362 International Convention for the Protection of New Varieties of Plants 1972........363 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families................................................116, 172 Art 68 .................................................................................................................116 Art 76...................................................................................................................28 International Convention on the Simplification and Harmonisation of Customs Procedures Protocol of Amendment 1999.............................................................................356 International Convention on Standards of Training Certification and Watch Keeping for Seafarers 1978 .............................................................................363 International Covenant on Civil and Political Rights 1966 ......28, 59–60, 94, 256, 321 Preamble ............................................................................................................221 Art 2...................................................................................................................221 Art 4 ...........................................................................................................221, 225 Art 6...................................................................................................................221 Art 14 .................................................................................................................221 (1)–(2) ........................................................................................................60 (3) ..............................................................................................................70 (c) ..........................................................................................................60 (d) ..........................................................................................................70 Art 16 .................................................................................................................221 Art 20(2).............................................................................................................221 Art 23 .................................................................................................................221 Art 26 .................................................................................................................221 Art 41...................................................................................................................28 International Covenant on Economic, Social and Cultural Rights 1966 ............59–60 International Grains Arrangement 1967 ................................................................362 International Natural Rubber Agreement 1979 .....................................................360 International Natural Rubber Agreement 1987 .....................................................361 International Tin Agreement (Fifth) 1975..............................................................361 International Tin Agreement (Sixth) 1981..............................................................361 International Tropical Timber Agreement 1983.....................................................360 International Tropical Timber Agreement 1994.....................................................360 International Wheat Agreement 1971 ....................................................................362 International Wheat Agreement 1986 ....................................................................360 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management 1997........................................................354 Lisbon Declaration One.........................................................................................134

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Lisbon Declaration 56............................................................................................135 Lisbon Treaty 2007 (Reform Treaty 2007)........................................121, 133–35, 157, 243, 245, 248, 257–58, 269 Art 1(1)...............................................................................................................133 (2) .........................................................................................................133–34 (3)–(18).......................................................................................................134 (19) .......................................................................................................134–35 (20)–(26).....................................................................................................134 (27) .......................................................................................................134–35 (28)–(48).....................................................................................................134 (49) .......................................................................................................134–35 (b)–(c) ..................................................................................................135 (50)–(63).....................................................................................................134 Art 2(67).............................................................................................................135 (68).............................................................................................................135 (143)...........................................................................................................135 Protocol on the Application of the Charter to Poland and to the UK....................134 Protocol on the Position of the UK and Ireland on Policies in respect of Freedom, Security and Justice ........................................................................135 Locarno Agreement establishing an International Classification for Industrial Designs 1968...................................................................................................358 Memorandum of Understanding for a Framework of Co-operation between the Government of the State of Israel and the Government of Ireland in the Field of Industrial Scientific Research and Technological Development 1999 ..........................................................................................359 Model Treaty on the Transfer of Proceedings in Criminal Matters........................343 Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released..............................................................343 Multilateral Agreement relating to Route Charges 1981 ........................................363 Mutual Recognition of Higher Education Qualifications between the Government of Ireland and the Government of the Peoples Republic of China 2006 .................................................................................................352 Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks 1967 ..........................358 Nuclear Non-Proliferation Treaty................................................113–14, 124–25, 293 Art 6...................................................................................................................293 Oslo Declaration 2007............................................................................................114 Palermo Protocol. See UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Parcel Post Agreement between the Union of South Africa and the Republic of Ireland 1960....................................................................................................359 Paris Principles 1993.......................................................................................193, 230 Patent Cooperation Treaty 1970 ............................................................................358 Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .....................342 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions ...............................................................343

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Principles on Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.....................................................................................................343 Protocol to the Agreement on Cooperation and Customs Union between the EEC and the Republic of San Marino consequent upon the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the EU 1997...................................................................................365 Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Merits 1976.......................................................................................361 Protocol on the Establishment of Humanitarian Assistance in Darfur 2004 ...............................................................................................94–95, 99–100 Protocol on the Privileges and Immunities of the European Organisation for the Exploitation of Meteorological Satellites 2001..........................................364 Reform Treaty 2007. See Lisbon Treaty 2007 Riyadh Guidelines. See UN Guidelines for the Prevention of Juvenile Delinquency Rome Statute of the International Criminal Court ...............................28, 47, 70, 305 Art 14...................................................................................................................28 Safeguards guaranteeing Protection of the Rights of those facing the Death Penalty............................................................................................................343 St Andrews Agreement 2006..............................................121, 159–60, 173, 189, 194, 200, 246, 250, 252, 269, 277 Annex A para 19.................................................................................................160 para 22.................................................................................................160 Seville National Declaration by Ireland 2002.........................................................136 Stabilisation and Association Agreement between the European Communities and their Member States of the one part and the former Yugoslav Republic of Macedonia of the other part 2001 ...............................................355 Strasbourg Agreement concerning the International Patent Classification 1971 ................................................................................................................358 Strasbourg Convention. See Council of Europe Convention on the Transfer of Sentenced Persons Taif Accords ............................................................................................................42 Tokyo Rules. See UN Standard Minimum Rules for Non-custodial Measures Treaty concerning the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union 2003.....................................................................................356 Treaty of Amsterdam 1999 .............................................................................111, 285 Treaty establishing a Constitution for Europe ....................................133–34, 282–83 Treaty establishing the European Community. See EC Treaty Treaty on European Union ...............................................................111, 133–34, 136 Art 6 ...........................................................................................................134, 139 (1) ..............................................................................................................139 Art 9(1)...............................................................................................................134

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Art 9B(1) ............................................................................................................134 (5)–(6)......................................................................................................134 Art 9C(4) ............................................................................................................134 Art 9D(5)............................................................................................................134 Art 9E ................................................................................................................135 Art 11 .................................................................................................................135 Art 17 .................................................................................................................135 Art 28A ..............................................................................................................135 (2) ..........................................................................................................135 (6) ..........................................................................................................135 Art 34(2)(b) ........................................................................................................138 Treaty on the Functioning of Europe .............................................................133, 135 Art 69A ..............................................................................................................135 Art 69F...............................................................................................................135 Art 174 ...............................................................................................................135 Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the UK (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic concerning the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union 2003 ...............................................................................................364–65 Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and Certain Related Acts 2001 .............................................................................ix, 119, 282, 292, 355 Treaty of Westphalia 1648 .......................................................................................96 UN Basic Principles on the Independence of the Judiciary (1985) ......................58–60 UN Basic Principles on the Role of Lawyers (1990) ...........................................59–60 UN Charter ............................................................ix, 119–20, 192, 247, 253, 269, 292 Ch VI ........................................................................................................31–32, 35 Ch VII .................................................................................................31–32, 36–38 Preamble ............................................................................................................221 Art 1(3)...............................................................................................................221 Art 13(1)(b) ........................................................................................................221 Art 25 .................................................................................................................192 Arts 55–56 ..........................................................................................................221 Art 62(2).............................................................................................................221 Art 68 .................................................................................................................221 Art 103 ...............................................................................................................192 UN Convention against Corruption ......................................................................116

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UN Convention on the Protection of All Persons from Enforced Disappearances ....................................................................................28, 256, 294 Art 32...................................................................................................................28 UN Convention on the Rights of the Child.............................................116, 208, 235 Art 12 .................................................................................................................188 First Protocol on the Involvement of Children in Armed Conflict.........................186 UN Convention on the Rights of Persons with Disabilities 2006.....115, 187, 207, 256 Optional Protocol...............................................................................................207 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987 .............................................................81–82, 87 Art 3 ...............................................................................................................81–82 Art 16...................................................................................................................82 Art 21...................................................................................................................28 UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines) .....343 UN Millennium Declaration..................................................................................123 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol) .................................................................................................115, 176 UN Rules for the Protection of Juveniles Deprived of the Liberty.........................342 UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) ................................................................................................343 UN Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) ..........343 UN Standard Minimum Rules for the Treatment of Prisoners 1957.......................................................................320–21, 323, 341–42 UNCHR Resolution 2002/37 (22 April 2002) ..........................................................72 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005 ..........................................................................351 UNGA Resolution 39/46 (1984) ..............................................................................81 UNGA Resolution 40/32 (29 November 1985) ........................................................58 UNGA Resolution 40/146 (13 December 1985) .......................................................58 UNGA Resolution 43/173 (9 December 1988) .........................................................60 UNGA Resolution 45/158 (18 December 1990) .....................................................172 UNGA Resolution 45/166 (18 December 1990) .......................................................59 UNGA Resolution 46/182 .......................................................................................94 UNGA Resolution 48/134 .....................................................................................193 UNGA Resolution 49/61 (1994) ..............................................................................84 UNGA Resolution 60/417 .....................................................................................239 Universal Declaration of Human Rights 1948................................................4, 59, 94 Art 2...................................................................................................................221 Art 7...................................................................................................................221 UNSC Resolution 242 (22 November 1967) ............................................................43 UNSC Resolution 338 (22 October 1973) ................................................................43 UNSC Resolution 425 establishing UNIFIL (19 March 1978) ..........33–34, 36, 41–42 UNSC Resolution 426 establishing UNIFIL (19 March 1978) .....................33, 36, 42 UNSC Resolution 745 (28 February 1992) ..............................................................54 UNSC Resolution 814 (26 March 1993) .......................................................37–38, 55 Section A, para 4..................................................................................................37 Section B, paras 7–14 ...........................................................................................37

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UNSC Resolution 836 (4 June 1993)......................................................................236 UNSC Resolution 837 (6 June 1993) .......................................................................55 UNSC Resolution 955 (8 November 1994) ..............................................................49 UNSC Resolution 1244 approving the establishment of a UN mission in Kosovo (UNMIK) (10 June 1999).........................................................40–41, 56 UNSC Resolution 1267 (1999)...............................................................................239 UNSC Resolution 1272 establishing the UN Transitional Administration in East Timor (25 October 1999) ..........................................................................56 UNSC Resolution 1315 (14 August 2000) Preamble ..............................................................................................................49 UNSC Resolution 1325 on Women, Peace and Security (13 October 2000)...........235 UNSC Resolution 1373 (2001)...............................................................................239 UNSC Resolution authorising a multi-national force to take all necessary measures to contribute to the maintenance of security and stability in Iraq (October 2003) ....................................................................................191 UNSC Resolution 1540 (2004)...............................................................................239 UNSC Resolution 1546 giving the multi-national force the authority to contribute to the maintenance and stability in Iraq ........................................192 UNSC Resolution 1559 on the withdrawal of all foreign forces from Lebanon (2 September 2004) .................................................................32–33, 42 UNSC Resolution 1680 (2006).................................................................................42 UNSC Resolution 1701 on the situation in Lebanon (11 August 2006) ........................................................................................31–32, 36, 41, 287 para 2 ...................................................................................................................42 para 8..............................................................................................................41–42 paras 11–12 ..........................................................................................................42 UNSC Resolution 1737 (23 December 2006)....................................................113–14 UNSC Resolution 1769..........................................................................................128 UNSC Resolution 1778 (25 September 2007).....................................................x, 128 UNSC Resolution on Western Sahara 2006...........................................................117 UNTAET Regulation No 2000/11 on the Organization of Courts in East Timor (6 March 2000) ......................................................................................68 UNTAET Regulation No 2000/15 on the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences (6 June 2000)...............68 Sections 4–9..........................................................................................................68 Section 22.............................................................................................................68 UNTAET Regulation No 2000/16 on the Organization of the Public Prosecution Service in East Timor (6 June 2000) ........................................68, 70 UNTAET Regulation No 2000/30 on Transitional Rules of Criminal Procedure (25 December 2000) ...................................................................70, 75 Sections 7.2–7.3....................................................................................................75 US-India Agreement on Nuclear Material 2005........................................113–14, 124 Vienna Convention on Consular Relations 1963.....................................321, 323, 331 Art 36 .................................................................................................................321 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations1986 ...........................312 WHO Framework Convention on Tobacco Control 2003 .....................................352

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Editorial—Irish Yearbook of International Law 2007 Jean Allain Siobhán Mullally

The publication of the second volume of The Irish Yearbook of International Law speaks to the engagement and commitment of many individuals who have worked towards making the position of Ireland in the world more readily accessible and understood. The articles published in this volume are particularly reflective of the interests to which Ireland has attached itself internationally, including UN peacekeeping in Lebanon, transitional justice in Timor-Leste, and the protection of civilians in Darfur. In a speech delivered in March 2007, extracts of which are reproduced in this volume, the Minister for Foreign Affairs, Mr Dermot Ahern TD noted that these engagements are the result of an ethical foreign policy ‘based firmly on the values of the Irish people and serving their interests’. That foreign policy is one grounded in the Irish Constitution, specifically Article 29, which reads, inter alia: 1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality. 2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination. 3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.

The Minister also took the opportunity to consider the Irish policy of military neutrality, regarding which he stated: ‘The State has chosen not to enter into military alliances or a mutual defence pact with other countries. Indeed, the amendment of the Constitution in 2002 to allow for the ratification of the Nice Treaty precludes Ireland joining any EU common defence unless the people decide otherwise.’ Minister Ahern continued: Every dispatch of a contingent of the Defence Forces abroad—whether UN, EU or NATO led—is a sovereign decision of the Irish Government, and is subject to the requirements of the so-called ‘triple-lock’ of Government decision, Dáil approval and UN authorisation. If the origins of our policy of military neutrality lie in our history as a State and in the particular circumstances of partition, it has evolved as a key feature of our foreign relations. It has acquired particular value for the Irish people as an expression of our ethical views on the use of military forces—that the deployment of military forces should be undertaken only within the framework of the UN Charter and with the approval of the United Nations itself. ... As a small nation that fought against a larger one for its freedom, we value the principles of democracy, the rule of international law, collective security and the universal application of human rights.

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The legacy of a small nation’s struggle for independence remains a primary focus of Ireland’s foreign policy. 2007 saw the 1998 Good Friday Agreement come to fruition, as Dr Ian Paisley MP MLA and Martin McGuinness MP MLA assumed responsibility for the Northern Ireland Executive in a devolved government established by an election held on 7 March 2007. In its wake, came the revival, after five years of dormancy, of the North–South institutions of co-operation established under the Good Friday Agreement. The cordial tone of Anglo–Irish relations in 2007 was marked by the invitation given to an Taoiseach (Prime Minister) to speak to the Houses of Parliament at Westminster, the first invitation of its kind to an Taoiseach. Elsewhere, Irish became an official European Union language in 2007, and a new Government proposed Ireland as a ‘model UN State’. It has always been considered that Ireland ‘punches above its weight’ in foreign affairs, and in development assistance, in particular. In 2007, the Government agreed to increase Ireland’s United Nations contribution from 0.35% to 0.445%; and the OECD noted that Ireland had become the fourth most generous donor to overseas development per capita. As of end of 2007, Ireland remains on track to reach the UN aid target of 0.7% of GNP by 2012. Commitment to multilateralism was also evident in Ireland’s decision to dispatch more than 400 peacekeepers in an EU-led operation to Chad and the Central African Republic (EUFOR Chad / CAR), to protect refugees fleeing the crisis in Darfur, Sudan. Overall command of the mission rests with the Operational HQ in Paris, under Lieutenant General Pat Nash. He was appointed by EU Joint Action on 15 October, following Government approval on 02 October 2007. He exercises control of the eventual 3,700 strong mission on the ground through a Force HQ under French Brigadier General Jean Philippe Ganacia and his Irish Deputy, Colonel Tom Doyle. The mission is mandated under UN Security Council Resolution 1778 (25 September 2007), to operate in eastern Chad and work in conjunction with the civilian UN mission in the region (known as MINURCAT). In this, the second volume of the Irish Yearbook, readers will notice that we have included two new Correspondents Reports: (i) Irish activities in the European Union, by Catherine Donnelly, TCD; and (ii) Human Rights in Northern Ireland, by Professor Brice Dickson, QUB. Included amongst the documents reproduced in this volume of The Irish Yearbook of International Law is a Report commissioned by the Ministry of Foreign Affairs on Irish prisoners abroad and consular assistance. As the Report highlights, the issue of prisoners in Ireland has often been an emotive and complex one. The Report highlights the need for strengthened engagement with Miscarraiges of Justice groups and the potential contribution of a dedicated unit within the Department of Foreign Affairs to address the needs of Irish prisoners overseas. The deportation of Irish prisoners from the UK to Ireland is also noted, highlighting the consequences of such deportation for ex-prisoners who may have lived all of their life in the UK. Also included in the documents section, are statements by the Legal Adviser, Department of Foreign Affairs on the Obligation to Extradite or Prosecute, (aut dedere, aut judicare), and on the Responsibility of International Organisations. The Irish Yearbook of International Law was first published in 2006 with the aim of stimulating research into Ireland’s practice in international affairs and foreign policy. Its first two volumes have seen a number of peer-reviewed articles touching on Ireland, providing wide-ranging insights into Ireland’s approach to international relations.

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The Correspondent Report and Document sections have provided accounts of State practice which have assisted in disseminating Irish thinking on matters of international law. In so doing, the Irish Yearbook assists in promoting a multilateral approach to international affairs that reflects and reinforces Ireland’s long-standing commitment to international co-operation as a core element of foreign relations. One final word. In last year’s volume of The Irish Yearbook of International Law, we inadvertently misstated the company name of Joe Noonan’s solicitor’s firm. The correct title is: Noonan Linehan Carroll Coffey. We regret any negative effects this may have caused.

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Of Politics and Poor Weather: How Ireland Decided to Sue the United Kingdom under the European Convention on Human Rights

William A Schabas* and Aisling O’Sullivan** On 16 December 1971, after a tumultuous six-month period in Anglo-Irish relations, the Minister for Foreign Affairs, the late Dr. Paddy Hillery, declared in the Dáil (lower house of Parliament): ‘I wish to inform the House that an application concerning breaches in the Six Counties by the British Government of the Convention for the Protection of Human Rights and Fundamental Freedoms is being lodged with the Secretary General of the Council of Europe this afternoon’.1 So began the Ireland v United Kingdom case,2 which culminated in a celebrated judgment of the European Court of Human Rights in January 1978 that is still cited as authority for the interpretation of Article 3 of the European Convention on Human Rights.3 In light of recent releases of the Irish and British State papers, it is timely to examine the behind-thescenes deliberations by both sides during the lengthy proceedings. This paper, which has been prepared as part of a larger research project, examines the deliberations of the Irish Government from the time internment in Northern Ireland was introduced, on 9 August 1971, to the submission of the application by the Irish Government on 16 December of that year. It considers how the decision to submit an application to the European Commission of Human Rights became an increasing inevitability and appears to have been recognised as such by British Prime Minister Edward Heath. With the decision of the British Government to establish the Compton Committee, in September 1971, the arena turned to bilateral consultations between Taoiseach (Prime Minister) Jack Lynch and British Prime Minister Edward Heath. When these broke down, Lynch informed Heath that the Irish Government was ‘seriously considering’ submitting an inter-State application. A final decision was taken by the Irish Cabinet on 30 November 1971 and the application was filed two weeks later.

* OC, MRIA, Professor of Human Rights Law, National University of Ireland, Galway, and Director, Irish Centre for Human Rights; Global Legal Scholar, University of Warwick School of Law; Visiting Professor, Queen’s University Belfast School of Law; Visiting Fellow, All Souls College, University of Oxford (2008). The financial support of the Irish Research Council for Humanities and Social Sciences is acknowledged. ** LLB (Limerick), LLM (Dunelm), PhD Candidate, National University of Ireland, Galway; principal researcher on project entitled ‘Ireland’s Participation in International Human Rights Law and Institutions’. 1 Dáil Debates, vol 257, col 2354–5 (16 December 1971). 2 Ireland v the United Kingdom, 18 January 1978, Series A, no 25. See also Ireland v The United Kingdom (App no 5310/71), (1976) 19 Yearbook 512 (ECommHR), and Ireland v United Kingdom (App nos 5310/71 and 5151/72), (1972) 41 CD 3. 3 Eg, Saadi v Italy, 28 February 2008 (App no 37201/06), para 127.

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inter-state petitions under the european convention on human rights Both Ireland and the United Kingdom were founding members of the Council of Europe in 1949, and both countries were deeply engaged in the drafting of the European Convention on Human Rights.4 Ireland’s Foreign Minister at the time, Seán MacBride, hoped to use the institution as a forum to advance the central theme in Irish foreign policy, the campaign against partition of the island, although he soon learned that there was little patience for the debate within a post-war Europe anxious to discourage manifestations of nationalism and to promote greater political and cultural cohesion.5 The two States ratified the Convention shortly after its adoption in November 1950.6 In addition to setting out a catalogue of human rights norms, which was largely inspired by provisions in the Universal Declaration of Human Rights,7 the Convention also set out implementation mechanisms and provided for the creation of institutions where these could be invoked. Two bodies were to be established, the European Commission of Human Rights and the European Court of Human Rights.8 In a very general sense, the two had a hierarchical relationship, with applications going first to the Commission and subsequently to the Court. The Commission was eventually abolished, in 1998, as part of a restructuring of the Convention organs.9 Under the original Convention, the Commission and the Court were each authorised to consider individual petitions, although only if contracting States made a special declaration accepting jurisdiction in this regard. Ireland had the distinction of being the first State to accept the individual petition mechanism both to the Commission and to the Court.10 Perhaps as a result, it was on the receiving end of the first case to come before the Court, in an application initiated by Seán MacBride himself, by then a private citizen.11 The Convention also allowed for inter-State applications. Under Article 24, ‘Any High Contracting Party may refer to the Commission, through the Secretary-General of the Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party.’12 Jurisdiction of the Commission to hear inter-State applications was an automatic consequence of ratification of the Convention and, in contrast with the situation of individual petitions, no supplementary declaration was required. Once the Commission had issued its report, the inter-State case could then 4

European Convention on Human Rights (1955) 213 UNTS 221, ETS 5. William Schabas, ‘Ireland, the European Convention on Human Rights and the Personal Contribution of Seán MacBride’, in John Morison, Kieran McEvoy and Gordon Anthony (eds), Judges, Transition, and Human Rights (Oxford, Oxford University Press, 2007), 251–74. 6 DFA 417/39/19 III. Memorandum entitled ‘Ratification of the Convention and of the Protocol (as of 31st August 1954)’. The United Kingdom ratified the Convention on March 8th 1951 and the First Protocol on November 3rd 1952. Ireland ratified both the Convention and Protocol on February 26th 1953. 7 GA Res 217 A (III), UN Doc A/810. 8 European Convention on Human Rights (1955) 213 UNTS 221, ETS 5, Art 19. 9 Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 155 (1998). Hereinafter Protocol 11. 10 DFA 417/39/19/1B. Copy of Signed Declaration by Proinsias Mac Aogàin (Frank Aiken). See also Irish Independent, February 26th 1953. 11 Lawless v Ireland (No.3) 1 EHRR 15. 12 This provision has been renumbered as Art 33 by Protocol 11. 5

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be referred to the Court by the Commission itself, or by one of the parties13 where both States had recognised the compulsory jurisdiction of the Court.14 This was the situation for both Ireland and the United Kingdom. The first inter-State applications were filed by Greece against the United Kingdom. They concerned repressive measures adopted by the British to suppress the independence struggle in Cyprus.15 They were dropped as negotiations for Cypriot independence advanced. Shortly thereafter, Austria filed an application against Italy concerning treatment of the German-speaking minority in the Alto Adige.16 Applications were also filed against Greece by several European States following the military coup d’état in 1967,17 but they were struck from the list following the return of democracy to Greece in 1974.18 Until the Irish case, however, no inter-State application was considered by the Commission and then adjudged by the European Court of Human Rights. Indeed, until the Cyprus v Turkey case in 2001,19 the Irish case remained the only inter-State proceeding before the European Court of Human Rights since its establishment in 1959. irish policy before internment was introduced The Northern Ireland policy of the Fianna Fáil Government of Jack Lynch underwent significant alternation between 1968 and 1971. Prior to the outbreak of the Northern Ireland ‘Troubles’ in the late 1960s, Fianna Fáil policy combined the traditional call for the end to partition and the reunification of the ‘national territory’, as espoused in Articles 2 and 3 of the 1937 Irish Constitution,20 with co-operation on certain economic matters with Northern Ireland administrations. After the outbreak of the 13 European Convention on Human Rights (1955) 213 UNTS 221, ETS 5, Art 48. The provision was repealed by Protocol No 11. 14 Ibid, Art 46. The provision was repealed by Protocol No 11. 15 Greece v United Kingdom (App no 176/56), (1955–1956–1957) 1 Yearbook of the European Convention on Human Rights 128; Greece v United Kingdom (App no 176/56), (1958–59) 2 Yearbook of the European Convention on Human Rights 186. Also Greece v United Kingdom (App no 299/57), (1958–59) 2 Yearbook of the European Convention on Human Rights 178. On the Greek applications, see A W Brian Simpson, Human Rights and the End of Empire, Britain and the Genesis of the European Convention (Oxford, Oxford University Press, 2001), 924 ff. 16 Austria v Italy (Pfunders case) (App no 788/60), (1961) 4 Yearbook 116 (ECommHR). Following the hearing of witnesses and an oral hearing, the Commission prepared a report which it submitted to the Committee of Ministers in May 1963. It concluded that Italy had not violated the Convention, a finding that was upheld by the Committee of Ministers. The Commission had the authority to propose referring the case to the Court, but because Italy had not accepted the compulsory jurisdiction of the Court, this would ultimately be dependent upon its consent. In the end, the Commission decided not to propose a referral. See Austria v Italy (Pfunders case) (App no 788/60), (1963) 6 Yearbook 740 (ECommHR). 17 Denmark, Norway, Sweden and the Netherlands v Greece (First Greek case) (App nos 3321/67, 3322/67, 3323/67 and 3344/67), (1968) 12 Yearbook 690 (ECommHR). 18 (1977) 6 DR 6. 19 Cyprus v Turkey (App no 25781/94), ECHR 2001-IV. A preceding inter-State application concluded with a friendly settlement. See Denmark v Turkey (App no 34382/97), ECHR 2000-IV. 20 Article 2 of the 1937 Constitution stated that ‘the national territory consists of the whole island of Ireland, its islands and the territorial seas’. Article 3 declared that ‘pending the re-integration of the national territory . . . the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect’. Both provisions were amended by the constitutional referendum in 1998, which confirmed commitments in the Belfast Agreement. Article 3 now explicitly recognises a united Ireland brought about by peaceful means with the consent of the majority of the people, democratically expressed, in both jurisdictions on the island.

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‘Troubles’, the Irish Government modified its anti-partitionist policy somewhat to accommodate its declared support for the civil rights movement. In a January 1969 speech, Jack Lynch referred to the need for reform to end discrimination directed at the Catholic minority, while speaking very limitedly of co-operation. This signalled a distancing from the Stormont administration in Belfast, which increased as the ‘Troubles’ intensified. During the period of 1969–70, Minister of External Affairs21 Frank Aiken increasingly adopted a policy of pressuring London to take more control over Northern Ireland.22 A significant problem in developing a clear policy response to the outbreak of the ‘Troubles’ was the lack of information. The Irish Government’s on-the-ground sources were practically non-existent until Eamonn Gallagher began reporting on his discussions with members of the Northern Ireland Civil Rights Association.23 Many of the Department of Foreign Affairs files, relating to the year 1969, are predominantly composed of ‘newspaper clippings and transcripts of radio and television broadcasts’. There appears to have been an ‘unhealthy dependence on the media for information’.24 The former Irish Ambassador to the United States, Seán Donlon, has wryly observed that at the time the Irish Government was better informed on the situation in Nigeria, with weekly reports relayed to Dublin from the Irish embassy in Lagos, than it was on the situation in Belfast in 1968–70.25 However, the schism within Fianna Fáil concerning its Northern Ireland policy brought the Government close to disintegration in 1970. The hard-line views of Minister for Agriculture Neil Blaney were in complete contrast with the moderate position of Frank Aiken. With Aiken’s departure from Cabinet in 1969, Michael Kennedy has argued, the aggressive Northern Ireland policy advocated by Blaney had no opponent.26 In response to the violence of August 1969 in the aftermath of the Apprentice Boys parade in Derry, the Irish Government ordered the Defence Forces to establish relief hospitals along the border27 and Lynch made a televised address calling for a United Nations peacekeeping force. Somewhat later, Aiken’s replacement as Foreign Minister, Paddy Hillery, campaigned to put the situation in Northern Ireland on the agenda of the United Nations Security Council and General Assembly.28 After a period of some ambiguity on the subject, Lynch eventually affirmed that the Irish Government would seek unity by consent through peaceful means.29 He pledged that 21

The Department of External Affairs was renamed the Department of Foreign Affairs in 1971. Michael Kennedy, Division and Consensus: The Politics of Cross-border Relations in Ireland 1925–1969 (Dublin, Institute of Public Administration, 2000), 319–20. 23 Ronan Fanning, ‘Playing it Cool: The Response of the British and Irish Governments to the Crisis in Northern Ireland 1968–1969’, (2001) 12 Irish Studies in International Affairs 57, at 80. Eamonn Gallagher, whose roots were in Donegal, went privately to Belfast on 15 August 1969 ‘to have a look’. He subsequently reported his impressions in a note to the Secretary of the Department, Hugh McCann, who responded by calling Gallagher to his office to state that ‘nobody has ever done this before, why don’t you keep it up?’ Ibid. 24 Ibid, at 60. 25 Interview of Seán Donlon by Aisling O’Sullivan, 8 February 2007. 26 Michael Kennedy, above n 23, at 328. 27 Kennedy records Lynch commenting later that the military measures were really a ‘smokescreen’ relieving pressure on him within the Cabinet. Ibid, at p 342. 28 See generally Con Cremin, ‘Northern Ireland at the United Nations: August–September 1969’, (1980) 1 Irish Studies in International Affairs 2; Noel Dorr, ‘1969: A United Nations peacekeeping force for Northern Ireland?’, in Michael Kennedy and Deirdre McMahon (eds), Obligations and Responsibilities: Ireland and the United Nations, 1955–2005: Essays Marking Fifty Years of Ireland’s United Nations Membership (Dublin, Institute of Public Administration, 2005). 29 Michael Kennedy, above n23, at 353. 22

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Dublin would act as the ‘second guarantor’ of the Catholic minority community in Northern Ireland, the United Kingdom being the first guarantor.30 operation demetrius and the introduction of internment Internment was introduced by a wide arrest operation entitled ‘Operation Demetrius’, which took place around 4.30 am on Monday, 9 August 1971.31 Arrests were conducted by the British Army, with Royal Ulster Constabulary (RUC) officers ‘very occasionally’ acting as guides.32 Some 450 names were on lists prepared by the RUC but only 342 people were actually arrested.33 Taylor records that 3,000 British troops took part in the arrest operation.34 The detainees were taken either to Crumlin Road jail in Belfast, or to the prison ship, The Maidstone, in Belfast harbour.35 Military intelligence and the RUC Special Branch subjected 11 detainees to ‘interrogation in depth’.36 This included the application of what became known as the ‘five techniques’. These combined wall-standing, hooding, sleep deprivation, bread and water diet, and subjection to continuous white noise37 repeatedly (for a varying number of hours at a time) over a number of days.38 The response to internment was a ‘terrible’ violence.39 By the end of the day on 9 August, two soldiers and eight civilians had died in rioting in Derry, Strabane, Armagh and Newry.40 In Belfast, Protestant and Catholic families alike abandoned their homes, some setting fire to them as they left.41 It was estimated that 7,000 Catholics fled across the border to five camps set up by Irish Defence Forces on 9 August.42 On the same day, the Social Democratic Labour Party (SDLP), Nationalist and Republican Labour parties called for the withholding of rates and rent. This became known as the civil disobedience campaign.43 The decision to introduce preventive detention or detention without trial obviously impacted critically on the political situation. In light of Northern Ireland Prime 30

Enda Staunton, The Nationalists of Northern Ireland 1918–1973 (Dublin, Columbia Press, 1973), 274. For the British Government’s account of internment, see the ‘Compton Report’: Home Office, Report of the Enquiry into Allegations Against the Security Forces of Physical Brutality in Northern Ireland arising out of events on 9th August 1971 (London, HMSO, 1971), ch IV, para 32. See also Amnesty International, A Report on Allegations of Ill-treatment Made by Persons Arrested under the Special Powers Act after 8th August 1971; John McGuffin, Internment (Dublin, Anvil Books Ltd, 1973). 32 ‘Compton Report’, ch IV, para 32. 33 Ibid, ch II, para 6. This is generally acknowledged as the number of people arrested. However, some accounts differ, numbering between 337 and 346. See John Huston (ed), Brian Faulkner: Memoir of a Statesman (London, Weidenfeld & Nicolson, 1978), 123; T Ryle Dwyer, Nice Fellow: A Biography of Jack Lynch (Dublin, Mercier Press, 2001). 34 P Taylor, Brits: The War Against the IRA (London, Bloomsbury, 2001), 67. See also Huston (ed), above n 29, at 120. 35 ‘Compton Report’, ch IV, para 38. 36 Ibid, ch VI, para 44. 37 Ibid, para 47. 38 Ibid. 39 Jonathan Bardon, A History of Ulster (Belfast, Blackstaff Press, 1992), 682. 40 Ibid. See also Richard Deutsch and Viven Magowan, Northern Ireland (1968–1971): A Chronology of Events, vol 1 (1968–71) (Belfast, Blackstaff Press, 1973), 119. 41 Ibid. 42 Ibid. Deutsch and Magowan recorded that some returned to Belfast as the camps were ill-equipped to deal with the numbers. 43 Ibid, at 119. 31

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Minister Brian Faulkner’s impending announcement of the introduction of internment,44 British Prime Minister Heath sent a secret telegram to Lynch.45 Heath referred to a meeting with Faulkner the previous week,46 where Faulkner had told Heath and his advisers that internment was ‘now the right, and indeed inevitable, course’.47 Heath cited the latest Irish Republican Army (IRA) atrocities, coupled with the organisation’s declared intention to escalate the violence, as an indication that internment, ‘however abhorrent’, was essential in order to ensure economic and social stability in Northern Ireland. The British Government considered the internment measure to be a speedier solution to the escalating violence than existing security measures, which would only result in a long haul and would be worse for the community in the long term.48 The subsequent surge of violence in the aftermath of the introduction of internment proved this to be a total miscalculation. Heath then turned to tempering Irish reaction. He stated that the British Government had insisted that it would accept internment and instruct British forces to implement it only if parades and marches were completely banned for at least six months. Equally, ‘we have however made clear our view that the measures taken should not discriminate as between the different sections of the community’.49 He acknowledged that the decision carried dangers as well as advantages (for both Westminster and Stormont) and had implications and dangers for the Irish Government, but, he argued, if Ireland had taken the decision to intern in the Republic, he could have used this as ‘an inducement to Faulkner to hold his hand’.50 This was an implicit reference to the British Government consideration that the security situation in Northern Ireland stemmed from the unsecure ‘border’ and, particularly, alleged IRA enclaves in the Republic of Ireland. It seems that Ireland had indeed, several months earlier, considered a policy of internment in response to an ‘allegation’ of impending IRA violence. On 4 December 1970, the Irish Government announced that, according to reliable information obtained by An Garda Siochána, a ‘secret armed conspiracy exists . . . to kidnap one or more prominent persons’, including ‘plans to carry out armed bank robberies which the police believe may well involve murders or attempted murders’.51 In response the Government proclaimed the bringing into operation until further notice of Part II of the Offences against the State (Amendment) Act 1940,52 which provides for preventive detention or ‘internment’.53 As a result, places of detention were to be prepared immediately. The Secretary-General of the Council of Europe was to be informed that the measures could involve derogation from the European Convention on Human Rights.54 Article 15(1) of the Convention authorises States to derogate from their obligations in the case of war or an emergency threatening the life of the nation. The issue 44

Huston (ed), above n 29, at 121. DFA 2003/17/304. 46 Huston (ed), above n 29, at 119. 47 DFA 2003/17/304. 48 Ibid, at 2. 49 Ibid. 50 Ibid, at 3. 51 DFA 2001/42/2. Statement from Government Information Bureau, 4 December 1970. See generally Dermot Keogh, Twentieth Century Ireland: Nation and State (New York, St Martin’s Press, 1995), 314. 52 Ibid. 53 Section 4, Part II of the Offences against the State (Amendment) Act 1940, Act No 2 of 1940. 54 DFA 2001/42/2. Statement from Government Information Bureau, 4 December 1970. 45

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was to be kept ‘low key’, according to the memorandum of a meeting involving Mahon Hayes, the Legal Adviser to the Department of Foreign Affairs, Seán Morrissey and Taoiseach Jack Lynch. In this regard, a letter to the Secretary-General would be signed by the Permanent Representative to the Council of Europe, Mary Tinney, who was to indicate orally to the Secretary-General that the letter was not a formal notice of derogation but that this would follow if derogation became necessary.55 The archives record the following: In reply to a general comment by the Taoiseach [Jack Lynch] wondering whether we are perhaps not over-zealous in adhering to the letter of our international obligations, I [Mahon Hayes] said that, in the present case, our Department felt that it had to make known its view that it was doubtful whether a derogation from the Convention for the reasons indicated would stand up in the eyes of the international community. Furthermore, any intention to move away from our obligations under the Convention would inevitably have a reaction in the North and also in domestic political opinion. This was however, only one facet of the over-all problem. The Government have also to take other considerations into account in the exercise of their right and duty to govern.56

In this context, the State papers also indicate that at about the same time the Irish Government had also considered withdrawing from the Convention altogether, something authorised by Article 65.57 In a letter written in November 1971, Mahon Hayes noted that he was ‘summoned home hurriedly’ in the second half of November 1970 to participate in discussions on a proposal that Ireland should denounce the Convention.58 No document narrating these discussions could be found in the papers of the Taoiseach, Justice or Foreign Affairs Departments. However, it seems probable that they were conducted deep in the background of the consideration of derogation. Ultimately, internment was never used in the Republic of Ireland; probably as the kidnapping operation mentioned above did not materialise.59 Ironically, as observed by Mahon Hayes in his letter to Declan Quigley, rather than turn on the European Convention, through derogation or even denunciation, Ireland instead would soon invoke its provisions in the famous application filed against the United Kingdom.60 public initiatives to prompt government action Among the State papers released by the Department of Foreign Affairs are letters documenting correspondence between Seán MacBride,61 who was then chair of the 55

DFA 2001/42/2. Secret Note from Hugh McCann, 7 December 1970. Ibid. 57 There has been only one denunciation of the Convention, by Greece, in 1969. See Denmark, Norway and Sweden v Greece (1970) 13 Yearbook of the European Convention on Human Rights 108, at 120. There have occasionally been suggestions of denunciation by States concerned about evolving interpretations of the Convention. The idea has been suggested that they could denounce the Convention and then accede to it again, but with a reservation aimed at neutralising the troublesome precedent. 58 DFA 2004/7/1936. Handwritten letter from Mahon Hayes to Declan Quigley, undated. 59 Keogh, above n 47, at 314. Keogh refers to an interview on 4 January 1971 with the Tanáiste (Deputy Prime Minister), Erskine Childers, who stated that 80% of the population would support the introduction of internment. 60 DFA 2004/7/1936, above n 59. 61 See Catriona Lawlor (ed), Seán MacBride: That Day’s Struggle A Memoir 1904–1951 (Dublin, Curragh Press, 2005) and Elisabeth Kane, An Irish Statesman and Revolutionary: The Nationalist and Internationalist Politics of Seán MacBride (London, Tauris Academic Studies, 2006). 56

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executive of Amnesty International, and Taoiseach Jack Lynch, commencing on 9 August 1971. MacBride had written to inform Lynch of an option open to the Government, ‘in case this option had not already been drawn to your attention by your advisers’, whereby Ireland could refer to the European Commission of Human Rights ‘any alleged breach of the provisions of the Convention’ by another party to the Convention under Article 24.62 MacBride referred to the unlawful killing of [X] and ill-treatment of [Y]63 by British forces on 7 August 1971 as acts that were not subject to derogation.64 The contents of this letter were disclosed by MacBride on the RTE 1.30 pm news the same day,65 which Seán Ronan of the Department of Foreign Affairs described as putting the Taoiseach somewhat ‘out of court’.66 MacBride’s letter provoked a wave of correspondence from private citizens, non-governmental organisations and relatives of victims of ill-treatment to the Department of the Taoiseach, calling for the Government to bring proceedings before the Commission in Strasbourg.67 Among the initial correspondence, the Northern Ireland Civil Rights Association wrote: . . . having been confronted with daily evidence of gross violations of human rights committed by the British Army in Belfast and in other parts of the North of Ireland, request your Government, as a matter of grave urgency, to institute proceedings on behalf of the victims concerned against the Government of the UK under the provisions of Article 24 of the European Convention of Human Rights.68

Correspondence throughout the month of August included a telegram received from Bernadette Devlin, MP for Mid-Ulster and a member of the Northern Ireland Civil Rights Association, demanding the ‘immediate initiation of case against British Government at Strasbourg . . . failing action by you we will contact the next closest Government posing as friendly’.69 A letter from Fr Brian Brady of the Association of Legal Justice, co-signed by 22 persons and accompanied by numerous witness statements, ‘earnestly’ requested that the Taoiseach and the Government refer the matter ‘urgently’ under Article 24 of the Convention.70 Assisting the Department of the Taoiseach in delivering a response to MacBride, the Department of Foreign Affairs Legal Section drafted a memorandum analysing the jurisprudence of the Commission.71 The main focus was the application of the 62

DT 2002/8/493. Letter from Seán MacBride to the Taoiseach Jack Lynch, 9 August 1971. The names of the two individuals in question have been redacted pursuant to s 8(4) of the National Archives Act (1986). 64 DT 2002/8/493. Notice of derogation, required by Art 15(3) of the Convention, was transmitted by the United Kingdom to the Secretary-General of the Council of Europe on 27 June 1957 and again on 25 September 1969. On 25 August 1971, further notice was given of the decision to introduce internment. It was described as within the strict exigencies of the situation, the legal conditions for measures taken pursuant to a derogation in the time of war or emergency threatening the life of the nation. 65 Cf ‘MacBride’s call to Lynch: a case for the Human Rights Court’, Evening Press, 10 August 1971. 66 DT 2002/8/493. Letter from Seán Ronan, Department of Foreign Affairs to Hugh O’Dowd, Department of the Taoiseach, 10 August 1971. This letter enclosed the legal opinion of the Legal Adviser to the Department of Foreign Affairs, Mahon Hayes, and a copy of the Convention and Protocol No 1 thereto. 67 DT 2002/8/494. 68 DT 2002/8/493. Letter from the NICRA to the Taoiseach, 15 August 1971. 69 Ibid. Telegram from Bernadette Devlin, 18 August 1971. 70 Ibid. Letter from 22 persons (Belfast) to the Taoiseach, 20 August 1971. 71 DT 2002/8/493. Letter from the DFA’s Legal Section to Assistant Secretary, Seán Ronan, 10 August 1971. 63

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issue of exhaustion of domestic remedies, a requirement set out in Article 26 of the Convention72 with respect to inter-State complaints submitted pursuant to Article 24. The requirement that domestic remedies be exhausted as a condition for admissibility of an application is based upon the principle that a State must first be given the opportunity to resolve the problem before international litigation begins.73 The Legal Section acknowledged that although there had been ‘some doubt’ regarding its application in the past, the Commission had ruled74 that Article 26 applied to inter-State applications.75 This would require the dependants of the two victims whose names MacBride had proposed, [X] and [Y], to exhaust local remedies under United Kingdom law. Early acknowledgement was made to the ‘weightiest factor’ being political considerations, which was not a matter for the Legal Section.76 The final draft of the Taoiseach’s reply contended that the Government was ‘of course, aware of the provisions of the Convention’, but said there were ‘some not inconsiderable legal difficulties arising from other provisions of the Convention, including Article 26’.77 Accordingly, coupled with the probability, even if successful, of lengthy proceedings, the Government ‘do not consider that it would be advisable, at least at the present, to pursue the course of action you have suggested’.78 In response, MacBride said the Taoiseach had not been ‘correctly advised’ regarding Article 26, which applied only to individual petitions under Article 25, invoking case law of the Commission in support.79 But contrary to MacBride’s contention, these cases indeed required the exhaustion of local remedies as a precondition for admissibility of an inter-State application to the European Commission. MacBride further argued that, while there might be a delay before the final judgment, he thought that the submission of a complaint against the United Kingdom, in relation to breaches of Articles 2 (right to life) and 3 (prohibition of torture and inhuman and degrading treatment or punishment), would have ‘immediate effect on the behaviour of its forces in the Six Counties’, particularly given the likelihood of a fact-finding mission by a sub-Commission to compile evidence, which would in itself have an ‘important and immediate effect’.80 MacBride urged Lynch to take steps ‘in any event . . . as a matter of top priority’ to compile the evidence required to mount such proceedings in case a positive decision would be taken by the Government in the near future.81 In a jibe at the government departments, he contended that the most difficult aspect of collecting 72 Art 26 of the original text of the Convention states that ‘the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken’. It has been replaced by Art 35 following entry into force of Protocol No 11. 73 Francis Jacobs, The European Convention on Human Rights (Oxford, Oxford University Press, 1975), 235 ff; Jonathan Charney, ‘Is International Law Threatened by Multiple International Tribunals?’, (1998) Receuil des cours 101, 285–303. 74 Austria v Italy (Pfunders case) (App no 788/60), (1961) 4 Yearbook 116 (ECommHR). 75 It was Declan Quigley of the Attorney-General’s Office who suggested this tactic in replying to MacBride’s letter. See DFA 2004/7/1936. 76 DT 2002/8/493. 77 Ibid. 78 DT 2002/8/493. Letter from the Taoiseach to Seán MacBride, 12 August 1971. 79 DT 2002/8/493. Letter from Seán MacBride to the Taoiseach Jack Lynch, 13 August 1971, citing Austria v Italy (Pfunders case) (App no 788/60), (1961) 4 Yearbook 116 (ECommHR); Denmark, Norway, Sweden and the Netherlands v Greece (First Greek case) (App nos 3321/67, 3322/67, 3323/67 and 3344/67), (1968) 12 Yearbook 690 (ECommHR). 80 Ibid. 81 Ibid.

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such evidence would be establishing a team for the task, given the potential for ‘our rather inefficient and lethargic Departments’ not to do the task as completely as necessary.82 Lynch replied to the letter, reiterating the Government’s interpretation of the European Commission jurisprudence but adding that the whole question was ‘under the closest surveillance’.83 The draft response to the Northern Ireland Civil Rights Association was slightly more positive.84 It reiterated the line adopted in the correspondence to Seán MacBride, but added that the Government had arranged for the examination and assessment of the ‘evidence available to them to date’, and that the Northern Ireland Civil Rights Association might wish to forward evidence in its possession.85 Explaining the approach in the draft response for the Taoiseach’s office, Foreign Affairs acknowledged that this presented an ‘official indication’ of giving the question of submitting an application serious consideration but that the Minister for Foreign Affairs considered that ‘we should not back away from this question while at the same time not committing ourselves to proceed’.86 While the Department of Foreign Affairs remained publicly both non-committal and non-dismissive on the question of mounting an inter-State case, the concept gradually insinuated itself into discussions between Irish and British officials. The first meeting between the two governments was on 11 August 1971. The Minister of Foreign Affairs, Dr. Paddy Hillery, met the British Home Secretary and Acting Prime Minister in Edward Heath’s absence, Reginald Maudling, in London. Hillery charged the British Government with adopting a strategy which could lead to civil war. He urged political initiatives resulting in minority participation in governing Northern Ireland, leading to eventual reunification, both of which required the end of internment as the necessary and urgent precursor. Maudling argued that Stormont was the ‘democratically elected’ assembly, that the internment strategy sought to remove the ‘gunmen’ and that progress on the political level could ensue after the violence had been contained.87 The following day Taoiseach Jack Lynch launched a lengthy public attack on the Stormont Government.88 He argued that the violent reaction to internment was not surprising and that the Irish Government supported the nationalist minority community in bringing the ‘misgovernment’ in Northern Ireland to an end. He called for recognition that the Stormont Government in Northern Ireland was directed at the suppression of the civil and human rights of the minority, and that it was clear that its Government’s main concern was to meet the demands of the most extreme members of its administration. He argued that the reform programme had been delayed and 82

Ibid. DT 2002/8/493. Letter from the Taoiseach to Seán MacBride, 24 August 1971. The letter was drafted by Declan Quigley, Attorney-General’s Office. 84 The files do not contain a copy of the final letter that would have been sent, only the draft prepared by the Department of Foreign Affairs. It is possible that the final version differs from the letter available in the archives. 85 DT 2002/8/493. Letter from the Private Secretary to Department of Foreign Affairs to the Private Secretary to the Taoiseach, 30 August 1971. 86 Ibid. 87 DFA 2002/19/427. Report of Meeting at the Home Office on 11 August 1971 between the Minister for Foreign Affairs and Mr Maudling, Acting Prime Minister, signed Donal O’Sullivan, Irish Ambassador to Britain, 13 August 1971. 88 DT 2002/8/487. Telegram from Jack Lynch to Edward Heath, 12 August 1971. 83

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distorted, and called for the replacement of the Stormont administration with a power-sharing administration, distributing power equally between nationalist and unionist constituencies.89 The Northern Ireland Prime Minister Brian Faulkner was outraged. He described Lynch’s statement as ‘extraordinary’ in its general tone and language, and considered it debatable whether it was compatible with ‘a decent relationship between neighbouring States’. He took the statement as evidence that constructive dialogue with the Irish Government was now impossible.90 On 19 August, while Heath and Faulkner met in London, Lynch sent another telegram to Heath, which he also made public. He argued that the events subsequent to the introduction of internment demonstrated the failure of internment as a solution to the crisis, which now required political initiatives. He stated that if internment continued, he would support the policy of passive resistance adopted by the nationalist minority. In the alternative, he was open to a meeting of all interested parties aimed at designing the necessary political framework, ‘without prejudice to the aspiration of the great majority of the Irish people to the re-unification of Ireland’.91 Heath sent a thundering reply, which he also published. He charged that Lynch’s telegram was ‘unjustifiable in its contents, unacceptable in its attempt to interfere in the affairs of the United Kingdom and can in no way contribute to the solution of the problems of Northern Ireland’. He argued that equality and non-discrimination were the avowed policy of his Government, and that the military operations were a defensive response to ‘armed terrorists many of whose activities originate in the Republic’.92 While he welcomed Lynch’s views given that he was the head of a friendly government, Lynch could not participate in meetings relative to the political development of the United Kingdom. Heath criticised Lynch’s decision to support the civil disobedience campaign as ‘calculated to do maximum damage to the co-operation between the communities in Northern Ireland’.93 dublin ’s secret mission Meanwhile, the Irish Government had begun to take practical steps with the perspective of preparing an inter-State application against Britain at the European Commission of Human Rights. On 11 August, two days after internment was introduced, Seán Donlon, Ireland’s Consul General in Boston, received a phone call from Hugh McCann, who was Secretary of the Department of Foreign Affairs.94 McCann asked a series of pointed questions, clearly gauged to establish Donlon’s previous relationship with Northern Ireland. The responses established that he had neither family nor friends there, nor could he recall ever having visited, to which McCann replied, ‘You are just the man we want’.95 Donlon was instructed to return immediately to 89

DFA 2003/16/463. DFA 2001/43/1436. Statement issued by the Northern Ireland Prime Minister Brian Faulkner, 13 August 1971. 91 DT 2002/8/487. 92 DFA 2003/16/463. Telegram from Edward Heath to Jack Lynch, 20 August 1971. 93 Ibid. 94 He was apparently nicknamed ‘Canny McHugh’ by his colleagues. See Ronan Fanning, ‘Playing it Cool: The Response of the British and Irish Governments to the Crisis in Northern Ireland 1968–1969’, (2001) 12 Irish Studies in International Affairs 57, at 79. 95 Interview of Seán Donlon by Aisling O’Sullivan, 8 February 2007. 90

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Dublin for an assignment expected to last no more than six to eight weeks. On arrival at Dublin Airport, he was met by a Department colleague who handed him the keys to a hired car. He was told that the Department of Foreign Affairs had received considerable information over the past two days on how internment had been introduced, and wanted to establish a clear and more precise picture. Consequently, Donlon was to travel immediately to Belfast and begin what amounted to a clandestine investigation by an Irish diplomat on the territory of a foreign State. Donlon was given strict instructions by the Department of Foreign Affairs not to make any contact with subversive organisations on either the nationalist or the loyalist side.96 He was further instructed to begin by meeting Paddy Devlin, who was one of the Social Democratic Labour Party (SDLP) leaders in Belfast. Devlin had been one of the main sources of information for the Department of Foreign Affairs since 9 August. He provided Donlon with an outline of the arrest operation and its aftermath, and some of the detail on the narratives coming from detention centres.97 Devlin then referred him to Brian Brady, at the time a teacher in St Joseph’s College of Education. Immediately after the introduction of internment, Brady had began to accumulate what Donlon described as ‘half sheets of paper’ on internees.98 These accounts had been collected from the relatives of detainees, after their visits to detention centres, and from those released within the first 48 hours of the 9 August arrest operation. Donlon later described Brady’s assistance as ‘extremely helpful’ for the Department’s investigation99 and he estimated that he was responsible for identifying ‘about twothirds of the material’ for the case before the European Commission.100 Brady introduced Donlon to the Association of Legal Justice,101 which had established a clinic, operating virtually around the clock, to enable people to lodge complaints.102 The documented complaints were made available to Donlon only after it had been established exactly for whom he was working. There was a moratorium for two or three days while certain people were consulted as to whether he should be given the material. At the time, Donlon suspected that the Association of Legal Justice leaned in the direction of the IRA. In the context of his instructions, he recalled being ‘exceptionally careful’ in accessing the information he received from it.103 Gradually, Donlon widened his network of sources. He was referred to Tom Conaty, of the Central Citizens Defence Committee, an amalgamation of street, parish and community defence groups established to defend against physical attacks 96

Interview of Seán Donlon by Aisling O’Sullivan, 8 February 2007. Ibid. Eventually, the British Government became aware of Donlon’s movements and formally complained to the Department of Foreign Affairs, noting that Donlon was not officially accredited and that as a result the British Government could not guaranteed his safety. Ibid. 98 Ibid. 99 DFA 2002/19/398. Memo to Eamonn Gallagher from Seán Donlon, 21 December 1971. 100 Interview of Seán Donlon by Aisling O’Sullivan, 8 February 2007. He also credits Brady with assisting greatly in obtaining ‘very urgent last minute jobs’ in the immediate advance of submitting the application. Ibid. 101 It was established in April 1971 to ‘secure legal justice for the minority in Northern Ireland’. Donlon explained that the Association of Legal Justice was particularly active after internment in bringing attention to the treatment of detainees and in challenging internment through the courts. He referred to the fact that the Amnesty International and Compton inquiries relied heavily on the material collected by the Association of Legal Justice. See DFA 2002/19/398. Memo to Eamonn Gallagher from Seán Donlon, 21 December 1971. 102 Interview of Seán Donlon by Aisling O’Sullivan, 8 February 2007. 103 Ibid. 97

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on members of the community or destruction of property.104 As a co-ordination network of community groups, Donlon considered the Committee to be a ‘good route’ into establishing what was happening in various areas of Belfast. At this early stage, Donlon found it necessary to elicit the services of solicitors to assess the accuracy of the documents he had accumulated from Brady and others. Some of the accounts appeared ‘so outlandish that I was not inclined to accept it’, especially information on the men subjected to the ‘five techniques’. There, he dealt principally with Christopher Napier, brother of the Alliance Party leader Oliver Napier, and Pascal O’Hare and for material and expertise on the Northern Ireland legal system, he sought the advice of a young barrister, Charlie Hill.105 He was also referred to physicians to whom internees had turned to on their release, who by and large, he had found to be ‘very helpful’. In essence, this network of local community leaders and professionals acted for him in his investigation as both the sources of the evidence and a means for assessing its credibility. As the evidence accumulated, he considered that it signalled the existence of numerous detention centres with selective interrogation techniques being applied, all of which appeared to be scientifically constructed.106 After about two weeks, Donlon travelled to other places in Northern Ireland indicated by his Belfast sources, such as Tyrone, Fermanagh and finally Derry. In the majority of cases, he would first see the local SDLP member, such as Austin Currie in Dungannon, Ivan Cooper in Strabane and John Hume in Derry. Subsequently, he would meet and interview people who had been arrested.107 However, he also tapped into another network. Donlon had once been a clerical student in Maynooth, which was then the National Seminary for the entire island, including the parishes in Northern Ireland. Maynooth at that time was an ‘enclosed semi-monastic situation’, which of course meant that members of a class of 105 seminarians all knew each other well. Donlon had subsequently changed careers, joining Ireland’s diplomatic service, but some of his classmates were working as curates in parishes all over the island. During his 1971 mission, Donlon would introduce himself at the parochial house, where he might well know the curate personally. Otherwise, he would cite his time as a clerical student in Maynooth, in order to, in most cases, foster trust and network further.108 Discussions with local priests were always covert. Many were anxious not to be seen to be involved in political activity. Nevertheless, this network assisted Donlon in establishing whom to contact. It was also as a source of information on the locality and the family connections and background of the detainees. Particularly outside Belfast and the main centres, this network was an indispensable asset in amassing information to supplement the witnesses’ narratives. Although he understood the expertise of local journalists, who possessed a wealth of valuable information on the locality, Donlon was unable to tap into this source of information for risk of exposing his identity and the reason for his presence in Northern Ireland. There was one exception. He approached the legendary ‘Insight Team’ from the Sunday Times, investigative 104 On the work of the organisation, see W D Flackes, Northern Ireland: A Political Directory 1968–1979 (New York, Gill and Macmillian, 1980), 38. 105 Ibid. Hill was later appointed legal adviser in the proceedings at Strasbourg. 106 Ibid. 107 Ibid. 108 Ibid.

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reporters who were travelling throughout Northern Ireland talking to political figures, community leaders, doctors, solicitors and other journalists. Of the unofficial contemporaneous inquiries, Donlon considered their investigative journalism to be the only competitor in terms of the depth of material collected. He would swap information with the Sunday Times reporters, although their mandate, to address the entire political crisis in Northern Ireland, was much broader than his own.109 advice on strasbourg and on allowing ‘further little time ’ In preparation for the 24 August Cabinet meeting, a relatively positive legal opinion on applying to the European Commission of Human Rights was drafted by Mahon Hayes, the Legal Adviser to the Department of Foreign Affairs, most probably in consultation with Charles Lysaght, the Assistant Legal Adviser in the Department and Declan Quigley of the Attorney-General’s Office.110 It was dominated by the issue of exhaustion of domestic remedies and outlined various exceptions to the application of the rule, according to the European Commission’s jurisprudence. Reference was made to the first Cyprus case, in the 1950s, in which the Commission referred to the inapplicability of the rule in the case of an application regarding the compatibility of legislative or administrative practices with the rights under the European Convention on Human Rights.111 However, it is clear that a focus on the issue of ‘administrative practice’ did not arise until a later stage in the legal analysis. Another relevant exception cited was the requirement that only effective remedies need be exhausted. This follows the general international legal rule regarding insufficient, inadequate or illusory remedies, but Hayes cautioned that it would be ‘fairly narrowly construed’.112 The other relevant exception was the existence of ‘special circumstances’ preventing the exhaustion of effective remedies, which applies where remedies are not exhausted for fear of repercussions. Hayes said that an allegation of breaches of the Convention would be successful only if it related to Article 3 of the Convention and was based on individuals who were internees, for whom convincing evidence of torture or inhuman or degrading treatment was available and for whom no domestic remedy existed, and who had availed themselves unsuccessfully of review of detention by the Advisory Committee.113 His forecast proved to be clairvoyant. The central tenet of the August 1971 assessment, namely, success solely with respect to breaches of Article 3 of the Convention, prohibiting torture and inhuman or degrading treatment or punishment, mirrors the findings in the 1976 Commission’s Report and the 1978 Court’s judgment. But Hayes also said his views should not preclude submissions on other breaches of the Convention. Although such allegations were likely to be dismissed ‘probably at an early stage’, they would be of value in describing the general atmosphere of contempt 109

See Sunday Times Insight Team, Ulster (London, Penguin, 1972). DFA 2002/20/7. Minute of Hugh McCann to the Minister, Dr Hillery, 23 August 1971, Annexed memorandum. 111 Ibid, at 2. Here, the doctrine of an ‘administrative practice’ has two conditions: a repetition of acts, and an official tolerance of this pattern or practice. See Greece v United Kingdom (first Cyprus case) (App no 176/56), (1956–57) 2 Yearbook 182 (ECommHR). 112 DFA 2002/20/7. Minute of Hugh McCann to the Minister, Dr Hillery, 23 August 1971, Annexed memorandum. 113 Ibid, at 2. 110

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for human rights, increasing the probability of success in the ‘main cases’ and putting pressure on the British ‘to live up to their responsibilities’.114 The discussions on the question were already being fuelled by witness statements that Seán Donlon was sending back from Northern Ireland. The Secretary of the Department, Hugh McCann, advised Minister for Foreign Affairs Paddy Hillery that the Government decision on going to Strasbourg and its timing should be governed by the ‘probable’ consequence on British policy, given the requirement to persuade the British, rather than the Stormont Parliament, on a course of action in Northern Ireland. McCann contended that Heath was already questioning his recent policy decisions (an implicit reference to internment) as well as his ‘intemperate message’ to the Taoiseach. He considered that an agreement to establish an inquiry into allegations of brutality was evidence of Heath’s ‘second thoughts’.115 McCann wrote: ‘I would favour affording some further little time to show evidence of a change of heart before taking any overt steps which would drive him [Heath] into obduracy—given his reputed stubbornness’.116 McCann stressed that this affording of ‘further little time’ did not preclude the collection of evidence, which he described as ‘desirable’, nor the attempts by victims to seek legal remedies available in local courts.117 In the meantime, Irish officials were under growing pressure from representatives of civil society. In a private meeting on 23 August involving Mahon Hayes and other Foreign Ministry officials, the Chairman of the Northern Ireland Civil Rights Association, Frank Gogarty, expressed frustration when the lawyers insisted upon the importance of the exhaustion of domestic remedies rule.118 Hayes explained that nothing would be gained if an application was dismissed on a matter of procedure. Gogarty responded: ‘Action must be urgent; Britain must be brought to account; must prevent reoccurrence.’ He argued that if there is an injustice done, there is a moral obligation owed, which is above politics and it is the duty of a government to act. Sean Ronan, who was Assistant Secretary to the Department, countered: ‘[T]he government will have to have a reasonable chance of success’.119 On the same day, the Taoiseach met a delegation of Northern Ireland MPs and Senators. When the issue of internment was discussed, Lynch’s response was to ask the delegation to assist in having evidence of brutality supplied to the Government, where possible by way of affidavit.120 He also reminded them of the difficulties in bringing cases to the Commission unless all local legal remedies were first exhausted.121 When the Cabinet met on 24 August, it was agreed that the Minister for Foreign Affairs should make representations to British authorities for an immediate impartial inquiry into treatment of internees. However, the British authorities were also to be informed that failing the establishment of an independent inquiry, the Government 114

Ibid, at 3. DFA 2002/20/7. Minute of Hugh McCann to the Minister, Dr Hillery, 23 August 1971. 116 Ibid (emphasis added). 117 Ibid. 118 DFA 2004/7/1936. Handwritten notation of meeting, noting only the principal statements of each of the meeting’s delegates. 119 Ibid. 120 Ibid. 121 DT 2002/8/487. Confidential memo on meeting, held on 23 August 1971, between the Taoiseach, Ministers for Foreign Affairs, Labour, Finance, Education and the delegation of Northern Ireland MPs and Senators. Memo, at 2. 115

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would feel obliged to consider bringing the matter of treatment of internees before the European Commission of Human Rights.122 The Irish ambassador to Britain, Donal O’Sullivan, was despatched to make representations to the British authorities. He met with Sir Thomas Brimelow, Deputy Under-Secretary of State at the Foreign and Commonwealth Office, on 25 August. He informed Brimelow that the Irish Government wanted an independent inquiry, the composition of which should be non-British and the terms of reference of which should be sufficiently wide to include not only the allegations of ‘brutality’ by the security forces but also the accusations of civilian killings by British forces.123 The British were ‘taken aback’ when O’Sullivan stated that the Irish Government was considering whether to submit a case to the Commission. Ambassador O’Sullivan stated that his government was under great pressure to do so. As he understood the law, derogations to Articles 2 and 3 of the European Convention were not possible, even in the case of State emergencies. In response, the British officials conveyed the ‘strong hope’ that the Irish Government would ‘wait on events’ before deciding to go to Strasbourg. O’Sullivan recorded that the British were ‘reasonably certain’ that the allegations were ‘grossly exaggerated’. In fact, the British were practically convinced that the Irish Government was ‘backing a loser’ if it thought the charges of brutality were well-founded. Ambassador O’Sullivan described the tone of the meeting as ‘completely friendly throughout’, and he had the impression that the Foreign Office wanted to be ‘as reasonable and conciliatory as possible’. He was told that Heath had ordered urgent action, and that General Tuzo, Head of the British forces in Northern Ireland, was anxious that an inquiry should proceed as urgently as possible. According to Ambassador O’Sullivan, the Irish Government was ‘pushing an open door’.124 On 31 August 1971, the British Home Secretary, Reginald Maudling, informed the House of Commons of the establishment of a Committee of Inquiry headed by Sir Edmond Compton, Ombudsman for Northern Ireland. It did not have an international chairman, and its sessions were held in camera to protect the personal safety of the security personnel. Its legitimacy was challenged by the Northern Ireland Civil Rights Association, and nearly all of the detainees decided against co-operation with it. When the British Prime Minister Edward Heath and the Taoiseach Jack Lynch met at Chequers, the country residence of the British Prime Minister, on 6 September, Lynch told Heath that the Compton Inquiry had been ‘badly received’.125 Clearly, there should have been an international chairman and detainees should be legally represented. But Heath countered that he had been most careful in determining the composition of the Commission of Inquiry, and that Compton was ‘above reproach or suspicion’. Heath said that private hearings were necessary to avoid a ‘public jamboree’.126 Later, Lynch dropped the threat of internationalising the allegations of illtreatment. He stated that his government was under ‘strong pressure from the Opposition and minority representatives’ to initiate proceedings before the European 122

DT 2002/8/487. Cabinet Minute ‘Situation in Six Counties’, 24 August 1971. NAI DFA 2004/7/1936. Letter from D O’Sullivan to Assistant Secretary Seán Ronan. See also NAI DT 2002/8/493. Letter from Hugh McCann to D O’Sullivan, 18 October 1971; DFA 2003/17/30. Minute entitled ‘British Committee of Inquiry into allegations of brutality’ (undated). 124 Ibid. 125 Ibid. 126 DFA 2003/13/6. Report of the Irish Ambassador to Britain, Donal O’Sullivan, 9 September 1971. 123

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Commission of Human Rights. He told Heath that a complaint could be made on a number of grounds, notably Articles 2 and 3 of the European Convention of Human Rights. He doubted derogation from the Convention could be justified, because the life of the nation could not be threatened by the situation in Northern Ireland, a corner of the United Kingdom. It is intriguing that issues of international human rights law of some technical complexity were being debated by senior political figures. The stronger argument, for Lynch, was the prohibition of derogation set out in Article 15(2) with respect to Articles 2 and 3, even in the case of a ‘public emergency threatening the life of the nation’. If Heath had been on his toes, he might have reminded Lynch that the Irish Government had itself successfully invoked derogation barely a decade earlier with respect to the situation in Northern Ireland in the first case to come before the European Court of Human Rights.127 Three weeks later, Heath and Lynch held another meeting at Chequers. Lynch again attacked the internment policy, noting that the Compton Committee was unacceptable to the minority community in Northern Ireland. He said he was ‘satisfied that there is a case for going to the Court of Human Rights under Article 2 and 3 of the Human Rights Convention and he added that he is under very strong pressure to take action in this regard’. Heath responded that the Compton Committee was working ‘speedily and effectively’.128 He personally believed that ‘much of the talk about illtreatment was no more than understandable propaganda by the internees’.129 turning to the lawyers Seán Donlon returned to Dublin in mid-September 1971 with ‘literally sack loads of material’ which he delivered to Declan Quigley in the Office of the AttorneyGeneral.130 While Quigley was analysing the material, Attorney-General Colm Condon sent junior barrister Aidan Browne to assist Donlon in assessing whether there was a ‘sustainable case’. He was to gauge if the witnesses could stand up to what, in all probability, might be strenuous cross-examination in Strasbourg. Browne travelled with Donlon to Belfast to interview proposed witnesses, including witnesses who were still in detention.131 In order to gain entry to Crumlin Road Jail and conduct the interviews, Donlon accompanied solicitor Pascal O’Hare, claiming to be his apprentice, while Browne went in with solicitor Charlie Hill, claiming he was a student at the Northern Ireland bar.132 These prison visits were subsequently exposed in the Irish media. Under the headline ‘Dublin Gets Secret Report on Torture’, the Irish Press explained that the allegations against the British Army were currently being examined by the Irish Government. The article recounted that a ‘comprehensive dossier’ of individual cases alleging ‘brutality, torture and brain-washing’ of people detained by British troops and members of the RUC was being compiled following ‘a secret week-long visit to the 127

Lawless v Ireland (No.3) 1 EHRR 15. DFA 2003/13/7. Taoiseach’s meeting with British Prime Minister Heath—Chequers II, 27 and 28 September 1971. Report of Discussion. 129 Ibid, at 34. 130 Interview of Seán Donlon by Aisling O’Sullivan, 8 February 2007. 131 DFA 2002/19/427. Minute by Eamonn Gallagher, 23 November 1971. 132 Ibid. 128

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North by Mr Aidan Browne’. It particularly emphasised the fact that the investigations were being conducted ‘without any consultation with the Stormont authorities and . . . without their knowledge’.133 Browne reported his general findings to the Attorney-General who, in turn, as far as Eamonn Gallagher was aware, advised the Taoiseach that the investigations demonstrated a ‘sustainable case’.134 Unfortunately, the Attorney General’s memorandum to Jack Lynch is not among the Taoiseach’s papers in the National Archives; it may be among the Attorney-General’s Office papers, which have yet to be released. However, Gallagher’s minute can be collaborated with a recording by Charles Lysaght, Assistant Legal Adviser to the Department of Foreign Affairs, that the Attorney General’s advice was given ‘without any consultation with our Legal Section’.135 As a response, the Government decided that there was enough evidence to justify constituting a legal team.136 This was composed of Declan Quigley of the Attorney-General’s Office, Mahon Hayes and Charles Lysaght of the Legal Section in Foreign Affairs, and a number of barristers, retained by Attorney-General Colm Condon, including Rory O’Hanlon and Anthony Hederman, later Justices of the Supreme Court, Thomas Finlay, later Chief Justice and John L Murray, the current Chief Justice of the Supreme Court. In analyzing the interrogation techniques, the Department of Foreign Affairs also drew upon the expertise of Professor Robert Daly, who had recently returned from the United States to take up an appointment as Professor of Psychiatry at University College Cork. Daly accompanied Donlon to Northern Ireland to meet some of the released internees but also fellow professionals.137 An English psychiatrist, who was an expert on interrogation techniques, was also consulted.138 Donlon recalls that this combined expertise led the Government’s investigation to establish, ‘probably’ by October, that the interrogations were not a question of physical assaults on internees but the exercise of ‘very highly organised, well-tested techniques, which had probably been used elsewhere in the world in places like Oman probably going back to WWII but considerably more advanced since then’.139 On 17 October 1971, the Sunday Times Insight team published its in-depth report on allegations of ill-treatment. The following day, the Taoiseach Jack Lynch instructed the Department of Foreign Affairs to draft a letter for the British Ambassador informing him of Lynch’s intention to announce in the Dáil the following week the Government’s decision to submit a complaint to Strasbourg.140 But Lynch was counselled not to use the threat of proceedings. In a critic of the Department of Foreign Affairs’ initial draft, the Secretary to the Department of the Taoiseach argued that the reference to previous warnings about proceedings at Strasbourg as not having their ‘desired effect’ was essentially recording a ‘lack of 133

‘Dublin Gets Secret Report’, Irish Press, 30 October 1971. DFA 2002/19/427. Minute by Eamonn Gallagher, 23 November 1971. 135 DFA 2004/7/1936. Minute from Charles Lysaght to Secretary of the Department of Foreign Affairs, Hugh McCann, 16 November 1971. 136 Ibid. 137 Interview of Seán Donlon by Aisling O’Sullivan, 8 February 2007. 138 Probably Dr John Wing or Professor Sheppard of Maudsley Hospital, Denmark Hill, London. See DFA 2002/19/427. Letter from Peader de Paor (Patrick Power) to Mr Small, 7 January 1972. 139 Interview of Seán Donlon by Aisling O’Sullivan, 8 February 2007. 140 DFA 2003/17/304. Note on procedure, 18 October 1971. 134

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success’. Furthermore, it could imply that the institution of the Strasbourg proceedings was ‘a bargaining counter’. Instead, ‘the institution of proceedings had to be preceded by careful consideration and investigation and by the exhausting of domestic remedies by the aggrieved’.141 In the final draft, the British Ambassador, Sir John Peck, was informed that after ‘careful examinations’ and material at his disposal from ‘reliable sources’, the Taoiseach was satisfied that breaches of the European Convention on Human Rights ‘appear to have taken place in a substantial number of cases’. Hence, the Irish Government were ‘now’ seriously considering taking the decision to institute proceedings.142 The British Ambassador replied the following day, outlining his government’s position.143 He charged that allegations of brutality were ‘part of the stock-in-trade of the IRA’ and that his government had publicly stated that such allegations were being investigated by the Compton Committee.144 He emphasised that complaints before the European Commission of Human Rights must be examined with supporting evidence, whereas previous petitions brought by individuals from the Northern Ireland were in the form of general allegations, without supporting evidence.145 In these circumstances, my Government hope that the Irish Government would prefer to wait and study very carefully the findings of the Compton Committee in each case before they take up a position which could bring them into open dispute with the British Government, particularly if it was on the basis of allegations which might later prove to be unfounded.146

The same day, Lynch delivered a lengthy speech in the Dáil in which he said Britain should be held accountable for its international obligations, including those under the European Convention on Human Rights.147 At the end of October, Eamonn Gallagher, Seán Donlon, Mary Tinney, Charles Lysaght and Declan Quigley met to review their responsibilities in preparing the application.148 Donlon was to continue to amass statements and supplementary material from solicitors, doctors and community leaders. These would be assessed by Declan Quigley.149 The Attorney-General’s Office had assumed primary responsibility for the case at an early stage. This, as Charles Lysaght explained, was because the Taoiseach had handed over ‘some papers in connection with the case when it was first mooted’, 141 DT 2002/8/493. Memorandum entitled Draft communication to the British Ambassador by David O’Sullivan, 19 October 1971 142 DT 2002/8/494. Letter to British Ambassador to Ireland Sir John Howard Peck from Hugh McCann, 19 October 1971. 143 DT 2002/8/494. Confidential Letter from John Peck to H J McCann, 20 October 1971. 144 Ibid. 145 Decision of the Commission on thirteen applications by S McG and others against United Kingdom (17 December 1970). The 13 applications were joined into Groups I and II, which collectively alleged (i) breaches of Arts 3, 5 to 11, 13 and 14 of the Convention by the existence of the Special Powers Act 1922, (ii) breach of Art 3 of Protocol 1 regarding the conduct of elections in Northern Ireland, and (iii) discrimination in public housing and employment. In its decision to strike off the case from its list, the Commission cited the whole history of the application, the lack of correspondence in the immediate past from the applicants as indicating failure to show an interest, and a requirement for more precise information in its submissions, citing inadequacies in presentation and formulation of substance of complaints. This requirement precluded the Commission from determining that ‘a general character affecting the observance of the Convention’ necessitated continued examination of the application. 146 DT 2002/8/493. Confidential Letter, 20 October 1971. 147 Dáil debates, vol 256, col 18. 148 DFA 2002/19/427. Minute by Eamonn Gallagher, 23 November 1971. 149 Ibid.

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and also because of understaffing in the Legal Section in the Department of Foreign Affairs.150 However, Lysaght explained that it was the view of the Legal Adviser, Mahon Hayes, that the Legal Section of the Department of Foreign Affairs ‘is the body primarily responsible for proceedings under the European Convention and nothing should be done which implies acceptance of any other view’ and consequently ‘we should insist that the evidence be submitted to us before a final decision is made to proceed’.151 He said ‘we should be more expert in weighing the weight of evidence before the European Commission’.152 Donlon returned to Belfast on 11 November, where he spent a week gathering more information.153 At the same time, Eamonn Gallagher travelled to Dungannon, Derry and Strabane, collecting statements and other information as evidence before joining Donlon in Belfast on the evening of 15 November.154 Later in the month, Donlon told Gallagher that ‘Kevin Street’, meaning the wing of Sinn Féin that was associated with the Provisional Irish Republic Army, had instructed its followers not to co-operate with the Irish Government’s investigations. Hence, some of the promised material from the 11 November expedition would not be handed over as evidence for the Government’s application.155 However, Donlon recorded that he was not overly troubled by this, as he had also established a ‘working arrangement for swapping information with Amnesty International’, and the final investigation should cover ‘something like 75 cases’.156 This working arrangement with Amnesty International developed following a visit to the Department of the Taoiseach by Seán MacBride. Amnesty International was preparing to undertake an investigation, which would be conducted by Dr Hermann van Guns, a Dutch medical doctor who worked for the World Health Organisation, and Thomas Hammerberg, a Swedish journalist and chairman of the Swedish section of Amnesty International, currently the Commissioner for Human Rights of the Council of Europe. At the time, Torkel Opsahl of the Law Faculty of the University of Oslo was yet to be confirmed. In the end, he did not conduct the Inquiry. Opsahl had been elected a member of the European Commission of Human Rights in 1970, and he sat on the sub-Commission that heard witnesses in the Ireland v United Kingdom case in 1974 and 1975. MacBride suggested that Amnesty International’s investigator and the Department of the Taoiseach co-operate confidentially in exchanging statements concerning torture and brutality. This was agreed, and Seán Donlon was instructed to liaise with the Amnesty International investigator, who would also be operating in Belfast.157

150 DFA 2004/7/1936. Letter from Charles Lysaght to Secretary of the Department of Foreign Affairs, Hugh McCann, 16 November 1971. 151 Ibid. 152 Ibid. 153 DFA 2002/19/427. Minute from Hugh McCann to Minister, 23 November 1971. 154 Ibid. 155 DFA 2002/19/427. 156 Ibid. In the end, some 228 cases of alleged ill-treatment were referred to in Ireland’s application to the European Commission of Human Rights. See Ireland v United Kingdom (App no 5310/71), (1976) 19 Yearbook 512 (ECommHR), at 734. 157 DT 2002/8/494. Minute for Taoiseach, 9 November 1971.

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‘further little time ’ runs out The Compton Report was published by the British Government on 16 November.158 Mahon Hayes, the Legal Adviser to the Irish Department of Foreign Affairs, believed that it ‘clearly established an administrative practice of ill-treatment, which the [European] Commission would very likely hold amounted to torture or inhuman or degrading treatment or punishment’.159 Indeed, in its admissibility decision of 1 October 1972 in the inter-State case, the Commission distinguished the use of the ‘five techniques’ from other allegations of ill-treatment and concluded that the Compton Report, as well as the subsequent Parker Report, which acknowledged official sanction for the use of the techniques, provided the substantial evidence required to establish an administrative practice.160 So the Compton Report was rightly believed to provide the means to overcome the difficult issue of the exhaustion of domestic remedies. In effect, the British Government had snookered itself. Its own inquiry handed the Irish legal team success at the admissibility stage. In the Dáil, the Taoiseach Jack Lynch concluded that the Compton Report, coupled with the Irish Government’s investigation, demonstrated ‘very substantial evidence of a very grave state of affairs in the administration of justice in the North’. The Government would examine both carefully, he said, to decide whether to refer the allegations to the European Commission of Human Rights.161 This reference to ‘careful’ examination obviously sought to gain more time for the Government’s investigation. Donlon was due to travel again on 22 November to obtain more statements and supplementary evidence. However, given the interest of deputies in earlier Dáil debates, it is unsurprising that the publication and dissection of the Compton Report intensified parliamentary and media focus on whether the Government would decide to initiate proceedings before the European Commission of Human Rights. Lynch’s attempts to gain time on the question of submitting an application were becoming more difficult to sustain. At the 23 November sitting of the Dáil, the leader of the Opposition, Liam Cosgrave, asked whether the Government was now in position to state whether a definite decision had been taken on submitting an application to Strasbourg.162 Tánaiste (Deputy Prime Minister) Erskine Childers reiterated the common line on collecting and evaluating evidence but alluded to a likely government decision within days. On being pressed regarding formal protests against the methods of interrogation,163 Childers said such proceedings would be lengthy—he thought they might take one to two years—and that they would be unlikely to have any immediate practical effects on the interrogation policies of British forces.164 The Financial Times suspected that the Irish Government wanted to await the view of British MPs in their Northern Ireland debate. It interpreted the mood in Ireland:

158 159 160 161 162 163 164

‘Compton Report’, above n31. DFA 2004/7/1936. Handwritten letter from Mahon Hayes to Declan Quigley, undated. Ireland v United Kingdom (App nos 5310/71 and 5151/72), 1 October 1972, (1972) 41 CD 3. Dáil Debates, 16 November 1971, vol 256, col 2158. Dáil Debates, 23 November 1971, vol 257, col 1. Ibid, col 2. Ibid, col 3.

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The Government here is now under strong pressure both from its own back benches and from the Opposition to press a case against Britain through the European Commission and this pressure has increased since the public condemnation by Cardinal Conway and five Roman Catholic bishops in the North of the interrogation methods used on detainees.165

With parliamentary and media anticipation of an imminent government decision, the Cabinet prepared to debate the question of submitting an application to the Commission at its meeting scheduled for 30 November 1971.166 Prior to the meeting, Hugh McCann prepared a memorandum for the Minister of Foreign Affairs, who was reportedly now more in favour of the whole idea. McCann assessed the probable effects on political relationships if the Irish Government were to initiate proceedings. He anticipated sympathy from some European States, who are ‘very sensitive on this issue of torture of prisoners’, specifically The Netherlands and Italy. But he cautioned that it was likely that future partners in the European Economic Community would not be ‘enthusiastic about two new members entering into this kind of conflict in public on the eve of their membership’. Nevertheless, a European forum for such a dispute would be preferable to the United Nations, where the Soviet Union and other socialist States might ‘seek to exploit the situation’. On Anglo–Irish relations, McCann stated the obvious. The move would be ‘strongly resented by the British Government and lead to a considerable deterioration in Anglo–Irish relations’. McCann concluded: ‘If Mr Heath’s previous outbursts are any guide he would probably be furious at least in the short run. One might expect that Britain would get “really dirty” in handling our affairs’. He also calculated that an application to the Commission would compel the British to be ‘more careful’ in dealing with detainees. This would slow down their gathering of intelligence information, making a military solution more difficult, and that would force the British to deal with the crisis at the political level. McCann noted the personal view of the Irish Ambassador to Britain, who was opposed to going to Strasbourg. According to McCann, while purely from the international relations standpoint it would not be wise to proceed, views of the minority in Northern Ireland as well as public opinion in the Republic had to be considered. ‘[T]he pressures appear to be greater’ and it would probably be difficult for the Government not to prioritise those pressures.167 On 29 November, the Taoiseach Jack Lynch received a message from the British Prime Minister Edward Heath attempting to dissuade Lynch and the Cabinet from taking a positive decision on submission. After outlining the steps taken by the British Government in response to the allegations, he stated: My reason for hoping that these problems will not be brought before the European Commission relates rather to the danger that my Government and yours would there be ranged on opposite sides in a public forum on issues which, starting from particular allegations and explanations would be liable to broaden out into charges and counter-charges concerning the operations of the IRA, the role they have in Northern Ireland and the support they receive in the Republic. Such a position could hardly fall to result in acrimonious exchanges between our two Governments. This would to my mind be unfortunate given the complexity of the Northern Ireland problem and the need for our two Governments to 165 166 167

1971.

Financial Times, 24 November 1971. DT 2001/5/1. DT 2002/8/495. Minute of Hugh McCann to Dr Nolan (Secretary to the Government), 26 November

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remain in the closest and friendliest touch about it. This will be particularly necessary if the security situation in the North develops sufficiently favourably for an early impetus to be given to political moves. As you know, our aim is still to discuss the way forward with representatives of all the communities. We are committed to finding a way to give the minority there an active, permanent and guaranteed role in the life and public affairs of Northern Ireland. As we are making clear in the debate in the House of Commons, the best method and timing for doing this is very much in the forefront of our minds. It is because of these considerations that I hope that you will not feel constrained to give way to pressures to take a public stance against us at Strasbourg. If you do, it will no doubt rejoice the hearts of many people in the Republic and some of those among the minority in the North. It will however, also please those Protestant extremists who are always most opposed to the maintenance of a reasoned dialogue both public and private between our two Governments.168

But Heath’s letter did not deter the Cabinet, which decided that the Minister for Foreign Affairs, on behalf of the Irish Government, should refer recent breaches of the European Convention on Human Rights by the British Government ‘in the Six Counties’ to the European Commission of Human Rights.169 The minutes show that the Minister for Foreign Affairs, Dr Hillery, was absent when the decision was taken.170 The announcement of the government decision171 led to debate in the Dáil, which focused mainly on the issue of formal diplomatic protests to the British Government. There, Lynch described the history of the Irish Government’s diplomatic efforts and framed this history in the terms of seeking redress through ‘private diplomacy’, which was considered the best approach between ‘neighbouring Governments’.172 However, he recorded that the Government had failed to ‘persuade’ the British Government to respond fairly and adequately. Later, after incessantly quizzing by Opposition deputies on whether formal protests had been made at the highest level. Lynch referred to the Government’s application to the European Commission of Human Rights, and said, in apparent exasperation, ‘we have taken the extreme step now. Are the deputies not satisfied with what we have done?’173 In its reaction, the British Government expressed regret that the Irish Government had ‘chosen to make a governmental dispute of this issue’. It claimed the allegations could have ‘usefully’ been put at the disposal of British authorities for investigation.174 filing the application: fog in paris With the Government’s announcement came the impetus for the legal team to conclude preparations for the submission as early as possible. It was hoped to file the application at ‘a very early date’, preferably by 10 December. A political decision would still be required concerning allegations of breaches of Article 2 of the Convention by British armed forces. The Legal Adviser, Mahon Hayes, was requested 168 169 170 171 172 173 174

DFA 2003/17/304. Message from Edward Heath to Jack Lynch, 29 November 1971. DT 2001/5/1. Ibid. DFA 2002/19/427. Issued by Government Information Bureau, 30 November 1971. Dáil Debates, 1 December 1971, vol 257 col 907. Ibid, col 909. ‘Ireland Takes Torture Case to Europe Court’, Irish News, 1 December 1971.

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to submit his views on the nature of the case to the Attorney-General’s Office. Further information was received from Ireland’s Permanent Mission to the Council of Europe in Strasbourg. Ireland was urged to prepare 50 copies of its application, which could then be considered on a preliminary basis as early as mid-December. Then, the British Government would be formally notified and requested to make observations.175 On 6 December 1971, the Taoiseach Jack Lynch, accompanied by the Irish Ambassador, Donal O’Sullivan, met with the British Prime Minister Edward Heath in his office in the House of Commons for a discussion about the security and political situation in Northern Ireland. The encounter proceeded along predictable lines. On security, Lynch referred to border incidents, such as incursions into the Republic by British forces and the cratering of roads along the border, and the thorny question of extradition, which, he argued, was a matter for the courts. Heath referred to the need to maintain effective security along the border and to resolve the question of the South as a safe haven, possibly through extradition.176 Nearing the end of their meeting, Lynch mentioned the immense pressure to which he had been subjected, in the wake of the Compton findings, to submit an application to the European Commission of Human Rights. Heath’s only response was to tell Lynch ‘you resisted as long as you could’.177 On 7 December, the Irish Cabinet informally agreed on the nature of the application. It would refer to breaches of Article 1 (general duty to secure), Article 2 (right to life), Article 3 (prohibiting torture, inhuman or degrading treatment or punishment) and Article 14 (prohibiting discrimination on specified grounds). The AttorneyGeneral’s memorandum to Cabinet explained that by invoking Article 1, the entire scope of the Special Powers Act and its Regulations could be considered by the European Commission of Human Rights. The disadvantage was that this argument was too ‘legalistic’. Furthermore, it was uncertain, given the lack of precedent on the substance of Article 1.178 Complaints based on Article 2 were ‘very much sought by the Northern Nationalists, would appeal to the public and, even if doomed to failure, would have the advantage of highlighting the general atmosphere’. The disadvantage, said the Attorney-General, was its ‘doom to failure’ for failure to exhaust domestic remedies. The strongest claim relied upon Article 3, with the Compton Report providing ‘great assistance’ in demonstrating an administrative practice. Moreover, this accusation had the most ‘popular appeal’. The only disadvantage was the possible difficulty for some of the cases of ill-treatment regarding the domestic remedies rule, but it was felt that this could be overcome. Lastly, on Article 14, the application sought to refer to the British Army searching of homes and the ‘general behaviour’ of the security forces, as forms of discrimination on the basis of political opinion and association with a national minority. The disadvantage was that while evidence was ‘no doubt in existence’, it had not been assessed.179 175 DFA 2002/19/427. Minute by Sean Donlon copied to Mr Gallagher, Mr Lysaght and Declan Quigley, 6 December 1971. 176 DFA 2003/13/10. Report of Discussion between the Taoiseach and Mr Heath on 6 December 1971, 7 December 1971, signed Donal O’Sullivan, Irish Ambassador to Britain. 177 Ibid. 178 DT 2002/8/495. Memorandum of Attorney-General. A handwritten notation records that it was considered in the Cabinet meeting of 7 December 1971. 179 Ibid.

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With the submission imminent, the question of appointing an agent arose. In the Lawless v Ireland case, this task was fulfilled by Ireland’s Permanent Representative to the Council of Europe.180 But the Anglo–Irish section cited the British practice of appointing the legal adviser to the Foreign and Commonwealth Office.181 Ultimately, Mahon Hayes, Legal Adviser to the Department of Foreign Affairs, was appointed. There were many meetings over the course of a few days in mid-December as the Government struggled to finalise its application.182 The team agreed to plead the case on the following grounds. Firstly, certain killings in Northern Ireland constituted breaches of Article 2 of the Convention. Secondly, the treatment of internees under interrogation and otherwise constituted torture, inhuman or degrading treatment or punishment within the terms of Article 3. Thirdly, the scope of internment was ‘wider than necessary’ having regard to the strict exigencies of the situation, and hence was beyond the permissible right of derogation under Article 15. Lastly, internment and the search of houses had been conducted in a discriminatory manner, breaching Article 14 of the Convention.183 Fittingly, Seán Donlon, who had surreptitiously collected most of the proof upon which the application was based, was given the task of travelling with the ‘three or four sacks’ of evidence and the formal application to Paris, and from there by train to Strasbourg to lodge the application. Minister for Foreign Affairs Paddy Hillery had promised the Dáil that this would be done by 16 December, and Donlon was under strict instructions to respect this commitment. Due to poor weather, caused by fog, his early-afternoon flight to Paris was diverted to Brussels. Hurriedly, Donlon took a taxi from Brussels Airport to Paris, where he was greeted by Kestor Heaslip, First Secretary at the Paris Embassy. This delay meant that Donlon and Heaslip only met the Secretary-General of the Council of Europe at his Paris hotel at 1.00 am on the morning of 17 December 1971. But the Secretary-General had agreed to stop the clock so that for official purposes, it was recorded that the application was submitted at 11.45 pm in the evening on 16 December. Donlon has described the ‘ceremony’ as ‘informal and brief’. The Secretary-General had pulled trousers over his pyjamas and accepted the application through the ‘dimly lit doorway’ of his hotel bedroom.184 conclusion The application went on to make legal history. Ireland was successful before both the European Commission of Human Rights and, subsequently, the European Court of Human Rights. To this day, the case stands as an exceedingly rare example of interState litigation concerning human rights violations. It is particularly unusual given that it concerns two modern democracies with extremely close commercial and political links. Since Ireland v United Kingdom there have been only a few more inter-State 180 At the time of the Lawless case, the Permanent Representative of Ireland to the Council of Europe was Thomas Woods, who died of an illness before the hearings of the European Court of Human Rights in April 1960 and was succeeded by Attorney-General Andrias O’Caoimh. O’Caoimh was assisted by Anthony Hederman, who was then a junior counsel. Hederman later acted as senior counsel on the Irish legal team in Ireland v United Kingdom. 181 DFA 2002/19/427. Minute to Gallagher (unsigned), 13 December 1971. 182 DFA 2002/19/427. Minute to Gallagher from Lysaght, 14 December 1971. 183 Ibid. 184 DFA 2002/19/427. Memo by Sean Donlon, dated 22nd December 1971.

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applications, in any forum.185 In contrast to the regional human rights treaties, the inter-State application mechanisms of the United Nations human rights treaties186 have never been invoked.187 Nor has the inter-State complaint procedure of the International Criminal Court been used to initiate proceedings, with the exception of three so-called ‘self-referrals’.188 Indeed, when the Rome Statute of the International Criminal Court was being adopted, it was frequently argued that State party referral could not be an effective mechanism to launch prosecutions precisely because of the sterility of inter-State complaint mechanisms within the human rights sphere.189 Lastly, it is also possible for one State to sue another before the International Court of Justice for breach of a human rights obligation, but there is only one example of such a phenomenon.190 As documented in the State papers, Seán MacBride launched the public call for an inter-State application in response to internment191 and this public call gained unrelenting momentum as the months wore on. Allegations of ill-treatment published in both British and Irish newspapers kept the idea of an inter-State application alive among watchful media, an active civil society and a tense Parliament. The tragic increase in violence in the post-internment autumn of 1971 intensified calls for the Irish Government to respond adequately. In this respect, the publication of the Compton Report, which had been commissioned by the British Government to investigate reports of abuse, was the point of no return. Subsequent parliamentary debates in Dáil Éireann signalled the deputies’ expectation of a quick and decisive response by the Irish Government. In such an environment, Jack Lynch’s Cabinet would have had immense difficulty convincing the parliamentary Opposition, the expectant media and the vocal public that any other course would be appropriate in the circumstances. While these external factors were key, there were naturally very important parallel internal factors. As Seán Ronan’s position at the 23 August 1971 meeting, between Department of Foreign Affairs officials and Frank Gogarty, indicates, the Irish 185 See, generally, Menno Kamminga, Inter-State Accountability for Violations of Human Rights (Philadelphia, University of Pennsylvania Press, 1992). 186 International Convention on the Elimination of All Forms of Racial Discrimination (1969) 660 UNTS 195, Art 11; International Covenant on Civil and Political Rights (1976) 999 UNTS 171, Art 41; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) 1465 UNTS 85, Art 21; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, GA Res 45/158, annex, Art 76; International Convention for the Protection of All Persons from Enforced Disappearance, GA Res 61/77, Art 32. 187 For example, the United States has accepted the jurisdiction of the Human Rights Committee to consider inter-State communications based on alleged violations of the International Covenant on Civil and Political Rights, but no State party to the Covenant appears to have contemplated filing a complaint based upon the contemporary equivalent of British detention facilities in Northern Ireland, namely the prison camps in Iraq, Afghanistan and Cuba, and the secret jails in Poland and Romania. See Parliamentary Assembly, Council of Europe, Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States, PACE Doc 10957 (12 June 2006); Parliamentary Assembly, Council of Europe, Secret Detentions and Illegal Transfers of Detainees Involving Council of Europe Member States: Second Report, PACE Doc 11302 (7 June 2007). 188 Rome Statute of the International Criminal Court (2002) 2187 UNTS 90, Art 14. 189 See William Schabas, Introduction to the International Criminal Court, 3rd ed (Cambridge, Cambridge University Press, 2007). 190 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), International Court of Justice, 19 December 2005. 191 His personal role is intriguing, given that he had himself been the Irish Minister for Foreign Affairs when the European Convention on Human Rights was being drafted and adopted. See William Schabas, above n6.

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Government required a high probability of success for a positive decision to be forthcoming. Hence, Attorney-General Colm Condon’s positive determination, that on the weight of the evidence a sustainable case could be made, was crucial. Without this determination, a positive decision to submit the application might well have been outweighed by foreign relations considerations, particularly relations with Britain and Ireland’s prospective partners in the European Economic Community. Instead, it resulted in a seminal ruling of the European Court of Human Rights. Arguably, the pressure that the application brought on the British Government had beneficial effects in terms of reducing the mistreatment and abuse of prisoners.

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Whither UN Peacekeeping in Lebanon

Ray Murphy* In the summer of 2006, the UN peacekeeping force in Lebanon (UNIFIL) faced its most serious challenge since the 1982 Israeli invasion, when serious fighting broke out between the Hizbollah militia and Israel. The leaders of the G8 industrial nations and UN Secretary-General Kofi Annan were quick to call for the swift deployment of international troops in southern Lebanon to end the escalating violence during July 2006.1 The British Prime Minister Tony Blair proposed a ‘stabilisation force’ or some similar multinational force deployment in southern Lebanon.2 Among the suggestions being made for such a force was one from French President, Jacques Chirac, who called for the setting up of a border surveillance cordon sanitaire along the Israeli–Lebanese armistice line and a mandate that included disarming the Hezbollah militia. It seemed to be forgotten initially that there was already a UN peacekeeping force present in south Lebanon and that it has been there since 1978. It took much longer than it should have for the Security Council to act in the circumstances. Israeli action in south Lebanon caused a large-scale humanitarian crisis to which the UN and the European Union were unable to respond in an effective way. UN Security Council Resolution 1701 on the situation in Lebanon was long overdue when eventually adopted.3 The situation in Lebanon presented a serious dilemma for the UN. Intervention in such a conflict is fraught with pitfalls. The UN is often blamed for failing to resolve intractable problems not of its making. Any UN peacekeeping operation can succeed only if given the mandate and the means to do so. There was much talk of an aggressive or robust mandate for the proposed force, but it is difficult not to conclude that many commentators did not appreciate the complexity of the issues. The matter of determining the nature of any such operation is also crucial. Traditional peacekeeping operations are approved under Chapter VI (Peaceful Settlement of Disputes) of the UN Charter and rely on the co-operation of the parties to the conflict.4 The original UNIFIL mission was such an operation. In recent years, the Security Council has approved operations under Chapter VII (Enforcement Operations), and the mandate and nature of such missions is substantially different * Dr Ray Murphy is a senior lecturer in law at the Irish Centre for Human Rights, National University of Ireland, Galway. He served with the Irish contingent part of UNIFIL in 1981/82 and 1989, and he published UN Peacekeeping in Lebanon, Somalia and Kosovo—Operational and Legal Issues in Practice (Cambridge, Cambridge University Press, 2007). 1 CNN report (17 July 2006) and ABC News International (20 August 2006). 2 M Crutsinger, ‘Blair, Annan call for troops in Israel’, Associated Press (17 July 2006), and P Baker and R Wight, ‘Push made for Peacekeepng Force to go into Lebanon’ Washington Post (18 July 2006) A15. 3 UNSC Res 1701 (11 August 2006) UN Doc S/RES/1701. 4 See B Simma (ed), The Charter of the United Nations: A Commentary, 2nd ed (Oxford, Oxford University Press, 2002), 648–700; N White, Keeping the Peace, 2nd ed (Manchester, Manchester University Press, 1997), 207–84; United Nations, The Blue Helmets—A Review of United Nations Peacekeeping, 3rd ed (New York, United Nations, 1996), 3–9.

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from those approved under Chapter VI. Initially there were mixed signals from the Israeli Government about the plan to deploy another international force, but later they made it clear that the preferred choice was a reconfigured UNIFIL with a ‘robust’ mandate under Chapter VII. The problem was that potential contributing States did not want to commit forces to what might turn out to be a combat-like role in Lebanon. A ceasefire agreement was essential in the first instance, and in the first few weeks both Hezbollah and the Israelis seemed to want to continue fighting. Without the agreement of the parties to a conflict of this nature, there can be no prospect of a UN force deploying. As UNIFIL discovered to its cost in 1978, even agreement by leaders or governments does not always translate into co-operation on the ground. UNIFIL did not have an agreed area of operations at the outset, and this significantly impeded its deployment in the early days. It is unlikely that this basic lesson was even considered by those advocating a new peacekeeping force. Other more fundamental issues also needed to be taken into account and addressed. The situation in Lebanon could not be classified as a simple inter-State conflict. Lebanon had not attacked Israel, and this fragile democracy had already demonstrated that it did not have the capacity to restrain or disarm the Hezbollah militia. UN Resolution 1559 (2004) called for the disbanding and disarmament of all Lebanese and non-Lebanese militias (a clear reference to Hezbollah).5 It also supported the extension of the control of the Government of Lebanon over all Lebanese territory. Any reconstituted UNIFIL force could not ignore this resolution, but it presented an almost impossible challenge for any such force. Reporting on UNIFIL in 1978, the Secretary-General outlined three conditions that needed to be met for the force to be effective. These included the full backing of the Security Council, the full co-operation of all the parties concerned, and the ability to function as an integrated and efficient military unit.6 In 1983, the now retired Under Secretary-General of the UN with special responsibility for peacekeeping operations, Brian Urquhart, elaborated upon this when writing about the Multi National Force in Beirut, and stated that successful peacekeeping depends, inter alia, on a sound political base, a well-defined mandate and objectives, and the co-operation of the parties concerned.7 The requirement of a well-defined mandate and objectives was a somewhat glaring omission from the Secretary-General’s otherwise pragmatic report.8 In the discussions in relation to the international force for Lebanon in 2006, many of these fundamental issues were not given due consideration, especially in the early stages of the crises. As with all such crises, the urgency to look for what seemed like a ‘quick-fix’ solution became the overriding consideration. This article argues that the current UNIFIL force has yet to overcome some serious obstacles to achieving its mandate, and this in turn is linked to broader national and regional political and security issues that need immediate attention in order to facilitate a resolution of the problems confronting Lebanon as a whole. 5

Res 1701, above n 3. UNSC Doc S/12611 (19 March 1978), para 3. 7 B Urquhart, ‘On UN Peacekeeping’, The New York Times (19 December 1983), 19. 8 The Report of the Panel on UN Peace Operations (Brahimi Report), UN Doc A/55/305–S/2000/809 (21 August 2000), recommended that UN peacekeepers have, inter alia, ‘clear, credible and achievable mandates’. 6

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background to deployment of un forces in 1978 Among the possible consequences of Israeli action in south Lebanon during 2006 is that it could ignite long-simmering religious and political tensions there. Civil war, not unlike that which broke out in April 1975 between Christian factions and leftist Muslim Lebanese supported by the Palestinian Liberation Organisation (PLO), remains a very real prospect. This led to the collapse of the Lebanese administration, the division of the security forces, and Syrian intervention to protect the Christian population in June 1976. The confessional system9 on which the allocation of political power was based also facilitated outside intervention. The Riyadh peace plan of October 1976 saw the deployment of an Arab League Peacekeeping Force (the Arab Deterrent Force) to end hostilities and keep the peace. This was a predominantly Syrian force with token representation from other Arab States, which, when deployed, was perceived as posing a serious security threat to Israel. The other Arab forces soon began to withdraw, ultimately leaving some 25,000 Syrian troops in Lebanon, the last of which were not withdrawn until April 2005.10 The civil war proved to be a crucial event in the forging of an Israeli–Christian Lebanese alliance. This involved support to local militias along the Israeli–Lebanese Armistice Line and a more strategic alliance involving Israeli Defence Force aid to the Christian Phalange militia.11 Palestinian camps had existed around Beirut for some time; however, an influx of fighters meant that the PLO became a dominant force in the south and in raids commenced across the Lebanese–Israeli Armistice Line. The establishment of the UNIFIL in 1978 was prompted by an Israeli invasion after a group of Palestinian guerrillas from bases in south Lebanon attacked a civilian bus along the Haifa–Tel Aviv highway, killing 37 Israelis and injuring another 76. Four days later the Security Council adopted Resolutions 425 and 426 establishing UNIFIL.12 The prompt international response then is in stark contrast with that to the present crisis during July 2006. The controversy surrounding the actual adoption of Resolution 425 provides important clues to understanding the problems confronted by the force on the ground. Then, like now, there was a lack of political consensus within the Security Council. The mandate ultimately agreed did not reflect the problems associated with the presence at the time of the PLO in southern Lebanon and the Israeli determination to occupy part of this by proxy.13 Rather, Resolution 425 defined the UNIFIL mandate in the following terms: — Confirming the withdrawal of Israeli forces — Restoring international peace and security — Assisting the Government of Lebanon in ensuring the return of its effective authority in the area. 9 The 1943 National Pact, which established the political foundations of modern Lebanon, allocated political power on an essentially confessional system based on the 1932 census. Seats in Parliament were divided on a 6:5 ratio of Christians to Muslims until 1990, when the ratio changed to half and half. Positions in the government bureaucracy are allocated on a similar basis. 10 On 2 September 2004, the Security Council adopted Resolution 1559 calling for the withdrawal of all foreign forces from Lebanon. 11 B Morris, Righteous Victims: A History of the Zionist-Arab Conflict, 1881—2000 (New York, Vintage, 2001), 502. 12 SC Res 425 (19 March 1978) and SC Res 426 (19 March 1978). 13 B Urquhart, A Life in Peace and War (London, Weidenfeld & Nicolson, 1987), 289.

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The fact that the debate in 1978 ignored the Palestinian problem, and the need for a comprehensive settlement of the overall Middle East question, caused many members to vacillate in their express support for the force. In the event, the establishment of a peacekeeping force with ambiguous and unrealistic objectives and terms of reference was agreed to hastily in order to solve the immediate crisis.14 Like today, the urgency then of reaching some agreement on the crisis precluded consideration of a more longterm solution. It is hardly surprising, therefore, that UNIFIL encountered major difficulties in implementing its mandate. It is evident that Israel was not happy with all of its aspects of the mandate but was forced to succumb to American pressure; as a result, Resolution 425 (1978) was greatly resented in Israel.15 questions to be considered in relation to any new un authorised or mandated force When the proposal to establish UNIFIL was made in 1978, some senior UN officials expressed strong reservations regarding the organisation assuming such a role.16 There was grave concern at some of the assumptions upon which United States’ policy was based. An Israeli withdrawal from all of south Lebanon was central to the success of UNIFIL’s mission. How was a peacekeeping force to restore Lebanese Government authority to an area where it was non-existent, when the Lebanese army was divided and the government concerned probably could not maintain control for very long anyway? There was no clear policy either on how the peacekeeping force would deal with the various armed elements, or what action the force would take if the Israelis did not withdraw completely. In the end, the urgent necessity to do something to alleviate the immediate crisis while there was some broad consensus in the Security Council meant that such misgivings had to be put aside. Further prolonged discussion could have jeopardised the whole initiative.17 lack of an agreed area of operations and co-operation from the parties in lebanon In regard to the second of the conditions identified by the Secretary-General as being essential for the effective operation of the force, ie that it receive the full co-operation of the parties concerned, unfortunately many of the parties did not co-operate as anticipated or as promised in some cases. Some of the problems that arose in this regard were 14 In this regard, the Secretary-General had this to say: ‘[W]hen a peacekeeping operation is firmly based on a detailed agreement between the parties in conflict and they are prepared to abide by that agreement, it is relatively easy to maintain . . . (eg UNEF and UNDOF) . . . when, however, an operation is mounted in an emergency with ambiguous or controversial objectives and terms of reference, and on assumptions which are not wholly realistic, it is likely to present far greater difficulties. This is undoubtedly the case with UNIFIL.’ K Waldheim, in R Schiffer (ed), Building the Future Order (London, Collier Macmillan, 1980), at 45. 15 C Cruise O’Brien, The Siege: The Saga of Israel and Zionism (London, Weidenfeld & Nicolson, 1986), 584. See also N A Pelcovits, Peacekeeping on Arab–Israeli Fronts (Boulder and Westview Press/Foreign Policy Institute, 1984), 18. 16 I J Rikhye, The Theory and Practice of Peacekeeping (London, Hurst and Company, 1984), 109. 17 United Nations, The Blue Helmets—A Review of United Nations Peacekeeping, 3rd ed (New York, United Nations, 1996), 88–89.

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directly related to other assumptions made concerning the deployment of the force. The ill-defined reference to an area of operation was the most serious such flaw. However, it was impossible to be more specific at the time, as discussions in the Security Council and consultations with the governments of Israel and Lebanon revealed profound disagreement on the subject. It caused major problems when the force attempted to deploy in certain areas where the PLO maintained strongholds, and in places from which the Israeli Defence Forces withdrew without handing over to UNIFIL. The dangers of not defining the precise area of operation became all too evident when UNIFIL troops from the French contingent attempted to deploy around key PLO strongholds.18 The PLO put up strong resistance to the French presence in this area, and this was combined with a diplomatic campaign in New York by Arab States on their behalf. The PLO objected to UNIFIL’s deployment in these areas because they had never been occupied by the Israeli Defence Forces. The matter was complicated by the so-called ‘Cairo Agreement’, which legitimised the PLO’s presence in Lebanon and supposedly governed its activities there.19 At the time, the UNIFIL Force Commander and the Lebanese Government were in favour of taking stronger action against the PLO within UNIFIL’s area of operation.20 However, UNIFIL was not a combat or enforcement mission, and the PLO stronghold had been by-passed by the much more militarily capable Israeli Defence Forces. Furthermore, UNIFIL was a very precarious political creation, and it is almost certain that the Soviet Union, and the pro-Palestinian lobby at the UN, would have strenuously objected. UNIFIL was a peacekeeping mission under a Chapter VI resolution of the Security Council, and as such it relied on the co-operation of the parties concerned. Any problem of this nature had to be resolved by negotiation, however unsatisfactory a subsequent agreement arrived at in this manner turned out to be. It is no surprise that deployment in the area ‘was not pressed’.21 Later the SecretaryGeneral was able to report that relations with the PLO in the area had not created major problems.22 But the agreement did have its drawbacks and propaganda value to those opposed to UNIFIL. It also provided the Israeli-backed de facto forces of Major Haddad with an ideal excuse for refusing to allow UNIFIL to deploy in the area under their control. Initially it appeared that Israel would withdraw fully from Lebanon and that some kind of working relationship could be established with the de facto forces of Major Haddad. Unfortunately, the Lebanese Government and the UN then made a major error in judgement when Major Haddad was provisionally recognised as de facto Commander of the Lebanese forces in his area for the purpose of facilitating UNIFIL’s mission.23 This put UNIFIL in a difficult position and compromised the effort to implement the Security Council mandate. 18

UN Doc S/12845 (13 September 1978), paras 36–38; and The Blue Helmets, ibid above n. 17 at 88–89. The text of the Agreement is given by W Khalidi, Conflict and Violence in the Lebanon: Confrontation in the Middle East (Cambridge, Massachusetts: 1979) 39 Harvard Studies in International Affairs 185–87. 20 Interview with Lt Gen Erskine, former Force Commander UNIFIL (Dublin, July 1986). See also G Tueni, Une guerre pour les autres (Paris, Jean Claude Lattes 1985), 203–04 and S/12620/Add5 (13 June 1978), para 13. 21 UN Doc S/12845 (13 September 1978), para 37. 22 UN Doc S/12929 (18 November 1978). para 18. 23 UN Doc S/12620, Add 5 (13 June 1978), paras 15–17. The Lebanese army command was to issue instructions to Major Haddad to facilitate UNIFIL’s mission and deployment. 19

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As events unfolded, it became clear that the Israelis and Major Haddad’s forces would not co-operate with UNIFIL. There were strong objections to the agreements concluded with the PLO.24 If the UN did not take full control of the PLO territory then it would not be permitted to deploy in the areas controlled by the de facto forces.25 From their perspective, UNIFIL was allowing the PLO to re-establish itself in its area. This was not true, but having backed down from confronting the PLO, it was not unreasonable to assume it would do so again in this case. By the time the Lebanese Government decided to revoke the provisional recognition given to the leader of the de facto forces, Major Haddad, much valuable time and ground had been lost.26 As far as Israel was concerned, it had fulfilled its part in the implementation of Resolutions 425 and 426, which, it was claimed, did not require control of any area to be turned over to UNIFIL.27 This was a narrow and erroneous interpretation of the resolutions in question, and that led to serious confrontations with the peacekeeping force. A central task of the newly constituted and reconfigured UNIFIL28 is the disarmament of Hizbollah. This is not the first UN mission involving disarmament of one of factions, and the problems encountered by the UN missions in Somalia and Kosovo provide insights into how difficult such operations can be in practice. un forces in somalia and the disarmament of the warlords UN intervention in Somalia arose from the urgent need to respond to the famine and appalling suffering of the Somali people. As the security situation deteriorated and the UNOSOM I peacekeeping operation floundered in late 1992,29 the US indicated that it would be prepared to spearhead a UN-sanctioned forceful mission under Chapter VII to establish a secure environment for humanitarian operations. Not surprisingly, with no capacity to launch a similar UN-commanded operation, the Security Council agreed. Despite UNITAF’s Chapter VII mandate, the US relied heavily on traditional peacekeeping principles. This would have been admirable in another context, but neutralisation of the Somali clan’s heavy weapons and disarmament were essential to creating a secure environment. It is easy to portray an operation that sets itself limited goals as an unqualified success when it fulfils these limited objectives. The reality may be somewhat different, especially if the force has the capability to achieve much more. UNITAF was such an operation, and in its execution of the mandate it avoided the main obstacles to a long-term restoration of peace.30 24 Letter dated 13 June 1978, from the representative of Israel to the Secretary-General, UN Doc S/12736. For the Secretary-General’s description of the ‘accommodation’ reached with the PLO, see UN Doc S/12845 dated 13 September 1978, paras 39–42. It was agreed, inter alia, that UNIFIL would only deploy in areas physically used or held by the Israeli Defence Forces, and that armed PLO elements (140 approx in six positions) in the UNIFIL area would be allowed remain but these would not be used for military purposes. 25 See the reports in The Irish Times, 8 June 1978 and 19 June 1978. 26 Personal interview with senior Irish officer with UNIFIL at the time (Galway, March 1999). 27 S/12840, letter dated 8 September 1978, from the representative of Israel to the Secretary-General. 28 Res 1701 above n 3, at para 8. 29 UN Doc S/24868 (30 November 1992). 30 B Boutros-Ghali, Unvanquished: A US–UN Saga (New York, Random House, 1999), 59–60. BoutrosGhali believed that three critical steps were needed: disarming the warring groups, establishing a secure environment, and creating a working division of labour between the US and UN on the ground.

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The American refusal to live up to the consequences of its intervention was especially damaging to this critical issue.31 With around 30,000 troops, under a unified system of command, UNITAF certainly had the capacity to disarm the warlords.32 But the political rhetoric did not translate into effective action on the ground. Instead UNITAF chose to evade this difficult task by requesting that weapons be moved out of the areas ‘controlled’ by it to other locations. Although adopting such an approach did avoid confrontation and inevitable casualties, the policy was flawed, as a concentrated effort to remove and destroy the Somalis’ heavy weapons, including the infamous ‘technicals’, was an achievable goal at that time that would have laid the ground rules for the subsequent UN operation to follow. It would also have been an ideal way of showing serious intent to restore order. While it is fair to argue that Mogadishu could no more be disarmed than urban areas in Western countries, in order to create a secure environment in which some degree of normality was restored, it was necessary to confiscate weapons carried openly and seize the infamous ‘technicals’.33 Failure to do so meant that those with the most weapons continued to wield most power. The warlords realised that they would not face a serious challenge from UNITAF and that, if they bided their time, it would be replaced by a militarily weaker UN force. There were no long-term strategic or political objectives that might threaten the warlords’ supremacy, and it soon became apparent that adopting a wait-and-see policy was the most prudent response until UNITAF left. By the time the United States formally acknowledged that disarmament of the clans was necessary, it was too late. It seemed that despite pleas by the UN to remain longer, UNITAF wanted to ensure the mission was deemed a success and that the situation was ripe for a handover to the UN-mandated and commanded UNOSOM II mission in May 1993. Although a much less militarily capable force, the mandate of UNOSOM II was wider and sufficiently imprecise to ‘offer many hostages to fortune’.34 Acting under Chapter VII, the new force would not be constrained by the issues of consent or the use of force in selfdefence only. The ‘demands’ on disarmament, and ‘requests’ for national reconciliation and the ‘consolidation, expansion and maintenance of a secure environment throughout Somalia’, contained in Resolution 814 (1993), were easy to make, but later proved impossible to achieve in the circumstances.35 One of the main problems with disarmament was the related issue of consent and confrontation. Any task of this nature is a delicate balance between co-operation and confrontation.36 The risks are high, and there is the added dimension of national 31 W Clarke and J Herbst, ‘Somalia and the Future of Humanitarian Intervention’ (March/April 1996) 75(2) Foreign Affairs 70, at 75; and W Clarke and J Herbst (eds), Learning From Somalia (Boulder, Westview Press, 1997), 239–53. 32 It had a number of well-trained and ‘elite’ units from European armies, such as the French Foreign Legion, Belgian Para Commandos, and Italian paratroopers. 33 Ambassador Oakley makes this point with regard to Mogadishu, see J Hirsch and R Oakley, Somalia and Operation Restore Hope (Washington, US Institute of Peace, 1995), 105. 34 SC Res 814 (26 March 1993). The quote is from I Lewis and J Mayall, ‘Somalia’, in J Mayall (ed), The new interventionism 1991–1994; United Nations experience in Cambodia, former Yugoslavia, and Somalia (Cambridge, Cambridge University Press, 1996), at 94. 35 SC Res 814 (26 March 1993), section A, para 4 and section B, paras 7–14. See F Tanner, ‘Weapons Control in Semi-permissive Environments: A Case for Compellance’, in M Pugh, The UN, Peace and Force, and (Winter 1996) 3(4) International Peacekeeping 126, at 140. 36 See Tanner, above n 35.

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contingent interpretation of the rules of engagement and differing contributing States’ policy. UNOSOM II showed that some national contingents were not prepared to take part in enforcement operations.37 Later, delay in weapons control implementations eroded the trust between UNOSOM II and the parties, and led to increased boldness of the warring factions.38 The Somalia case illustrates how quickly a UN force can slide into combat when enforcing compliance. The more strict rules regarding disarmament enforced by UNOSOM II led to tense relations between UN and the clans, especially when contrasted with the more lax policy of UNITAF. command and control The command and control mechanism agreed upon for the proposed international force will be an important factor in determining its effectiveness on the ground. There are numerous precedents to examine in deciding an appropriate command structure. The UNOSOM II mission in Somalia provides some good lessons on how not to frame a command structure in the context of a hostile environment and a peace enforcement operation. The establishment of UNOSOM II had many similarities with that of a traditional peacekeeping force such as UNIFIL. A Turkish General, Cevic Bar, commanded the force, and he had contingents from a wide political spectrum under his control. The force was established under Resolution 814 (1993), which included a provision to the effect that the force would be supervised closely by the Secretary-General and the Security Council.39 More importantly, it cited Chapter VII, which expressly authorised UNOSOM II to use force. This was the first such occasion on which a UN operation of this nature was authorised to use force in this way since the ONUC operation in the Congo prevented the attempted secession of the Katanga province. UNOSOM II took over formally from UNITAF/UNOSOM I on 4 May 1993.40 The US, however, continued to play a leading role in every facet of UNOSOM II’s organisation and mandate.41 In many ways this suited the UN Secretariat and Secretary-General Boutros-Ghali, who realised that the operation depended on American military and political support. The US agreed to provide logistical and tactical support under a complex command and control arrangement, but this, among other things, was later to cause a serious rift between the Clinton administration and the Secretariat.42 37 See G Anderson, ‘UNOSOM II: Not Failure: Not Success’, in D Daniel and F Hayes (eds), Beyond Traditional Peacekeeping (New York, St Martins Press, 1995), 274. 38 See questionnaires on Somalia, analysed by J W Potgieter in Managing Arms in Peace Processes: Somalia, DCR—Project (1995) UNIDIR 135–231. 39 SC Res 814 (26 March 1993), paras 14 and 18. 40 In accordance with Resolution 814, ibid. It provided for a multinational force of 20,000 troops, 8,000 logistical and 3,000 civilian support staff. The US also agreed to provide a tactical quick reaction force. 41 Ultimately this caused serious differences between the Secretary-General and the Clinton administration: see Boutros-Ghali, above n 30, at 92–102. For an overview of the experience of the larger European armies involved in Somalia, see G Prunier, ‘The Experience of European Armies in Operation Restore Hope’, in Clarke and Herbst (eds), Learning from Somalia, above n 31, at 135–47. See also Message from the President of the United States—A Report on the Military Operation in Somalia, October 13, 1993 (US Government Printing Office, 1993) for US conditions on participation. 42 See Boutros-Ghali, above n 30, at 93–94, and Jonathan T Howe, ‘Relations Between the United States and the United Nations in Dealing with Somalia’, and H Johnson and T Dagne, ‘Congress and the Somalia Crisis’, in Clarke and Herbst (eds), Learning from Somalia, above n 31, 173–90, esp 179–84 and 191–204.

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While in theory the US had thus handed back control of the operation to the UN, the reality was much different. A convenient mechanism to allow the US ensure that one of its own officers retained full command of US troops in Somalia was put in place by the appointment of General Montgomery as Deputy Force Commander. It was no coincidence either that an experienced NATO officer would command this ‘strange and fragmented operation’, or that retired American Admiral Howe would act as the Secretary-General’s Special Representative.43 The Force Commander reported directly to the Special Representative, who in turn reported to the Secretary-General. This gave significant influence to the US, even if it did not formally command the mission. In addition, this complex system was made even more cumbersome by the decision of the US to establish a Quick Reaction Force outside the UN chain of command.44 This amounted to the establishment of a parallel US chain of command that was intended to exist alongside, but independent from, the UN command structure. It is difficult to describe this set-up as other than a recipe for confusion and ultimate disaster. How it was intended to operate in times of crisis in the context of an already complex multi-dimensional operation involving around 30 nations and many non-governmental organisations, is a question that must not have been addressed seriously by military planners in Washington and the Department of Peacekeeping Operations in New York. The continued American domination proved to be a mixed blessing for UNOSOM II, and events showed that the structures put in place proved unable to maintain cohesion under pressure and ultimately contributed to the demise of the force. The problem of double allegiance is not a significant consideration in all multinational forces. The commander of a peacekeeping force has both civilian and military functions, and the troops are usually considered international civil servants for the duration of their UN service. Nevertheless, they continue to remain part of the armed forces of their respective countries. It is now accepted that contingents will consult their national governments on decisions which may not conform to defence or foreign policy directives back home. Serious problems did arise in the course of the operation in the Congo (ONUC 190-64), when contributing States disagreed with UN policy, in particular its apparent reluctance to take stronger action to resolve the situation in Katanga.45 Unfortunately, one of the practical lessons from UN involvement in Somalia (and the former Yugoslavia) is that the organisation ‘cannot manage complex political-military operations’.46 The well-publicised differences between the commander of the Italian contingent and the UNOSOM II force commander show how serious this problem was in Somalia.47 It caused serious operational difficulties on the ground and seriously hindered the effectiveness of the force at a critical period. Other contingents had less well-publicised difficulties in this regard too. As contingents are usually placed under the operational control, and not under the full command, of a force commander of multinational forces, these problems will inevitably reoccur. 43

This was the description used by Boutros-Ghali; see Boutros-Ghali, above n 30, at 93. The United States also deployed a specially constituted Task Force Ranger, which remained at all times under the direct command and control of the Commander in Chief, United States Special Operations. 45 R Higgins, The United Nations Operation in the Congo (ONUC) 1960—1964 (London, Royal Institute of International Affairs, 1980), ch 8, ‘Relations with Contributing States’, at 97–124. 46 See C A Crocker, ‘The Lessons of Somalia: Not Everything Went Wrong’, (May/June 1995) 74(3) Foreign Affairs 5. 47 The Secretary-General considered that the Italians were a ‘mistake’ and that as a former colonial power they pursued their own agenda: see Boutros-Ghali, above n 30, at 96. 44

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lessons from the nato-led kosovo force and the united nations mission in kosovo The NATO-led Kosovo Force (KFOR) was cited as a possible model to follow in the deployment of a reconfigured UN force in Lebanon.48 Resolution 1244 approved the establishment of a UN mission in Kosovo (UNMIK), with a NATO-led multinational military force under a Chapter VII mandate. The overall mandate given to UNMIK and KFOR was unprecedented in its complexity and the broad range of tasks undertaken by a UN transitional administration.49 The resolution required the demilitarisation of the Kosovo Liberation Army (KLA), and an agreement to this effect was signed on 20 June 1999. Under Resolution 1244, KFOR is responsible for the overall security environment in Kosovo. It comprises four Multi-National Brigade (MNB) areas and is specifically tasked with: a) establishing and maintaining a secure environment, including public safety and order; b) monitoring and verifying when necessary, and enforcing compliance with the agreements that ended the conflict; c) providing assistance to UNMIK, including core civil functions until these were transferred to UNMIK. Although minorities are not expressly referred to, the protection and promotion of human rights is stated to be one of the main responsibilities of the international civilian presence. The failure expressly to mention the need to protect minorities was a serious omission in the resolution, especially as their protection is central to the justification for the continued international presence in Kosovo. The demilitarisation of the KLA and the prevention of a civil war between rival factions was a significant accomplishment in the early period of UNMIK and KFOR’s deployment. Resolution 1244 demanded that the KLA and other armed Kosovar Albanian groups bring an immediate end to all offensive actions and comply with the requirements for demilitarisation as laid down by the head of the international security presence in consultation with the Special Representative of the Secretary-General. The KLA were quick to realise the necessity of co-operating with NATO. It took just 10 days for the Undertaking of Demilitarisation and Transformation to be signed between KFOR and the KLA. The first article of the agreement mandated the KLA’s ‘disengagement from zones of conflict, subsequent demilitarisation and reintegration into civil society’. A timetable was also agreed, as was a policy of preferential access to available places in the Kosovo Protection Corps (KPC) and the Kosovo Police Service (KPS). Despite the presence of KFOR, though, population displacements continued, and the Serb and Roma populations in particular were the subject of significant levels of violence.

48 Personal interview with Department of Peacekeeping Operations official, UN Headquarters (New York, June 2007). 49 See generally M J Matheson, ‘United Nations Governance of Post Conflict Societies’ (2001) 95 AJIL 76.

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The four KFOR MNB areas, though multinational, were dominated by individual States,50 KFOR troops coming from 36 NATO and non-NATO member countries.51 Although this undermines the military effectiveness of the force as a whole, it is not the biggest problem confronting KFOR. Each brigade is responsible for a specific area of operations, and under Resolution 1244 they are under the unified command and control of Commander KFOR from NATO. This is a military term that in reality involves only a limited form of transfer of power over troops. In addition, each contributing State has entered caveats in respect of the participation of its troops. In fact, the MNB Commanders have a significant degree of actual autonomy of command, and the overall KFOR Commander has limited operational command and control. He or she can certainly task the Brigade Commanders, but there is no real sanction should they decide to ignore the ‘orders’ emanating from headquarters. This means that national governments have a decisive role in the strategy and policies adopted by KFOR. Not surprisingly, there are significant differences in the priorities and standard operating procedures adopted in each MNB area. In order for an international UN force to be acceptable to the Security Council, to the parties involved and to the international community, it is necessary to ensure that there is a wide geographic distribution and a political balance among the contributing States. However, this is often detrimental to operational effectiveness. When disparities in culture, training and experience are taken into account, it is remarkable that a multinational force can operate at all. The initial proposals for an enhanced international force in Lebanon called for military personnel from developed countries, and a lead nation probably from a NATO country. At first this caused significant difficulties for the UN, as countries such as France initially seemed unwilling to commit significant numbers.52 un deployment in lebanon 2006 and resolution 1701 Resolution 1701 contains a number of important provisions, some of which may prove very difficult to implement. The resolution is much longer than Resolution 425 (1978) and in essence calls for: —A full cessation of hostilities —Deployment of Lebanese armed forces along the borders with Israel and Israeli withdrawal —Financial and humanitarian assistance for Lebanon —Co-operation from all parties. Operative paragraph 8 is especially important and calls for Israel and Lebanon to support a permanent ceasefire and a long-term solution based on the following principles and elements: 50 Originally France, Germany, the United States, and Finland. Ireland assumed command of one of the MNBs in 2007. 51 The NATO member States participating in KFOR (August 2006) were: Belgium, Bulgaria, Canada, Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, United Kingdom, and the United States. The non-NATO participating States are: Argentina, Armenia, Austria, Azerbaijan, Finland, Georgia, Ireland, Morocco, Sweden, Switzerland and Ukraine. 52 D De Breadun, ‘UN peace mission threatened by lack of support’, The Irish Times (19 August 2006), 1.

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—full respect for the Blue Line by both parties, —security arrangements to prevent the resumption of hostilities, including the establishment between the Blue Line and the Litani river of an area free of any armed personnel, assets and weapons other than those of the government of Lebanon and of UNIFIL as authorized in paragraph 11, deployed in this area, —full implementation of the relevant provisions of the Taif Accords, and of resolutions 1559 (2004) and 1680 (2006), that require the disarmament of all armed groups in Lebanon, so that, pursuant to the Lebanese cabinet decision of July 27, 2006, there will be no weapons or authority in Lebanon other than that of the Lebanese state, —no foreign forces in Lebanon without the consent of its government, —no sales or supply of arms and related materiel to Lebanon except as authorized by its government, —provision to the United Nations of all remaining maps of land mines in Lebanon in Israel’s possession. Paragraph 11 reflects the Security Council decision to authorise an increase in the strength of UNIFIL to a maximum of 15,000 troops, and that the force shall, in addition to carrying out its mandate under Resolutions 425 and 426 (1978): a. Monitor the cessation of hostilities; b. Accompany and support the Lebanese armed forces as they deploy throughout the South, including along the Blue Line, as Israel withdraws its armed forces from Lebanon; c. Coordinate its activities with the Government of Lebanon and the Government of Israel; d. Extend its assistance to help ensure humanitarian access to civilian populations and the voluntary and safe return of displaced persons; e. Assist the Lebanese armed forces in taking steps towards the establishment of the demilitarized zone between the Blue Line and the Litani river; f. Assist the government of Lebanon, at its request, to secure its borders and points of entry. Operative paragraph 12 authorises UNIFIL to take all necessary action in areas of deployment of its forces and as it deems within its capabilities, to ensure that its area of operations is not utilized for hostile activities of any kind, to resist attempts by forceful means to prevent it from discharging its duties under the mandate of the Security Council, and to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of movement of United Nations personnel, humanitarian workers, and, without prejudice to the responsibility of the Government of Lebanon, to protect civilians under imminent threat of physical violence. While the mandate is more clear and comprehensive than other resolutions in relation to UNIFIL in a number of respects, it is far from clear how it will be implemented. Even the maintenance of ‘full cessation of hostilities’ is problematic.53 Especially difficult is paragraph 8, which calls for security arrangements to prevent the resumption 53

Res 1701, above n 3, at para 2.

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of hostilities and the creation of a demilitarised zone between the so-called Blue Line between Israel and Lebanon and the Litani River.54 Even if Hizbollah were to agree to this provision, it merely means their having to move their rocket launchers and similar weapons to above the line of the river. This is not a long-term solution to the problem of disarming Hizbollah. At first it seemed that Israel had learned something from its chequered past in Lebanon and that Israeli forces were eager to hand over positions to the newly constituted UN force and/or the Lebanese army.55 However, a commando raid on Hizbollah in August 2006 in breach of the UN ceasefire, and numerous Israeli overflights since then of Lebanese territory by manned and unmanned aircraft are all too reminiscent of past Israeli actions in Lebanon.56 Furthermore, the token reference to the protection of civilians and earlier resolutions on the Middle East that have been ignored to date do not inspire confidence.57 The resolution did not expressly say who should disarm Hizbollah, but the implication was that it should be the Lebanese armed forces, with assistance from the reconfigured UNIFIL. But the ‘modalities’—to use UN terminology for such action—are not explained. Neither is any disarmament, demobilisation or reintegration programme proposed. The Israelis had high expectations for UNIFIL in terms of disarmament of Hizbollah, but these were never realistic. The Lebanese Government and armed forces are too weak and divided to be able to take any kind of offensive military action against Hizbollah fighters.58 It was said that the proposed rules of engagement were ‘robust but not offensive’. What does this mean in practice? Can UNIFIL use force to disarm Hizbollah? The answer must be no, otherwise the UN will end up trying to do what the Israelis could not achieve by force. Hizbollah’s tenacity has given ‘it mythic status in Arab eyes’59 and any attempts by UNIFIL to disarm the militants forcibly will ensure that UNIFIL will be perceived as an occupying army, with all the consequences that this will entail. French and American forces sustained serious casualties when part of the Multi-National Force deployed in the 1980s; a similar fate awaits any international force that takes on Hizbollah in south Lebanon.60 In military terminology, there is no concept of operations. The command and control structures and rules of engagement are also uncertain. The UN is not equipped or prepared for the kind of operation required in south Lebanon. It was not feasible to authorise a lead country as part of a coalition of the willing to undertake such a task either.

54

See ‘Paris seeks assurances Hizbollah will disarm’, Financial Times (16 August 2006), 1. F Biedermann and H Morris, ‘Israeli handover set to start tomorrow’, Financial Times (16 August 2006), 2. 56 Report of the Secretary-General on the Implementation of Security Council Resolution 1701 (2006) UNSC Doc S/2007/392, para 1. N Ladki, ‘Israeli raid in Lebanon strains truce’ Reuters (20 August 2006). 57 SC Res 242 (22 November 1967) and SC Res 338 (22 October 1973). 58 See J Solomon, ‘Rebuilding Lebanon’s military is critical to defusing Hezbollah’, The Wall Street Journal (9 August 2006), 1. 59 W Wallis, ‘Hizbollah’s tenacity wins it mythic status in Arab eyes’, Financial Times (9 August 2006), 3. 60 See generally R Thakur, International Peacekeeping in Lebanon (Boulder and London, Westview, 1987). 55

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conclusion A factor often overlooked in the criticism of the UN is that the organisation is most often resorted to by States only when it suited their purposes and the problem otherwise seems insoluble. The situation created by the 1978 invasion of Lebanon was such an instance. This is not to say that the organisational failures, such as those identified by the Brahimi Report, did not contribute to the difficulties, but this was just part of the problem.61 The establishment of UNIFIL was primarily sponsored by the United States to facilitate a speedy withdrawal of Israel from Lebanon in 1978 and to ensure that the so-called Camp David Accords were not further jeopardised by Israeli actions. The force would also help prevent the outbreak of another major conflict between Syria and Israel. Co-operation from the Israelis was vital to the success of UNIFIL. When it became clear that it was not forthcoming, the United States never brought sufficient pressure to bear on the Israelis to ensure that they would succumb. The mandate agreed upon for UNIFIL was unrealistic and lent itself to different interpretations by opposite parties. Many elements of the overall plan for the deployment of UNIFIL had obvious deficiencies. In this way, its success has remained dependent on factors outside its control. This scenario is repeating itself in many ways today. A number of recent multinational interventions, whether under the banner of the UN or an independent coalition, have often failed to make a long-term improvement in the crisis situation.62 There has been a tendency to rely on short-term political expediency to the detriment of long-term strategic policies at the operational level. In general, the military component of multi-dimensional operations has developed a doctrinal approach that largely has ignored the realities of the crisis environment and instead has sought to rely on the limited version of the problem that could be resolved by military means.63 This is a natural response from a conventional military that perceives its role as essentially limited to the provision of security, and even then, its first priority will always be its own security. Part of the initial reluctance to participate in UNIFIL by European States may stem from an appreciation that the concept of security encompasses much more than ‘keeping the lid’ on things and must embrace the security of the local population, disarmament, reconstruction and rehabilitation. The failure to disarm the clans was a serious flaw in the implementation phase of the UN operation in Somalia, but even success in this would have been insufficient without the creation of a safe environment. If you want to create a secure environment then peace must be made with all the parties. The narrow focus on humanitarian and military issues meant the underlying political problems did not receive sufficient attention. In a world in which the challenges of Darfur and Kosovo will reoccur, we face the painful dilemma of being ‘damned if we 61

Brahimi Report, above n 8. J MacKinlay and R Kent, ‘A New Approach to Complex Emergencies’ (Winter 1997) 4(4) International Peacekeeping 31, at 36. 63 Ibid, at 45 and 46. See also A de Waal and R Omaar, ‘Can Military Intervention Be “Humanitarian”?’ (March–June 1994) Middle East Report 5–8; and T Weiss, ‘Military–Civilian Humanitarianism: The “Age” of Innocence is Over’ (Summer 1995) 2(2) International Peacekeeping 157–74. For a military perspective see S L Arnold, ‘Somalia: An operation Other Than War’ (December 1993) Military Review 26–35 and W D Freeman, ‘Operation Restore Hope—A US Centcom Perspective’, (September 1993) Military Review 61–72. 62

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do and damned if we don’t’.64 All sides in a conflict can manipulate events for their own purposes. The NATO campaign in Kosovo did not lead to a formal peace agreement but rather a cessation of hostilities. This and the mandate of the UNMIK administration, left political and constitutional issues unresolved. All peacekeeping operations need the support of the members of the Security Council, irrespective of the particular nature of the operation. Problems will arise when missions are ill-defined, and this was compounded in the case of Somalia by a dispute about the authority to use force, and in Kosovo by uncertainty regarding the future status of the province. The Brahimi Report called for more robust Rules of Engagement (ROE) in operations involving intra-State/transnational conflicts and bigger and better equipped forces. It did not seem to take full cognisance of the fact that the use of force must be accompanied by political will, a clear mandate and strategy, a willingness to accept casualties, and a need for an effective command and control mechanism to ensure cohesion and uniform application. It also failed to address the issues raised by regional peacekeepers or coalitions of the willing acting under the authority of the UN. KFOR did succeed in facilitating the return of one million refugees and displaced persons to their homes in Kosovo. However, it later presided over the ethnic cleansing of Serbs and failed to protect other vulnerable communities in Kosovo. The credibility that the initial intervention earned for NATO has since been undermined. Somalia shows that robust rules of engagement and increased size are not enough, and while it is imperative not to employ an emasculated UN force, it is important to have a clear military and political strategy agreed at the outset. The long-term strategy was unclear at the time of inception, but by the end of the operation it was non-existent. The unfolding events showed that the United States and the UN forces failed to appreciate the contradictions and inconsistencies in their confused roles of peacekeeping, peacemaking and peace enforcement. When this was combined with United States domination, and key positions held by difficult personalities, it was hardly surprising that UNOSOM II became a major protagonist in a conflict it was supposed to help resolve. In many cases, the Security Council acts as if the mandate will be self-executing once the troops are deployed. When the UNIFIL mandate proved impractical, the de facto mission of the force became the provision of a secure environment for the local population. It took nearly 23 years for UNIFIL to implement the mandate, but its ultimate success in achieving this goal may be said to have vindicated the role of traditional peacekeeping. The same may not be said of the intervention in Somalia. Apart from the loss of life on all sides, the tragedy of Somalia is the failure to learn the right lessons from a situation where the UN was called upon to fulfil a range of impossible and confused tasks. UNIFIL and Lebanon still confront major obstacles. The UN Secretary-General remains ‘deeply concerned’ at the volatile political and security situation in Lebanon as a whole.65 There have been increased threats against UNIFIL from militant groups. 64 R Thakur and A Schnabel, ‘Unbridled humanitarianism: Between justice, power and authority’, in A Schnabel and R Thakur (eds), Kosovo and the Challenge of Humanitarian Intervention (Toyko and New York, United Nations University Press, 2000) 496, at 497. 65 UN Doc S/2007/392, above n 56, at para 3, and Fifth semi-annual report of the Secretary-General on the implementation of Security Council Resolution 1559 (2004), UN Doc S/2007/262 (7 May 2007).

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Six UNIFIL personnel serving with the Spanish contingent were killed in a roadside explosion on 24 June 2007. The situation along the so-called Blue Line remains tense and fragile, with standoffs between Israeli and Lebanese forces from time to time. A serious incident occurred in June when three Katyusha rockets were launched into Israel by unidentified militants. Hizbollah denied any responsibility and Israel has so far refrained from taking retaliatory action.66 Nevertheless, Israeli air violations of Lebanese air space are a cause of significant concern. In October 2006 the French contingent came close to firing on Israeli aircraft violating Lebanese air space.67 Such incidents highlight the volatility of the situation and the uncertainty surrounding the mandate and rules of engagement of UNIFIL. While Israeli forces have not harassed UNIFIL forces, as happened in the early days of the 1978 operation, Israel has not yet co-operated in handing over firing data relating to the cluster munitions used during the conflict in 2006. Syria needs to co-operate in facilitating a resolution of the Shab’a farms dispute and finalising a delineation of its border with Lebanon. It seems that all of Lebanon’s neighbours are contributing in one way or another to its security problems. There are persistent reports pointing to breaches of the arms embargo along the Lebanese–Syrian border by Syria and Iran. Both have a vested interest in maintaining a weak central government in Lebanon.68 Israel claims that Hizbollah is rebuilding its military capacity, especially outside the UNIFIL area of operations.69 It is widely believed that Syria is providing weapons to Hizbollah and Palestinian factions engaged in fighting Lebanese forces.70 Such actions add considerably to the already difficult task confronting the over-stretched Lebanese forces. Irish troops withdrew from Lebanon after a year deployed providing security to Finnish troops part of UNIFIL. The issues that precipitated the 2006 crisis are not yet resolved. Despite the presence of a large UNIFIL contingent, the overall political and security situation remains unpredictable. It is likely that there will be further conflict in the Lebanon and the region as whole before the issues outlined are resolved.

66 It was reported by Agence-France Presse on 23 August 2007 that ‘two Palestinian extremists’ had been arrested in connection with the roadside bombing. 67 ‘France urges Israel to stop air violations in Lebanon’, ABC News (26 October 2006); ‘France—Shots Almost Fired at Israeli planes’, EJC Israeli Press Review (10 November 2006); G Alon, ‘Peretz: French UNIFIL commanders say will shoot at IAF overflights’, www.haaretz.com (6 January 2007) Le Monde (29 October 2006). 68 UN Doc S/2007/392, above n 56, at paras 59 and 60. 69 Ibid, paras 25 and 29. 70 Ibid, para 32.

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Forgetting the Purposes of Hybrid Courts: The East Timorese Experience

Pádraig McAuliffe* Hybrid courts may be defined quite loosely, and can cover anything between a fully international court and a fully domestic one. The hybridity of the courts stems from the use of a mix of international and domestic judges, prosecutors and defenders trying a mix of international and domestic laws, usually sitting in the territory of the State where the crimes were committed.1 Though hybrid courts are relatively ignored academically in comparison to the ad hoc tribunals for Rwanda and the Former Yugoslavia or the International Criminal Court, what little coverage they are given is usually framed in terms of their place in the evolution of international transitional justice.2 In general academic analysis, hybrid courts are presented in historical terms. They are seen as the last stop in a trail of enforcement of international justice that has led from the supranational agreements to prosecute crimes at Nuremberg and Tokyo to the ICTY and ICTR, then to ICC, then to domestic trials through the exercise of universal jurisdiction, and finally mixed international and domestic tribunals. For example, Dickinson places hybrid courts as a fifth stage in accountability mechanisms.3 Higonnet, on the other hand, sees hybrids as a third generation of international criminal tribunals after Nuremberg and the ad hoc tribunals.4 Burke-White contextualises the hybrid court historically as an example of the delegation of authority; just as the international community delegated authority to prosecute international crimes first to international tribunals and then to international courts by Conventions, now * PhD Candidate, Centre for Criminal Justice and Human Rights, University College Cork. The author would like to thank Dr Siobhán Mullally for her comments. E-mail: [email protected]. 1 For example, in Sierra Leone, Kosovo and East Timor, two-thirds of the judges are international, with the remaining third made up of local agents, though Kosovo and Sierra Leone retain potential for alteration. Cambodia, however, has a majority of domestic judges. The international crimes dealt with by the courts are typically those contained in the Rome Statute of the International Criminal Court. The domestic crimes covered are usually those not included or covered differently in the Rome Statute on account of qualitative differences (such as murder or rape) and crimes with additional resonance in the aftermath of repressive rule, such as abuse of young girls in Sierra Leone or cultural crimes in Cambodia. 2 See generally K Ambos and MC Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Freiburg, Edition Iuscrim, 2002); C P Romano, A Nollkaemper and J K Kleffner, Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford, Oxford University Press, 2004); S D Roper and L A Barria, Designing Criminal Tribunals: Sovereignty and International Concerns in the Protection of Human Rights (Aldershot, Ashgate Publishing Co, 2006); J Cockayne, ‘The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals’ (2005) 28 Fordham International Law Journal 616; L Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295; D Cohen, ‘“Hybrid” Justice in East Timor, Sierra Leone and Cambodia: “Lessons Learned” and Prospects for the Future’ (2007) 43 Stanford Journal of International Law 1; D A Mundis, ‘New Mechanisms for the Enforcement of International Humanitarian Law’ (2001) 95 American Journal of International Law 934. 3 Dickinson, above n 2. 4 E Higonnet, ‘Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform’ (2006) 23 Arizona Journal of International and Comparative Law 347.

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both the international community and domestic States jointly delegate the authority to hybrid courts.5 They are usually examined as replacements for, or complements to, existing modes of transitional justice. The key questions asked are how hybrid tribunals can contribute to accountability in a given post-conflict situation,6 how hybrids and the International Criminal Court can interact,7 and the possible contribution hybrids can make to war crime jurisprudence and global international criminal law norms.8 This article does not quibble with this presentation of hybrid courts in the transformational transitional justice paradigm of punishment, social pedagogy or truth and reconciliation.9 Indeed, of all the purposes for which hybrid courts are designed, the most important of is that of trying the perpetrators of pre-transition serious crimes. Accountability is essential for political transformation. Failure to punish would call into question the authority and legitimacy of the new rule. As Landsman puts it, holding violators accountable for their misdeeds makes clear to ‘all members of society that law’s authority is superior to that of individuals’.10 After a period of repressive rule with politicised justice, fair trials are a critical response to past injustice, contrasting the beneficial nature of the new rule of law with the repressive old lawless regime. Hybrids are always a response to these pressing ad hoc transitional imperatives,11 ‘the product of on the ground innovation rather than grand institutional design.’12 Ad 5 W Burke-White, ‘A Community of Courts: Towards A System of International Criminal Law Enforcement’ (2002) 24 Michigan Journal of International Law 1. 6 L Dickinson, ‘Transitional Justice in Afghanistan: The Promise of Mixed Tribunals’ (2002) 31 Denver Journal of International Law and Policy 23; D M Gersh ‘Poor Judgement: Why the Iraqi Special Tribunal is the Wrong Mechanism for Trying Saddam Hussein on Charges of Genocide, Human Rights Abuses, and Other Violations of International Law’ (2004) 33 Georgia Journal of International and Comparative Law 273; B Hall, ‘Using Hybrid Tribunals as Trivias: Furthering the Goals of Post-Conflict Justice While Transferring Cases from the ICTY to Serbia’s Domestic War Crimes Tribunal’ (2005) 13 Michigan State Journal of International Law 39; R Lipscomb, ‘Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan’ (2006) 106 Columbia Law Review 182; D Tarin, ‘Prosecuting Saddam and Bungling Transitional Justice in Iraq’ (2005) 45 Virginia Journal of International Law 467. 7 Lipscomb, above n 6, and J I Turner, ‘Nationalizing International Criminal Law’ (2005) 41 Stanford Journal of International Law 1. 8 T Buergenthal, ‘Proliferation of International Courts and Tribunals: Is it Good or Bad?’ (2001) 14 Leiden Journal of International Law 267; W Burke-White, ‘Regionalization of International Criminal Law Enforcement: A Preliminary Exploration’ (2003) 38 Texas International Law Journal 729; Turner, above n 7. 9 See generally G G Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ, Princeton University Press, 2000); M Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Boston, Beacon Press, 1998); R G Teitel, Transitional Justice (Oxford, Oxford University Press, 2001), 33. 10 S Landsman, ‘Alternative Responses to Serious Human Rights Abuses: Of Prosecutions and Truth Commissions’ (1996) 59 Law and Contemporary Problems 81, at 83. 11 As Condorelli and Boutrouche put it, they ‘have been created on an ad hoc basis to respond to special situations’: L Condorelli and T Boutrouche, ‘Internationalised Criminal Courts and Tribunals: Are They Necessary?’ in Romano, Nollkaemper and Kleffner (eds), above n 2, 427, at 429. 12 Dickinson, above n 2, at 296. East Timor’s Special Panels were established to fill a vacuum, as the judicial system of the territory had collapsed and some judicial mechanism was required to bring perpetrators of atrocity to justice in the absence of political will to establish an international criminal tribunal. In Sierra Leone and Kosovo, hybrid courts were established because these societies were deeply divided and it was deemed necessary to establish mechanisms to ensure justice that was impartial and seen to be impartial during the transition from war to peace. In Bosnia, the establishment of the hybrid court was motivated by a desire to ensure fair trial rights in a divided society as well as to facilitate plans to wind down ICTY. The Cambodia court was established in response to continuing pressure by some national and international constituencies for some form of accountability for the crimes of the Khmer Rouge.

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hoc-ism is even considered a key characteristic of hybrid courts.13 Nevertheless, to conceive of hybrid courts merely as second-best, reactive solutions denies the impact of critiques of ad hoc tribunals,14 denies the facts that most governments actually requested them in preference to international tribunals15 and that reviews of hybrid courts commissioned by the UN have evaluated them on the basis of their rule of law reconstruction success,16 and above all else denies their potential. History has shown that transitional criminal trials facilitate the retribution, truth revelation and reconciliation that help prevent relapse into violence.17 History has also shown, however, that this may be done through methods that contradict our normal intuitions about the rule of law, using retroactivity, selective prosecutions, and foreign judges in highly politicised conditions. The tendency has been to view the hybrid court purely in terms of its success or otherwise as a transitional mechanism to advance punishment and, by extension, to usher in liberal political change. However, the mixed nature of such courts makes them radically different from the usual purely domestic or purely international accountability mechanisms, not only in form but in ethos, environment and (above all) purpose. The danger with the above view of hybrid courts is that this approach ignores much of the motivation for the development of this type of tribunal and elides its greater potential in post-conflict societies. What is notable in existing discourse is the failure to acknowledge the influence of failed UN peace operations in the discrediting of purely international tribunals, as both became synonymous with the failure to develop a comprehensive rule of law in the post-conflict State. It is worth noting that all hybrids have been built in States where the UN participated in complex peace operations— 13 S Nouwen, ‘“Hybrid courts”: The hybrid category of a new type of international crimes courts’ (2006) 2 Utrecht Law Review 190, at 211. 14 ‘In the face of the Security Council’s reluctance, the focus of expectation shifted to the UN Secretariat to develop a model similar in form, substance, and international legitimacy to the ad hoc tribunals, but one which respects a nation’s visions of justice, its choice of means of bringing it about, and its ownership, at least in part, of the judicial process’: D Shraga, ‘The Second Generation of UN-Based Tribunals: A Diversity of Mixed Jurisdictions’, in Romano, Nollkaemper and Kleffner (eds), above n 2, 15, at 15. 15 For example, the Sierra Leone Government resisted a fully-fledged international tribunal on the basis that Sierra Leonean participation in and ownership of the trial process was important. The Security Council Resolution requesting the Secretary-General to negotiate with the Government to establish the SCSL referred specifically to ‘the pressing need for international co-operation to assist in strengthening the judicial system of Sierra Leone’ (UNSC Res 1315, UN SCOR 4186th meeting, UN Doc S/RES/1315 of 14 August 2000, Preamble). For perhaps more cynical reasons, the Cambodian Government was opposed to a fully international tribunal but requested hybrid structures (Letter from Norodom Ranariddh, First Prime Minister of Cambodia, and Hun Sen, Second Prime Minister of Cambodia, to Kofi Annan, UN SecretaryGeneral (21 June 1997), in UN Doc A/51/930). As will be seen below, East Timorese leaders and the embryonic legal community preferred a hybrid court, though NGOs did not. Similarly, Rwanda’s post-conflict Government was reluctant to see a fully international tribunal try its genocidaires, and was very much opposed to the location of the tribunal outside Rwanda (SC Res 955, UNSCOR 3453rd meeting, UN Doc S/RES/955/Annex, Statement of Manzi Bakuramutsa, Representative of Rwanda, of 8 November 1994). 16 Most notably, Antonio Cassese’s commissioned report on the SCSL (A Cassese, ‘Report on the Special Court for Sierra Leone’ (2006) http://www.sc-sl.org/documents/independentexpertreport.pdf ) evaluated the Court’s long-term contribution to the domestic justice system in ch VII ‘The Special Court’s Legacy’, while a UN Commission of Experts made numerous references to justice sector development in a review of the East Timorese transitional criminal trial process. (UN Secretary-General, letter dated 24 June 2005 from the Secretary-General addressed to the President of the Security Council, UN Doc S/2005/458, Annex II, Report to Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, of 25 May 2005 (hereinafter Report of the Commission of Experts)). 17 J Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge, New York, Cambridge University Press, 2004).

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Kosovo, East Timor, Bosnia-Herzegovina, Sierra Leone, Lebanon and Cambodia. Hybrid trials are justified by other forward-looking, consequentialist purposes concerned with the long-term reconstruction of fair trial standards, rights protection and cultural change in the judiciary above and beyond the necessary but more short-term transitional imperatives. Their primary justification is that trials of the previous regime’s wrongdoers observing scrupulously fair due process standards build the rule of law by demonstrating that certain actions or omissions are proscribed by law and subject to punishment. Hybrids try criminals not only to remove them from the population and to satisfy retributive impulses, but to establish a judicial culture where impunity is unthinkable and all are equal before the law. These are not merely added advantages of hybrid courts—these are core functions. Instead of viewing hybrid courts as the apex of the development of international criminal accountability, this article presents them as a radical diversion from the traditional application of successor justice, implementing some lessons learned in the evolution of UN peace operations as they advance from relatively low-level observation and peacekeeping missions to highly complex and intrusive missions, which above all else emphasise the need for rule of law reform. As Stromseth, Wippman and Brooks suggest, the question of whether and how accountability processes can contribute to the development of domestic justice systems and the construction of the rule of law is ‘surprisingly underanalyzed’ academically.18 To date, the two fields have been treated mostly as two separate areas of interest in both academic coverage and in UN peace operations. As a result, the full potential of accountability proceedings to ground rule of law and institutional reform has not been met. To a certain extent, ‘we are relatively early in the process of understanding the longer-term impacts of accountability processes—such as criminal prosecutions, truth commissions, reconciliation proceedings, vetting—in different postconflict societies more systematic thinking and empirical research on the impact of accountability proceedings in specific post-conflict societies is a critical need’.19 It is within this context of rule of law reform in the peace operations paradigm that the hybrid court is here to be analysed, where its potential for justice sector capacitybuilding, rule of law culture development and norm creation is greatest. This article argues that the lessons of UN peace operation reform influenced the drift from atomised and isolated international tribunals to intrusive mixed composition of hybrid courts, but that this has been forgotten in academic discourse and more regrettably in practice, as the courts are viewed first and foremost as a means of ushering in short-term liberalising change instead of the more long-term purposes for which they are designed. The article first examines the evolution and reform of UN peacekeeping missions, from an undemanding role as buffers between antagonists to highly complex, State-building missions that prioritise the reconstruction of a broadly-conceived rule of law. It then argues that this rule of law reform requires capacity-building, the creation of a cultural commitment to the rule of law and reinforcement of norms aimed at protecting human rights. The third section goes on to examine the role of hybrid courts in developing these core elements of the rule of law in the justice system, contrasting them with the more limited conceptions of legitimacy and capacity-building in prevailing hybrid court theory but at the same time remain18 J Stromseth, M Wippman and R Brooks, Can Might Make Rights? Building the Rule of Law After Military Interventions (Cambridge, New York, Cambridge University Press, 2006), 253. 19 Ibid.

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ing sceptical of undue optimism about any panacean values attributed to them. Acknowledging the limitations of successor justice simpliciter in light of a greater appreciation of the need for local development, the hybrid court theorists noted above advocated the abandonment of purely international tribunals in light of their failure to ground rule of law values like building legitimacy of the courts, developing their institutional capacity and inculcating human rights norms. However, they did so through the limiting prism of transitional justice, tying these critiques into the cases at hand instead of applying them to the justice sector as a whole. Most of the theoretical analysis of hybrid courts came at the turn of the century, at a time when they were either being designed or had just begun operations. Almost a decade has passed since, and hybrid courts in East Timor, Sierra Leone and Kosovo have come to an end or are approaching it. Where once only theories could be posited, now some conclusions can be drawn from an examination of the operations of these courts and their subsequent impact domestically. The final section of this article presents an overview of the hybrid court in East Timor and demonstrates how transitional imperatives to prosecute quickly and selectively clashed with rule of law values that emphasise exemplary trials, and impaired development of local legal skills by isolating Timorese actors from the process and sacrificing mentoring in order to prosecute trials. It concludes that on the basis of this analysis, purposes associated with long-term peace-building and institutional reform need to be given as much weight in hybrid courts as more short-term accountability goals. un peace operation reform towards the rule of law Peacekeeping can be divided into three generations. The first generation is the era of ‘traditional peacekeeping’. Here, the UN responded to (usually) inter-State conflict by posting lightly-armed military forces and civilian personnel between consenting hostile parties to monitor a truce or troop withdrawal, or create a buffer zone while the UN engaged in diplomatic negotiations (peace-making). Such missions included those between Egypt and Israel, India and Pakistan, and in Cyprus. The first generation lasted from 1945 to 1989. These essentially limited missions could achieve only limited success—it localised the impact of conflicts and could merely ‘freeze’20 them, as in Cyprus. In fact, because the violence had stopped, the main motivation for making the concessions necessary for peace was removed, and little progress towards a lasting solution was achieved.21 When the Cold War ended in 1989 and the Security Council appeared genuinely capable of functioning properly, there was a revolution in peacekeeping towards more complex operations which went beyond observing or keeping the peace.22 Examples 20 R Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge, New York, Cambridge University Press, 2006), 47. 21 The Canadian Foreign Minister Lester Pearson described this type of peacekeeping as ‘an intermediate technique between merely passing resolutions and actually fighting’: L Pearson, ‘Force for UN’ (1957) 35 Foreign Affairs 401. 22 Steven Ratner identifies a number of conditioning factors behind this. One is that the decline in US/USSR rivalry made their proxy wars more amenable to peaceful settlement. Another is the fact that the superpower support that propped up failing regimes was now removed and internal divisions came to the fore. S R Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict After the Cold War (New York, St Martin’s Press, Council on Foreign Relations, 1996).

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such as the Congo or Lebanese civil wars excepted, until then most UN missions were inter-State in nature. Now the UN became concerned with intra-State civil wars. While first-generation peacekeeping was dependent on ever-changeable local consent between two States, second-generation peacekeeping involved strategies to enhance local consent to a permanent peace through complex, multi-dimensional missions. While in inter-State conflict, the UN could interpose itself on the boundary between two jurisdictional powers pending agreement, diplomacy alone cannot create peace in civil war. The UN needed to interfere in domestic governance, either jointly with one power or independently in cases of anarchy. Traditionally, intrusive UN peace operations follow a straightforward narrative. Antagonists are separated, disarmed and demobilised, a transitional government is formed, elections are held and the UN withdraws all or most of its contingent. However, this approach will provide a sustainable peace only if the conditions for democracy and the rule of law are already in place. Where this is not the case, history has shown that elections alone are not enough. After conflict or illiberal rule, rebuilding the rule of law and the institutions of governance is a difficult task. In transitional societies so divided and devastated that UN involvement is required for rebuilding, the prospects for the return of the rule of law to those societies are usually far from promising.23 In these situations, society has just emerged from a period of repression and conflict. Victims of the prior regime must mix in society with groups who administered and profited from the regime, while the latter must now come to term with the new balance of power. These post-conflict societies are disordered and most of the physical infrastructure of the State is destroyed, including that which is necessary for the administration of justice. Society is on the verge of collapse, typified by ‘an abundance of arms, rampant gender and sexually-based violence, the exploitation of children, the persecution of minorities and vulnerable groups, organised crime, smuggling, trafficking in human beings and other criminal activities’.24 It is at these times that the need for law, order and stability is at its greatest. Unfortunately, it is also at these times that the institutions of governance, the administration of justice included, have broken down. Not only has the physical infrastructure of the judicial system been destroyed, but frequently there are not enough qualified judges and lawyers as they have been murdered, have fled or are too tainted by association with the prior regime. After periods of illiberal rule, courts and the idea of rule by law have no legitimacy—a microcosm of the social and political divisions existent in the country. In oppressive regimes, justice may have operated as an instrument of the prior rulers either in vindicating and upholding persecutory and discriminatory laws, or in failing to prevent them. Promotion of judges may have depended on subservience, complicity in crimes, or loyalty to a party or junta. Also, 23 See generally S Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (Oxford, Oxford University Press, 2001); Stromseth, Wippman and Brooks, above n 18; M Matheson, ‘United Nations Governance of Post-Conflict Societies’ (2001) 95 American Journal of International Law 76; C Stahn, ‘Justice Under Transitional Administration: Contours and Critique of a Paradigm’ (2005) 27 Houston Journal of International Law 311; H Strohmeyer ‘Policing the Peace: Post-Conflict Judicial System Reconstruction in East Timor’ (2001) 21 University of New South Wales Law Journal 171; D Tolbert and A Solomon, ‘United Nations Reform and Supporting the Rule of Law in Post-Conflict Societies’ (2006) 19 Harvard Human Rights Law Journal 29. 24 The Secretary-General of the UN, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616 (23 August 2004), para 27.

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in the aftermath of such regimes, the public has little or no conception of what justice fairly administered means, with predictable results for public trust in the judicial system. As Teitel puts it: When it is the State that is complicit in persecution, fundamental notions of criminal justice are turned on their head: State complicity, cover-up, and other obstructions affect the very possibility of justice.25

The transitional State knows neither democracy nor justice. Law frequently means little more than discriminatory emergency decrees, or is unknown to the people. Justice is the product of political distortion and contrived weakness, reflecting neither human rights norms nor procedural fairness. Ideas of judicial independence are anathema in illiberal rule. East Timor serves as an example of the breakdown of a society occasioning UN territorial administration.26 The Timorese judicial system in particular faced enormous challenges. The three most obvious deficiencies in the legal system at the time were personnel, social understanding of justice, and physical resources. The UN Transitional Authority in East Timor (UNTAET) was presented with a situation where there was no pool of qualified East Timorese lawyers or judges to operate the courts.27 All Indonesian or pro-Indonesian judges, prosecutors, defenders and court administrators fled the country after the referendum to avoid possible retributive violence. There were no East Timorese professionals untainted by association with the prior regime who could immediately ameliorate the human resources deficit. While a modest number of East Timorese had law degrees and worked for domestic NGOs or law firms in Indonesia, the local population had suffered from systematic discrimination since 1975 with the purpose of resisting their participation in the administration of justice. Even without discriminatory practices, many East Timorese were unwilling to operate within a court system which was used as an instrument of the occupation.28 A social understanding of law had to be created from a situation where the Timorese people had a profound mistrust in the judicial system after a quarter-century of corrupt justice. As they were excluded from the process under Portuguese and Indonesian 25

Teitel, above n 9, at 33. On East Timor after the popular consultation, see generally Secretary-General of the United Nations, Report of the Secretary-General on the Situation in East Timor, UN Doc S/1999/1024 (1999) of 4 October 1999; S Chesterman, ‘East Timor in Transition: From Conflict Prevention to State Building’ (2001) International Peace Academy Report, available at http://www.ciaonet.org/wps/chs03/ (date accessed: 1 June 2008); S Pritchard, ‘United Nations Involvement in Post Conflict Reconstruction Efforts: New and Continuing Challenges in the Case of East Timor’ (2001) 24 New South Wales Law Journal 183; Strohmeyer, above n 23, and ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’ (2001) 95 American Journal of International Law 46; and S Linton, ‘Rising From the Ashes: Creation of a Viable Criminal Justice System in East Timor’ (2001) 25 Melbourne University Law Review 122. 27 Indeed, it was practically non-existent, a point which was not lost on the UN Secretary-General: ‘. . . local institutions, including the court system, have for all practical purposes, ceased to function, with . . . judges, prosecutors and other members of the legal profession having left the country’, quoted in S Chesterman, ‘Justice Under International Administration: Kosovo, East Timor and Afghanistan’, (2002) International Peace Academy Report, available at http://www.ipacademy.org/pdfs/JUSTICE_UNDER_ INTL.pdf (date accessed: 1 June 2008), at 6. 28 Reiger and Wierda note that under Indonesian rule, courts in East Timor were synonymous with ‘arbitrary detentions and show trials for political offences’ (C Reiger and M Wierda, ‘The Serious Crimes Process in Timor-Leste: In Retrospect’, International Centre for Transitional Justice Prosecutions Case Studies Series, March 2006, available at http://www.ictj.org/static/Prosecutions/Timor.study.pdf (date accessed: 1 June 2008)). 26

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rule, the East Timorese had little or no engagement with the fair and impartial operation of law and never enjoyed de-politicised justice. [T]he Indonesian Government suborned the legal system to its own ends and corrupted both courts and the judiciary in East Timor—effectively turning the legal system into a servile extension of the Executive.29

In terms of infrastructure and material resources, practically nothing of the old regime was left on which a new court system could be built.30 It was clear that a justice system would have to be built de novo (as opposed to remodelled or altered) before anything could be administered, and this would encompass physical and personnel building, as well as the task of fostering a social acceptance of the role of the judiciary in the rule of law. It had become apparent from the earlier Cambodia and Somalia missions, where similar conditions applied, that temporary, ad hoc measures were not enough to restore the rule of law and that ‘restoring the capacity and legitimacy of national institutions is a long-term undertaking’.31 These missions have most influenced the drift towards the modern form of transitional administration with its emphasis on the rule of law. In Cambodia, the 1992/93 UN Transitional Administration in Cambodia (UNTAC) was unable to exercise its ‘direct control’ mandate properly over areas of domestic governance essential for the running of elections due to the intransigence of the ruling party.32 Though the elections were run successfully, UNTAC failed to build institutions of democratic governance and justice. Capacity in these areas was low, as many of those educated members of the population had fled or were killed in the Khmer Rouge years, while there was little or no experience of functioning democratic institutions of State. The justice sector was relatively ignored under UNTAC. Training and rehabilitation in the justice sector failed, and little was done about the notoriously corrupt judiciary. In 1997, the power-sharing government was overthrown by Second Prime Minister Hun Sen, and has since been at the centre of numerous election irregularities and breaches of human rights. The UNTAC experience demonstrated that elections alone were not enough—the rule of law values which would prevent such abuses and sustain democracy and human rights needed to be developed. 29 UN Development Programme, East Timor Human Development Report 2002, of 13 May 2002 (copy of file with author). A 2004 survey on attitudes to law and justice give striking examples of the legacy of the Indonesian courts: 17% of respondents said they had no association with the term ‘rights’, while 27% said they did not know what justice meant. The Report found that as a result of the Indonesian judiciary, ‘East Timorese may be unclear on how a fully independent and accountable judiciary should function’. Piers Pigou (The Asia Foundation), ‘Law and Justice in East Timor—A Survey of Citizen Awareness and Attitudes Regarding Law and Justice in East Timor’ (2004), available at http://www.asiafoundation.org/ pdf/easttimor_lawsurvey.pdf (date accessed: 1 June 2008), at 9. 30 A World Bank report found that over 70% of all administrative buildings had been fully or partially destroyed (Report of the World Bank-Sponsored Joint Assessment Mission to East Timor, 4 (copy on file with author)). All detention facilities were destroyed; there was no morgue, no law library, while all computers, furniture, vehicles and textbooks were wasted. Strohmeyer describes the devastation: ‘The pre-existing judicial infrastructure in East Timor was almost entirely destroyed. Most court buildings were burned and looted, all court equipment, furniture, registers, records, archives and—indispensable to the practise of the legal profession—law books, case files and other legal resources were lost or burned’ (Strohmeyer, above n 23, at 172). 31 Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, above n 24, para 27. 32 UNSC Res 745, UN Doc S/RES/745 (1992) of 28 February 1992. See generally Ratner, above n 22, 137–209.

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The Second UN Mission in Somalia (UNOSOM II) was even less successful.33 Resolution 814 gave the mission a mandate for national reconciliation which included the re-establishment of regional institutions and civil administrations. UNOSOM II was designed in a manner where the military would achieve control of the country, then decrease military activity and assist Somali governing authorities in governing responsibly. However, assistance was no response to anarchy. As the mission progressed, UNOSOM II began to control the institutions of government in the increasing governance vacuum, but without the necessary resources to do so.34 More damaging was the absence of any coherent strategy to rebuild the rule of law. A functioning police force became the exit strategy for the military. The UN focused on training police, but did not develop other institutions such as the courts, and so the police could operate only in a vacuum. After the murder of 18 US soldiers in Mogadishu, the small UN force, now merely concentrating on food distribution, left Somalia in March 1995. In the absence of a functioning police force and criminal justice system to deal with spoilers and warlords, UN peacekeepers in Somalia failed almost completely to fulfil UNOSOM II’s mandate to maintain ‘a secure environment throughout Somalia’.35 It was the failures in Somalia and Cambodia that led the UN towards a shift in emphasis from limited temporary mandates to a more sustainable approach to peacemaking, or from the ‘the stage of temporary symptom relief to a more general commitment to root cause prevention’.36 Furthermore, they highlighted the need for reform of UN peace operations, especially with regard to the rule of law. In failed States, State institutions collapse. As Doyle and Sambanis point out, just as civil war is ultimately caused by the failure of State authority or capacity, ‘sustainable peace relies on its reconstruction’.37 To this end, the UN realised it needed to exercise as many of the standard powers of State as were necessary, for as long as was necessary to restore the rule of law. The UN Secretary-General’s 1992 Agenda for Peace was the first attempt to get to grips with the changing challenges of UN peace operations.38 It identified the new concept of ‘post-conflict peace-building’ as ‘action to identify and support structures which will tend to strengthen and solidify peace in order to avoid a relapse into conflict’.39 The Report did not propose anything as extensive as transitional administration, but saw co-operative projects, de-mining and technical assistance as the key 33 UNSC Res 814, UN Doc S/Res/814 (1993) of 26 March 1993 and UNSC Res 837, UN Doc S/R/26022 (1993) of 6 June 1993. See generally J Chopra, The Evolution of International Political Authority (London, New York, Routledge, 1999), 123–61, and Lessons Learned Unit, Department of Peacekeeping Operations et al, Comprehensive Report of Lessons Learned from the United Nations Operation in Somalia, April 1992— March 1995 (Sweden, Life and Peace Institute, 1995). 34 ‘Somalia presented the UN with a situation in which it was the de facto government when it lacked the mandate, resources, and ultimately, the inclination to fulfil this role’: Chesterman, above n 26, at 11. 35 SC Res 814, above n 33. 36 Stahn, above n 23, at 327. 37 M W Doyle and N Sambanis, Making War and Building Peace: United Nations Peace Operations (Princeton, NJ, Princeton University Press, 2006), at 3. 38 The UN Secretary-General, An Agenda for Peace: Preventive Diplomacy, Peacemaking and PeaceKeeping: Report of the Secretary-General, UN SCOR, 47th Session, UN Doc A/47/277–S/24111, of 17 June 1992. An Agenda for Peace was the result of the first summit meeting of the UN Security Council, requesting Secretary-General Boutros Boutros-Ghali to formulate proposals for a strengthened collective security system. 39 Ibid, para 21.

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peace-building activities,40 though it did mention the restoration of order and ‘reforming or strengthening government institutions’ without going into any detail as to how this might be done.41 The 1995 Supplement to the Agenda for Peace noted the collapse of the police and the judiciary in conflict, and acknowledged that peace operations required more than humanitarian and military tasks.42 Towards the late 1990s, with the collapse of society in East Timor and Kosovo (the first locations for hybrid courts), the UN began to use transitional administration.43 Transitional administration involves the organisation assuming the centralised executive and legislative (and sometimes judicial) powers of the State on a temporary basis to construct or reconstruct institutions of governance capable of providing citizens with the security from which long-term peace might be secured.44 Transitional administration fosters political, social and economic co-operation between by encouraging previously warring sides to coalesce around the interim body to work together in the pursuit of a durable peace. It culminates in the juridical transfer of power from the UN transitional authority to the local people. It became apparent from the failures of recent missions in Bosnia and Haiti that sustainable judicial reconstruction was ‘the most fundamental requirement’ and the basis for all social reconstruction in these transitional administrations.45 Courts were seen as especially essential, and an international expert role in their reconstruction was advocated. The UN would now begin to ‘exercise normative powers in the context of a process of judicial reconstruction’ to ‘fill domestic vacuums in the area of law enforcement and the rule of law’.46 At the commencement of the radically extensive East Timor and Kosovo missions, in 2000 the Secretary-General set up a panel to improve UN peacekeeping both operationally and doctrinally. The resulting Report of the Panel on UN Peace Operations (the Brahimi Report) focused more on the need for clear responsibilities, adequate member State support and ‘credible force’ than the new normative underpinnings of these expanded missions.47 It spelled out the need

40 An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping: Report of the SecretaryGeneral, UN SCOR, 47th Session, UN Doc A/47/277–S/24111, of 17 June 1992, paras 55–59. 41 Ibid, para 55. 42 The UN Secretary-General, Supplement to An Agenda for Peace: Position Paper of the SecretaryGeneral on the Occasion of the Fiftieth Anniversary of the United Nations, UN Doc A/50/60–S/1995/1, 3 January 1995, paras 13–14. 43 SC Res 1244, UN Doc S/R/1244 (1999) of 10 June 1999 established the United Nations Interim Administration Mission in Kosovo, while SC Res 1272, UN Doc S/R/1272 (1999) of 25 October 1999 established the United Nations Transitional Administration in East Timor. 44 See generally R Wilde, ‘Representing International Territorial Administration: A Critique of Some Approaches’ (2004) 15 European Journal of International Law 71. 45 ‘Recent peacekeeping and peace-enforcement experiences have indicated . . . that the most fundamental requirement, and a primary objective, of a lasting peace is the reestablishment of the rule of law’: M Plunkett, ‘Reestablishing Law and Order in Peace-Maintenance’ (1998) 4 Global Governance 61, at 63. Also, ‘In hindsight, we should have put the establishment of the rule of law first, for everything else depends on it: a functioning economy, a free and fair political system, the development of civil society, public confidence in police and the courts. We should do well to reflect on this as we formulate our plans for Afghanistan and, perhaps, Iraq’: Paddy Ashdown, ‘What I Learned in Bosnia’, The New York Times, 28 October 2002, available at http://www.ohr.int/ohr-dept/presso/pressa/default.asp?content_id=28294 (date accessed: 1 June 2008). 46 Stahn, above n 23, at 313–14. 47 UN Secretary-General, Report of the Panel on United Nations Peace Operations, UN Doc A/55/305–S/2000/809, of 21 August 2000.

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for strengthening the rule of law, including judicial and penal reform, human rights monitoring and the investigation of past abuses.48 As the name would suggest, 2004’s Rule of Law and Transitional Justice Report formalised the movement towards linking successor trials with judicial reconstruction.49 It can be considered a summation of the policies and lessons applied in then-recent peace operations in East Timor, Kosovo and Sierra Leone. By now, it was apparent that rule of law reform was integral to post-conflict peace-building: Our experience in the past decade has demonstrated clearly that the consolidation of peace in the immediate post-conflict period, as well as the maintenance of peace in the long-term, cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice.50

Applying the lessons of the past, the Report identified the challenges of reapplying the rule of law in the context of destroyed institutions of governance, not least of the entire justice sector.51 Crucially, in relation to the focus of this piece, the Report also acknowledged, from experiences in Kosovo, East Timor and Sierra Leone, that there may be a conflict between transitional justice and peace-building, and that a careful balance between the two needed to be struck.52 defining the rule of law What, then, is meant by the rule of law in intervention?53 Craig has identified two main ways of conceptualising it.54 The first is a ‘formal’ or ‘minimalist’ conceptualisation 48

Ibid, para 13. Report of the Secretary General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, above n 24. 50 Ibid, para 2. It goes on to say, in the same paragraph: ‘At the same time, the heightened vulnerability of minorities, women, children, prisoners and detainees, displaced persons, refugees and others, which is evident in all conflict and post-conflict situations, brings an element of urgency to the imperative of the restoration of the rule of law.’ 51 ‘And yet, helping war-torn societies re-establish the rule of law and come to terms with large-scale past abuses, all within a context marked by devastated institutions, exhausted resources, diminished security and a traumatized and divided population, is a daunting, often overwhelming, task. It requires attention to myriad deficits, among which are a lack of political will for reform, a lack of institutional independence within the justice sector, a lack of domestic technical capacity, a lack of material and financial resources, a lack of public confidence in government, a lack of official respect for human rights and, more generally, a lack of peace and Security’ (ibid, para 3). 52 ‘Equally important is the fact that rule of law reforms and transitional justice activities often occur simultaneously with post-conflict elections, as well as the unfolding fragile peace processes. Careful sequencing of such processes is vital to their success and legitimacy . . . Justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how’ (ibid, para 21). 53 See generally T Carothers, Promoting the Rule of Law Abroad: In Search of Knowledge (Washington, DC, Carnegie Endowment for International Peace, 2006), and ‘The Rule of Law Revival’ (1998) 77(2) Foreign Affairs 95; C A Crocker and F O Hampson (eds), Turbulent Peace: The Challenges of Managing International Conflict (Washington, DC, United States Institute of Peace Press, 2001), esp N J Kritz, ‘The Rule of Law in the Post-Conflict Phase: Building a Stable Peace’ at 801; Plunkett, above n 45, Stromseth, Wippman and Brooks, above n 18, Tolbert and Solomon, above n 23; Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, above n 24. 54 P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) Public Law 476. See also Stromseth, Wippman and Brooks, above n 18, at 70–77; R S Summers, ‘A Formal Theory of the Rule of Law’ (1993) 6 Ratio Juris 127; and P Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago, Ill, University of Chicago Press, 1999). 49

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which emphasises the rule of law’s formal and institutional content. The rule of law is satisfied where no one can be punished except in accordance with democratically created laws adjudicated by courts observing due process and guaranteeing equality before the law and a protection of a minimum of human rights. The second is a ‘substantial’ or ‘maximalist’ conceptualisation of the rule of law, which incorporates the elements of the formal account but combines substantive commitments to public legitimacy, fundamental rights, socio-economic rights and democratic freedoms that the formal concept does not guarantee.55 As Summers describes: A substantive theory is characterised by the greater substantive content it incorporates. Thus it incorporates to some degree one or more of the following: rules securing minimal welfare . . ., rules securing some variety of the market economy, rules protecting at least some basic rights, and rules institutionalizing democratic governance. Here, the contrast with formal theories of the rule of law is stark.56

This substantive rule of law combines the institutional capacity of the formal account with commitment to cultural change and human rights protection, and indeed was adopted in the Rule of Law Report.57 The importance of the professional competencies in criminal justice system in ordinary times is well understood. The judiciary is the central pillar of the rule of law. As the UN Basic Principles on the Independence of the Judiciary states, judges are ‘charged with the ultimate decision over life, freedoms, rights, duties and property of citizens’.58 In criminal law, they are responsible for protecting the rights of the defendant and the interests of the community, for holding individuals (and frequently the agents of the State) accountable for crimes and abuses of power, and for guaranteeing order in society. In transition, this role becomes even more demanding, requiring the full complement of judicial skills. Likewise, the role of lawyers in prosecution and defence is essential. Lawyers are the medium by which the people gain access to justice. Lawyers uphold the rights of both the individual and the public. In the words of Tolbert and Solomon: An independent legal profession comprised of a cadre of well-trained and ethical lawyers can ensure due process and protect fundamental rights by pursuing the necessary remedies where these rights have been infringed upon.59

Again, in transition, this role becomes more important than ever. Lawyers are the community’s primary channel to justice after an era when justice was often an illusion. If the judges find themselves making law through cases in the beginning, it is lawyers 55 As Wippman, Brooks and Stromseth contend: ‘Those who favour substantive theories of the rule of law argue that formal theories cannot be fully adequate because it is easy to imagine a horrifically abusive government that might fully comply with the purely formal dimensions of the rule of law. Imagine, for instance, a state in which a minority group is considered inferior by the majority; duly and democratically passed laws mandate discriminatory treatment for the minority; elected officials obediently enforce the laws . . .’ (Stromseth, Wippman and Brooks, above n 18, at 71). 56 Summers, above n 54, at 135. 57 Report of the Secretary General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, above n 24, para 6. 58 The UN Basic Principles on the Independence of the Judiciary were adopted at the 7th UN Congress on the Prevention of Crime and the treatment of Offenders in August and September 1985, and were endorsed by the UN General Assembly in two resolutions, GA Res 40/32, UN Doc A/RES/40/32 (November 29, 1985), and GA Res 40/146, UN Doc A/RES/146 (13 December 1985). 59 Tolbert and Solomon, above n 23, at 48.

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who are responsible for crafting the nuanced and informed arguments which guide the judge’s decision-making, almost simulating the traditional government/opposition legislative function. While every democratic legal system has an idea of base-line substantive and procedural requirements for adherence to human rights standards like equality before the law, the right to legal representation and the presumption of innocence, these are but minimum guarantees and need qualified judges to give effect to them. To develop the indigenous judiciary, a number of things must be done. The central institutions of the legal system, such as the courts, judges, lawyers and police, are essential in upholding the rule of law and need to be ‘fair, competent and efficient’.60 Training is vital, both in the classroom and from learning at the side of international judges and lawyers. Training should be both practical (opinion writing, courtroom management) and procedural (evidentiary rules, protection of defendant rights). Capacity-building certainly incorporates the training of judicial actors with the requisite skills not only to try the successor trials at hand, but also in future to decide and argue the ordinary cases that come before the courts in a normal democracy on issues such as property, family and contracts. As regards the training of judges to fulfil these roles, there exist no detailed UN guidelines. All that is available are the UN Basic Principles on the Independence of the Judiciary, which state: ‘Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law.’61 This clearly goes beyond a mere law degree or years of service as a lawyer—a suitable judge needs training in specific judicial skills, on-the-job training and experience. Likewise, there are no extensive guidelines on the qualifications of lawyers.62 Again, a degree or diploma alone cannot suffice to prepare a lawyer for his or her onerous role in the administration of justice. Advanced training in research, writing, argument and presentation, and the filling in of gaps in substantive knowledge of law are required. However, skills are worth nothing in a judiciary or amongst lawyers if the environment in which they operate is not conducive to fair and proper administration of justice. Above all else, the independence of judges and lawyers must be protected.63 Nevertheless, these gains cannot be end in itself. Successful long-term reconstruction requires a substantive conception of the rule of law if peace is to be sustainable and participatory. Above all else, the court must protect the citizen’s universally recognised human rights.64 This can be done in two ways. First, the courts can advance human rights generally by protecting citizens through cases, criminal and 60

Carothers, ‘The Rule of Law Revival’, above n 53, at 96. Above n 58, s 10. 62 Section 9 of the UN Basic Principles on the Role of Lawyers states: ‘Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of ideas and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law.’ The UN Basic Principles on the Role of Lawyers were adopted at the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders in August and September 1990, and were endorsed by the UN General Assembly in UN GA Res 45/166, P 15 UN Doc A/RES/45/166 (18 December 1990). 63 See generally ibid and the UN Basic Principles on the Independence of the Judiciary, above n 58. 64 By this is meant the norms contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination Against Women, the Convention on the Elimination of Racial Discrimination, and the Conventions Against Genocide and Torture. 61

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otherwise. Secondly, the trial rights of the particular defendant must be protected— the presumption of innocence, fair trial, due process and equality of arms. To this end, the character of the accountability process may determine how thorough is a normative commitment to human rights on paper. The capacity of the domestic justice system to protect trial rights can be judged by analysing a given process, such as a hybrid court, with regard to international standards as found in codes such as, inter alia, the ICCPR,65 ICESCR,66 UN Basic Principles on the Independence of the Judiciary,67 the UN Basic Principles on the Role of Lawyers,68 and the Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment.69 Probably the most important of these is the ICCPR. The Convention contains, inter alia, the principles of equality before the law,70 the presumption of innocence,71 the right to a fair and public hearing by a competent, independent and impartial tribunal,72 and the right to be tried without delay.73 Building a rule of law culture also requires an acceptance of law as a culturally situated phenomenon.74 This is a difficult task, and requires acknowledgement of the fact that courts do not enjoy the same primacy in some post-conflict States that they do in Western societies. Indeed, after periods of illiberal rule, there may be widespread scepticism about the value of justice institutions. Mistrust of the courts can exist among the public and the political elite. The public must become willing to trust the court to defend their rights, while members of the elite must make themselves fully accountable before the law. Appropriate relationships must be established with the executive and legislature on which the courts depend, and with the civil service required to administer the courts effectively. What is required is a commitment to the values that underlie functioning judiciaries—inculcating the ‘habits, commitments and beliefs’ of citizens in the judicial process. The majority of people the majority of the time must support and trust the courts, given the obvious differences between law as written and as perceived. Tyler has examined the psychological and sociological reasons why people obey law in society.75 Among these reasons are the perceived legitimacy of the law, its fairness, effectiveness and perceived morality. Any process of judicial reconstruction must be tailored to the local culture and engage significant proportions of the local population. Meaningful post-conflict reconstruction both needs domestic involvement and is rendered pointless without it. It became apparent that the total appropriation of power by the UN was in conflict with the ideal of progressive self-rule, and even seemed quasi-imperial. Peacekeeping could not be sustainable if all the skills necessary for its maintenance would leave the 65 International Covenant on Civil and Political Rights, GA Res 2200, at 52, UN GAOR, 21st Sess, Supp No 16, UN Doc. A/6316 (Dec 16, 1966). 66 International Covenant on Economic, Social, and Cultural Rights, GA Res. 2200, at 49, UN GAOR, 21st Sess, Supp No 16, UN Doc A/6316 (Dec 16, 1966). 67 Above, n 58. 68 Above, n 62. 69 GA Res 43/173, Annex, 43 UN GAOR Supp (No 49) at 298, UN Doc A/RES/43/49 of 9 December 1988. 70 Art 14(1). 71 Art 14(2). 72 Art 14(1). 73 Art 14(3)(c). 74 See generally Stromseth, Wippman and Brooks, above n 18, esp at 310–46. 75 T R Tyler, Why People Obey the Law (New Haven, Yale University Press, 1990).

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State with the withdrawal of international actors. Law will enjoy more legitimacy if it reflects the vision, hopes and experiences of the national stakeholders. The UN must encourage local ‘ownership’ by collaborating and involving citizens both professionally and by consultation with them. Capacity-building can be impeded in the short term and become unsustainable in the long term without significant local involvement. Where the UN peace operations reform has broken new ground is where it focuses on building indigenous justice structures, rather than international substitutes. Domestic actors were to be empowered, consulted and trained in the creation of a sustainable justice system.76 Thus we see a move to ‘solidarity, not substitution’,77 signalling the death-knell for purely international tribunals, the ultimate symbol of substitution, and the dawn of the era of the more sustainable, collaborative and long-term hybrid courts. how hybrid tribunals build the rule of law Costs, slowness, the inability to enforce arrest warrants and the resulting small number of defendants relative to the number of crimes committed have been cited by commentators as major factors in the rejection of fully international tribunals, like those in Yugoslavia and Rwanda, in favour of hybrid mechanisms.78 However, these writers are also concerned with issues of capacity-building, culture and the penetration of human rights norms, and propose hybrid courts as a solution to these problems.79 76 ‘Most importantly, our programmes must identify, support and empower domestic reform constituencies. Thus peace operations must better assist national stakeholders to develop their own reform vision, their own agenda, their own approaches to transitional justice and their own national plans and projects. The most important role we can play is to facilitate the processes through which various stakeholders debate and outline the elements of their country’s plan to address the injustices of the past and secure sustainable justice for the future, in accordance with international standards, domestic legal traditions and national aspirations’(Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and PostConflict Societies, above n 24, para 17). 77 Ibid, para 17. 78 The most significant factor, predictably, is cost. Due to salaries, travel, expenses and translations, the ad hoc tribunals will probably end up costing about US$2.5bn to US$3bn from inception in 1994 to conclusion in 2008. In 2003, when the ICTY was in full swing, hearing cases at both trial and appeal, it cost the UN $256m. Both tribunals together account for about 15% of the UN’s annual budget, with costs from 1995–2003 of US$22.5m and US$45.5m per conviction in the ICTR and ICTY respectively (Higonnet, above n 4, at 427–28, citing George S Yacoubian, ‘Evaluating the Efficiency of the International Tribunals for Rwanda and the Former Yugoslavia: Implications for Criminology and International Criminal Law’ (2003) 125 World Affairs 133, at 136). Finance, above all else, led to ‘tribunal fatigue’ as increasing costs sapped political will to form tribunals. Hybrid tribunals, and indeed the ICC, were formed in order to avoid building ad hoc tribunals after every conflict. Even the Secretary-General conceded the existence of tribunal fatigue: ‘. . . partly in reaction to the high costs of the original tribunals, the financial mechanisms of the mixed tribunals for Sierra Leone and for Cambodia have been based entirely on voluntary contributions’(Report of the Secretary General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, above n 24, para 43). 79 See generally J Alvarez, ‘Crimes of State/Crimes of Hate: Lessons From Rwanda’ (2002) 24 Yale Journal of International Law 365; Burke-White, above n 5 and n 8; Cockayne, above n 2; J Dermody, ‘Beyond Good Intentions: Can Hybrid Tribunals Work After Unilateral Intervention?’ (2006) 30 Hastings International & Comparative Law Review 77; Dickinson, above n 2; Hall, above n 6; Higonnet, above n 4; C Jorda, ‘The Major Hurdles and Accomplishments of the ICTY—What the ICC Can Learn From Them’ (2004) 2 Journal of International Criminal Justice 572; M P Scharf, ‘The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons From the Yugoslavia Tribunal’ (2000) 49 De Paul Law Review 925; D Tolbert, ‘The International Criminal Tribunal for the Former Yugoslavia: Unforeseen Successes and Foreseeable Shortcomings’ (2002) 26 Fletcher Forum 5; Turner, above n 7.

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The difficulty is, however, that they view capacity-building, norm penetration and legitimacy through a narrower lens, tying their concerns to the successor trials and failing to extend the compelling logic of their positions to the rule of law overall. There is, as a result, a concurrence amongst most who write on the issue of hybrid courts that these courts are an apt response to those problems. However, capacity and cultural legitimacy remain inchoate concepts. The transformational transitional paradigm has created confusion as to what they really mean. As noted earlier, domestic criminal justice systems in post-conflict States such as East Timor lack the capacity to try pre-transition crimes. The failure of international tribunals to remedy this is criticised, but only in so far as it relates to domestic competence to try serious crimes after the tribunal ends, and not as it relates to the overall capacity of a criminal justice system. The lack of any sort of sustainable connection meant that Rwandan prosecutors played no part in investigating the crimes with their international colleagues, Bosnian judges played no role in adjudicating the trials of their countrymen, and Croatian defence counsel were completely sidelined in defendants’ trials, while the courts were staffed and administered completely by foreigners. Most commentators regret that the sheer size and complexity of the cases and the qualifications of the staff involved were never used to train domestic actors to run transitional trials at home for those lower-level criminals against whom proceedings were not brought . Any contact between the ad hoc courts and the domestic courts has been more about the pursuit of accountability in the former than development of the latter.80 It is not that the capacity-building function was sidelined or pushed down the agendas of the ICTY and ICTR. Incredibly, in courts seized with a duty to develop the long-term security and stability of two post-conflict societies, there was no specific mandate of training for domestic actors to try crimes against humanity and war crimes. Instead, they were marginalised. As Alvarez notes: Each time the Rwandan legal system is denied the right to put on trial a prominent member of the former regime, the international community is sending an implicit (if perhaps intended) message that Rwandan institutions cannot be trusted or that its judiciary is not ready to implement the rule of law.81

This view is too limiting—in the long term, the rule of law is imperilled not by the inability of locals to prosecute war crime or crime against humanity cases, but by their low capacities to prosecute, try and defend ordinary cases of murder, rape and violence which corrode stability in the post-conflict State.82 In terms of capacitybuilding, hybrid courts theoretically have much to offer to the nascent justice system in the administration generally. Domestic location gives the legal system a first-hand 80 ‘One of the few activities led by the ICTR involving the Rwandan judiciary was a September 2003 visit by twenty senior Rwandan judicial officials (judges, prosecutors, and senior officials) to the tribunal in Arusha. The focus was primarily on issues related to the pursuit of justice at the ICTR (eg witness protection, pace of proceedings, and completion strategy) rather than on capacity-building for the Rwandan justice system itself’ (Stromseth, Wippman and Brooks, above n 18, at 273). 81 Alvarez, above n 79, at 466. 82 The words of the Rule of Law Report are worth remembering: ‘Our experience in the past decade has demonstrated clearly that the consolidation of peace in the immediate post-conflict period, as well as the maintenance of peace in the long-term, cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice’ (Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, above n 24, para 2).

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example of law applied fairly and competently, and gives local actors the opportunity to ‘absorb, apply, interpret, critique, and develop the international norms in question’.83 Above all else, the side-by-side working environment can develop the skills of domestic actors. Local judges deliberate and draft decisions in consultation with international judges who have knowledge of evidential and procedural norms. Local prosecutorial offices work with international prosecutors, forensics analysts and researchers. This on-the-job training is likely to be more effective than what Dickinson calls ‘abstract classroom discussion of formal legal rules and principles’,84 or indeed than merely observing a purely international process. If the hybrid is linked into the domestic courts directly, the opportunities for skills transfer are obvious. Even if they are not, links can be formed between the domestic and hybrid institutions. These first, most important trials in the era of liberal rule benefit from the presence of a majority of international judges, as it means that a majority of those deciding are qualified to deal with both substantive and procedural law complexities, while at the same time they empower local actors to develop these capacities. Trials can be exemplary and instruct court actors and the general public about what fairly and competently tried cases consist of. In theory, there is no limit to what training domestic actors can receive—investigations, defence, translation, victim support, refugee law, research, etc. Hybrids also build the administrative skills of the government in relation to the justice sector, and leave a physical legacy of buildings and equipment. Hybrids are recognition of the limitations of post-conflict judicial systems. While the idea of foreign experts teaching law on a step-by-step basis seems almost paternal, the mixed nature of the court heralds reclamation by the State of its responsibility and duty to enforce the rule of law from the international community to where it more properly belongs. It is an affirmation of the State’s willingness to develop a full capacity for itself, but makes the most of international assistance. If the national government has experience of the practical running of a high-quality special court, it follows that it can use these lessons in operating an international-standard domestic system. As noted earlier, most post-conflict domestic criminal justice systems lack the requisite public acceptance to administer justice credibly. In the transitional paradigm, lack of legitimacy is criticised only in so far as the given transitional criminal process is seen as valid, and not in terms of whether it contributes to creating a popular acceptance of judicial processes generally as the main means of resolving disputes. For example, Dickinson sees the question not as a formal one of political or democratic legitimacy; rather, he looks at perceived legitimacy in a more observable sense, namely, ‘which factors tend to make the decisions of a judicial body acceptable to the various populations observing its procedures’.85 The key question in the transitional transformational paradigm is whether the local population consider that justice in the transitional trials is genuinely and honestly being done. Questions such as the ethnic or political balance of indictments, or the geographic provenance of crimes, that may not normally apply in ordinary times are of central importance in ascertaining this legitimacy. In addition, the geographical location of the trials is of central importance. It is commonly accepted that the physical and psychological distance between the sites of the atrocities in Yugoslavia and Rwanda and the courts in The Hague 83 84 85

Dickinson, above n 2, at 305. Ibid, at 307. Dickinson, above n 2, at 301. Hall uses the same definition, above n 6, at 46–47.

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(Netherlands) and Arusha (Tanzania) meant there was little or no connection between the affected population and the trials. Connections with the ICTY were at best piecemeal, rather than the type of consistent, constructive engagement that would have made the trials relevant to the local population. There are a number of studies that confirm that remoteness engenders negativity and apathy towards trials.86 Too much international control insensitive to local needs can see legitimacy tainted by perceptions of imperialism or that the tribunal is the instrument of big powers. Burke-White cites a 2000 Croatian survey which found that a ‘high percentage of Croatians believed that The Hague was biased’, 52 per cent believed it wanted to ‘criminalise the Homeland War’, and 78 per cent believed it should not extradite citizens to it.87 The use of foreign international law alien to the domestic population in foreign lands exacerbated this problem of perception. Holding the trials in a different country robs both the immediate victims of the crime and the victim community as a whole undermines the restorative justice element of the trials. A wider peace-building approach is more concerned with ensuring the legitimacy of judicial processes overall than the legitimacy of the successor trials alone. Both transitional and peace-building paradigms share the intuition that distant processes do little to advance what Teitel calls ‘a normative shift in values’ at a time when there is a large gap between law as written and law as perceived.88 Hybrid courts are mostly concerned with crimes against humanity and war crimes. However, the development of a legal culture cannot be limited to the treatment of crimes which ordinarily should not occur after the successful transition that special courts are designed to help provide. It must go beyond the crimes themselves and into the realm of how a court system approaches issues like injustice, impunity, due process and defendants’ rights. Hybrid trials should not only provide a guide to the proper trial of international crimes. The development of a legal culture goes beyond those responsible for and employed in the justice sector. Hybrids serve as a platform on which the local people build the entire criminal justice system in their State. Turner explains the role of hybrid courts in the development of a cultural commitment to the rule of law as follows: Encouraging national communities to supplement these broad international norms with more concrete rules and interpretations of their own is consistent with ideals of autonomy and self-determination. It provides those communities with the opportunity to influence, in accordance with their core values, the laws and institutions which govern them.89

Hybrid tribunals bring legitimacy to both the transitional accountability process and the idea of court processes generally for a two main reasons. First, the presence of international professionals can ease any fears of partiality on the part of the inter86 For example, a 2000 study of Bosnians from every ethnic group in the judiciary and legal professions and their perceptions of the ICTY found that they were ignorant and suspicious of much of its processes (The Human Rights Center and International Human Rights Law Clinic, University of California, Berkeley, and the Center for Human Rights, University of Sarajevo, ‘Justice, Accountability and Social Reconstruction—An Interview Study of Bosnian Judges and Prosecutors’ (2000) 18 Berkeley Journal of International Law 102, at 136–40). Turner draws a negative comparison between how closely domestic trials in France, Argentina, South Korea and Israel were followed by the local people, and how the distant trials at the ICTY and ICTR were tracked. The capacity for restorative justice where the local communities are unaware of or uninterested in the trials is obviously diminished (Turner, above n 7, at 27–28). 87 Burke-White, above n 8, at 736. 88 Teitel, above n 9, at 11. 89 Turner, above n 7, at 22.

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national community and, more importantly, the local population. Because international personnel are paid by the UN and removed from domestic politics (and hence have no personal interest in them), the process is infinitely less likely to be manipulated by governments and other factions. Mixed hybrid proceedings are ‘insulated from domestic political factors’.90 This serves to prevent the bias visible, for example, in the original Kosovo trials before a hybrid solution was adopted91 and in Indonesia’s domestic trials.92 Visibly fair trials engender a popular expectancy that all trials will be similarly fair. Secondly, the trials will enjoy greater legitimacy in the eyes of the local population as judges of their ‘own kind are present as actors in the tribunal’.93 It will be seen that domestic actors can try domestic crimes adeptly in a domestic context. Fairly applied law no longer becomes an unattainable luxury of developed societies but is an achievable and expected domestic capacity. Locating the hybrid tribunal within the domestic political infrastructure also incorporates the court into the formal system of checks and balances in the domestic State, thus reinforcing the legitimacy that international supervision provides.94 One advantage hybrid courts bring to cultural penetration of the rule of law is that their proximity facilitates the engagement of the local population. Nationals can attend the trials. Local media can cover the cases with ease and in the local language(s). Hybrids have developed publicity campaigns and outreach programmes to make people aware of proceedings. All of this fosters public debate and discussion, increasing both the social understanding of law and its import. Adherence to human rights norms is central in all analyses of the justifications for developing hybrid courts, especially after conflict and repression where rights were frequently denied. However, while human rights (in theory at least) are absolutely central in rule of law reconstruction and the sine qua non of UN peacekeeping operations,95 commitment to human rights has been variable in a number of successful 90

Burke-White, above n 8, at 742. For an overview, see L Dickinson, ‘Symposium: The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: The Relationship Between Hybrid Courts and International Courts: The Case of Kosovo’ (2003) 37 New England Law Review 1059. 92 For an overview, see D Cohen, Intended to Fail: The Trials Before the Ad Hoc Human Rights Court in Jakarta, ICTJ Occasional Paper Series (2003), http://www.ictj.org/images/content/0/9/098.pdf (date accessed: 1 June 2008). 93 Hall, above n 6, at 58. 94 ‘American critics have focused less on the scope of judicial discretion, but it is easy to see how the argument about lack of accountability would extend to judicial actions. The point is not that judges should be directly responsible to an electorate at the national or international level. Courts serve important countermajoritarian functions. They derive their legitimacy to a great extent from principled and reasoned decisionmaking [sic], their legal expertise, and their impartiality. But perhaps in recognition of the tenuous nature of such legitimacy, additional safeguards have been placed on judicial decisionmaking [sic] at the national level. Legislatures can rewrite a statute when they believe that judges interpreting the statute have overstepped their mandate. Residence requirements also increase the likelihood that judges will consider the preferences of the community affected by their decisions’ (Turner, above n 7, at 19–20). 95 ‘United Nations norms and standards have been developed and adopted by countries across the globe, and have been accommodated by the full range of legal systems of Member States, whether based in common law, civil law, Islamic law, or other legal traditions . . . These standards also set the normative boundaries of United Nations engagement, such that, for example, United nations tribunals can never allow for capital punishment, United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights, and, where we are mandated to undertake executive or judicial functions, United Nations-operated facilities must scrupulously comply with international standards for human rights in the administration of justice’ (Report of the SecretaryGeneral: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, above n 24, para 10). 91

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transitional criminal trials. Famously, the International Military Tribunal at Nuremberg failed to adhere to conventional notions of legality in a number of respects. In retrospect, these deviations may not seem hugely serious in the extraordinary contemporary conditions, but they paved the way for the erosion of the commitment to scrupulously fair trials in international criminal law. The trials did not allow defences that relied on past Nazi law, and convicted individuals of crimes that did not exist at the time of commission, such as crimes against peace and crimes against humanity, raising concerns about retroactivity.96 The four occupying powers held thousands of other trials in their own zones, culminating in hundreds of death sentences.97 At various stages after Nuremberg, transitions in places like Japan, Bolivia and Rwanda have seen collective guilt, illegal internments, denial of appeal, lack of adversarial proceedings, de facto presumptions of guilt, biased selections of judges and jurors, selectivity, coercive plea bargaining and egregious delays of justice.98 While the ICTR and ICTY generally protected defendants’ rights, they represented a bucking of a historical trend. Indeed, it could hardly be otherwise given the funding, quality of jurists, and enormous media and academic attention. These conditions may not pertain in the developing world where most complex peace-building missions deploy. Policy makers need to scratch below the surface of prevalent explanations of hybrid courts as responses solely to the failure of ad hoc tribunals. Viewing these issues in terms of wider peace-building, building goals can clarify their meaning and demonstrate the unrealised potential of the hybrid court in reconstructing the rule of law. The lack of legitimacy from which purely international trials suffer, and their inability to contribute to capacity-building, arises in situations where the rule of law overall is eroded over a long period. As a result, hybrid trials can—and indeed must— respond to the wider rule of law deficit. When we speak of capacity-building, what is important is the ability of trials help build domestic capacity for trying all crimes, and not just the capacity to try war crimes. When we speak of legitimacy, what is important is creating a cultural commitment to the use of courts and the rule of law, and not just creating a favourable perception of the immediate successor trials among various factions in the population. The perceived needs for legitimacy and capacity-building did not arise in a vacuum, neither were they immediately obvious. If they had been, measures might have been taken at the outset in Rwanda and Yugoslavia to remedy the problems. It is significant that the emergence of the hybrid tribunal at the turn of the century was contemporaneous with the drive towards rule of law reconstruction and domestic capacity-building. It was in this climate that the shortcomings of the ad hoc tribunals were magnified, and the hybrid model was adopted by the UN due to its potential for wider rule of law change. It is necessary, however, to sound a cautionary note about the ability of hybrid courts to develop professional competencies. Hybrid courts will generally try a limited 96 McAdams in particular has questioned the ex post facto invalidation of the entire German legal system, in that it deprived German citizens of reasonable notice of what conduct would later be regarded as criminal (J A McAdams, ‘Communism on Trial: The East German Past and the German Future’, in James A McAdams (ed), Transitional Justice and the Rule of Law in New Democracies (Notre Dame, University of Notre Dame Press, 1997), 239 at 243). 97 American military tribunals convicted 1,814 (with 450 death sentences); the UK convicted 1,085 (240 death sentences); and the French convicted 999 (104 death sentences). 98 See generally Elster, above n 17.

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number of criminals, be of limited size and limited duration. From the experiences of the hybrid courts, it is likely that a maximum of only a dozen or so actors will slot into the bench, prosecution and defence offices and be mentored, if at all. It should have been immediately apparent that hybrid trials are suitable only for the development of an elite. An elite cadre of judges and prosecutors is of course indispensable, but only where mentoring is worked into a broader system of academic and practical continuous legal education and professional training centres will it yield anything more than superficial improvement, given the inherent weakness of mentoring in terms of language and time available.99 Similarly, the great danger in terms of legitimacy— and one overlooked for the most part in scholarly analysis—is that international dominance is perceived as imperialism little different to the ad hoc tribunals, or that it is prevalent to such a degree that local judges, lawyers and administrators are infantilised.100 The greater local ownership imported by the hybrid model must be maximised to the extent compatible with fair and competent trial. It is also worth remembering that, as in many legal systems, the quality of justice rendered is directly proportional to the funding provided and time given to long-term development. As will now be seen, this has not always been the case. the hybrid experience in east timor The East Timorese Serious Crimes Process (SCP) can be criticised for a number of faults—widespread failure to apply the law correctly, a Court of Appeal that did not understand the appellate function, executive interference in the Office of the Prosecutor, the influence of language politics, and the failure to establish functioning witness protection or Outreach, to name but a few.101 However, this section focuses on two examples of traditional transitional approaches to successor justice winning out over long-term rule of law goals that would remedy the problems identified above. The first is an example of the usual transitional paradigm where, as Schabas puts it, ‘the imperatives of conviction are given disproportionate priority’102—in the SCP, a mechanical and at times coercive transitional prosecution process was adopted at the expense of fostering a commitment to defendant rights in the justice sector. The 99 ‘On-site mentors often become distracted by or entirely take over the tasks at hand, such as writing opinions, defeating the purpose of the mentoring’ (Higonnet, above n 4, at 368). 100 ‘The sharing of responsibilities among local and international officials is not a complete cure for legitimacy problems, of course. Indeed, such hybrid relationships can raise new questions about who is really controlling the process. When international actors wield more power than local officials—when the majority of judges on a given panel is international, for example, or when the local prosecutors merely serve as deputies to international prosecutors—some may charge that the international actors control the process and that such control smacks of imperialism’ (Dickinson, above n 2, at 306). 101 See generally K Askin, S Frease and S Starr, ‘Unfulfilled Promises: Achieving Justice for Crimes Against Humanity in East Timor’ (2004) Open Society Justice Initiative and Coalition for International Justice, available at http://www.globalpolicy.org/intljustice/tribunals/timor/2004/1104unfulfilled.pdf (date accessed: 1 June 2008); D Cohen, ‘Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor’ (2006) East–West Center Special Reports Number 9 (copy on file with author) and above n 3; M Hirst and H Varney, ‘Justice Abandoned? An Assessment of the Serious Crimes Process in East Timor’ (2005) ICTJ Occasional Papers Series, available at http://www.ictj.org/images/ content/1/2/121.pdf (date accessed: 1 June 2008); Reiger and Wierda, above n 28. 102 W A Schabas, ‘Balancing the rights of the accused with the imperatives of accountability’, in R Thakur and P Malcontent (eds), From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (Tokyo, New York, United Nations University Press, 2004), 154 at 166.

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second is the abandonment of the training and mentoring by international actors in pursuit of these prosecutions. The SCP was born out of Indonesia’s insistence that none of its citizens would ever be tried by the international court that was originally recommended.103 After a series of sham trials in Jakarta104 and the failure to adhere to a Memorandum of Understanding between East Timor and Indonesia,105 it became immediately apparent that the SCP would never gain custody over the senior Indonesian army and militia figures responsible for organising the violence in 1999. The SCP was left with about a hundred low-level, illiterate militia members, many of whom were in UN police custody. Regulation 2000/15 created benches called Special Panels in the Dili District Court in June 2000 to deal specifically with accountability for serious crimes,106 while Regulation 2000/16 established a Serious Crimes Unit (SCU) to investigate and prosecute them.107 Each Panel was composed of three judges, two of whom were international and one national.108 The prosecutorial Serious Crimes Unit, Defence Office and Registry were designed along similar lines, with national actors in theory co-operating with international experts. This was to be the basis of the mentoring scheme. The jurisdiction of the Panels encompassed international crimes such as war crimes, genocide and crimes against humanity, while the domestic crimes of murder and rape were also included.109 Because the most culpable offenders were outside the SCU’s grasp, truly meaningful transitional accountability was not possible. Their absence allowed for greater flexibility in approach, however. The most senior Timorese offenders remain103 In its Report to the UN Security Council, the International Commission of Inquiry recommended the creation of a full international tribunal, holding that ‘The UN should establish an international human rights tribunal consisting of judges appointed by the United Nations, preferably with the participation of members from East Timor and Indonesia. The Tribunal would sit in Indonesia, East Timor, and any other relevant territory to receive the complaints and to try and sentence those accused of serious violations of fundamental human rights and international humanitarian law which took place in East Timor since January 1999 regardless of the nationality of the individual or where that person was when the violations were committed’ (United Nations Office of the High Commissioner for Human Rights, Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc A/54/726, S/2000/59 of 31 January 2000, para 153). Indonesia was unwilling to put its powerful military figures on trial internationally. Its response to the UN’s prompting was to set up the Ad Hoc Human Rights Court that has widely been decried as a sham. Any action on an international tribunal was deferred, as Kofi Annan reasoned that ‘there will be no need for the Council or the UN to set up another tribunal to compete with one set up by the Indonesian government that is going to do the exact same thing’. 104 See generally D Cohen, above n 92, and S Frease, ‘Playing Hide and Seek With International Justice: What Went Wrong in Indonesia and East Timor’ (2004) 10 ILSA Journal of International and Comparative Law 283. 105 In April 2000, a Memorandum of Understanding was signed between UNTAET and the Government of Indonesia on co-operation in judicial affairs, which included mutual asistance in the investigation of cases and in the enforcement of subsequent extradition and arrest warrants. The Memorandum was doomed from the beginning. As Linton points out, everything was left to the ‘goodwill’ of the parties, and there was little goodwill on Indonesia’s part (Linton, above n 26, at 212). No suspect was ever transferred, as Indonesia maintained the agreement had to be ratified by the national parliament. Once East Timor became independent, Indonesia claimed the agreement lapsed as it was only entered into with the now-defunct UNTAET. The new East Timorese Government did not challenge this, and to date has never sought to enter into an extradition treaty with Indonesia or any other State to aid the prosecution of serious crimes. 106 UNTAET Regulation No 2000/15 on the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences (6 June 2000). Regulation 2000/15 developed on the blueprint for the Special Panels set out in Regulation 2000/11 on the Organization of Courts in East Timor (6 March 2000). 107 UNTAET Regulation No 2000/16 on the Organization of the Public Prosecution Service in East Timor of 6 June 2000. 108 UNTAET Regulation No 2000/15, above n 106, Section 22. 109 Ibid, Sections 4–9.

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ing could be tried, but in a selective manner (as all transitional criminal processes unfortunately are) consistent with the optimum use of resources to allow Timor’s fledgling judicial institutions to demonstrate high standards in the prosecution, defence and trial of these crimes, but at the same time to punish and stigmatise them as per transitional imperatives. Instead, what occurred was an unbalanced and at times coercive process geared towards the prosecution of as many of these criminals as possible in the quickest time practicable, regardless of the quality of the decisions, adherence to human rights norms or the views of the Timorese community. The provision of defence was neglected throughout, resulting in egregious breaches of defendants’ rights. The bench at both trial and appeal was too weak to defend these rights, and at times colluded in this process of perfunctory accountability. the presumption of innocence and equality of arms In over five years of existence, the SCU enjoyed a level of productivity far in excess of either defence or Special Panels. It filed 95 indictments for 391 suspects, and made 290 requests for arrest warrants, of which 284 were issued by the Special Panels.110 The SCU was ‘comparatively “blessed by resources” ’111—funding for the Unit (approximately US$5.6m to US$6m per annum) dwarfed that of the other units. No formal reason was ever given for the enormous discrepancy in resources, but it represents a clear determination to prosecute as many offenders as possible. Considered alone, this emphasis is commendable. The SCU used these resources to become by far the strongest unit, as it could afford personnel in prosecution, investigation and translation, and material resources such as computer databases, vehicles and technical investigative equipment. For the reasons outlined above, a just—or even representative—accounting for the crimes of 1999 was impossible. The possibility existed to examine the available suspects and marshal resources into trying to a high standard a realistic 30 or 40 of the most senior militia figures in custody suspected of the worst crimes. Consideration could be given to a geographic spread of atrocities or prosecution of the most loathsome crimes to satisfy transitional public demand for accountability, while at the same time ensuring that attention could be given both to mentoring and standard-setting. Instead, to compensate for the absence of the most culpable figures, the SCU adopted a strategy of the fullest accountability possible at all levels. ‘Quantity of perpetrator’ was viewed as interchangeable with ‘quality of perpetrator’ in an ill-defined transitional calculus. In this, it may have been repeating the experience of tribunals in postwar Germany and Japan, and in The Hague, where the prosecution of hundreds (dozens in the case of the ICTY) of lesser offenders was seen as compensating for the failure to prosecute the most senior perpetrators. These tribunals, however, were infinitely better resourced than the SCP, and of course had no judicial reconstruction remit. The prosecutorial direction was dictated by the availability of suspects in what some have called the ‘small fish’ strategy. The indictees were all low-level militia 110 Of this total, it was estimated that approximately 339 of the indicted individuals were outside the jurisdiction of East Timor, most probably in Indonesian territory (UN Secretary-General, Report of the Commission of Experts, above n 16, para 7). 111 Burke-White, above n 5, at 65.

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members. Initial indictments were usually for single or multiple counts of murder, as opposed to murder as a crime against humanity, as the SCU at the time lacked either the will or the ability to prosecute crimes in their proper context. Around August 2001, the strategy was modified. Indictments began to prosecute crimes against humanity instead of murder or rape under the Indonesian Penal Code, and a more coherent approach to the indictment process was commenced. From now on, the SCU focused on 10 priority cases (later extended to 15), reflecting the most serious crimes and a geographic spread of atrocities. However, the strategy still represented a bid to put as many names as possible on indictments, rather than a reasoned appraisal of how scant resources might best be used to reconcile the advance of transition with exemplary prosecution strategy. In a sense, the decision to prosecute every possible criminal within East Timor’s borders is understandable given our intuitions about the rule of law requiring full accountability for crimes like rape and murder, victims’ rights and the concept of equality before the law. However, of greater concern is the manner in which this accountability was pursued. While UN missions turned the SCU into a highlyresourced, expertly-staffed unit that was commended by a latter UN Commission for its contribution to the historical record of 1999 crimes, justice for victims and the number of convictions,112 no such effort was made to boost the defence function to an equivalent degree. Regulation 2000/30, based on the Rome Statute, provided the elements necessary for a fair trial on paper.113 However, as Friman points out, these protections are predicated on the existence of a ‘highly developed and well-resourced legal system’.114 Instead, what actually transpired was an imbalance in the equality of arms between prosecution and defence that breached defendant rights norms, called into question the very legitimacy of the trials and succeeded only in setting an example of what not to do. Article 14.3 of the ICCPR contains a number of provisions that define and elaborate on what an individual’s right to defence in criminal proceedings means. Among these rights is the right to choose one’s own defence counsel, to be informed of the right to counsel and to receive free legal assistance.115 However, guarantees of defence on paper are worthless if the infrastructure, resources and qualified lawyers are not there to give effect to them. In the SCP, the provision of such counsel was completely inadequate for the defence of serious crimes. While UNTAET passed Regulation 2000/16 to build an efficient prosecution team, there was no new legislation to regulate the provision of defence in Serious or Ordinary trials. In fact, it took a number of years before defence became anything more than a fleeting concern. In the beginning, serious crimes were defended by East Timorese lawyers. There were nine in total, with little or no courtroom experience, a problem exacerbated by the fact that this defence 112 Report of the Commission of Experts, above n 16, paras 50–56. By the end of the SCP, the SCP issued 95 indictments for 440 defendants, of which 339 were beyond the SCP’s jurisdiction; 87 defendants were tried in 55 trials. 113 UNTAET Regulation 2000/30 on Transitional Rules of Criminal Procedure (25 December 2000). 114 H Friman, ‘Procedural Law of Internationalized Courts’, in Romano, Nollkaemper and Kleffner (eds), above n 2, 317 at 324. Similarly, Reiger and Wierda note: ‘Although the heavy reliance on international standards and practises had the potential to introduce such standards at a national level, such standards are predicated on the existence of a fully functioning justice system and assume a certain skill level within the profession’ (Reiger and Wierda, above n 28, at 25). 115 Art 14.3 (d).

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component was made up from those not considered promising enough for the bench or prosecution.116 Soon, however, the inability of these East Timorese defenders became all too apparent. For example, there were no defence witnesses called in the first 14 trials. This unfortunate turn of events should have alerted the UN to the pressing need to redress this imbalance via domestic development or recruitment of international defenders of commensurate ability. Instead, in the 2001–02 period, almost all trials were defended by a single Zimbabwean lawyer hired by UNMISET.117 In response to this parlous situation, UNMISET belatedly created the Defence Lawyers Unit (DLU) in September 2002, which represented accused in subsequent trials until closure in 2005. The DLU gradually grew. At its maximum strength, it had seven international lawyers, with three researchers, two interpreters, and a number of assistants in logistics and administration.118 By 2004, the DLU had improved, though Hirst and Varney note a ‘perception’ that, even then, the international defenders were insufficiently skilled or experienced enough to defend serious crimes cases: . . . the perception has remained that there was an insufficient level of experience among the defence lawyers given the gravity and complexity of the crimes involved. While all the DLU lawyers had law degrees, were permitted to practise in a recognised jurisdiction, and had some courtroom experience, levels of expertise varied greatly. The Unit has been criticised for having inadequate expertise in international criminal law in particular. The insufficient experience and expertise of some DLU lawyers led to the provision of an inadequate defence.119

Defence counsel were ignorant of the law, passive in the face of the superior prosecution, apathetic in vindicating the rights of their clients and obviously unqualified for the inherent legal complexities of defending individuals accused of international crimes. Reports on the SCP are replete with instances of failure to call witnesses,120 failure to advise defendants on the right to remain silent,121 acquiescence to pre-trial detention122 and concession of a defendant’s participation in a crime even where he pleaded not guilty.123 As the UN realised that it ran the risk of operating a seriously compromised judicial process, it began to redress the imbalance somewhat. However, it was only in April 2005, a month from the closure of the SCP, that Judge Philip Rapoza felt that the DLU could defend cases with reasonable competence: As the DLU has become robust, one can finally say that international standards of due process are being met. The Serious Crimes Process has now reached a point where it can do its job in a proper manner.124

116 Katzenstein quotes the international defence lawyers Siphosami Malunga: ‘Simply put . . . [t]he public defenders were appointed out of what was left of candidates with law degrees’ (S Katzenstein, ‘Hybrid Tribunals: Searching for Justice in East Timor’ (2003) 16 Harvard Human Rights Journal 245, at 263). 117 ‘Currently, serious crimes cases are defended almost entirely by one UNMISET-sponsored international defender, Siphosami Malunga, with some assistance from one or two international mentors’ (ibid, at 263). 118 Hirst and Varney, above n 101, at 20. 119 Ibid, at 21, and Reiger and Wierda, above n 28, at 27. 120 This was so as late as 2004 in the case of Prosecutor v Rusdin Maubere (Case No 23/2003, Judgment 27 May 2004). 121 Prosecutor v Tavares (Case No 02/2001, Judgment, Trial Chamber, 28 September 2001). 122 Prosecutor v Jose Valente (Case No 3/2001, Judgment 19 June 2001). 123 Prosecutor v Damiao da Costa Nunes (Case No 1/2003, Judgment 10 December 2003). 124 Quoted at a UN International Symposium in Dili, 28 April 2005, quote reproduced in Cohen, above n 101, at 6.

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The problem of incapable defence counsel was compounded by a lack of resources, which made the day-to-day operation of criminal defence more difficult. In UNTAET’s original budget, no provision was made for defence, as it came under the Ministry of Justice remit. On every level, it lacked the resources necessary to mount a vigorous defence. While the SCU had dozens of international and police investigators, the DLU had less than a handful at any point in time. Defence counsel on occasion had to use the prosecutor’s translators to communicate with their own clients,125 and sometimes never received transcripts of a case.126 The DLU had neither a legal database nor a library.127 Considered alone, the aforementioned weaknesses should have caused considerable alarm. When one also considers the overwhelming superiority of the SCU, it becomes clear that there was no equality of arms. By the notion of equality of arms, it is meant that the defence is unfairly handicapped and a fair trial is jeopardised if the defence is disadvantaged materially or otherwise to so great a degree that it cannot make a case to counter that of the prosecution.128 If a tribunal is to keep within the intended spirit of guidelines on equality of arms, the right must go beyond the provision of time, facilities or the availability of witnesses. It must also encompass the right to effective defence counsel. This is especially so when the tribunal is staffed by international prosecutors but purports to operate by the highest standards. Equality of arms means relative parity as opposed to exact parity, but even relative parity was denied in Dili. Out of 87 defendants tried, only three were acquitted. A 2.3 per cent acquittal rate gives the most damning indictment of the DLU by comparison to the SCU. A conviction was almost a fait accompli, and when this is the case, the presumption of innocence that every defendant enjoys becomes infinitely less presumable.129 It would also appear that some judges mistook the trials in the light of the inequality of arms as some sort of rubberstamping exercise, and resented the delays that came with effective defence. Cohen describes interviews with Special Panels who made their displeasure at crossexaminations and objections clear to the author, seeing vigorous defence as impeding a process instead of upholding justice and the fairness of trials. Cohen quotes an inter125

Burke-White, above n 5, at 71. JSMP, ‘The Lolotoe Case: A Small Step Forward’ (2004), available at http://www.jsmp.minihub.org/ Reports/jsmpreports/Lolotoe%20Reports/Lolotoe%20report%20-%20FINAL.pdf (accessed: 1 June 2008), at 16. 127 The UN Commission of Experts understood how limited the DLU was, noting: ‘DLU also lacks the necessary resources to hire expert consultant on issues such as forensics, psychiatry, toxicology, sociology and history, and is thus limited in its ability to advance special defences or to rebut scientific evidence adduced by the prosecution’ (Report of the Commission of Experts, above n 16, paras 144–47). The Commission further maintained that the ‘DLU should be afforded the means to access such defence experts where strictly necessary to mount a full and effective defence’ (para 147). 128 In Kordic, the ICTY Appeal Chamber held that ‘at a minimum, “a fair trial must entitle the accused to adequate time or facilities for his defence” under conditions which do not place him at a substantial disadvantage as regard his opponent’ (Prosecutor v Kordic, Case No IT-95-14/2-Y, P 22 n 39 (Appeals Chamber, ICTY, Sept 18, 2000). The UN Commission on Human Rights ‘calls upon states to ensure that the principle of equality of arms within their judicial systems, inter alia, by providing those being tried the possibility to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them’ (UN Commission on Human Rights, Res 2002/37, UN Doc E/2002/2j-E/2002/200 of 22 April 2002, para 6). 129 Realising the unfairness of this state of affairs, to their credit the SCU was not always intent on pressing home its advantage. There is much anecdotal evidence of prosecution lawyers instructing their defence counterparts even during trials to restore some semblance of protection for the defendant’s rights (Cohen, above, n 101, 16) 126

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national judge in interview as follows: ‘Defence counsel should realise they are part of the UN effort.’130 This could be written off as the opinion of merely one judge were it not for the fact that it is entirely in keeping with the UN’s overall attitude to the SCP. From the beginning, it viewed the SCP as a mechanical exercise in processing enough defendants to make it clear that a line had been drawn in the sand, dividing the illiberal Indonesian past from the democratic future, without ever accepting that a functioning criminal justice system, defence included, is an essential part of that future. Hirst and Varney suggest that ‘the serious lack of quality in the representation of the accused has the potential to bring the legitimacy of the whole process into question’.131 The Failure of Mentoring The added value of hybrid courts is their provision of personnel who can train and mentor local actors on the job in the various skills and attitudes which, for various reasons, they lack. It is only by hiring international staff with the skills necessary to run a criminal justice system in conditions conducive to educating and working simultaneously, that the fair trial standards of established court systems can be introduced to the nascent judiciary. However, in a process which prioritised the symbolic prosecution of minor criminals over the development of the judicial actors that could build Timor’s future, mentoring was ignored. From the outset, there was never any intention to fund the SCP to the extent that it would be a fully-functioning, exemplary, high-quality operation from which the capacity-building process could be sustained. The budget of the SCP was an average of around US$6.6m per year, meaning that the SCP could not attract enough international jurists of sufficient quality to ensure exemplary trials.132 Neither were they sufficiently numerous to ensure that mentoring and teaching could advance alongside the administration of 80 trials and hundreds of indictments over a four-year period. As the process unravelled, it became apparent that international staff were generally not numerous, qualified or experienced enough to make a meaningful contribution to the professional development of the East Timorese in their field or to accountability in trials of a high standard. The UN’s approach to the Special Panels represents something of a mid-point between its support of the SCU on the one hand, and its outright neglect of the DLU on the other. The Special Panels were neither as well-funded or as well supported as the SCU, but neither were they overlooked and ignored in the manner of the defence function. However, at no point was there targeted recruitment of judges with experience in international law or capacity-building in post-conflict societies. Trial competence, as opposed to transferable expertise, became the expectation. As Romano notes, stress was put ‘less on highest qualifications, but rather on legal training and, wherever possible, actual trial experience’.133 The emphasis was on muddling through the transitional justice process quickly and efficiently, with the highest standards of 130

Ibid, at 40. Hirst and Varney, above n 101, at 21. 132 D Cohen, ‘Seeking Justice on the Cheap: Is East Timor Really a Model for the Future?’ (2002) East–West Centre, available at http://www.eastwestcenter.org/stored/pdfs/api061.pdf (date accessed: 1 June 2008), and T Ingadottir, ‘The Financing of Internationalized Criminal Courts and Tribunals’, in Romano, Nollkaemper and Kleffner (eds), above n 2, at 271. 133 C P Romano, ‘The Judges and Prosecutors of Internationalized Criminal Courts and Tribunals’, in Romano, Nollkaemper and Kleffner (eds), above n 2, at 249. 131

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fairness—and the experienced judges necessary to deliver them—merely afterthoughts. Lower expectations led to a lower standard of judges from a lower standard of court. The only qualification a judges needed was to have been appointed to judicial office of any level. This resulted in all but two judges coming from courts of lower jurisdiction or non-criminal jurisdiction.134 In terms of mentoring, the legacy of the Panels is mixed. It goes without saying that when inexperienced domestic judges operate side-by-side with more experienced international judges who have been given a specific mandate to mentor them, there will be positive benefits for the former. A handful of judges were mentored in the Special Panels, and those involved have acknowledged that interaction between domestic and interaction judges ‘functioned relatively well’,135 while local judges reported that ‘they have learned a great deal from the process’.136 Nevertheless, a constant observation of commentators when examining the example of the Special Panels were that it was ‘disconnected from’,137 contained ‘little reference to’138 and demonstrated a ‘lack of comprehension’139 of international human rights law.140 Cohen notes that in some trials, the East Timorese judges showed a far greater aptitude for adjudication than their flawed international counterparts.141 However, only four Timorese judges served on the Special Panels. In terms of professional competencies, in January 2005 it was announced that all Timorese probationary judges (including the four Special Panels judges) had failed their tests. The failure of the Timorese judges who demonstrated such competence has been noted with suspicion,142 but the failure of other Timorese judges in the domestic system highlights the inability of the SCP to integrate properly with training schemes, or to influence domestic standards.143 Prosecutorial strategy was based so much around successful convictions that the participation of inexperienced Timorese was minimised instead of encouraged. In a 66-person SCU, only 14 Timorese trainees were taken on, of which only four were prosecutors, and these were appointed only in 2002.144 Even though their conviction 134 Special Panel Judge Sylvester Ntukumazina of Burundi was merely a junior magistrate in his home country but was expected to try serious crimes at a UN-funded tribunal (Burke-White, above n 5, at 67). It is unlikely that the UN would have considered a law degree from the University of Bujumbura an adequate qualification if it was serious about either the highest standards of justice or a worthwhile mentoring process. 135 Reiger and Wierda, above n 28, at 15. 136 Ibid. 137 S Linton and C Reiger, ‘The Evolving Jurisprudence and Practises of East Timor’s Special Panels for Serious Crimes on Admissions of Guilt, Duress and Superior Orders’ (2001) 4 Year Book of International Humanitarian Law 1, 46. 138 Reiger and Wierda, above n 28, at 22. 139 Ibid, at 12. 140 See generally, JSMP, ‘Digest of the Jurisprudence of the Special Court’ (2007), available at http://www.jsmp.minihub.org/Reports/2007/SPSC/SERIOUS%20CRIMES%20DIGEST%20(Megan)%2 0250407.pdf (date accesses: 1 June 2008) 141 In Joao Fernandes (Case No 1/2000, Judgment 25 February 2000), Judge Maria Gusmao Perreira wrote a dissenting opinion ‘more careful, accurate and sounder’ than both of her international colleagues (Cohen, above n 101, at 42). In Prosecutor v Julio Fernandes (Case No 2/2000), Cohen declares her dissenting opinion as of a ‘higher standard than that of the international judges’ (ibid, at 48). 142 Cohen, above n 101, 93–98. 143 JSMP Justice Update, ‘Results of Judges’ Evaluations Released’ (26 January, 2005), available at http://www.jsmp.minihub.org/Press%20Release/2005/January/26jan05_judges%27%20evaluations(e).pdf (date accessed: 1 June 2007). 144 Hirst and Varney break down the staffing of the SCU at its strongest point in Spring 2003 as follows: ‘. . . 44 UN prosecutors, investigators, forensic specialists, and support staff, 32 UN police investigators, and 40 national staff, including translators and mortuary staff. The Unit also had five East Timorese police investigators and 14 local trainees in various areas’ (Hirst and Varney, above n 101, at 16).

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statistics were excellent, international prosecutors frequently set as poor an example as their colleagues on the bench or in defence.145 Indictments from the SCU regularly omitted routine information. In a number of cases, the context for the crimes was not investigated as the SCU chose to rely on reports by the UN and human rights organisations. Sometimes the impetus to convict even led to less than exemplary breaches of the defendant’s rights.146 In early 2005, that ill-defined moment of sufficient accountability was perceived by the UN to have arrived. Remaining prosecutions were rushed, resources ‘were stretched even thinner’ and mentoring was completely abandoned.147 In an otherwise fairly favourable appraisal of the SCU, a UN Commission of Experts found that the East Timorese could not successfully investigate or prosecute serious crimes on their own to an international standard without international assistance after the internationals withdrew from the SCP.148 Investigation and prosecution of ordinary crimes was not considered. As noted earlier, mentoring in the defence sector was a complete failure. Once the UN realised that some degree of equivalence between defence and prosecution was necessary, the provision of defence became dominated by international defenders who came in to fill the qualification vacuum. The East Timorese began to migrate from serious crimes to the exclusive practice of ordinary crimes, while the SCP became a fiefdom of international lawyers only. Both Timorese defenders and prosecutors failed their 2004 exams to enter the judiciary.149 It may be unrealistic to expect a functioning judiciary to develop out of a hybrid court that enjoyed minimal funding and little international support in less than four and a half years of operations. However, if the rule of law development role of hybrid courts was brought to the fore, funding, time and support would have been forthcoming given their obvious necessity. Instead, justice on the cheap was the order of the day. The legacy of this approach is visible in the stagnation of the courts in the next three years. As noted above, no Timorese actors passed their exams in late 2004.150 At 145 For example, in Prosecutor v Francisco Pedro (Case No 1/2001, Judgment 14 April 2005), the SCU indictment for murder as a crime against humanity alleged that the defendant both stabbed the victim and ‘aided and abetted’ the stabbing. At the initial hearing, it was pointed out by the Special Panel that the indictment made neither legal nor common sense. In response, the SCU prosecutor filed a second indictment, which in no way addressed the mistake at issue but merely added another defendant. In Prosecutor v Januario Da Costa and Mateus Punef (Case No 22/2003, Judgment 25 April 2005), individuals were indicted for crimes against humanity without a single witness to the crimes being presented in court to testify as to how widespread or systematic was the attack which led to the crimes. 146 In Prosecutor v Carlos Soares Carmone (Case No 3/2000, Judgment of 25 April 2001), the prosecutor failed to bring to light exonerating witness evidence in a case where the defence produced no evidence, in contravention of Regulation 2000/30’s obligation on the prosecutor to investigate both incriminating and exonerating evidence in Sections 7.2 and 7.3. In the infamous X Case, X, who was 14 in 1999, was charged, and indeed convicted, of crimes against humanity (later amended to a charge of murder of three men) and was detained for almost a year in pre-trial custody (JSMP, ‘The Case of X: A Child Prosecuted for Crimes Against Humanity’ (2005), available at http://www.jsmp.minihub.org/Reports/jsmpreports/The%20Case% 20of%20X/case_of_x_final_e.pdf (date accessed: 1 June 2008). 147 Cohen, above n 101, at 20. 148 Report of the Commission of Experts, above n 16, para 115. 149 JSMP Press Release, ‘Prosecutors and Public Defenders Fail Their Evaluations’ (26 May 2005). 150 These results have been criticised in that they were based on written examinations in Portuguese, in which few Timorese would be fluent (Cohen, above n 101). These criticisms are fair, but the practice of the Timorese actors outside the SCP between 2000 and 2004 clearly demonstrates that by 2005, even bare competency had not been achieved. Law was routinely misapplied, enormous backlogs of cases developed and public confidence in the judiciary plummeted. (See generally JSMP, ‘Case Flow and Management: A Statistical Analysis, 2003–mid 2004’ (2004), available at http://www.jsmp.minihub.org/Reports/ jsmpreports/Statistic%20reports/Statistics%20Report(e).pdf (date accessed: 1 June 2008), and ‘Overview of

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the end of the SCP, instead of a cadre of qualified and mentored Timorese jurists emerging from their expert tutelage, Timorese actors left the criminal justice system en masse to attend a Legal Training Centre (LTC) for 18 months to develop their skills almost from scratch. Of course, mentoring could only ever have been successful if operated in tandem with complementary, focused training in requisite skills. Instead, capacity-building was given lip-service—all that occurred was a series of unsuccessful, unco-ordinated ad hoc training schemes. The Timorese actors emerged from the LTC in mid-2006 as probationary judges, defendants and prosecutors. In the intervening two years, there is much evidence to suggest that this programme of intensive, fulltime training was of more use to Timorese graduates than the example of a coercive and imbalanced scheme of criminal trials. Timorese judges are now found throughout the district courts and are performing competently,151 while Timorese defenders are well regarded.152 The inequality of arms that blighted the SCP did not carry through after 2005. It is worth noting that after the end of the SCP, UN provision of defence counsel improved dramatically, at times exceeding the number of prosecutors. The involvement of international actors is justified on the basis that their presence is only temporary pending the assumption of full control by domestic judges, prosecutors and defenders once the process ends. Precisely the opposite occurred after the SCP. Because international actors were used to the exclusion of locals to satisfy the desire for speedy, definitive prosecutions, the latter had little opportunity to develop in the hybrid system. By the time the SCP ended, the ordinary criminal justice system was operated almost exclusively by internationals. The emergence of Timorese probationers in Summer 2006 coincided with the commencement of trials for a number of serious violent crimes that occurred in April and May of that year, which left 38 killed, 69 injured and 150,000 internally displaced.153 Even with the emergence of trained Timorese to serve on mixed teams of judges and defenders, international judges have asserted control. Even the concession to Timorese involvement has been grudging and as limited as possible.154 Commentators disagree as to whether this international the Courts in East Timor in 2004’ (2004), available at http://www.jsmp.minihub.org/Reports/jsmpreports/ Final%20Report%202004/court%20final%20report%202004(e).pdf (date accessed: 12 March 2008). 151 Between January and September 2007, the Dili District Court issued 297 final decisions, 151 of which were decided by Timorese judges (UN Secretary-General, Report of the Secretary-General on the United Nations Integrated Mission in Timor-Leste (for the period from 21 August 2007 to 7 January 2008), UN Soc S/2008/26, para 37). On top of this improved productivity, by early 2008 permanent courts functioned in all four districts which was not the case before then (ibid, para 36). 152 Improvements have been noted in case management, ethics, procedure and advocacy (‘UNDP Strengthening the Justice System in Timor-Leste Programme: Independent/External Mid-Term Evaluation Report September 2007’ (2007), available at http://www.tl.undp.org/UNDP/Governance/Project_doc/ Evaluation%20report-Justice%20system%20project.pdf, (date accessed: 1 June 2008), at 48–50. Protection of defendants’ rights has improved dramatically since the SCP. A 2006 UNDP report states: ‘The systematic attention paid to detainees by the defence service has resulted in a decrease of problems associated with illegal detentions. Timorese defenders based in Dili are working shifts to attend trial hearings, and the schedule of their interventions is published’. The same report noted also that ‘[m]ore appeals processes are known to be initiated by the national defenders, which demonstrates their proactive attitude in relating to other judiciary institutions, as well as an increased awareness of their mandate’ (UNDP/Government of Timor-Leste, ‘Strengthening the Justice System in Timor-Leste Annual Progress Report 2006’ (2006) (copy on file with author), at 27. 153 UN Commission of Inquiry, above n 103, paras 100–101. 154 Though the Prosecutor-General opened around 50 cases, national prosecutors have played no part in Crisis cases, with even as assistance role considered beyond their capabilities, though allegations of governmental interference in the prosecutorial function have also played a role. Initially, probationer judges were called up only when international judges needed a third judge on a three-person panel. The Timorese

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control is justifiable or not,155 but the inescapable conclusion is that a year and a half after a hybrid court was tasked with trying crimes of a period of extraordinary violence, another effectively hybrid court was employed to try crimes of a much briefer and less serious period of extraordinary violence. Even in terms of ordinary criminal trials, Timorese actors are trusted only with minor cases, even though performance in remote districts with less international control has seen significantly improved performance.156 In 2008, international actors remain in control of the domestic justice system as the internationally-dominant dynamic of the SCP remains the norm in completely different circumstances and for completely different crimes. conclusion It is clear that the move from purely international successor justice to the application of hybrid structures has been influenced by, and is consistent with, UN peace operations reform, which increasingly emphasises the need for long-term societal reconstruction. It follows, then, that the manifold possibilities of hybrid courts as a peace-building tool in the process of reconstruction should be taken into account in their design and operation, every bit as much as the transitional benefits of punishment, rehabilitation and truth recovery. Nevertheless, the identification of hybrid courts with the failings of ad hoc courts has meant that hybrid courts are still considered in a transitional paradigm where social transformation takes precedence over social reconstruction. In an under-supported and under-resourced Timorese hybrid court, the modest but valuable ambitions outlined in hybrid court theories at the turn of the century were quickly abandoned in favour of a ritual prosecution process. The short-term gains of transitional justice are tempting, cheap and present a rare opportunity for a ‘quick win’. However, if the courts are not built up as one of the key institutions of sovereignty, their weakness can contribute to conditions where hostility once more becomes a possibility. While the 2006 Crisis in East Timor is explicable more in terms of the failures of the security sector and of governance than of the justice system, the weak nature of the courts meant that the best avenue for the resolution of disputes in rule of law States was dominated by international actors who lacked both legitimacy and democratic accountability. The present-day weakness of Superior Council of the Judiciary decided that ‘international judges should take the lead on such cases, to protect national actors from external pressures and intimidation. This is also to ensure that proceedings are perceived as being independent and transparent’ (UNDP/Government of Timor-Leste Report, above n 152, at 32). 155 Notably, the UNDP Mid-Term Report (above n 152, at 31), UN Commission of Inquiry (above n 103, para 180) and JSMP (JSMP Submission to the UN Independent Special Commission of Inquiry for Timor-Leste, file on copy with author, no page numbers) all advocated international leadership in relation to Crisis cases. 156 Reporting on proceedings in the Suai District Court, JSMP stated that it ‘very much respects the performance of the national judges because even though not accompanied by an international judge, they are able to make just decision with no legal defects’ (JSMP Justice Update, ‘The Suai District Court in the PostCrisis Period’, 3 March 2007). Similarly, UNDP notes: ‘The national prosecutors are performing well on expedite trials. Those in Baucau, Suai and Oecusse have been actively involved in district trials. Those in Baucau, Suai and Oecusse have been actively involved in district trials—both independently and under the supervision of the international prosecutors. International prosecutors . . . feel that the national prosecutors are capable of performing their functions in line with human rights standards’ (UNDP/Government of Timor-Leste Report, above n 152, at 37).

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the Timorese justice system is an inevitable consequence of the enervation of local actors in a Serious Crimes Process with misplaced priorities, which in turn provided the justification for their subsequent infantilisation. Remembering why hybrid courts were formed is important, and can unlock their potential to advance the cause of peace in a sustainable, long-term manner. It may restrain an impulse to undergo a socially cathartic but mechanical and often unfair system like the East Timorese Serious Crimes Process, in favour of a slower process based on scrupulously fair, exemplary trials. Above all else, it will force policy makers to calibrate their transitional justice strategy with reference to the peace-building ecology on the ground, rather than a ‘one size fits all’ policy that follows the dictates of an evolutionary transitional justice project. Reassessing the purposes of hybrid courts may well have caused UNTAET to question whether trying 80 Timorese criminals in the space of a few years was conducive to developing high standards of procedural fairness in national trials, or the success of much-needed training and mentoring. These are difficult questions and require a context-specific balancing of the traditional transitional goals of hybrid accountability with the more foundational goals of peacebuilding. The former is concerned with bridging the small but crucial temporal gap between past repression and a liberal future. As such, it is a more short-term endeavour where a public ritual of three or four years’ duration can suffice, even where due process standards are abrogated. The latter is concerned with an indefinite but no less crucial period after the end of repression. There is no defined end period, but rather a gruelling, costly series of chores where international expertise must of necessity give way to domestic empowerment, where abrogation of human rights standards is selfdefeating instead of expedient. Unless the peace-building rule of law function of hybrid courts is remembered, they will ultimately fall short of their potential.

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Shannon, Saadi and Ireland’s Reliance on Diplomatic Assurances Under Article 3 of the European Convention

Fiona de Londras* The suspicion that the programme of ‘extraordinary rendition’1 of the United States of America is facilitated by the stopover and refuelling arrangement between Ireland and the United States in relation to Shannon Airport, has resulted in severe criticism of the Irish Government from organisations such as the European Union, the Council of Europe, the Irish Human Rights Commission and anti-war activist groups. The Irish Government, however, has consistently argued that any positive obligations of the State that may be engaged by the stopover and refuelling arrangement in Shannon Airport are met by the receipt of comprehensive diplomatic assurances from the United States. Importantly, the Irish Government has never denied and, in fact, has consistently asserted in domestic and international contexts, that ‘extraordinary rendition’ is incontrovertibly prohibited under international law; a position that is shared by its critics. The differences between the Irish Government and its critics arise in two areas—the first is whether ‘transit States’ have any liability under international law in this context; the second is whether diplomatic assurances of the nature of those received from the United States can be relied upon to meet any obligations that may arise. This short essay considers Ireland’s potential liability under Article 3 of the European Convention of Human Rights (European Convention), focusing in particular on these two areas of contention and taking into account the 2008 decision of the European Court of Human Rights in Saadi v Italy 2 inasmuch as it relates to diplomatic assurances as a method of fulfilment of positive obligations under Article 3 of the European Convention.3 The first section of this essay provides a brief overview of the United States’ programme of ‘extraordinary rendition’, outlines the international illegality of the practice, and clearly establishes the liabilities of sending and receiving States. Then the essay turns to consider the more difficult question of the liability of ‘transit States’. In this context, I interpret the notion of a ‘transit State’ in two ways: first as a State that allows individuals to be physically transferred through its territory where it knows or ought to know of their presence within its jurisdiction; and second, as a State that facilitates the ‘extraordinary rendition’ of individuals by means of, for example, * Lecturer, UCD School of Law & UCD Institute of Criminology. [email protected] 1 This phrase is used in this essay as shorthand and in full acknowledgement that it is a euphemism for kidnap, incommunicado detention, and deprivation of due process along with other human rights abuses. Throughout the essay the term ‘rendition’ is used in the context of ‘extraordinary rendition’ and not in its older, or more conventional, extradition law context (my thanks to Pauline Walley SC for this latter point). 2 App No 37201/06, Judgment of the Grand Chamber, European Court of Human Rights, 28 February 2008. 3 The article builds on and updates an earlier, shorter piece considering Ireland’s reliance on diplomatic assurances; F de Londras, ‘Ireland’s Potential Liability for Extraordinary Rendition through Shannon Airport’ (2007) 25 Irish Law Times 106.

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allowing ‘rendition flights’ to re-fuel, etc in its jurisdiction, where there are no transferees on board but where the State knows, or ought to know, that the flights in question will be used for the purposes of ‘extraordinary rendition’ in the course of that journey.4 In this respect I consider whether or not an individual who is extraordinarily ‘rendered’ through Shannon Airport, or by the use of an airplane that has used Shannon Airport in the course of the relevant flight plan, might be said to be within the jurisdiction of the Irish State within the meaning of Article 1 of the European Convention. Although frequently under-examined in reports and analyses of Ireland’s potential liability, this question appears central, as Article 1 makes it clear that a State’s obligations are to those within its jurisdiction, as opposed to being to ‘the world at large’—some jurisdictional nexus between the contracting State and the claimant individual must be established.5 The essay then outlines the law relating to diplomatic assurances,6 inasmuch as it might be said to be well-established. Although diplomatic assurances (or memoranda of understanding) are unenforceable in law, they are long-established in diplomatic practice as a quick, efficient, low-cost and largely-honoured mechanism of regulating certain parts of (mostly bilateral) inter-State relations. Although there are some difficulties with diplomatic assurances, given their lack of formal legal enforceability, it is disingenuous to suggest that diplomatic assurances can never fulfil a State’s positive obligations under Article 3 in law. While these assurances might not prevent the infliction of torture, inhuman or degrading treatment or punishment on the individual in question in fact, the law as it stands merely requires a State to be sure either that there is no real risk of prohibited treatment to a person within its jurisdiction, or that, if such a real risk has been established, the sending State can be sufficiently satisfied that the receiving State will ensure this risk is reduced to the level where it can no longer be considered a ‘real’ risk. While this may be unsatisfactory from the perspective of fully effective rights-protection, States appear to be perfectly within their legal right to accept sufficient diplomatic assurances notwithstanding any non-legal moral imperatives that may arise. Finally, the essay considers whether—by reference to the apparent requirements of international law relative to diplomatic assurances—the Irish Government’s position that it can meet its Article 3 obligations by reliance on the assurances provided by the United States is justifiable, or whether it ought to be reconsidered in the light of the Strasbourg Court’s decision in Saadi v Italy.7 4 This definition does not include States that allow for the refuelling, etc of planes that are implicated in the ‘extraordinary rendition’ programme but which are not actually in the process of carrying out an ‘extraordinary rendition’ on the flight plan in question. It appears much too far a leap to suggest that States ought to be liable in such circumstances, as the planes are not engaged in unlawful activity or en route to unlawful activity at the time of the refuelling, etc. 5 Article 1 provides: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ 6 The UN High Commission for Refugees offers a useful definition of diplomatic assurances: ‘The term “diplomatic assurances”, as used in the context of the transfer of a person from one State to another, refers to an undertaking by the receiving State to the effect that the person concerned will be treated in accordance with conditions set by the sending State or, more generally, in keeping with its human rights obligations under international law’ (UNHCR Note on Diplomatic Assurances and International Refugee Protection (2006), available at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain/opendocpdf.pdf?docid=44dc81164 (7 July 2008)). 7 Above n 2.

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legal implications of ‘extraordinary rendition ’ The practice of ‘extraordinary rendition’ comprises the ‘kidnap’ or ‘snatching’ of an individual and his or her removal to another country for the purposes of interrogation, investigation, or prosecution. Although the practice of ‘extraordinary rendition’ pre-dates the ‘War on Terrorism’,8 its use by the United States since 2001 has been particularly contentious, especially as it appears that individuals who are extraordinarily ‘rendered’ by the United States are primarily transferred to States that are thought to engage in torture and unlawful interrogation mechanisms on a widespread or systematic basis. This has led to the belief that the United States is ‘rendering’ individuals to countries for the purposes of the extraction of information by means of unlawful methods, including torture. Not only does ‘extraordinary rendition’ frequently result in the transfer of individuals into the custody of States that engage in torture, but the methods used in the process of ‘rendition’ can themselves reach the level of torture, inhuman or degrading treatment or punishment—individuals have been taken from their beds, hooded, shackled, and placed in airplanes, denied access to lawyers or communication with their families, brought to another country (usually one with a dubious human rights record) and left in the custody of that State, frequently resulting in torture in violation of the UN Convention against Torture, customary international law and jus cogens.9 There is little doubt that the practice of ‘extraordinary rendition’ is unlawful in international law. The sending State may incur liability for incommunicado detention, which the UN Committee against Torture has found engages the UN Convention against Torture. In addition, the sending State’s actions appear to be clear violations of the international prohibition of refoulement under Article 3 of the UN Convention against Torture. The receiving State which engages in ‘interrogation techniques’ amounting to torture clearly engages in activity that is in violation of the Convention (where it has been ratified by the receiving State), customary international law, and the jus cogens prohibition of torture. Thus, the two directly engaged States in an ‘extraordinary rendition’—the sending and receiving States—are clearly liable for prohibited activity under international law (although holding such States to account has proved problematic in practice10). More contentious, however, and directly relevant for Ireland, is whether transit States’ international obligations are in fact engaged. In other words, do the rendered individuals come within the jurisdiction of the transit State where that State allows the person to be physically transferred through its territory knowing (or being in a position where it ought to know) of the person’s presence, or where the individual was 8 The practice can, in fact, be traced back at least as far as the ‘abduction’ of Adolf Eichmann from Argentina and his transfer to Israel for trial, where he was convicted and executed in 1962. 9 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46, [annex, 39 UN GAOR Supp (No 51) at 197, UN Doc A/39/51 (1984)], entered into force 26 June 1987; On the process of ‘extraordinary rendition’ see, eg, J Mayer, ‘Outsourcing Torture: The Secret History of America’s “Extraordinary Rendition” Programme’, New Yorker, 14 February 2005. 10 See, eg, Arar v Ashcroft et al, App No 06-421-cv, US Court of Appeal for the 2nd District, decided 30 June 2008, holding that the Court did not have jurisdiction to hear Arar’s case relating to his ‘rendition’ from J F Kennedy airport to Syria as Arar never left the airport transit zone in the United States and, the Court held, was therefore never technically in United States’ territory. Judgment available at http://ccrjustice. org/files/6.30.08%202nd%20Circuit%20Decision%20in%20Arar.pdf (7 July 2008).

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rendered on an aircraft the flight path of which was facilitated by the State, notwithstanding the fact that the individual himself was not actually on board at the time of the aircraft’s physical presence in the transit State’s territory? establishing liability for a transit state under th e european convention The jurisprudence of the European Court of Human Rights relating to Article 3 of the European Convention makes it quite clear that contracting States have an obligation not only to abstain from directly inflicting treatment that constitutes torture, inhuman or degrading treatment or punishment, but also to abstain from transferring individuals to a State where there is a ‘real risk’ that they may be exposed to such treatment.11 In other words, Article 3 encompasses not only a negative obligation not to torture, but also a positive obligation to protect individuals from exposure to such treatment. This positive obligation is absolute under the European Convention—it is essentially connected to the inherent dignity of the person and is applied to all individuals equally, regardless of their (actual or suspected) involvement in unlawful activity, including terrorism.12 On this point, the Irish Government and its critics in this arena are of one mind. Where there seems to be a significant difference of opinion, however, is in relation to whether Ireland’s positive obligation under Article 3 is engaged in its capacity as a suspected transit State in the context of ‘extraordinary rendition’. Ireland’s obligations under the European Convention are owed to individuals within its jurisdiction as defined by Article 1, not to the world at large. It therefore seems curious that the main reports and investigations into Ireland’s liability under Article 3 do not tend to engage in a sustained investigation of whether the preliminary jurisdiction requirement is fulfilled. Take, for example, the important report of the Irish Human Rights Commission on Extraordinary Rendition: A Review of Ireland’s Human Rights Obligations, released in 2007.13 In its concluding remarks in the Report, the Commission states: It is the view of the IHRC that Ireland’s human rights obligations are activated where US aircraft landing at Irish airports are not actually carrying prisoners but are on their way to collect prisoners for ‘extraordinary rendition’ to Guantanamo Bay or to third countries, where they run the risk of being tortured or subjected to inhuman or degrading treatment or punishment. The same applies if such aircraft are landing in Ireland when returning after ‘rendering’ such prisoners.14

This conclusion appears to be connected to the ‘spirit’ or the ‘object and purpose’ of the Convention,15 but the lack of more detailed jurisdictional analysis is lamentable 11 See, esp, Soering v United Kingdom (1989) 11 EHRR 439; Chahal v United Kingdom (1997) 23 EHRR 413; Saadi v Italy, above n 2. 12 See, esp, Saadi v Italy, above n 2, for a reaffirmation of this principle in the light of the ‘War on Terrorism’. 13 (Dublin, IHRC, 2007). 14 Ibid, at 43. 15 This cautious conclusion is drawn from the statement, referring to the UN Convention against Torture, on p 22 of the Report, that ‘Although it is possible to argue on technical grounds that the language in Article 3 of the UNCAT—”expel, return or extradite”—does not encompass the mere transit through the State of a prisoner, such a restrictive interpretation would not appear to be within the spirit of the Convention. Article 16 of the UNCAT also forbids acts of cruel, inhuman or degrading treatment or

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given the genuinely difficult questions that arise in this respect. The notion of jurisdiction as provided for by Article 1 of the European Convention has been developed with the ‘object and purpose’ of the Convention in mind. While Article 1 ‘jurisdiction’ seems likely to include within it people who are physically transferred through Shannon Airport or through Irish airspace, it is certainly arguable that it does not include people who never land at Shannon Airport or travel through Irish airspace but who are ‘rendered’ on planes that have used the airport in the course of the relevant flight plan. The notion of jurisdiction under Article 1 is primarily territorial—in this respect those who land at Shannon Airport or who are transited through Irish airspace are clearly within Ireland’s jurisdiction.16 What is less clear, however, is whether individuals who are ‘extraordinarily rendered’ on airplanes that enter Irish airspace but do not have any such individuals on board might be said to be within the State’s jurisdiction thereby triggering the State’s obligations under the European Convention. Although there is no clear-cut answer to this question, a consideration of Article 1 jurisprudence suggests that Ireland’s obligations might not be engaged in such circumstances. First, because the individual is not within the State’s territorial jurisdiction, it seems that the notion of jurisdiction simpliciter as enshrined in Article 1 does not apply.17 Secondly, the individual would not appear ever to come within the ‘effective control and authority’ of the State and, as a result, this exceptional scenario of extraterritorial jurisdiction does not appear to apply.18 Thirdly, the individual does not appear ever to come under Ireland’s incidental jurisdiction by means of interaction with a consular officer or appearance at an embassy; thus this second type of extraordinary extraterritorial jurisdiction does not appear to arise.19 The final type of extraterritorial jurisdiction which makes a State culpable for the infliction of prohibited treatment on an individual by a State to which the person has been transferred by a contracting State, equally appears not to arise in such circumstances because the individual would never have been transferred by the Irish State.20 While it appears that this final conception of jurisdiction under Article 1 could be judicially expanded to include persons ‘rendered’ on aircraft the flight paths of which are facilitated by a contracting State, even where the individual never enters the State’s physical territory or comes into contact with the State, on the basis of an ‘object and purpose’ approach, there does not appear to be any clear principle of jurisdiction within Article 1 jurisprudence as it stands that would trigger Ireland’s Article 3 obligations in such scenarios. In sum, the jurisdictional situation appears currently to be thus: punishment which do not amount to torture, when such acts are committed with the acquiescence or consent of a public official, or any other person acting in an official capacity’ (emphasis added). 16 See, eg, Soering v United Kingdom, above n 11; Bankoviç and Others v Belgium and 16 Other Contracting States (2001) 11 BHRC 435; Assanidze v Georgia [2004] ECHR 71503/01; Ilascu and Ors v Moldova and Russia (2004) 17 BHRC 141. 17 It is well established that ‘jurisdiction’ within the meaning of Article 1 is primarily (although not exclusively) territorial—this was forcefully affirmed by the Grand Chamber in Bankoviç, above n 16. 18 The ‘effective control and authority’ line of authority is well-established—see particularly Ilascu and Ors v Moldova and Russia, above n 16, and Öscalan v Turkey [2005] ECHR 46221/99. 19 See, eg, Stocké v Germany [1991] ECHR 25. 20 See, eg, Soering v United Kingdom, above n 11; Chahal v United Kingdom, above n 11; Saadi v Italy, above n 2.

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a) Where an individual is physically on board a non-State aircraft that lands in Ireland or flies through Irish airspace, he or she is within the jurisdiction of the State and Ireland’s Article 3 obligations are triggered.21 b) Where an individual is rendered on an aircraft the flight path of which has been facilitated by a stop-over in Ireland or by flying through Irish airspace, but where the individual has never in fact entered Irish airspace, it is doubtful that Ireland’s Article 3 obligations are triggered, although the notion of jurisdiction under the European Convention could be interpreted in a manner that would extend to such situations. Should jurisdiction be established, thereby triggering Ireland’s Article 3 obligations, it seems likely that any individuals ‘extraordinarily rendered’ on a flight that had some kind of Irish involvement would succeed in establishing that they are at a ‘real risk’ of being subjected to torture, inhuman or degrading treatment or punishment and, as a result, that Ireland would be in breach of its Article 3 obligations. The Irish Government, however, argues that even if such liability might be established, Ireland has fulfilled its positive obligations by means of the receipt of comprehensive diplomatic assurances from the United States. The next step in an analysis of Ireland’s potential liability in this relation, therefore, is to consider whether diplomatic assurances can fulfil such an obligation in law and, if so, whether those received from the United States are in fact likely to be sufficient to discharge Ireland’s positive obligation under Article 3. diplomatic assurances and the satisfaction of a state’ s article 3 obligations Since the United States’ engagement in ‘extraordinary rendition’ in the ‘War on Terrorism’ came to light, various human rights actors have expressed the view that diplomatic assurances are inherently unreliable instruments that ought not to be accepted by States in an attempt to fulfil their positive obligations in human rights law. Human rights advocates’ discomfort with diplomatic assurances in this respect is understandable—a request for diplomatic assurances against torture, inhuman and degrading treatment or punishment is, in essence, an implicit acceptance that the individual in question is in fact at a ‘real risk’ of being subjected to such prohibited treatment. Where a State accepts diplomatic assurances and allows for the transfer of an individual on the basis of such assurances, this reads as the State in question prioritising its own concern with minimising liability in international law over a concern with effectively protecting the individual from torture.22 This is a deeply troubling proposition for human rights advocates, and the adoption of such a formalistic and seemingly minimising approach to a State’s non-refoulement obligation raises serious 21 State aircraft have immunity from search and inspection under customary international law, as acknowledged by Art 3(3) of the Convention on Jurisdictional Immunities of States and their Property, GA Res 49/61, 49 UN GAOR Supp (No 49) at 305, UN Doc A/49/49 (1994). 22 In contrast, governments that accept diplomatic assurances in the cases of direct transfer frequently argue that their reliance thereon is aimed at ensuring the prevention of torture and other forms of prohibited treatment rather than on minimising their own liability. See, eg, K Jones, ‘Deportations with Assurances: Addressing Key Criticisms’ (2008) 57 International and Comparative Law Quarterly 183, at 185–89.

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questions about a State’s commitment to rights-protection. Uncomfortable as this may be, however, questions of a State’s de facto commitment to rights-protection are distinct from questions of a State’s de jure fulfilment of its international obligations. This is particularly the case in relation to diplomatic assurances—while these assurances may not, in fact, be sufficient to protect individuals effectively from prohibited treatment in all cases, they are permissible in international law provided they satisfy a number of requirements that can be gleaned from international jurisprudence and which are considered below. In Saadi v Italy,23 the European Court of Human Rights accepted the potential for diplomatic assurances to satisfy States’ positive obligation under Article 3 of the European Convention, but articulated an important requirement of practical protection or functionality, sending what seems to have been a clear message that diplomatic assurances will be deemed sufficient in only a very narrow set of circumstances and suggesting that, where a decision to transfer is challenged before the courts, an in-depth judicial investigation of the sufficiency of any diplomatic assurances relied upon by the State ought to be engaged in.24 This general requirement of practical protection reinforces the other three apparent requirements in international law, namely (1) that the promise is adequate; (2) that the relevant circumstances are within the control of the promisor; and (3) that the promisor is credible. The Promise is Adequate The first principle relating to diplomatic assurances is that the promise or assurance provided must be adequate, that is, it ought to constitute a promise that the individual will not in fact be subjected to prohibited treatment. A promise or an assurance that domestic laws in the receiving State prohibit torture, for example, will not be adequate, as it does not in fact constitute an assurance that the individual in question will not be subjected to this treatment. Soering v United Kingdom 25—one of the foundational cases on States’ positive obligations under Article 3—clearly demonstrates this adequacy requirement. Soering concerned a German citizen who was charged with the capital murder of his girlfriend’s parents in Virginia. At that time he was in custody in the United Kingdom, where he had been arrested on suspicion of cheque fraud. The United Kingdom Government intended to extradite Soering to Virginia, and he claimed that this extradition would constitute a violation of his Article 3 rights as he might be sentenced to death if convicted on the capital charges in Virginia. In a unanimous judgment the Strasbourg Court held that the extradition of an individual by a contracting State to a non-contracting State where there was a ‘real risk’ that the death penalty might be imposed, constituted a violation of the contracting State’s positive obligations as implied into Article 3. While the imposition of the death penalty would not constitute a violation in and of itself, the manner of its administration, the personal circumstances of the complainant, the potential disproportionality of the sentence, and the conditions of detention in the United States could constitute treatment in violation of Article 3. 23

Above n 2. Ibid, para 142 requiring ‘close scrutiny’ and the application of “rigorous criteria” in assessing Article 3 claims, including claims of the sufficiency of diplomatic assurances. 25 Supra n. 11. 24

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While denying that Article 3 created any positive obligations on the part of the State, the United Kingdom argued that even if it were obliged not to send Soering to a country where his Article 3 rights may be violated, this obligation was fulfilled by the diplomatic assurance received from the relevant authorities in Virginia. By means of this assurance, the Commonwealth Attorney for Bedford County promised that ‘should Jens Soering be convicted of the offence of capital murder as charged, a representation will be made in the name of the United Kingdom to the sentencing judge that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out.’ Importantly this was not a promise that Soering would not be subjected to the death row phenomenon, but rather that the judge would be asked to bear the sending State’s position on the death penalty in mind during sentencing. The Strasbourg Court found that Article 3, read in combination with other international treaties and in the context of the jus cogens nature of the prohibition on torture, created a positive obligation against refoulement. While the Court did not hold that diplomatic assurances could never be sufficient to meet this obligation, it did find that the assurances offered in this case did not satisfy Article 3 because the promise itself was simply inadequate—it was not a promise that the transferee would not be subjected to prohibited treatment under Article 3.26 The Relevant Circumstances are in the Control of the Promisor Even an ‘adequate’ promise under the Soering principle will not be sufficient to meet a State’s Article 3 obligations if the promising State is not, in fact, in a position to ensure that the promise is fulfilled because it does not have effective control over all of the relevant circumstances—notwithstanding the bona fides of the promising State, its assurance will be insufficient under international law unless it is in a position to fulfil it. This principle is illustrated by the European Court of Human Rights decision in Chahal v United Kingdom.27 Chahal concerned a Sikh activist who had entered the United Kingdom illegally but subsequently benefited from a general amnesty for illegal entrants. He was active in the establishment of the International Sikh Youth Federation, and was later arrested and charged with conspiracy to kill the Prime Minister of India. A deportation order was issued as a result of Chahal’s political activities, but he claimed that such deportation would violate his Article 3 rights because it would expose him to the risk of torture or inhuman or degrading treatment or punishment. The Court held that Article 3 conferred an absolute right on all within the jurisdiction of the State. As a result, the United Kingdom could not rely on national security interests to justify the deportation of the applicant. According to the Strasbourg Court, the prohibition provided by Article 3 against ill-treatment is absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is

26 Soering can be contrasted with Aylor-Davis v France (App No 22742/93, 20 January 2004), a decision of the UN Committee against Torture, in which the Committee found that the complainant could be extradited to the United States on the basis of an assurance that he would not be subjected to the death penalty as, in that case, execution could be ordered only if the State prosecutor sought this sentence. 27 Above n 11.

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engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.28

The United Kingdom Government argued that, even if there was a ‘real risk’ that Chahal might be subjected to treatment prohibited by Article 3, the diplomatic assurance received from the Indian Government could be relied upon and fulfilled the State’s obligations under Article 3. In this case the Indian Government had assured the United Kingdom that Chahal ‘would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect mistreatment of any kind at the hand of the Indian authorities’. Although the Strasbourg Court did not doubt the good faith of the Indian Government in giving this assurance, it noted that ill-discipline was common within the Indian security services and that the torture of Sikh activists such as Chahal happened on a relatively regular basis in the Punjab province. This demonstrated that notwithstanding its bona fides, the Indian Government simply did not have sufficient control over the security services to ensure that the promise could be fulfilled. As a result, the United Kingdom Government was not entitled to rely on the assurance offered and would violate Article 3 of the Convention if it were to return Chahal to India. The Promisor is Credible The third principle of diplomatic assurances is that they will be sufficient to fulfil the promisee State’s obligations only if they are credible. This principle was outlined by the UN Committee against Torture in Agiza v Sweden.29 In this case Agiza had been returned to Egypt from Sweden on the basis that he had been convicted in absentia of membership of ‘Al Gihad’—an illegal organisation. Agiza claimed that he was subjected to torture in Egypt, and that the Swedish Government had breached its obligations under the Convention against Torture by sending him to Egypt where there was a reasonable chance that he would be subjected to torture. The Swedish Government, on the other hand, claimed that it had received assurances from senior Egyptian officials that Agiza would be treated in accordance with international law and that it was entitled to rely on these assurances and therefore had not breached the principle of non-refoulement. The Committee accepted that in certain situations a State is entitled to rely on diplomatic assurances of the type provided to Sweden, but found that in this case there were a number of circumstances that ought to have alerted the State to the potential unreliability of the assurance provided. First, it was well known—and ought to have been known to Sweden—that torture and other illegal interrogation methods are systematically used by the Egyptian authorities, especially in relation to those held for securityrelated and political reasons. Secondly, Egypt had already breached a clause in the assurance relating to fairness of procedures and fair trial, and this affected the weight to be given to the assurance as a whole. The promisor did not, therefore, enjoy the required level of credibility in relation to the matter at hand and its assurance could not be relied upon.30 28 29 30

Ibid, para 80; internal citations omitted. Opinion of the Committee against Torture, 24 May 2005, UN Doc CAT/C/34/D/233/2003. Ibid, paras 13.4 and 13.5.

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The Assurance Provides Practical Protection to the Proposed Transferee In Saadi v Italy, the European Court of Human Rights recently made it clear that diplomatic assurances would fulfil a State’s positive obligation under Article 3 only if they were capable of protecting the proposed transferee’s right to be free from torture, inhuman and degrading treatment and punishment in practice. Saadi is a Tunisian national who was subject to a deportation order from Italy, which proposed to transfer him to his home State of Tunisia where he had been convicted in absentia of terrorism-related offences by a military court in Tunis. Saadi claimed that the proposed deportation would constitute a violation of his Article 3 rights as there was a ‘real risk’ that he would be subjected to torture by the Tunisian authorities. While it formed only a small part of the case at bar, one of the arguments proposed by Italy and the United Kingdom (which acted as a third party intervener in the case) was that Italy was entitled to rely on diplomatic assurances provided by Tunisia relating to the domestic prohibition of torture, inhuman and degrading treatment or punishment.31 While the Strasbourg Court did not deny that diplomatic assurances might be sufficient in some instances, it did not find the representations of the Tunisian Government sufficient in this case. These representations merely outlined that Tunisian law would be applied to Saadi; however, the Court held that the mere existence of domestic prohibitions on torture and ill-treatment was not sufficient to ensure the adequate protection of an individual’s Article 3 rights if reliable sources report that prohibited treatment is either engaged in or tolerated by the receiving State. When assessing the sufficiency of any particular diplomatic assurances, the Court held that it is obliged to consider whether the assurances provide a sufficient guarantee of protection from prohibited treatment in their practical application and taking the circumstances into account.32 Although it has yet to be considered by an Irish court, the possible impact of Saadi on the extent to which the Government ought to rely on diplomatic assurances is suggested by the UK Court of Appeal decision in AS and DD (Libya) v Secretary of State for the Home Department.33 In this case, the Court prevented the petitioners’ deportation to Libya on the basis of an Article 3 claim, notwithstanding the provision of diplomatic assurances from the Libyan Government. Although the Court did not suggest that these assurances were in any way mala fides or that the Libyan Government did not intend to honour them, it nevertheless endorsed the view expressed by the Special Immigration Appeals Commission in the decision on appeal that it was in the nature of the Libyan Government to be pragmatic, to the extent that there was a ‘real risk’ that it would engage in prohibited behaviours notwithstanding the provision of these diplomatic assurances. While not trying to equate the current United States and Libyan governmental organisations or Executive approaches to international law, it is arguable that the dominance of the security paradigm in the United States, combined with the recent US Supreme Court decision in Munaf v Geren 34 (holding that questions of the risk of torture on transfer of US citizens to Iraqi custody were for the Executive, rather than the Court, to consider), gives rise to a ‘real 31 For a full discussion of the case see, eg, F de Londras, ‘Saadi v Italy’ (2008) 102(3) American Journal of International Law 616. 32 Above n 2, paras 147 and 148. 33 [2008] EWCA Civ 289. 34 128 S.Ct. 2207 (June 12, 2008).

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risk’ that individuals may be ‘rendered’ in a manner that engages Ireland’s Article 3 obligations notwithstanding the diplomatic assurances provided. Thus, although the Saadi decision considered diplomatic assurances in extremely brief terms, it seems possible that in an analogous case the Irish courts might take a similar approach to the UK Court of Appeal in interpreting the case’s impact.35 As a result, some reconsideration of whether the diplomatic assurances actually provided are sufficient under Article 3 may be appropriate. conclusion Ireland has consistently argued that the diplomatic assurances provided by the United States are materially different to those impugned in Chahal 36 and Soering 37 and can, in fact, be relied upon as a means of satisfying Ireland’s Article 3 obligations. Thus, according to the Irish Government, even if the State’s Article 3 obligations are triggered by the United States’ use of Shannon Airport (which is not entirely clear), those obligations are fulfilled by the assurances received. In correspondence with the Irish Human Rights Commission, the Department of Foreign Affairs provided a summary of the diplomatic assurances received, which showed that the United States had repeatedly assured the Irish Government that no individuals had been transited through Irish territory for the purposes of ‘extraordinary rendition’ and that no such transit would occur without the express permission of the Irish Government.38 Given the Irish Government’s repeated statements that it believes ‘extraordinary rendition’ to be prohibited under international law, there would not seem to be any realistic prospect that such express permission would ever be provided to the United States. Assessing these diplomatic assurances by reference to the apparent principles of international human rights law suggests that there is at least an arguable case that the assurances as provided might be said to be sufficient to fulfil Ireland’s Article 3 obligations should jurisdiction be established, although some justifiable doubts about the extent to which the ‘practical protection’ requirement from Saadi might be said to be fulfilled arise. The assurances received appear to be in the nature of comprehensive promises that nobody is being rendered through Shannon Airport, and therefore are qualitatively different from the inadequate promises considered in Soering (that the judge would be asked to take the sending State’s views into account in sentencing), and in Chahal and Saadi (that the proposed transferees would benefit from domestic law prohibiting torture and other violatory behaviours). Secondly, the matters in question are fully within the control of the United States Government—it has full knowledge of what happens in and with the airplanes that stop in Shannon Airport, and has the capacity and control over the situation to ensure that no ‘rendition’ occurs through Ireland. The assurances are therefore different from those found to be inadequate in the 35 This results not only from the long-established practice of occasionally looking to the UK courts in relation to ‘fresh’ issues before the Irish courts, but also from the structural similarities between the modes of incorporation of the European Convention in each jurisdiction (European Convention on Human Rights Act 2003 (Ireland); Human Rights Act 1998 (United Kingdom)). 36 Above n 11. 37 Above n 11. 38 Above n 13, at 55–56.

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Chahal case. Indeed, the Minister for Foreign Affairs made exactly this point in the Dáil when he expressly distinguished the assurances received from the United States Government from Chahal-type assurances, and said that those who claim the assurances are insufficient under the European Convention on Human Rights misunderstand and misapply the law.39 Finally the Government claims that Ireland’s long and friendly special relationship with the United States means that there is no reason to doubt the credibility of the American assurances. It is the importance of this last point in the light of Saadi that might cause the Irish Government to reconsider its position relative to diplomatic assurances. The United States’ ‘special relationship’ with Ireland might be said to be unlikely to stand in the way of the use of Irish airspace or airports for the purposes of facilitating a programme that the United States’ Executive has claimed, at the highest level, facilitates the acquisition of ‘life-saving’ information from individuals said to be privy to high-level information about the plans and machinations of Al Qaeda. In addition, recently declassified memoranda and other documents,40 together with the United States’ representations to the UN Committee against Torture on the extent to which the prohibition of torture does or does not apply in the context of the ‘War on Terrorism’,41 cast significant doubt on the extent to which the United States is committed to respecting the right to be free from torture in situations where ‘national security’ is said to be at issue. Thus, even if the diplomatic assurances provided by the United States were given in good faith, and even if the United States was committed to honouring those assurances at the time, in reality there is a real possibility that those assurances might fall by the wayside of perceived security necessities (or expediencies). Although public acknowledgement of this possibility would, in reality, be diplomatically (in)delicate, post-Saadi jurisprudence from the UK Court of Appeal suggests that the ‘practical protection’ requirement clearly outlined in Saadi obligates the State (either at Executive or, in the case of a challenge, judicial levels) to take these possibilities into account when assessing whether or not such assurances are sufficient to satisfy the State’s Article 3 obligations. In the light of this, it would seem prudent for the Irish Government to give fresh thought to whether it is still satisfied that the diplomatic assurances it has received from the United States Government would be sufficient to fulfil its Article 3 obligations should jurisdiction be established.

39

13 June 2006, Minister for Foreign Affairs, Dáil debates, col 788. See, eg, J Yoo, Memorandum re Military Interrogation of Alien Unlawful Combatants Held Outside the United States, 14 March 2003. 41 See, eg, the United States’ Response to the Questions asked by the Committee against Torture, 8 May 2006, available at http://www.state.gov/documents/organization/66173.pdf (last accessed 31 October 2007). 40

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Special Agreements to Apply the Geneva Conventions in Internal Armed Conflicts: The Lessons of Darfur

Colin Smith* Common Article 3 of the Geneva Conventions sets out ‘minimum standards of humanity’1 to be applied in situations of armed conflict occurring within the borders of a State. Although the protection afforded to victims of internal armed conflict provided for by common Article 3 falls well below the level provided by the Geneva Conventions in cases of international armed conflict, the parties are encouraged by its terms to enter into special agreements to supplement these basic rules.2 High hopes have been expressed to the effect that such special agreements may be useful in increasing compliance of armed groups with international humanitarian law in internal armed conflicts.3 During the conflict in the Darfur region of Sudan, such a special agreement was concluded between the Government in Khartoum and the Darfurian rebels. By exploring the circumstances in which this special agreement was concluded, this short article seeks to evaluate the possibility of the future use of special agreements to ensure that internal armed conflicts are subject to maximum legal regulation. common article 3 of the geneva conventions The adoption in 1949 of four new Geneva Conventions for the protection of victims of war was prompted by the inadequacies in the Geneva Conventions of 1864, 1906 and 1929, exposed during the course of the Second World War. The first three articles of the four new treaties are identical. Common Article 1 binds the State parties to respect and ensure respect for the Conventions, while Common Article 2 sets out the Conventions’ material application, stating that they would have effect only in cases of international armed conflict occurring between State parties.4 The application ratione * LLB, MLitt (Dub), BL. The author would like to express his gratitude to Patrick O’Brien and David Fennelly for their advice and suggestions. 1 L Green, The Contemporary Law of Armed Conflict, 2nd ed (Manchester, Manchester University Press, 2000), 318. 2 UK Ministry of Defence The Manual of the Law of Armed Conflict (Oxford, Oxford University Press, 2004), 408. 3 M Mack, ‘Compliance with International Humanitarian Law by Non-State Actors in Non-International Armed Conflicts’ (Working Paper for Program on Humanitarian Policy and Conflict Research at Harvard University), 2. (29 March 2008). 4 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (First Geneva Convention), Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Second Geneva Convention), Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Third Geneva Convention), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Fourth Geneva Convention), Arts 1and 2 (Common Article1, Common Article 2).

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materiae of Common Article 3, however, is quite different, in that it applies ‘in the case of armed conflict not of an international character’.5 Such conflicts had always been matters ‘solely of domestic law enforcement’6 in which the laws of war were relevant only in so far as the State concerned was willing to apply them. As such, Common Article 3 revolutionised the position of civil war in the international legal order by establishing for the first time a regime of internationally applicable rules governing the conduct of hostilities in internal armed conflicts. Sometimes described as a ‘convention in miniature’,7 Common Article 3 sets out a series of provisions which each party is bound, as a minimum, to apply: (1) Persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth, or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence of to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages to personal dignity, in particular humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and care for.8

Thus, whereas the conduct of hostilities in international armed conflicts is subject to the highly-developed rules enshrined in the Geneva Conventions, internal armed conflicts are governed by a much less onerous and detailed legal regime derived from Common Article 3, supplemented by norms of customary international law and, in certain circumstances, by the provisions of the Second Additional Protocol to the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts, signed in 1977.9 The Second Additional Protocol builds upon the foundation laid by Common Article 3 in seeking to ensure better protection for the victims of internal armed conflicts. For example, the Protocol elaborates on the requirement of humane treatment set out in Common Article 3, and contains slightly more detailed provisions specific to persons deprived of their liberty, the wounded, sick and shipwrecked, and the civilian population.10 However, it does not enjoy 5 First Geneva Convention, ibid; Second Geneva Convention, ibid; Third Geneva Convention, ibid; Fourth Geneva Convention, ibid, Art 3 (Common Article 3), para 1. 6 N Canestaro ‘“Small Wars” and the Law: Options for Prosecuting the Insurgents in Iraq’ (2004) 43 Columbia J of Transnational L 73, at 89. 7 J Pictet et al, Commentary on the Geneva Conventions of 12 August 1949 (Geneva, ICRC, 1952), vol 1, 48. 8 Common Art 3, above n 5, paras 1–2. 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609 (Second Additional Protocol). 10 Ibid, Parts II–IV.

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the same universal acceptance as Common Article 3, and its scope of application is narrower, being limited to armed conflicts . . . which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.11

Modest as the extent of the protections enshrined in Common Article 3 may be when compared to the Geneva Conventions or the Second Additional Protocol, the International Court of Justice has referred to its provisions as ‘a minimum yardstick’12 to be applied in all types of armed conflict, and has said that they reflect what the Court in the Corfu Channel Case called ‘elementary considerations of humanity’.13 The dearth of detail contained in its provisions has caused some commentators to conclude that Common Article 3 is inadequate to regulate internal armed conflict effectively.14 Yet the Article was never intended to stand alone: its text encourages the parties to an internal conflict to conclude special agreements to bring other provisions of the Conventions into force between them so as to regulate the conflict more effectively.15 Paragraph 3 of the Article emphasises the point that the aforesaid protections are to be understood as a bare minimum: The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.16

The Commentaries to the Geneva Conventions prepared by the International Committee of the Red Cross (ICRC) imply that, far from being a polite suggestion, this paragraph imposes an obligation on belligerents to reach agreements going beyond the ‘minimum yardstick’: The provision does not merely offer a convenient possibility, but makes an urgent request, points out a duty: ‘The Parties to the conflict should further endeavour . . .’ Although the only provisions which the individual Parties are bound to apply unilaterally are those contained in Article 3, they are nevertheless under an obligation to try to bring about a fuller application of the Convention by means of a bilateral agreement.17

Agreements of this nature, in accordance with the principle ex consensu advenit vinculum,18 can bring into operation on both sides duties and obligations normally seen only in international armed conflicts (the obligation, for example, to treat captured enemy combatants as prisoners of war) or in internal armed conflicts governed by the Second Additional Protocol, while leaving the nature of the conflict and the status of the parties unaltered. It has been said that special agreements ‘have the particular advantage of clarifying the law for all parties to a conflict and of increasing the 11

Ibid, Art 1. Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14 at 113–14, para 218. 13 Ibid; Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4 at 22. 14 L Moir, The Law of Internal Armed Conflict (Cambridge, Cambridge University Press, 2002), 88. 15 C Greenwood, ‘Scope of Application of Humanitarian Law’, in D Fleck (ed), The Handbook of Humanitarian Law in Armed Conflict (Oxford, Oxford University Press, 1999) 39, at 49. 16 Common Art 3, above n 5, para 3. 17 Commentary on the Geneva Conventions of 12 August 1949, above n 7, at 59. 18 The foundation of an obligation is the consent given to it by the parties. 12

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obligations compared to those that would anyway apply under the law of noninternational armed conflict’.19 Yet the conclusion of such special agreements has been exceptional, leaving most internal conflicts subject only to the regime of minimum protections provided for in the first two paragraphs of Common Article 3, customary law, such human rights laws not suspended by virtue of the hostilities and, where applicable, the Second Additional Protocol. Notwithstanding this rarity, such an agreement was reached between the Government of the Sudan and rebel forces operating in the Darfur region in 2004. the special agreement in sudan In Spring 2004, representatives of the Sudanese Government met with envoys of two rebel groups in the Chadian capital of N’Djamena. The purpose of the encounter was to establish an agreement allowing humanitarian assistance to be provided in the region of Darfur in western Sudan where, since late 2002, forces aligned with the Justice and Equality Movement (JEM) and the Sudanese Liberation Army (SLA) had been involved in sustained military operations against the Government in Khartoum. As part of the agreement facilitating the provision of humanitarian assistance inside the war-ravaged region, the parties to the Protocol on the Establishment of Humanitarian Assistance in Darfur bound themselves to respect certain principles, set out in the form of a preamble to the agreement: The concept and execution of the humanitarian assistance in Darfur will be conform [sic] to the international principles with a view to guarantee that it will be credible, transparent and inclusive, notably: the 1949 Geneva Conventions and its two 1977 Additional Protocols; the 1948 Universal Declaration on Human Rights, the 1966 International Convention [sic] on Civil and Public [sic] Rights, the 1952 Geneva Convention on Refugees [sic], the Guiding Principles on Internal Displacement (Deng Principles) and the provisions of General Assembly resolution 46/182.20

This paragraph suggests that it was the intention of the parties to bring into operation the provisions of the Conventions and Additional Protocols relevant to the provision of humanitarian assistance. Whereas Common Article 3 provides only that ‘the wounded and sick shall be collected and cared for’, the provisions of the Geneva Conventions dealing with humanitarian relief and assistance are substantially more detailed. In cases of international armed conflict, the Conventions provide that the parties to the conflict are obliged to permit relief operations for the benefit of all civilians, including those of enemy nationality.21 Article 23 of the Fourth Geneva Convention, part of the general protections to civilian populations provided by that Convention against certain consequences of war, provides, in relevant part, that:

19 M Sassoli, ‘Possible Legal Mechanisms to Improve Compliance by Armed Groups with International Humanitarian Law and International Human Rights Law’ (Paper submitted at the Armed Groups Conference, Vancouver, 13–15 November 2003), 10. (29 March 2008). 20 Protocol on the Establishment of Humanitarian Assistance in Darfur (entered into force 8 April 2004) (Protocol on Humanitarian Assistance), Principles. (29 March 2008). 21 M Sassoli and A Bouvier, How Does Law Protect in War? (Geneva, ICRC, 2006), vol 1, at 226.

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Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases. The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing: a) that the consignments may be diverted from their destination, b) that the control may not be effective, or c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.22

Article 70 of the First Additional Protocol sets out a more developed procedure for the humanitarian assistance, including an obligation on the parties to the conflict to protect relief consignments and effect their rapid distribution.23 Article 18(2) of the Second Additional Protocol states that If the civilian population is suffering undue hardship owing to a lack of supplies essential for its survival, such foodstuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are concluded without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.24

While only these provisions were intended by the parties to the Protocol on Humanitarian Assistance to come into operation, the very mention of the Geneva Conventions and the Additional Protocols is significant because, whereas the Geneva Conventions apply to situations of international armed conflict and cases of partial or total occupation of one State by the forces of another, the armed conflict taking place in Sudan is ostensibly of an internal nature.25 At the time the agreement was concluded, Sudan had not yet acceded to the Second Additional Protocol, and was therefore bound, as a matter of international humanitarian law, by the provisions of Common Article 3 alone.26 The distinction between the legal regimes governing international and internal armed conflicts derives from the historical reluctance of States to countenance the application of the entire corpus of international humanitarian law to conflicts which they considered to be within their exclusive jurisdiction. At the time the Conventions were drafted, it was still the concern of States to guard their domestic affairs against foreign interference in accordance with the core legal principles of State sovereignty and non-intervention which had underpinned the international order since the Peace 22

Fourth Geneva Convention, above n 4, Art 23. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (First Additional Protocol), Art 70(4). 24 Second Additional Protocol, above n 9, Art 18(2). 25 Common Art 2, above n 4. 26 Sudan acceded to the Second Additional Protocol on 13 July 2006. 23

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of Westphalia in 1648.27 It was this concern which precluded the possibility of applying the entire Geneva Conventions to internal armed conflicts in the first place. The Commentaries record that, at the Diplomatic Conference, a considerable number of State delegations argued that: To compel the Government of a State in the throes of internal convulsions to apply to these internal disturbances the whole body of provisions of a Convention expressly concluded to cover the case of war would mean giving its enemies, who might be no more that a handful of rebels or common brigands, the status of belligerents, and possibly even a certain degree of legal recognition. There was also a risk of common or ordinary criminals being encouraged to give themselves a semblance of organization as a pretext for claiming the benefit of the Conventions, representing their crimes as ‘acts of war’ in order to escape punishment for them. A party of rebels, however small, would be entitled under the Conventions to ask for the assistance and intervention of a Protecting Power. Moreover, it was asked, would not the de jure Government be compelled to release the captured rebels as soon as the troubles were over, since the application of the Convention would place them on the same footing as prisoners of war? Any such proposals giving insurgents a legal status, and consequently increased authority, would hamper and handicap the Government in its perfectly legitimate measures of repression.28

It was in order to allay these fears that paragraph 4 of common Article 3 was inserted, stating that ‘[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict’.29 However, it is arguable that, by its encouragement of special agreements, Common Article 3 envisages the blurring of the distinction between international and internal armed conflict, albeit in circumstances where increased regulation of internal armed conflict is left in the hands of the parties involved, to be approached based on the exigencies of the conflict. Accordingly, it is only in very particular situations that governments embroiled in internal armed conflicts have been willing to go beyond the ‘minimum yardstick’ strictly required by international law by means of special agreements. The circumstances in which they do so depend to a great extent on the characteristics of the internal armed conflict in which they find themselves. types of internal armed conflicts In his studies of the sociology of internal armed conflicts, Stathis Kalyvas tentatively identifies different types of civil war, based on how they are fought.30 The first type he terms ‘conventional civil wars’, which entail ‘either a shared perception of power parity by the rivals, or recognition by the weaker side that it must play by the existing rules and confront its enemy on the battlefield’.31 Kalyvas contrasts ‘conventional civil 27 M Shaw, International Law, 4th ed (Cambridge, Cambridge University Press, 2001), 22–23; Treaty of Westphalia (entered into force 24 October 1648) 1 Parry 271. 28 Commentary on the Geneva Conventions of 12 August 1949, above n 7, at 43–44. 29 Common Art 3, above n 5, para 4. 30 S Kalyvas, The Logic of Violence in Civil War (Cambridge, Cambridge University Press, 2006), at 66–68. See also S Kalyvas, ‘The Sociology of Civil Wars: Warfare and Armed Groups’ (Paper submitted at the Armed Groups Conference, Vancouver, 13–15 November 2003) (29 March 2008). Kalyvas prefers the term ‘civil war’ to describe situations for which international lawyers now prefer the term ‘internal armed conflict’. 31 The Logic of Violence in Civil War, above n 30, at 66.

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wars’ with ‘irregular civil wars’, in which the regular forces of the State are pitted against the guerrilla forces of the challengers in an unequal contest with no battlefields or frontlines.32 Irregular civil wars occur where one party has large numbers of troops and access to a full array of weaponry, while the other is forced to resort to guerrilla warfare.33 As such, irregular warfare is a manifestation of military asymmetry.34 However, Kalyvas emphasises that military symmetry does not necessarily imply that a conflict will be conventional.35 He identifies a third type of internal armed conflict which he labels ‘symmetric irregular civil war’, entailing irregular armies on both sides, with the State involved being either unable or unwilling to field a regular army.36 ‘Conventional Civil Wars’ and Special Agreements In situations of ‘conventional civil war’, a simple cost–benefit analysis may convince the State involved that the full application of the Geneva Conventions is actually in its interests. An early precursor of such calculus is to be found in the decision of the United States to recognise the belligerency (though not the legitimacy) of the Confederacy during the American Civil War. The US Government would have been within its rights to treat all captured Confederates as criminals, but, as Justice Robert Grier expressed in his judgment in the Prize Cases: [I]t is very evident that the common laws of war—those maxims of humanity, moderation, and honor—ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c, &c; the war will become cruel, horrible, and every day more destructive to the nation.37

It was therefore the formidable military capacity of the states in rebellion, coupled with the fact that victory for the Union was by no means assured, that forced moderation on President Lincoln’s administration, a moderation that led in 1863 to the promulgation of the Lieber Code, and laid the foundations of modern international humanitarian law.38 Likewise, during the disintegration of the former Yugoslavia in the early 1990s, the relative equality of arms and the ferocity of the internecine violence ensured that it was in the interest of the various factions to implement, by way of agreement, a legal regime above and beyond the minimum provided for by Common Article 3. On 27 November 1991, the Federal Republic of Yugoslavia (FRY) signed a Memorandum of Understanding with the secessionist Republic of Croatia. Under the terms of the agreement, both parties undertook to apply the Geneva Conventions and the First 32

‘The Sociology of Civil Wars: Warfare and Armed Groups’, above n 30, at 9. L Moir. ‘The Implementation and Enforcement of the Laws of Non-International Armed Conflict’ (1998) 3 J of Armed Conflict L 163, 170. 34 The Logic of Violence in Civil War, above n 30, at 67. 35 Ibid. 36 Ibid, at 67–68; ‘The Sociology of Civil Wars: Warfare and Armed Groups’, above n 30, at 11 (in this article Kalyvas prefers the term ‘symmetric non-conventional civil war’ to ‘symmetric irregular civil war’, but the terms are synonymous). 37 The Brig Amy Warwick; The Schooner Crenshaw; The Barque Hiawatha; The Schooner Brilliante 67 US 635 (1863), (The Prize Cases) 667 (Grier J). 38 Instructions for the Government of Armies of the United States in the Field. Prepared by Francis Lieber, promulgated as General Order No 100 by President Abraham Lincoln, 24 April 1863, in D Schindler and J Toman (eds), The Laws of Armed Conflict: a Collection of Conventions, Resolutions and Other Documents, 4th ed (Leiden, Martinus Nijhoff, 2004), at 3. 33

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Additional Protocol to what was still, in the eyes of the FRY, an internal armed conflict.39 When an internal armed conflict erupted within the Republic of Bosnia and Herzegovina, an agreement was reached between the Bosnian Serbs, Croats and Muslims which, while based on the provisions of Common Article 3, bound the parties to apply certain rules found in the Geneva Conventions. For example, Article 2, paragraph 4 of the agreement provides that ‘[c]aptured combatants shall enjoy the treatment provided for by the Third Geneva Convention’ and that ‘[t]he International Committee of the Red Cross (ICRC) shall have free access to all captured combatants’.40 As the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) noted: Clearly, this Agreement shows that the parties concerned regarded the armed conflicts in which they were involved as internal but, in view of their magnitude, they agreed to extend to them the application of some provisions of the Geneva Conventions that are normally applicable in international armed conflicts only.41

Thus, it is primarily the magnitude of the hostilities and the military proficiency of the various parties to the conflict that create the conditions in which a special agreement can be brought into force in accordance with paragraph 3 of Common Article 3. ‘Irregular Civil Wars’ and Special Agreements Irregular civil wars pit the regular troops of the State against rebels or insurgents who adopt guerrilla tactics to ‘win by not losing’. A government, on finding itself prosecuting an irregular civil war, will be anxious to press home its advantage in terms of military capacity to put down the rebellion, and notwithstanding the assurance contained in paragraph 4 of Common Article 3, there is little incentive in these circumstances for it to conclude a special agreement providing for the application of any more rules of international humanitarian law than are strictly required. In asymmetrical internal armed conflicts there is, accordingly, little hope of a special agreement being reached. ‘Symmetric Irregular Civil Wars’ and Special Agreements The question then arises as to whether, in cases of ‘symmetric irregular civil war’, the conditions may exist for the conclusion of a special agreement between the State (weak and disorganised though it may be) and an equally chaotic armed group or groups. An argument can be made that the conflict in Darfur is a ‘symmetric nonconventional civil war’ as defined by Kalyvas. It is clear that, from the outbreak of hostilities, the Sudanese Government was ill-equipped to deal with JEM and SLA attacks. The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General notes that: [T]he Government was taken by surprise by the intensity of the [rebel] attacks, as it was illprepared to confront such a rapid military onslaught. Furthermore, the looting by rebels of 39 Memorandum of Understanding between the Federal Republic of Yugoslavia and the Republic of Croatia (entered into force 27 November 1991), in How Does Law Protect in War?, above n 21, vol 2, at 1761. 40 Bosnia and Herzegovina Agreement No 1 (entered into force 22 May 1992), Art 2, para 4, in How Does Law Protect in War?, ibid, at 1765. 41 Prosecutor v Tadiç (IT-94-1), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (2 October 1995), para 73.

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Government weaponry strengthened their position. An additional problem was the fact that the Government apparently was not in possession of sufficient military resources, as many of its forces were still located in the South, and those present in Darfur were mainly located in the major urban centres. Following initial attacks by the rebels against rural police posts, the Government decided to withdraw most police forces to urban centres. This meant that the Government did not have de facto control over the rural areas, which was where the rebels were based.42

Rather than rely on its regular forces (who were, after all, largely Darfurian43) to suppress the rebellion, the Sudanese Government called upon nomadic tribesmen to assist in fighting the insurgents. These recruits, loosely organised into militias and armed by the Government, and known in Darfur as the janjaweed, became the instruments by which Khartoum sought to re-establish its authority in Darfur.44 The conflict in Darfur is not therefore a contest between two armies, neither is it a struggle between an army and an armed group. It is, rather, a conflict between armed groups, one of which, the janjaweed, is backed by the State. Other factors, too, lead to the conclusion that the conflict in Sudan can be described as a ‘symmetric non-conventional civil war’. Citing the examples of the internal armed conflicts in Lebanon and Liberia, Kalyvas identifies certain characteristics of this type of civil war—gratuitous violence across ethnic lines, the expulsion of populations rather than attempts to win them over—which are still evident in Darfur today.45 The Darfurian conflict points to the problems associated with special agreements in ‘symmetrical irregular civil wars’. Where a special agreement is brought into force during a ‘conventional civil war’, the high degree of organisation of the parties will increase the likelihood that they will be able to fulfil their new responsibilities. At the heart of international humanitarian law is a quid pro quo; for instance, the privileges of combatancy, such as prisoner of war status upon capture, are reserved to those who fulfil certain criteria, including, inter alia, being under responsible command, carrying arms openly, and wearing a fixed, distinctive sign. Thus, the benefits of the Geneva Conventions regime accrue only to those capable of shouldering the burdens. Where, by virtue of its high degree of organisation, formidable military capacity and significant territorial control, an armed opposition group has the capacity to ensure compliance within its ranks with the Geneva Conventions, a special agreement concluded between them and the Government may be of assistance in increasing the protections enjoyed by the victims of the conflict. This situation can be contrasted with the effect of a special agreement to apply the Geneva Conventions in a ‘symmetrical irregular civil war’ such as the conflict in Darfur. It is clear that neither the Sudanese Government, nor the JEM nor the SLA had the capacity in terms of discipline or control to adhere to the relevant provisions of international humanitarian law in providing humanitarian assistance in Darfur. The rationale of the parties in concluding the Protocol on Humanitarian Assistance is not clear, but it does not appear to have been accompanied on either side by a bona 42 Report of the International Commission of Inquiry on Darfur to the UN Secretary-General pursuant to Security Council Resolution 1564 of 18 September 2004, para 66 (Report of the International Commission of Inquiry on Darfur), (29 March 2008). 43 Ibid. 44 Ibid, paras 68–69. 45 ‘The Sociology of Civil Wars: Warfare and Armed Groups’, above n 30, at 18.

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fide attempt to ameliorate the conditions of civilians affected by the conflict. Sudan’s accession to the Second Additonal Protocol in 2006 does not seem to have altered this situation, and serves only to underline the difficulties associated with legal regulation of ‘symmetrical irregular civil wars.’ In spite of the Protocol on Humanitarian Assistance, the humanitarian situation in Darfur continued to deteriorate. The Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General records that in the course of its investigations it was provided with a number of reports of incidents where humanitarian workers were the victims of deliberate attacks.46 The ICRC Annual Report on Sudan Peace for 2006 records that food distribution was disrupted by security constraints.47 Peace agreements concluded between the various warring factions at conferences in Nigeria and Libya have failed to bring an end to the conflict, and it is now estimated that nearly 450,000 have died due to violence, starvation and disease in Sudan’s western region, with nearly 2.5 million people having been displaced.48 special agreements and the lessons of darfur One of the most vexing questions facing international humanitarian law today is how to ensure that armed opposition groups involved in internal armed conflicts comply with the rules. This question reflects the broader debate within international law about the role of non-State actors in a State-orientated system. The nature of the international legal regime and the impossibility of ratification of international humanitarian law instruments by armed opposition groups have been identified as some of the most significant obstacles to ensuring such compliance.49 Such groups may, of course, make unilateral declarations to the effect that they intend to comply, in their conduct of hostilities, with certain rules of international humanitarian law, but there is no guarantee of reciprocity on the part of the State. The conclusion of a special agreement between the State and the armed group binds the group to compliance on the basis of a reciprocal contract with the authorities of the State, and it has been argued that special agreements should be encouraged in future to give armed groups a sense of ‘ownership’ of international humanitarian law: Better accountability by armed opposition groups for international humanitarian law might be achieved by granting them an opportunity to express their consent to be bound by the rules, increasing their sense of responsibility concerning compliance. This addresses the legal obstacle of impossibility of ratification by armed opposition groups. Express consent might be accomplished through special agreements between State and non-State actors, which would provide added incentive to comply based on mutual consent of parties, making clear the equal and reciprocal international humanitarian law obligations on both the State and armed groups.50

46

Report of the International Commission of Inquiry on Darfur, above n 42, para 289. ICRC Annual Report 2006: Sudan (24 May 2007), p 3, available at (29 March 2008). 48 N Boustany, ‘State Dept Rights Report Calls Record of Sudan “Horrific” ’, Washington Post, 12 March 2008. 49 Mack, above n 3, at 2. 50 Ibid, at 4. 47

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There is much merit to this argument, but it must be borne in mind that special agreements are unlikely to be brought into operation in asymmetrical ‘irregular civil wars’, as the State will have little incentive to go beyond Common Article 3’s ‘minimum yardstick’; and even where the symmetrical nature of the conflict convinces the State that a special agreement is in its interests, such an agreement will be a dead letter without sufficient capacity on the part of both government and opposition groups to comply with the duties it imposes. This condition will be fulfilled where the strength of the rebels approaches that of the State itself, as in Kalyvas’s ‘conventional civil war’. In these circumstances, the government of the State in question is more likely to appreciate the benefit of a special agreement, and it is more likely that what is agreed will be respected by both sides. But where there is levelling down rather than levelling up—where, in effect, the forces of the government have been reduced to the level of the armed opposition group or groups, as in the case of the ‘symmetric irregular civil war’ in Darfur—a special agreement to apply any or all of the regime of international humanitarian law governing international armed conflict is, regrettably, of little value. conclusion The ineffectiveness of the modest special agreement concluded between the Sudanese Government and the Darfurian armed groups stands as a reminder that rules of international humanitarian law, in the words of Justice Grier, ‘have their foundation in reason’.51 It is certainly desirable to increase the sense of commitment of armed groups to international humanitarian law, and it is beyond question that special agreements may, in certain limited circumstances, help to achieve this. Yet the burdens placed on belligerents by the Geneva Conventions are many and complex, and a high degree of organisation (and, indeed, a certain measure of good faith) is required before laws designed for international armed conflict can be applied effectively in situations of internal armed conflict. The ineffectiveness of the special agreement in Darfur demonstrates that the dichotomy between the legal regimes governing international and internal armed conflict cannot be ignored or wished away. In cases of ‘symmetrical irregular civil war’, the nature of the conflict means that the best that can be hoped for is that the modest provisions of Common Article 3 will be respected. To expect more is to risk the devaluation of the standards and values embodied by the Geneva Conventions.

51

The Prize Cases, above n 37, at 667.

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International Law in Ireland—2007

Fiona de Londras university college dublin

There were a number of areas on the domestic agenda in which international law featured prominently in 2007, most notably Irish neutrality, peacekeeping and the ‘Global War on Terrorism’. In addition, the Irish Government outlined executive policy in relation to certain types of munitions that have the potential to cause extreme damage after war, and attempted to steer the international community towards drafting an instrument in relation to such munitions. The Government and legislature outlined their views on the international legal standards applicable to the situations in Israel, Palestine, and the Sudan in particular. On the legislative front, a number of international instruments were incorporated into domestic law, and executive policy was outlined in relation to the potential incorporation of others. In general terms the Irish approach to international law in 2007 did not indicate any shift in diplomatic policy, or in the Irish approach to the role and substance of international legal provisions. international terrorism In 2007 the Irish Government reiterated its view that extraordinary rendition is unlawful under both domestic and international law, and that Ireland’s positive obligations in relation to the prohibition on torture could be satisfied by means of diplomatic assurances received from the United States. In correspondence with the Irish Human Rights Commission in respect of its report entitled ‘Extraordinary Rendition’: A Review of Ireland’s Human Rights Obligations,1 the Department of Foreign Affairs succinctly stated the Government’s position. Although the Irish Human Rights Commission concluded that Ireland did not appear to be acting as fully as it might in order to satisfy its positive obligations under Article 3 of the European Convention on Human Rights,2 the Irish Government reasserted its long-standing position that the diplomatic assurances actually received from the United States were such as to fulfil Ireland’s positive obligations.3 Ireland is bound by an absolute obligation of nonrefoulement under Article 3 of the European Convention on Human Rights. According to the Irish Government, however, the assurances received are sufficient to fulfil Ireland’s positive obligations because they relate to facts that are wholly in the control of the assuring nation (ie the United States), and such assurances can be distinguished from diplomatic assurances that the European Court of Human Rights has held to be inadequate to satisfy the non-refoulement to torture obligation under 1 2 3

(Dublin, IHRC, 2007). Ibid, at 38–42. Ibid, at 61–68.

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Article 3 of the Convention in cases such as Soering v United Kingdom 4 and Chahal v United Kingdom.5 It appears that the assurances received by the Irish Government comprise statements that people are not being rendered through Shannon Airport and, as a result, consist of promises both that there is no unacknowledged deprivation of liberty through Ireland and that people are not being transported to a place where they are at risk of torture, inhuman or degrading treatment or punishment through Irish territory. In addition, the assurances have been reiterated over a long period of bilateral talks and co-operation between two States with an especially close and longstanding diplomatic relationship.6 In Chahal v United Kingdom,7 the Strasbourg Court found that deporting the applicant to India on the basis of a diplomatic assurance that ‘he would enjoy the same legal protection as any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of any kind at the hands of the Indian authorities’8 constituted a breach of the defendant government’s positive obligation to protect against refoulement. The European Court of Human Rights felt that, notwithstanding the bona fides of the Indian Government in making these assurances, the violation of human rights by some members of the Indian security forces was ‘a recalcitrant and recurring problem’9 and, as a result, that the Government was not in a position to make assurances of this kind. The Department of Foreign Affairs has expressly distinguished the assurances received from the United States Government from assurances of this nature, and has expressed the view that claiming that such diplomatic assurances do not fulfil Ireland’s international obligations is a misunderstanding and misapplication of the law.10 While accepting, therefore, that Articles 2 and 3 of the European Convention on Human Rights create a positive obligation on the part of Ireland to ensure that the United States does not facilitate human rights abuses, the Department of Foreign Affairs stated that Ireland has not wilfully ignored potential illegality on its territory; rather, it was the first State to raise concerns with regard to extraordinary renditions with the US Government, and to receive full factual assurances and thereby fulfil its international legal obligations.11 In addition to reiterating its position on the sufficiency of these diplomatic assurances, the Irish Government made it clear that it did not intend to put an inspections regime in place in Shannon Airport. According to the Government, such as regime is not warranted because (a) there is no evidence that individuals are actually held on planes that transit through Shannon Airport, and (b) inspections can already be conducted by the Gardaí (Irish Police) when they are satisfied that there is reasonable suspicion. Although the Irish Government continued, therefore, to allow the use of Shannon Airport for refuelling and stopovers, it also reiterated its long-standing position that ‘extraordinary rendition’ is unlawful under both international and domestic law. It also proposed the amendment of the Convention on International Civil Aviation (Chicago Convention) as a means by which international aviation law might be changed 4

[1989] ECHR 14 (7 July 1989). (1997) 23 EHRR 413. 6 Statement by Mr Dermot Ahern TD, Minister for Foreign Affairs of Ireland to European Parliament—TDIP Committee, 30 November 2006, available at http://www.foreignaffairs.irlgov.ie/Press_ Releases/20061130/2242.htm (23 February 2007). 7 Above n 5. 8 Assurance as quoted in the judgment, ibid, para 37. 9 Ibid, para 105. 10 13 June 2006, Minister for Foreign Affairs, Dáil Debates, col 788. 11 Ibid. 5

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in an attempt to end the practice of ‘extraordinary rendition’. In response to the Human Rights Commission’s Report, the Minister for Foreign Affairs confirmed that the Garda Síochána have been formally requested to ensure that all members are appropriately trained and familiar with the relevant legislation to ensure that the Programme for Government commitments on extraordinary rendition are complied with.12

The Programme for Government agreed between the coalition parties following the 2007 General Election also included a commitment to host a meeting of a regional subgroup of Member States of the International Civil Aviation Organisation at which the review and reform of the Chicago Convention would be discussed.13 In January 2007, the European Parliament Temporary Committee on the alleged use of European countries by the CIA for the Transportation and Illegal Detention of Prisoners released its Final Report.14 As reported in The Irish Yearbook of International Law 2006, this Committee’s draft report expressed, inter alia, ‘serious concern’ about the 147 stopovers made by CIA-operated aircraft at Irish airports that on many occasions came from or were bound for countries linked with extraordinary rendition and recommended ‘that, in the absence of a system of random searches, a ban should be imposed on all CIA-operated aircraft landing in Ireland’.15 The same conclusions are expressed in the Final Report,16 which urged the Irish Government to ‘agree to launch a parliamentary inquiry into the use of Irish territory as part of the CIA rendition circuit’.17 Responding to the Report, the Minister for Foreign Affairs noted its ‘implicit recognition that at no stage were prisoners transferred through Irish territory as part of an extraordinary rendition operation’,18 and lamented the fact that the Report did not take the opportunity to highlight the need for reform of the Chicago Convention. The Minister characterised the Report as partisan in parts, claiming that it ‘indulges in political point scoring’19 and fails to take full account of the Minister’s testimony to the Committee and of the measures that Ireland has taken, through bilateral engagement and the receipt of diplomatic assurances, to try to ensure that no individuals are ‘rendered’ through Ireland. The Minister also stated that the Report’s call for a parliamentary inquiry ignores the right of the Oireachtas (Parliament of Ireland) to set its own agenda and the fact that the Seanad (the Senate) has repeatedly voted against setting up such a specific enquiry.20 The Minister for Foreign Affairs also expressed his disappointment about the Resolution adopted by the European Parliament in the light of this Report,21 and confirmed that he intended to pursue a review of the Chicago Convention at European Council level.22 12 DFA, ‘Statement by the Minister for Foreign Affairs Dermot Ahern TD in Response to Irish Human Rights Commission Report on Extraordinary Rendition’, Press Release, 11 December 2007. 13 Programme for Government 2007–2012 (2007), 78. 14 Final Report on the alleged use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, 30 January 2007, A6-0020/2007. 15 At para 125. 16 Above n 14, at 20–21. 17 Ibid, at 21. 18 DFA, ‘European Parliament TDIP Committee Final Report’, Press Release, 23 January 2007. 19 Ibid. 20 Minister for Foreign Affairs, 21 March 2007, Dáil Debates, col 230. 21 European Parliament Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners (2006/2200 (INI)). 22 Statement by the Minister for Foreign Affairs Mr Dermot Ahern TD on the European Parliament’s Resolution on Extraordinary Rendition, 14 February 2008, available at www.dfa.ie.

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The position of the Government was articulated in clear terms on 3 July when the Minister for Foreign Affairs gave an omnibus answer to parliamentary questions on the issue: [T]he Government are completely opposed to the practice of so-called extraordinary rendition, as were the previous Government. As the Programme for Government makes clear, we will ensure that all relevant legal instruments are used so that the practice of extraordinary rendition does not occur in this State in any form. Our concerns in relation to this matter have been made clear to the highest levels of the US Government, including by the Taoiseach to President Bush. The Government received specific assurances from the US authorities, confirmed by Secretary of State Condoleezza Rice, that such prisoners have not been transferred through Irish territory, nor would they be, without our permission. A number of Garda investigations into allegations related to extraordinary rendition have taken place and have found that there is no evidence to support these allegations of illegal activity. I should emphasise that, where the Gardaí have suspicions about a particular aircraft, they have full powers to board and inspect that aircraft. The decision to search a particular aircraft, therefore, if and when warranted in accordance with law, is a matter for An Garda Síochána. And as the Government have also repeatedly made clear, An Garda Síochána has the powers it needs to investigate all allegations of illegal activity. I have had detailed correspondence with Dr Maurice Manning, the President of the Irish Human Rights Commission, on all issues related to extraordinary rendition. My officials expect to have further contact with Dr Manning on these matters shortly. I would also note that in their joint statement on extraordinary rendition of 27 June 2006, Amnesty International, Human Rights Watch, the International Commission of Jurists and the Association for the Prevention of Torture do not call for spot checks, but rather for the inspection of aircraft ‘where there are grounds for believing . . . [they are] being used to transport detainees’. It has always been the Government’s position that in such circumstances, An Garda Síochána should exercise their powers of entry and search of an aircraft. The Programme for Government also notes that we will seek EU and international support to address deficiencies in aspects of the regulation of civil aviation under the 1944 Chicago Convention. In this regard, Ireland has already taken the lead at EU level in raising possible improvements to the regulation of civil aviation and we are in ongoing discussion with fellow-members of the International Civil Aviation Organisation on this issue.23

international peace and security International peace and security was a prominent theme in Ireland in 2007. Within this area four issues arose as being of particular import—the Middle East Peace Process, the situation in Darfur, membership of an EU Battlegroup, and arms control. In addition, Ireland continued to support international peace and security through the provision of humanitarian aid and involvement in international peacekeeping missions. The Middle East peace process has long been a high priority on Ireland’s foreign affairs agenda, and in the main Ireland approached these events from its position as a member of the European Union during 2007; thus unilateral dealings with the Israeli, Palestinian and Lebanese Governments were limited. In relation to the situation in the Middle East, the Irish Government reiterated its long-standing position that there is no possibility of a military resolution to the 23

Oral Answer, Parliamentary Question—Dept Details, Question Nos 112, 141, and 174, 3 July 2007.

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dispute and that, instead, parties ought to focus on achieving a viable two-State solution, which must be at the heart of a comprehensive settlement.24 The Irish Government stressed that it continues to communicate with all parties bilaterally and by means of the EU and UN. The Minister for Foreign Affairs confirmed Ireland’s ongoing support for the Quartet Roadmap and continued to urge compliance both with the Roadmap and with international law generally. The Minister for Foreign Affairs expressed particular concern relating to the construction of a Separation Barrier between Israel and Palestine which he ‘roundly condemn[ed]’,25 the expansion of settlements, and the perpetuation of Israeli policies that contravene international law and impede the resolution of the dispute.26 At a meeting with the Israeli Foreign Minister, the Minister for Foreign Affairs communicated Ireland’s view that the development of settlements, home demolitions and other such activities in East Jerusalem and the Jordan Valley ‘are contrary to international law and threaten to undermine the viability of a two-State solution’.27 Although Hamas’s failure to commit decisively to the peace process resulted in the EU and international community suspending direct funding to the Government of the Palestinian Authority,28 the provision of direct assistance to the Palestinian people continued by means of a Temporary International Mechanism, and Ireland’s contribution continued to increase.29 Although the Minister for Foreign Affairs acknowledged the importance of such contributions, he noted that the root causes of the problems experienced by the Palestinian people cannot be resolved through humanitarian assistance; rather, political negotiations are required. In this respect Ireland expressed its strong support for Palestinian President Abbas’ efforts to form a Palestinian government of national unity and to develop substantive negotiations with Israel.30 The Department of Foreign Affairs welcomed the international meeting that took place in Annapolis in November 2007, which the Minister of State Dick Roche characterised as ‘a crucial opportunity to restore momentum to the Middle Ease peace process’, and expressed Ireland’s hope that the talks would address the most sensitive issues in the conflict, namely borders, settlements, security, refugees and the status of Jerusalem.31 The Minister for Foreign Affairs expressed Ireland’s continuing concern with the situation in Darfur, and used all unilateral and bilateral avenues available to focus international attention on the crisis and to work towards a solution there. In particular, the Minister for Foreign Affairs expressed support for concerted UN involvement by means of the work of the Special Envoy on Darfur32 and the creation and deployment of a combined African Union–United Nations force. In February 2007 the Minister for Foreign Affairs termed the failure of Sudanese President Bashir to approve the deployment of such a hybrid force ‘regrettable’.33 The Minister noted that 24

Minister for Foreign Affairs, 8 February 2007, Dáil Debates, col 498. Ibid, col 444. 26 Minister for Foreign Affairs, 31 January 2007, Dáil Debates, col 785; Minister for Foreign Affairs, 21 March 2007, Dáil Debates, coll 52–53; Taoiseach, 7 February 2007, Dáil Debates, col 21. 27 Minister for Foreign Affairs, above n 24, col 499. 28 Ibid. 29 Ibid. 30 Ibid. 31 Minister of State, Dick Roche, 27 November 2007, Dáil Debates, col 672. 32 Minister for Foreign Affairs, ibid, coll 1022–23; Minister for Foreign Affairs, 21 March 2007, Dáil Debates, col 217. 33 Minister for Foreign Affairs, 27 February 2007, Dáil Debates, col 460. 25

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the African Union force deployed there (AMIS) was too small to cover the large area concerned, but that the Irish Government continued to provide both financial and personnel support to the Mission.34 The Minister condemned ceasefire violations, the repeated bombing of civilian targets, and the obstruction of humanitarian access, although he also acknowledged the enormous difficulties involved in trying to deal with the crisis, including the high levels of suspicion on the ground from both the Sudanese Government and others who fear that this is an attempt to destabilise the Sudanese Government.35 The Minister for Foreign Affairs welcomed the Sudanese Government’s decision, in June 2007, to accept an AU–UN hybrid mission as ‘a step in the right direction’, and urged the Government to ensure unobstructed humanitarian deliveries, to protect the human rights of civilians, and to comply with arrest warrants issued by the International Criminal Court in May 2007.36 In August 2007 the Minister for Foreign Affairs expressed his support for Security Council Resolution 1769, which authorised the deployment of a hybrid mission of over 26,000 military and police personnel (UNAMID). He expressed the view that [t]he deployment of UNAMID should create a breathing space which will allow the foundations of a lasting peace to be laid, and I strongly support the current efforts of the African Union and United Nations special envoys in this regard. A political solution is the only way to bring a permanent end to this conflict.37

In February 2007, the Minister for Defence updated the Dáil on the progress of the talks relating to Ireland’s participation in the Nordic Battlegroup.38 He noted that discussions with Sweden (the Framework Nation) were ongoing about the drafting of the Memorandum of Understanding—the document that sets out principles relating to the operation, deployment and management of the Battlegroup. It was agreed that Ireland’s contribution would amount to 80–100 personnel, but that this level of commitment ‘will only arise should the Battlegroup be called on to undertake an operation’—in standby times the personnel commitment would be 10.39 The Minister confirmed that the Defence Forces’ personnel commitment to the Battlegroup would be met from the existing limit of 850 serving personnel at any time and would have no adverse effect on Ireland’s existing peace support operations.40 In March 2007 the Minister for Defence informed the Dáil that the AttorneyGeneral had advised that Ireland can sign the required Memorandum of Understanding setting out principles regarding the deployment, operation and management of the Nordic Batlegroup.41 It was agreed that the Nordic Battlegroup would be on standby from January 2008, with Force and Operational headquarters in Sweden and the United Kingdom respectively. During operations, the 80–100 personnel commited would be engaged in Explosive Ordnance Disposal and Improvised Explosive Device Disposal with their own security detail, and would fill staff posts in 34 Minister for Foreign Affairs, 27 February 2007, Dáil Debates, coll 460–61; Minister for Foreign Affairs, 21 March 2007, Dáil Debates, col 217. 35 Ibid; see also Minister for Foreign Affairs, 27 February 2007, Dáil Debates, coll 1022–23. 36 Minister for Foreign Affairs, 26 June 2007, Dáil Debates, coll 392–93. 37 DFA, ‘Minister for Foreign Affairs Welcomes the UN Security Council’s Authorisation of a Peacekeeping Mission for Darfur’, Press Release, 1 August 2007. 38 Minister for Defence, 1 February 2007, Dáil Debates, coll 1335–36. 39 Ibid, col 1336. 40 Ibid. 41 Minister for Defence, 7 March 2007, Dáil Debates, col 640.

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the Operational and Force headquarters in Sweden and the United Kingdom respectively. The Minister for Defence also confirmed that the deployment on all peace support missions, including those involving the Battlegroup, would be subject to the triple lock,42 although this triple lock procedure would not be required for training or humanitarian missions pursuant to the Defence (Amendment) Act 2006.43 The Dáil debate on the Motion to accede to a Memorandum of Understanding concerning the Principles for the Establishment and Operation of a Multinational Battle Group to be made available to the EU and to the Memorandum of Understanding concerning the Principles for the Cooperation Regarding the OHQ-Function for the Nordic Battle Group took place on 5 April 2007. In proposing the Motion, the Minister for Defence stressed that the creation of the Battlegroup does not change the scope or purpose of the European security and defence policy, or the Petersburg Tasks which are firmly rooted in the Treaty of the European Union as amended by the Treaty of Amsterdam,44 and stressed that membership of the Battlegroup will have no adverse impact on Ireland’s current peace support operations.45 Sections 4 and 6 of the Memorandum recognise the sovereignty of each nation in terms of decisions regarding the deploying forces being in accordance with national law, meaning that any Irish decisions would be taken in accordance with the terms of the Defence (Amendment) Act 2006. Section 5 of the Memorandum outlines the purpose of the Nordic Battlegroup as being a means of supporting the development of European Security and Defence Policy through participation in EU-led crisis management operations, thus reflecting the EU’s objective of being able to react quickly across the spectrum of crisis management tasks. Sections 6 and 7 contain the principles for deploying and withdrawing the Battlegroup. According to these provisions, deployment would follow an appropriate EU decision-making process, but each member of the Battlegroup retains the right to deploy or not deploy in any particular mission. Once the Battlegroup has been deployed, it can be withdrawn on the basis of consensus following an EU decision. Section 8 outlines the political–military consultation process and requires regular consultation between participants. Although section 8 makes it clear that Sweden will lead consultations, given its status as Framework Nation, all decisions will be made on the basis of consensus. Section 9 of the Memorandum outlines the establishment phase, which confirms that policy and military issues will be co-ordinated with the framework of NORDCAPS. This is a cooperation agreement between the Nordic countries relating to peace support operations. Although neither Ireland nor Estonia is a member of NORDCAPS, both will participate in NORDCAP meetings when Battlegroup matters are being discussed. Section 10 of the Memorandum regards force contribution, generation and tailoring. This provides that participating nations will make offers to the Battlegroup at coordination conferences, and that each contribution would then be outlined and governed by a technical arrangement. That notwithstanding, the force commander will be at liberty to alter the overall make-up of the force for a specific deployment, depending on the nature of the operation and the forces offered. Although section 11 confirms that Sweden, as the Framework Nation, leads force Head Quarters, all 42 43 44 45

Ibid, col 767. Ibid, col 768. Minister for Defence, 5 April 2007, Dáil Debates, col 1031. Ibid, col 1033.

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participating nations will be able to hold positions in HQ, and the command of each contingent would remain under national control, with operational control being delegated to the operational commander in accordance with EU crisis management concepts and standard operating procedure in a multinational force. Section 12 provides that participants will need to train together in accordance with EU standards, but that training will mostly take place within the contributing States themselves, with short periods of joint training. Section 13 of the Memorandum confirms that the Battlegroup will be certified in accordance with the relevant EU procedures. Section 14 clarifies the status of forces in regard to jurisdiction and discipline, and section 15 deals with claims and liabilities. In this latter respect, the Memorandum makes it clear that when a participant is in the territory of another participating State, the issue of claims and liabilities will be dealt with under the NATO Partnership for Peace status of forces agreement (SOFA). This is an agreement on the status of persons engaged on overseas training and operations, whereby the host country agrees to extend certain rights and privileges, including jurisdiction regarding certain crimes, powers of military police, enforcement of discipline by superiors and determination of liability for damage to property of third parties. The SOFA is already applied to Ireland’s participation in KFOR (Kosovo), ISAF (Afghanistan), EUFOR (Bosnia and Herzegovina) and EUFOR (Democratic Republic of the Congo). Thus, although Ireland is not a party to SOFA, the Attorney-General had advised that there is no impediment to an agreement to be bound by this Agreement in accordance with the terms of the Memorandum. Section 16 of the Memorandum deals with financing and confirms that individual costs are not deemed common costs and are therefore borne by individual participating nations. Section 17 confirms that logistics regulations are to be dealt with in technical arrangements. Section 18 provides that any classified information that may arise is to be dealt with according to EU security regulations, and each participant will appoint a designated security authority. Section 19 provides that third parties may be invited to participate on the basis of consensus. Section 20 states that the Memorandum will take effect from the date of last signature, with parties being permitted to withdraw upon provision of six months’ written notice. Section 21 deals with modifications, amendments and disputes. Pursuant to this provision, modification is to be done with the written consent of all participants and disputes are to be resolved by means of inter-participant negotiation. Following a short debate in which the substance was generally not challenged, the motion was carried by 62 to 13.46 In November 2007 the Minister for Defence announced that he had secured Cabinet approval for Ireland’s largest peacekeeping mission to date: the deployment of 400 Irish troops as part of the UN mandated EU military operation in the Republic of Chad.47 In the subsequent Dáil debate to give the third and final stage of approval to the deployment (the first stage being a UN mandate, the second stage being Cabinet approval), the Minister for Defence noted that Ireland’s participation in this mission is entirely consistent with our foreign policy commitment to collective security which recognises the primacy of the UN Security Council in the maintenance of international peace and security and our tradition of support for the United Nations.48 46 47 48

5 April 2007, Dáil Debates, coll 1031–50. Department of Defence, Press Release, 20 November 2007. Minister for Defence, 28 November 2007, Dáil Debates, col 1221.

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Following a lengthy debate in which, although there was general support for the motion, some concerns about the danger of the mission and the need for adequate medical and other support for Irish troops being deployed were expressed, the motion was carried. Throughout 2007 Ireland expressed strong statements of support for arms control, both internationally and domestically. Ireland expressed repeated support for the Nuclear Non-Proliferation Treaty (NPT), which continues to be Ireland’s preferred framework within which to deal with the issue of nuclear proliferation. In relation to the NPT, a number of particular issues arose in 2007 that caused concern for Ireland. The first matter of concern was the US–India agreement on nuclear material, which had been concluded in March 2005. The Minister for Foreign Affairs noted that before full civil nuclear co-operation between the two nations could commence, a safeguards agreement had to be reached between India and the International Atomic Energy Agency (IAEA), and a decision had to be taken by the Nuclear Suppliers Group (NSG) to exempt India from export guidelines. Ireland has been following the proceedings closely, particularly seeking clarification in relation to potential impact on the global nuclear disarmament and non-proliferation regime established by the NPT, whether there will be future tests, and whether enrichment and reprocessing are to be included.49 The Minister for Foreign Affairs confirmed that Ireland continues to consult like-minded countries on this issue, and that the Government’s final view will depend on our assessment of the potential impact of the deal on the global nonproliferation regime, the approach taken by normally like-minded countries and the overall balance of views within the NSG.50

The Minister particularly confirmed that trade concerns would not be an issue in making the final decision on this; rather, the situation will be assessed ‘from a global security viewpoint and nothing else’.51 In 2006 the Irish Government had expressed concern about reported nuclear enrichment in Iran, which concern continued in 2007. The Minister for Foreign Affairs particularly noted the introduction of UN Security Council Resolution 1737 on 23 December 2006, calling on Iran to cease all enrichment-related activities and requesting a compliance report from the IAEA. Ireland engaged in this issue primarily through the EU, where Iran’s enrichment programme is a frequent matter for discussion at ministerial level.52 That notwithstanding, the Minister confirmed that there were no current negotiations between the EU3 and Iran, although Iran’s noncompliance with Resolution 1737 was deplored at the EU’s General Affairs and External Relations Council meeting of 5–6 March 2007.53 Ireland’s concerns relating to the US–India Agreement, the Iranian enrichment programme, and the North Korean nuclear tests held in 2006 were communicated to Mohamed El Baradei during his visit to Dublin on 16 February 2007. In the course of discussions held during that visit, all parties welcomed the six-party talks with North Korea that had taken place in early February.54 In relation to Iran, Mr El Baradei had 49

See, eg, Minister for Foreign Affairs, 8 February 2007, Dáil Debates, coll 445–46. Ibid, col 447. 51 Ibid, col 449. 52 Ibid, coll 519–20. 53 Minister for Foreign Affairs, 21 March 2007, Dáil Debates, coll 255–56. 54 See also DFA, ‘Statement by Minister for Foreign Affairs DPRK—Six Party Talks’, Press Release, 12 February 2007. 50

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discussed his perceptions of outstanding issues with the Minister for Foreign Affairs in advance of the release of his compliance report required under Security Council Resolution 1737. While the Minister for Foreign Affairs made Mr El Baradei aware of Ireland’s concerns about the potential impact of the US–India agreement on the NPT and the disarmament and non-proliferation programme established thereunder, Mr El Baradei was said to have been optimistic, focusing on the developmental and environmental aspects of the agreement in line with his previous public statements on the issue. All parties welcomed the inclusion in the agreement of a requirement for a negotiated safeguard agreement with the IAEA by India.55 On the proposed construction of United States missile defence systems in Europe, the Minister for Foreign Affairs confirmed Ireland’s view that the development of missile defence systems can have negative consequences for peace and security, including through the creation or aggravation of missile arms races. He stressed Ireland’s commitment to non-proliferation as the preferable and most effective way to proceed, and confirmed Ireland’s position that reductions in nuclear arsenals, with the aim of their total elimination, is the best way to address security concerns in the area of missile development. He endorsed the 2007 Blix Report, which noted that missile defences posed a disproportionate risk to the international community and that negotiation ought to be preferred over the development of systems. Where such systems are developed, the Minister for Foreign Affairs took the view that they should be accompanied by measures designed to build confidence and to lower the risk to international peace and security. Although the proposed United States system is represented as countering the perceived threats from Iran and North Korea, the Minister was of the view that it had the potential to destabilise the region.56 Ireland continued to work towards achieving a total ban on cluster munitions, which has been an Irish priority since July 2002. In this respect, the Minister for Foreign Affairs noted that although the Convention on Certain Conventional Weapons is the recognised forum for discussion and consideration of humanitarian problems posed by cluster munitions, it has thus far concentrated on regulating their use for civilian protections rather than on a total ban. As reported in The Irish Yearbook of International Law 2006, at the last CCW Review Conference Ireland had called for the negotiation of an internationally binding instrument to address cluster munitions comprehensively, but had failed to acquire sufficient support. Until such an instrument can be negotiated, the Minister for Foreign Affairs confirmed that Ireland would ‘continue to work with other governments and civil society to achieve as much progress as is possible in present circumstances’, including offering support to the call for an immediate freeze on the use of cluster munitions.57 Ireland was represented at an international conference on cluster munitions that was hosted by Norway in February 2007, but did not succeed in agreeing a mandate to negotiate an international instrument on cluster munitions. This conference was aimed at developing an action plan for putting in place an international instrument that will effectively address the humanitarian, human and social costs of cluster munitions, and resulted in the Oslo Declaration, supported by all 49 attending States. The Oslo Declaration committed States to concluding a legally binding instrument on 55 56 57

Minister for Foreign Affairs, 21 March 2007, Dáil Debates, coll 79–82. Ibid, coll 238–39. Minister for Foreign Affairs, 8 February 2007, Dáil Debates, coll 526–27.

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cluster munitions by the end of 2008, which the Minister for Foreign Affairs characterised as ‘a successful and very encouraging start to a process which will undoubtedly be complex but which I am confident will gain further momentum in the coming year’.58 At this conference Ireland committed itself to hosting an international conference in Dublin in early 2008, in an attempt to achieve an absolute ban.59 The implementation of the White Paper on Irish Aid proceeded in 2007. In relation to the Rapid Response Initiative, the Minister for State, Conor Lenihan, outlined the progress that had been made in three key areas. First, in relation to the pre-positioning of humanitarian supplies, he noted the agreement with the UN World Food Programme relating to Brindisi and the Curragh. The supplies—enough to provide for 20,000 people—were delivered to Brindisi in February 2007, and similar supplies for 10,000 people are held in the Curragh.60 Secondly, in relation to the establishment of a Rapid Response Corps, the Minister for State noted that the recruitment campaign had recently been launched following the identification of required skill-sets by partner UN agencies.61 Thirdly, in relation to enhancing the emergency capacities of international humanitarian response agencies and mechanisms, the Minister for State noted that Irish Aid will assist UN partners, the Red Cross and NGOs to improve their own response mechanisms with targeted funding.62 By March of 2007 numerous initiatives outlined in the White Paper were underway or completed, the terms of reference of the Hunger Task Force were announced and the membership was finalised,63 Malawi was added as a ninth partner country for Irish Aid, and key decisions relating to governance, conflict prevention and peace-building were being implemented.64 international agreements Ireland signed the UN Convention on the Rights of Persons with Disabilities when it opened for signature on 31 March 2007, and an implementation group was established to consider what domestic legal changes might be required for incorporation.65 The Government indicated its intention to introduce legislation that would comply fully with the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, and with the Council of Europe Convention on Action against Trafficking in Human Beings.66 The Tánaiste (Deputy Prime Minister) Michael McDowell, confirmed that a Criminal Law (Trafficking in Persons and Sexual Offences) Bill was being drafted to implement the Framework Decision on Combating the Sexual Exploitation of Children and Child Pornography (December 2003) and which would also comply fully with the United Nations Protocol and the Council of Europe’s Convention. In addition, the Criminal Law (Miscellaneous Provisions) Bill (then 58

Minister for Foreign Affairs, 21 March 2007, Dáil Debates, col 205. Ibid, col 206. 60 Minister for State, Department of Foreign Affairs, 8 February 2007, Dáil Debates, coll 512–13. 61 Ibid, col 513. 62 Ibid. 63 DFA, ‘Ireland—Working to End Hunger’, Press Release, 10 March 2007; DFA, ‘First Meeting of the Hunger Task Force’, Press Release, 14 September 2007. 64 Minister for State, Department of Foreign Affairs, 21 March 2007, Dáil Debates, coll 1406–07. 65 Minister for Justice, 4 April 2007, Dáil Debates, col 715. 66 Minister for Justice, 31 January 2007, Dáil Debates, col 474. 59

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being drafted) was to give full effect to the Council of Europe Convention on Cybercrime 2001.67 Although the Government confirmed its full participation in the processes of the UN Convention on the Rights of the Child, no precise answer was afforded to a written question on when it intended to implement the Convention in full. Rather, the then Minister for State at the Department of Health and Children, Brian Lenihan, noted the terms of the Child Care Act 1991 and the ongoing dialogue surrounding a constitutional amendment to enshrine children’s rights expressly in the Constitution.68 The Government indicated that decisions as to the incorporation of the UN Convention against Corruption69 and Optional Protocol No 12 to the European Convention on Human Rights70 would be taken on the basis of reviews underway in government departments. The Government expressed a view that it would not be appropriate for Ireland to become a party to the Convention on the Rights of Migrant Workers and their Families because, according to the Minister for Justice, the Convention does not adequately distinguish between legal and illegal migrants, and might therefore attract illegal migration into the State in spite of the perceived safeguard in Article 68. In addition, there was some concern that becoming a party to the Convention might have implications for the common travel area between Ireland and the United Kingdom, and that it would be particularly difficult to become a party when other EU Member States were not yet parties. In any case, the Minister for Justice claimed, the rights of legal migrant workers and their families are comprehensively protected in existing domestic law.71 diplomatic relations In 2007 Ireland accepted credentials from Ambassadors representing Cyprus, Brunei, Qatar,72 Turkey, Georgia,73 Sweden, Namibia,74 Austria, Sierra Leone, The Democratic People’s Republic of Korea,75 Hungary, Korea, France,76 Egypt, Canada, Iran,77 Pakistan, Thailand,78 Azerbaijan, Sudan, Jordan,79 Kenya, Angola, Albania, Tunisia,80 China, Bulgaria81, India, and Luxembourg,82 67 See, eg, Tanaiste, 14 February 2007, Dáil Debates, coll 1378–80; Minister for Justice, 22 February 2007, Dáil Debates, coll 539–40; Minister for Justice, 6 March 2007, Dáil Debates, coll 255–56; Minister for Justice, 20 March 2007, Dáil Debates, coll 1328–32. 68 Minister for State, Department of Health and Children, 31 January 2007, Dáil Debates, coll 576–77. 69 Minister for Justice, 8 February 2007, Dáil Debates, col 371; Minister for Justice, 13 February 2007, Dáil Debates, col 924; Minister for Foreign Affairs, 21 March 2007, Dáil Debates, col 222. 70 Minister for Justice, 20 March 2007, Dáil Debates, col 1382. 71 Minister for Justice, 4 April 2007, Dáil Debates, coll 745–47. 72 DFA, ‘New Ambassadors Present Credentials’, Press Release, 25 January 2007. 73 DFA, ‘New Ambassadors Present Credentials’, Press Release, 6 February 2007. 74 DFA, ‘New Ambassadors Present Credentials’, Press Release, 3 March 2007. 75 DFA, ‘New Ambassadors Present Credentials’, Press Release, 5 July 2007. 76 DFA, ‘New Ambassadors Present Credentials’, Press Release, 18 September 2007. 77 DFA, ‘New Ambassadors Present Credentials’, Press Release, 2 October 2007. 78 DFA, ‘New Ambassadors Present Credentials’, Press Releases, 19 October 2007. 79 DFA, ‘New Ambassadors Present Credentials’, Press Release, 20 November 2007. 80 DFA, ‘New Ambassadors Present Credentials’, Press Release, 27 November 2007. 81 DFA, ‘New Ambassadors Present Credentials’, Press Release, 11 November 2007. 82 Ibid.

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The Minister for Foreign Affairs confirmed that, in line with recent practice, Ireland would not be accepting the diplomatic credentials of a Burmese ambassador and would not deploy an Irish ambassador to Burma.83 In March 2007 the Minister for State with Responsibility for Human Rights, Conor Lenihan, met with Burmese opposition leaders from the National Coalition Government of the Union of Burma, formed in December 1990 in response to the military regime’s refusal to cede power following the National League for Democracy’s success in the election.84 The Minister for Foreign Affairs later met with the Prime Minister in exile of Burma, Dr Sein Win, who acknowledged Ireland’s continuing support for human rights and democratisation in Burma. During that meeting the Minister affirmed Ireland’s support for the UN Special Envoy to Burma and confirmed that Ireland would continue to work bilaterally and multilaterally to bring about positive change in Burma.85 In July, in response to a Parliamentary Question on self-determination of the Saharawi people, Minister Ahern stated that the ‘Government has consistently supported, and remains fully committed to, the right of self-determination of the people of Western Sahara’. He continued: Ireland has not taken a position on the future of the Territory, be it full independence, autonomy, or integration under Moroccan sovereignty. The important point is that the status of the Territory should be decided in a genuine exercise of self-determination by the people of Western Sahara.86

That said, although Ireland has consistently supported the claim for self-determination of the Saharan people, the Government confirmed in 2007 that Ireland does not recognise a Sahara Arab Democratic Republic as no such State has emerged that meets the internationally recognised criteria. The Irish Government denied that its policy on the Saharan people’s claim of self-determination was in any way undermined by the EU’s fisheries agreement with the Kingdom of Morocco, which allows for fishing in the seas claimed by the Saharans. The Irish Government confirmed that Ireland’s support for the Fisheries Partnership Agreement between the EU and Morocco does not entail a de jure recognition of Morocco’s rights in respect of the area alleged to be the Saharan Arab Democratic Republic. In addition, the Minister for Foreign Affairs stressed the leadership role Ireland took in relation to the Western Sahara while a member of the UN Security Council, especially in securing the adoption of the Resolution on Western Sahara in the General Assembly in December 2006. The Minister for Foreign Affairs also expressed Ireland’s continuing support for the plan of 2003, prepared by former US Secretary of State, James Baker, and its support for a strong UN role in the implementation of this plan.87 Lastly, in relation to Taiwan, the Minister for Foreign Affairs noted that the international community recognised the People’s Republic of China as the sole representative 83

See, eg, Minister for Foreign Affairs, 8 February 2007, Dáil Debates, coll 490–91. DFA, ‘Minister of State Conor Lenihan Meeting with Burmese Opposition Leaders’, Press Release, 25 March 2007. 85 DFA, ‘Minister for Foreign Affairs, Mr Dermot Ahern TD, Meets with Dr Sein Win Prime Minister in exile of Burma—Discussions Focus on Way forward for Burma’, Press Release, 25 October 2007. 86 Oral Answer to Question No 104, Parliamentary Question—Dept Details, 3 July 2007, Ref No 18676/07; available at: www.dfa.ie. 87 See, eg, Minister for Foreign Affairs, 31 January 2007, Dáil Debates, coll 786–87; Minister for Foreign Affairs, 21 March 2007, Dáil Debates, coll 216–17. 84

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of China and Ireland does not maintain diplomatic relations with Taiwan, although a Taiwanese Representative Office established in 1988 in Dublin has a representative function in relation to economic and cultural promotion but does not have diplomatic or political status. Ireland, together with the remainder of the EU, stressed the importance of cross-Straits relations to the peace, stability and development of China, Taiwan and the entire region, and it is hoped that economic relations between Taiwan and China and with the EU will help to ease political tensions across the China Straits.88

88

See, eg, Minister for Foreign Affairs, 8 February 2007, Dáil Debates, coll 529–30.

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Irish Practice Abroad—2007

Jean Allain queen’s university of belfast

In March 2007, the Minister for Foreign Affairs, Dermot Ahern TD, spoke in the Senate of Ireland on Irish foreign policy, where he renewed Ireland’s commitment to multilateralism and the rule of law, and spoke of ‘Ireland’s ethical foreign policy’, noting that an ‘objective judge of that policy would affirm that in its conception and execution it is indeed an ethical one, based firmly on the values of the Irish people and serving their interests’. The Minister for Foreign Affairs further stated that the principles and values of Ireland’s ethical foreign policy had been successfully advanced in multilateral fora. Irish foreign policy was based on the Bunreacht na Éireann (the Constitution of Ireland), and more specifically Article 29, which set out ‘the principles guiding our relations with other states’ and reads, inter alia: 1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality. 2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination. 3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.

The Minister for Foreign Affairs then spoke of the principle of military neutrality: Alongside support for the United Nations and international law, successive governments have pursued a policy of military neutrality. The State has chosen not to enter into military alliances or a mutual defence pact with other countries. Indeed, the amendment of the Constitution in 2002 to allow for the ratification of the Nice Treaty precludes Ireland joining any EU common defence unless the people decide otherwise. Every dispatch of a contingent of the Defence Forces abroad—whether UN, EU or NATO led—is a sovereign decision of the Irish Government, and is subject to the requirements of the so-called ‘triple-lock’ of Government decision, Dáil approval and UN authorisation. If the origins of our policy of military neutrality lie in our history as a state and in the particular circumstances of partition, it has evolved as a key feature of our foreign relations. It has acquired particular value for the Irish people as an expression of our ethical views on the use of military forces—that the deployment of military forces should be undertaken only within the framework of the UN Charter and with the approval of the United Nations itself. That Ireland should articulate these principles and rights in our Constitution and legislation is no surprise given our history. As a small nation that fought against a larger one for its freedom, we value the principles of democracy, the rule of international law, collective security and the universal application of human rights. And we recognise that a world which as far as possible is organised on these lines is in the interests of small countries in particular. The expression of these principles and values—ethics if you will—can only take place within a multilateral framework. That framework is provided by the United Nations. Ireland fully, indeed profoundly supports the principles and values set out in the Charter of the United Nations. . . .

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Acting within the parameters set out in the Charter assures us of the ethical intent of the military actions undertaken on behalf of the international community by the United Nations. Ireland’s long standing support for UN peacekeeping is one of the most tangible expression of our principles and values in foreign relations. Since our first UN peacekeeping mission in 1958, our troops have performed over 55,000 tours of duty on some 60 UN peace support operations worldwide. Defence Forces personnel have served throughout the world, notably in the Middle East, Africa, the Former Yugoslavia and East Timor.1

With these principles as a backdrop, the foreign policy objectives to be pursued by the Department of Foreign Affairs of the Republic of Ireland during 2007 were defined in its Department of Foreign Affairs Strategy Statement 2005–2007.2 The Strategy set out the following six ‘High Level Goals’ to be pursued: 1. Work to achieve the full implementation of the Good Friday Agreement and the sustained operation of all its institutions, promoting co-operation, mutual understanding and respect between both traditions on the island, between North and South in Ireland and between these islands. 2. Pursue Ireland’s foreign policy in accordance with the ideals enshrined in the Constitution and in conformity with the principles of the United Nations Charter, through the development of our bilateral relations with other States, our participation in the European Union’s Common Foreign and Security Policy, and our active and principled participation in international organizations. 3. Promote and protect Ireland’s interests at the heart of the European Union as it continues to evolve and enlarge, including through the further development of our relations with our current and future EU partners. 4. Promote Ireland’s trade, investment and other interests, including its culture, in close cooperation with other Departments, State Agencies and the private sector, ensuring that the State’s network of diplomatic and consular missions add real value to this task. 5. Make a substantive and effective contribution to the Millennium Development Goals, and to poverty reduction and sustainable growth in developing countries, through the policy and programmes of the Development Corporation Ireland, and by working for a just and stable international economic system. 6. Protect and support the interests of Irish citizens abroad, maintain and strengthen links with people of Irish ancestry, and to provide a modern and efficient passport and consular service.3

This Correspondent Report uses these goals as a basis for bringing the reader up-todate on activities in 2007 manifest in Irish practice abroad, with the proviso that various issues, such as North–South bodies, created under the Good Friday Agreement, the European Union and international legal issues in Ireland are dealt with in more detail in other Correspondent Reports. 1 See Minister for Foreign Affairs, Dermot Ahern TD, response to Seanad Private Member’s Motion on Irish Foreign Policy, 28 March 2007, reproduced at p 291. In June the coalition Government (re: Fianna Fáil, Progressive Democrats and the Green Party) set out its programme to govern for 2007–2012, in which it stated that: ‘Neutrality is central to our vision of Ireland as the bridge between the developed and developing world, the intermediary and facilitator in peace processes, the first on the ground in major humanitarian crisis—the model UN State for the 21st century. Our policy of the next five years is to Make Neutrality Count.’ See An Agreed Programme for Government, June 2007, available at: http://www.taoiseach.gov.ie. 2 The Department of Foreign Affairs Strategy Statement 2005–2007 is reproduced at 1 The Irish Yearbook of International Law (2006) 369. 3 ‘High Level Goals’ as contained in Strategic Statement 2005–2007, at 9.

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Worth highlighting was the acknowledgement by the Minister for Foreign Affairs that ‘2007 was a momentous year for the island of Ireland’4, as its most important foreign policy objective, manifest in the peace process of Northern Ireland, moved to fruition. 2007 saw the Irish language become an official and working language of the European Union, and the move toward a referendum to consider the Reform Treaty signed in Lisbon, Portugal, on 13 December 2007. The year under review also saw the commitment of Irish troops to the European Union mission to Chad/Central African Republic, resulting from the growing regional dimension to the humanitarian crisis in Darfur, Sudan. On the humanitarian front, the Republic of Ireland undertook a number of initiatives and demonstrated a true commitment to establishing itself as a leader in the area of development, providing 0.075% of its GDP (though not 0.07% GNP, the UN aid target) to humanitarian funding, which was the third highest level given by any State. north‒south relations In 2007, the High Level Goal of achieving ‘the full implementation of the Good Friday Agreement’ became a reality. In his address to the United Nations General Assembly in October, the Minister for Foreign Affairs, Dermot Ahern TD, stated that: For almost forty years, it has been my duty, and that of my predecessors as Minister for Foreign Affairs, to brief this Assembly on the search for peace on the island of Ireland. I am delighted to report that, perhaps save for general updates on progress, this will no longer be necessary. The conflict in Northern Ireland lasted for more than three decades, and was made apparently insoluble by issues of national, cultural and religious identity, contested historical narratives and claims of sovereignty, all hardened by the direct experiences of division, inequality and violence. Since the ceasefires of the mid-1990s and the negotiation of the Good Friday Agreement in 1998, there has been better news to report. But the final steps to the full implementation of that Agreement were not completed until earlier this year.5

North–South relations on the island of Ireland are governed by the bilateral Good Friday Agreement signed on 10 April 1998 by the Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland, which devolves power from the United Kingdom’s legislature of Westminster to the Northern Ireland Assembly at Stormont, while establishing a number of East–West and North–South bodies dealing with concerns mutual to both States. The devolved powers meant to govern Northern Ireland envisioned by the Good Friday Agreement had been suspended since 2002 as the local political parties could not reach agreement on various issues which could pave the way to the establishment of a power-sharing government. However, those issues were settled in November 2006 by way of the St Andrews Agreement,6 which led to Stormont elections on 7 March 2007 and the new Northern Ireland Assembly receiving its restored powers on 8 May 2007, whereupon it appointed a power-sharing 4

See Department of Foreign Affairs Annual Report 2007, at 3; reproduced at p 243. See Address by the Minister for Foreign Affairs, Mr Dermot Ahern TD, at the 62nd Session of the United Nations General Assembly, 2 October 2007, reproduced at p 297. 6 The Agreement at St Andrews is reproduced at (2006) 1 The Irish Yearbook of International Law 473. 5

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Executive led by First Minister Dr Ian Paisley and Deputy First Minister, Martin McGuinness. The Secretary-General of the Department of Foreign Affairs, Dermot Gallagher, has stated that the restoration of the Northern Ireland Assembly and Executive in May 2007 was one of the defining moments of the year for the Department of Foreign Affairs. . . . It was the culmination of many years of work by many people, but the staff of the Department of Foreign Affair, working under the direction of the Minister, can rightly be proud of their contribution to this enormous achievement.7

In July the British–Irish Council, whose membership includes the British and Irish Governments, as well as the devolved administrations of Northern Ireland, Scotland, Wales, Jersey, Guernsey, and the Isle of Man, met with Paisley and McGuinness cochairing. Taoiseach Bertie Ahern TD and Prime Minister Gordon Brown MP were in attendance. As this was the first time that all members of the British–Irish Council were in attendance, the Council took stock of its previous meetings and tasked the Secretariat, in consultation with Member Administrations, to undertake a strategic review of the Council’s work programmes, working methods and support arrangements, including arrangements for a standing secretariat, and report back with firm proposals as soon as possible.8

Also in July, the North–South Ministerial Council met for the first time in five years. Of note in this regard was the move by the Republic of Ireland to, for the first time, make a major investment in infrastructures in Northern Ireland. Over €580 million will be invested in Northern Ireland to facilitate access to the North-West of the island—that area of the Republic which is rather isolated, nearly enclaved between Northern Ireland and sea—by the creation of a dual carriageway road to Donegal and the Northern Ireland city of Derry. This, the Minister for Foreign Affairs, Dermot Ahern TD, stated to the Senate of Ireland, removes the single greatest impediment to the future development of the North West and the border counties.9 As for the future of the Good Friday Agreement, on 22 November 2007 the Houses of the Oireachtas (Parliament of Ireland) held the inaugural meeting of the Joint Committee on the Implementation of the Good Friday Agreement to consider the issues arising from the implementation of the Agreement. The Chairman of the Joint Committee, Noel Treacy TD, considered the meeting an unprecedented occasion in the history of the Houses of the Oireachtas in that we have now seen the first occasion, in which elected members to Westminster from Northern Ireland, can participate along with members of Oireachtas Eireann, where we have had seven different political parties and groupings from the island of Ireland represented here today.10

In 2007, Anglo–Irish relations were such that, for the first time, a Taoiseach was invited to speak to the joint Houses of Parliament at Westminster. Bernie Ahern TD stated: 7

See Department of Foreign Affairs Annual Report 2007, at 5; reproduced at p 243. The British–Irish Council, Communiqué, 16 July 2007, available at http://www1.britishirishcouncil.org. Note that the Council was established to consider issues touching on demographics, drugs, environment, health, language, transport and tourism. 9 See Remarks by the Minister for Foreign Affairs, Private Members—Seanad Éireann, 4 April 2007. 10 See ‘Good Friday Agreement Committee Meets for First Time’, Press Release, 22 November 2007, at www.oireachtas.ie. 8

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I stand before you as the elected leader of a young, modern and successful country. The gathering pace of change in Ireland since independence, and in this generation especially, has been extraordinary. We have seized our opportunities and honoured our heritage. Ireland is a small country, but today we are one of the most globalised and enterprising in the world. We have taken a place on the world stage in the United Nations and the European Union. We have built a country of ideas, energy and of confidence. And it is this self-confidence that allows us, still conscious of our history but not captured by it, to build a new and lasting partnership of common interest that fully respects identity and sovereignty, with you our nearest neighbour.

While acknowledging the ‘intertwined history of Ireland and Britain was—let us not deny the truth—in large measure indeed a story of division and conflict, of conquest, suppression and resistance’, he went on to note that: The relationship between Britain and Ireland has changed fundamentally for the better. It is and will remain vital for both our countries. The success we have seen—in re-imagining British–Irish relations and in establishing peace in Northern Ireland—is not the end, but only the beginning of what we can achieve together. Our mutual relations merit priority at the highest level. We must sustain our hard-won achievements on Northern Ireland. Remembering where we have come from, we must never, ever, take for granted the stability and the hope that are now taking root in Northern Ireland. We have built a remarkable foundation for a whole new level of co-operation between our two countries. For decades our relations have been filtered through the prism of conflict. Now, building on the peace and progress of the last decade, we can begin to pay greater attention to the wider partnership of common interests between our two islands.11

multilateral relations Beyond the European Union, the United Nations remains Ireland’s highest priority vis-à-vis international organisations. Where the UN is concerned, the Strategic Statement 2005–2007 provides that Ireland is to: 1. Uphold the United Nations Security Council’s primary responsibility for maintenance of international peace and security. 2. Support reform of the UN system, including reform of the Security Council and the revitalization of the UN General Assembly. 3. Contribute to the implementation of the United Nations Millennium Declaration and the achievement of the Millennium Development Goals. 4. Ensure implementation of the UN Security Council and EU sanctions, in conjunction with other Government Departments, the Central Bank and the Financial Services Authority of Ireland. 5. Coordinate with Department of Defence and Department of Justice, Equality and Law Reform to facilitate Ireland’s participation, where appropriate and on a case-by-case basis, in humanitarian and crisis management operations in military and civilian areas, including ESDP operations, subject to the requirements of UN authorization and Government and Dáil [Dáil Éireann: the House of Representatives] approval. 11 See Address by the Taoiseach, Mr Bertie Ahern, to the Joint Houses of Parliament, Westminster, 15 May 2007, available at: http://www.taoiseach.gov.ie.

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6. Consider and develop, through the Standing Interdepartmental Committee on peacekeeping, Ireland’s policy on peacekeeping.

Ireland demonstrated its support for the United Nations not only through its activities in New York and Geneva, but also materially, wherein it agreed that for 2007 onwards, its contributions to the UN budget would increase from 0.35% to 0.445%, which the Government noted was ‘in line with our increasing national income and represents an increase of nearly a third on our previous level of contribution’.12 In June 2007, the Government set out its Programme, in which it set a ‘Blueprint for Ireland’s Future 2007–2012’. The goal which the Government has established for itself with regard to the United Nations is ‘to establish Ireland as a model UN State’.13 Ireland has played a central role in issues of United Nations reform, with the Minister for Foreign Affairs, Dermot Ahern TD, having been appointed Special Envoy for UN Reform in April 2005. That commitment to UN reform was consolidated in 2007 with the appointment of Paul Kavanagh, the Permanent Representative of Ireland to the United Nations, as Co-Chair for System-wide Coherence in the UN General Assembly. Where the UN Security Council reform is concerned, Minister Ahern noted that ‘Ireland regrets the lack of progress to date on this critical issue’. In response to a Parliamentary Question, the Minister for Foreign Affairs set out the Irish position on the matter: Ireland’s view is that a more representative, efficient and transparent Security Council is an essential aspect of reforming the UN to meet the many global challenges which we face. Our approach is based on the following key principles: —The Security Council should be increased in size to reflect the realities of the twenty-first century. —That increase should be regionally balanced, including enhancing the role of Africa. —Any change should not lessen the capacity of smaller Member States, like Ireland, to continue to aspire to membership from time to time. —While we would ideally wish to see the complete removal of the veto, there should be no conferral of new veto powers. An expanded Security Council should accommodate member States that play a particularly significant role in the UN system, for instance financially, in peacekeeping or through their capacity for regional leadership.14

Disarmament and Non-Proliferation In September, in response to a Parliamentary Question, the Minister for Foreign Affairs wrote that ‘Ireland has consistently emphasised our deep-rooted commitment to the Non-Proliferation Treaty’. Minister Ahern made his written statement in regard to the US–India Nuclear Agreement of 2005, wherein he noted Ireland’s ‘concerns about the potential impact of the US–India deal on the global disarmament and 12 See Department of External Affairs, Agreed Programme for Government Progress Report, April 2007, 14; as reproduced at p 277. 13 See An Agreed Programme for Government, June 2007; available at: http://www.taoiseach.gov.ie. 14 Oral Answer to Question No 90, Parliamentary Question—Dept Details, 27 November 2007, Ref No 2933/07; available at: www.dfa.ie.

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non-proliferation regime’.15 The Minister also had the opportunity to state, in the context of Iran’s refusal to comply with a Security Council Resolution regarding its nuclear programme, that Ireland has ‘consistently expressed our strong views in opposition to the presence of any nuclear weapons, or other weapons of mass destruction, in the Middle East’.16 For more detail, see Fiona de Londras, ‘International Law in Ireland—2007’, in this edition of The Irish Yearbook of International Law. During the first half of 2007, Ireland chaired the New Agenda Coalition—a coalition of seven members which was officially launched in Dublin in 1998 and calls on nuclear States, both declared and undeclared, to ‘commit themselves unequivocally to the elimination of their respective nuclear weapons and nuclear weapons capability and to agree to start work immediately on the practical steps and negotiations required for its achievement’.17 At the Preparatory Committee for the NonProliferation Treaty (NPT) 2010 Review Conference, Paul Kavanagh, Permanent Representative of Ireland to the Conference on Disarmament, spoke on behalf of the New Agenda Coalition, saying: The achievement of nuclear disarmament and the strengthening of non-proliferation obligations under the NPT are both central to the Treaty’s success. Attempts to secure advances on non-proliferation, while at the same time diminishing the significance of nuclear disarmament, are therefore counterproductive. Disarmament and non-proliferation are mutually reinforcing processes. In the first instance, what does not exist cannot proliferate. But, crucially, it must also be evident that the genuine implementation of irreversible, verifiable and transparent nuclear weapon reductions, leading to their total elimination, can only serve to diminish the perceived utility of these weapons, and thus their desirability. The New Agenda Coalition has repeatedly emphasised that any presumption of the indefinite possession of nuclear weapons by the nuclear weapon-States is incompatible with the integrity and sustainability of the nuclear non-proliferation regime and with the broader goal of the maintenance of international peace and security.18

In 2006 the UN General Assembly requested the Secretary-General to seek the views of States on ‘the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms’. On that basis, Ireland provided its initial views in a letter to the UN Secretary-General in April, indicating Ireland’s commitment to ‘the early adoption of a comprehensive, legally-binding international instrument to cover all aspects of trade in conventional arms’. Believing that there was ‘a solid basis for the elaboration of an effective, comprehensive international instrument which will ensure that all transactions are subject to prior risk-assessment for illegality or probable negative impact’, Ireland proposed that the treaty ‘should cover 15 Written Answer to Question No 90, Parliamentary Question—Dept Details, 27 September 2007, Ref No 21318/07; available at: www.dfa.ie. 16 Oral Answer to Question No 90, Parliamentary Question—Dept Details, 23 October 2007, Ref No 25043/07; available at: www.dfa.ie. 17 See A Nuclear-Weapons-Free World: The Need for a New Agenda, Joint Declaration by the Ministers for Foreign Affairs of Brazil, Egypt, Ireland, Mexico, New Zealand, Slovenia, South Africa and Sweden, 9 June 1998, para 7. 18 See Statement by H E Paul Kavanagh, Permanent Representative of Ireland to the Conference on Disarmament in Geneva on Behalf of the New Agenda Coalition, First Session of the Preparatory Committee for the 2010 NPT Review Conference, Vienna, 1 May 2007; available at: www.un.org/NPT2010/ statements.html.

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all conventional arms and related technology, with language to cover future technical developments if appropriate. There should be an annex specifying at least the categories covered, with sufficient precision to prevent loopholes’. Ireland’s position is that the broad criteria to be applied in considering an application of a legal binding instrument on the matter should be international or regional obligations or commitments; UN Security Council embargoes; international human rights law; international humanitarian law; maintenance of international and regional peace, security and stability; the impact of the transaction on conflict and displacement of people, and the potential for use in terrorism or other criminal activity. The letter went on to say that: All transactions involving trade in armaments should be covered, including specifically import, export, re-export, transfer, transit, transhipment, technical assistance and transfer of technology, and brokering activities. . . . It should remain the competence of the individual State to take decisions on authorisation of transactions. There should be an information-sharing mechanism designed to ensure transparency in the implementation of the treaty, encompassing both approvals and denials. In order to promote mutual confidence and consistency in application, there should be realistic monitoring and enforcement mechanisms. Unduly cumbersome requirements should however be avoided.19

In November 2006, Norway initiated the ‘Oslo Process’, the Oslo Conference on Cluster Munitions, which functions on the basis of a series of conferences aimed at producing an international ban on cluster munitions. The issue of cluster munitions is of great importance to Irish foreign policy, as Ireland has played a lead role in the core group calling for ban of cluster munitions and, as a result, Dublin is to host the Diplomatic Conference for the Convention on Cluster Munitions, in May 2008, to finalise a text of a binding instrument. In November, at the 30th International Conference of the Red Cross and Red Crescent, the Permanent Representative of Ireland to the United Nations Office in Geneva, Dáithí O’Ceallaigh, stated: Ireland has repeatedly expressed its concern about the impact on civilian populations arising from the use of this weapon system. The characteristically high failure rate of submunitions creates an enduring explosive remnants of war (ERW) problem which, in a post-conflict environment, will by its nature have indiscriminate effects. In addition, the large volume of unguided submunitions delivered at each individual firing creates a wide footprint in the target area and gives rise to concern that the effects of this weapon system when used in or close to concentrations of civilians—even when operating as intended—cannot be limited to exclusively military objectives in accordance with the principle of distinction and the rule against indiscriminate attacks. Together with a growing number of States Ireland has been active in calling for the beginning of negotiations on a legally binding instrument on cluster munitions within the CCW, and elsewhere. A large number of States have subscribed to the Oslo declaration, by which they have committed themselves to concluding, by the end of 2008, a legally binding international instrument that will, inter alia, prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians. Ireland has been, and will continue 19 See Letter from Ambassador David Cooney, Permanent Representative to UN Secretary-General, Ban Ki Moon, dated 17 April 2007; available at disarmament.un.org/cab/ATT/Views_Member_States.html.

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to be, a strong supporter of the Oslo process and to this end will host a diplomatic conference for the adoption of such an instrument in Dublin next year.20

On 19 December, in a written response to a Parliamentary Question on cluster munitions, the Minister for Foreign Affairs stated that though ‘Ireland has never possessed these weapons, I am willing to examine the case for a ban in domestic law as a signal of Ireland’s leadership role in the area’. Minster Ahern also took the opportunity to reiterate the Programme for Government, which states that This Government will campaign for a complete ban on the use of cluster munitions. In the absence of a full ban we will seek agreement on an immediate freeze on the use of cluster munitions pending the establishment of effective international instruments to address humanitarian concerns regarding their use.21

Peacekeeping In 2006, Ireland had soldiers abroad in the following locations:22 MISSION

START DATE COMMITMENT

UN Truce Supervision Organisation (UNTSO) Middle East Dec 1958 UN United Nations Mission in Côte d’Ivoir (UNOCI) June 2004 UN Interim Force in Lebanon (UNIFIL). May 1978 UN Headquarters New York (UNNY). Nov 1978 UN Mission for the Referendum in Western Sahara (MINURSO). September 1991 UN Observer Mission in Congo (MONUC). June 2001 UN Mission Interim Administration in Kosove (UNMIK). July 1999 International Security Assistance Force (Afghanistan) Dec 2001 Kosovo Force (KFOR). August 1999 Stabilisation Force (SFOR) & EU Force (EUFOR) Location: Bosnia Herzegovina May 1997

14 2 167 2 3 12 4 7 276 40

Africa—Darfur In the Dáil Éireann (House of Representatives of Ireland) the Minister for Foreign Affairs, Dermot Ahern TD, noted that: Irish links with Africa go back for decades to the work of our missionaries and charitable organisations, and Ireland has a long and continuing history of engagement with Africa. We have good relationships with many African States, which appreciate the similarities in our historical experiences. Africa is the focus of our rapidly increasing Irish Aid programme, and seven of our nine ‘Programme Countries’ are in sub-Saharan Africa. Ireland also has a distinguished peacekeeping record in Africa.23 20 Statement of Ambassador Ó Ceallaigh, 30th International Conference of the Red Cross and Red Crescent, Commission B—Reaffirmation and Implementation of International Humanitarian Law, 28 November 2007; available at: www.dfa.ie. 21 Written Answer to Question No 225, Parliamentary Question—Dept Details, 19 December 2007, Ref No 36013/07; available at: www.dfa.ie. 22 See www.military.ie/overseas/missions_list.htm. 23 ‘Dáil Motion on Zimbabwe; Opening Statement by the Minister for Foreign Affairs, Dermot Ahern TD’, Press Release, 4 December 2007; available at: www.dfa.ie.

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Beyond bilateral relations with these seven Programme Countries for the purposes of development assistance (dealt with below under the heading ‘Overseas Development’), particular notice was taken in 2007 of the situation in Darfur. Minister Ahern declared the issue ‘of the highest priority for me personally’, as during his visit to Darfur in July 2006 he ‘saw the tragic situation on the ground first hand’.24 In March, the Minister noted that: The Government is frustrated by and deeply concerned at the unwillingness of some parties—including the Sudanese Government itself—to engage in a genuine way with the peace process. It is for this reason that on 5 March EU Foreign Ministers underlined our support for urgent consideration by the UN Security Council of further measures against those impeding the peace process. . . . While the full extent of the measures the Security Council will consider remains to be seen, the options under consideration may include the extension of the arms embargo on Darfur to the whole of Sudan, adding to the list of individuals subject to targeted sanctions and economic sanctions on companies involved in Sudan.25

In July, Minister Ahern welcomed UN Security Council Resolution 1769 and the authorisation of a hybrid African Union–UN peacekeeping mission to Darfur. In October this was supplemented by Security Council Resolution 1778 which created MINURCAT, the European Union-led peacekeeping mission for Chad and the Central African Republic. This peacekeeping mission is destined to deal with the effect of the crisis in Darfur, including its destabilising effect for Chad, and is authorised to protect civilians in danger, including refugees and internally displaced persons, by creating a secure environment so that humanitarian aid can be delivered safely. In November the Minister for Foreign Affairs visited Sudan and Chad, paving the way for Irish Defence Forces to participate in the mission. The overall command of the mission was assigned to Lieutenant General Pat Nash of the Irish Defence Forces and the Government has arranged to dispatch 400 Irish peacekeepers, to take place early in 2008. In December Minister Ahern announced an additional €2 million funding for humanitarian programmes across Chad, bringing Ireland’s contribution to ‘€6.75 million in 2007, a significant rise on €1.4 million funding in 2006’.26 The Middle East In response to a question regarding the Christian communities of the Middle East, Minister Ahern noted that Ireland, together with our EU partners, consistently champions the right to freedom of religion or belief in all relevant bilateral and multilateral contacts. We have always strongly supported resolution at the UN on the elimination of all forms of intolerance and of discrimination on the basis of religion or belief.

24 ‘Minister for Foreign Affairs Welcomes the UN Security Council’s Authorisation of a Peacekeeping Mission for Darfur’, Press Release, 1 July 2007; available at: www.dfa.ie. 25 ‘Minister Dermot Ahern urges UN action on Darfur’, Press Release, 26 March 2007; available at: www.dfa.ie. 26 ‘Minister Ahern announces €2 million in humanitarian funding for Chad’, Press Release, 27 December 2007; available at: www.dfa.ie.

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The Minister of Foreign Affairs went on to say that Ireland believes that constitutional and legislative systems should provide adequate and effective protection of these rights to all without distinction and that effective remedies should be made available where violations of such rights occur.27

In December, the Minister for Foreign Affairs made a statement on the issue of peace in the Middle East, noting that Ireland is a long-standing and active proponent of a negotiated two-State solution to the Israeli–Palestinian conflict, as the central element of a comprehensive settlement in the Middle East. The Government has argued consistently within the EU and internationally that the restoration of a credible peace process is an urgent necessity if further conflict in the region is to be avoided.28

The call for a credible peace process was echoed earlier by the Minister for European Affairs, Dick Roche TD, noting that the ‘time has come to move to negotiations on final status issues, and to give hope to those who have heard for so long that we wanted the establishment of a viable Palestinian State’.29 A grave humanitarian situation was seen to develop in the Gaza Strip in 2007, with the collapse of the National Unity Government and the military takeover by Hamas. This led to a re-channelling of foreign aid by the European Union through the Office of the President of the Palestinian Authority, and to a withholding of tax and customs revenues by the Israeli Government, which Minister Ahern stated ‘has been the main factor in the financial crisis in the Occupied Territories’. In an omnibus reply to parliamentary questions on the issue, the Minister for Foreign Affairs went on to state that All parties must meet their responsibilities in creating the conditions which will enable movement towards a political settlement. They must also respect their obligations under international law, notably the protection of the lives of the civilian population. The EU will continue to call on Israel to end all policies which threaten to undermine the viability of a two-State solution, notably the illegal expansion of settlements and construction of the separation barrier on occupied Palestinian land. We in Ireland have learned painfully that there are no security or military solutions to the problems of divided societies, or to conflicts on the sharing of territory. The Government will continue to support all those Israeli and Palestinian leaders with the courage to make the difficult compromises needed for the establishment of a lasting peace.30

At the International Donors Conference for the Palestinian State in December, the Minister of State for Overseas Development, Michael Kitt, pledged €40 million of additional assistance for reconstruction and development in Palestine, of which €10 million was forthcoming in 2007.31 Two days letter, Minister Ahern, after meeting 27 Written Answer to Question No 320, Parliamentary Question—Dept Details, 16 October 2007, Ref No 23873/07; available at: www.dfa.ie. 28 Written Answer to Question No 390, Parliamentary Question—Dept Details, 11 December 2007, Ref No 33221/07; available at: www.dfa.ie. 29 ‘Minister for Minister for European Affairs, Dick Roche, TD, calls for swift negotiations to establish a viable Palestinian State’, Press Release, 6 November 2007; available at: www.dfa.ie. 30 See Oral Answer to Question Nos 88, 89, 114, 157, 175, 292 and 293, Parliamentary Question—Dept Details, 3 July 2007, Ref Nos 18708/07, 18687/07, 18761/07, 18662/07, 18661/07, 19084/07, and 19085/07; available at: www.dfa.ie. 31 ‘Minister Kitt pledges additional assistance for Palestinians at Paris Donor Conference’, Press Release, 17 December 2007; available at: www.dfa.ie.

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with the Commissioner General of the United Nations Relief and Works Agency (UNRWA), announce a further immediate funding of €500,000 to the Agency, bringing overall financial support to UNRWA of €3.4 million in 2007.32 overseas development With regard to the United Nations Millennium Development Goals (MDGs), the Minister for Foreign Affairs declared to the UN General Assembly in October that Ireland is ‘spending more than 0.5% of our GNP on overseas aid and will reach 0.7% by 2012’.33 The OECD noted that Ireland was the most generous donor to overseas development per capita after Sweden, Luxembourg, Norway, The Netherlands and Denmark. Through Irish Aid, the Department of Foreign Affairs’ overseas development wing, aid has been focused on a number of priority countries, Malawi having become the ninth in 2007, after Ethiopia, which received €32 million in 2007; Lesotho (€9 million); Mozambique (€43 million); Tanzania; (€32 million); Timor Leste (€4.8 million); Uganda (€34 million); Vietnam (€19.4 million); and Zambia (€22 million).34 In 2007, Country Strategy Papers, which provide the framework for Irish Aid support and detail how this bilateral assistance is to be targeted, were established for Mozambique, Tanzania, Uganda, Vietnam, Zambia and South Africa. 2007 also saw Irish Aid designate the UN Development Programme, UNICEF, UN High Commissioner for Refugees (UNHCR) and the UN Population Fund as Priority Partners within the UN development system, and conclude Framework Agreements with UNICEF and UNHCR. Irish Aid core funding for such UN development programmes was €86 million. Multi-annual programme agreements (2007–2011) were established between Irish Aid and a number of Irish NGOs, including Concern (to the value of €148 million), Trócaire (€116 million), Goal (€100 million) and Christian Aid (€17 million).35 In addressing the need to move toward realising the MDGs, before the United Nations General Assembly, the Minister for Foreign Affairs noted that Perhaps the most damning fact is that one in seven people on this earth today do not get enough food to eat to have a healthy and productive life. That figure jumps to one in four in sub-Saharan Africa. To help meet this most basic of challenges, Ireland has established a Hunger Task Force to examine the root causes of this enduring source of misery, disease and death. It will help us contribute to the MDG goal of halving hunger and poverty.36

The Hunger Task Force, first mooted in the 2006 Irish Aid White Paper (of which, it should be noted, a summary version was distributed to every house in Ireland in Spring 2007), was established in April to provide an Irish contribution to international 32 ‘Ministersdiscuss Palestinian refugee situation with Commissioner General of UNRWA and confirm total Irish funding of €3.4 million this year’, Press Release, 19 December 2007; available at: www.dfa.ie. 33 See Address by the Minister for Foreign Affairs, Mr Dermot Ahern TD, at the 62nd Session of the United Nations General Assembly, 2 October 2007, reproduced at p 297. 34 See ‘Ireland firmly on course to meet 2012 ODA target, says Dermot Ahern, TD, Minster for Foreign Affairs’, Press Release, 2 January 2008. 35 See Department of Foreign Affairs Annual Report 2007, at 26; reproduced at p 243. 36 See Address by the Minister for Foreign Affairs, Mr Dermot Ahern TD, at the 62nd Session of the United Nations General Assembly, 2 October 2007, reproduced at p 297.

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efforts to reduce hunger and thus move towards achieving the first of the UN MDGs: halving poverty and hunger by 2015. The following are its terms of reference: —Carry out a macro level analysis of Ireland’s aid programme to examine and capture the extent to which it is addressing food security and hunger through its partnerships with development agencies and organisations (UN, NGO and others) and through its own bilateral programmes. —Make recommendations on where the opportunities and necessary resources exist for Ireland to strengthen its own programmes and partnerships to address the issue of hunger. —Suggest actions whereby Ireland can give practical leadership internationally on the attainment of the Millennium Development Goal on hunger. —In the context of Ireland’s own history of famine and its current success in relation to agriculture and food production, to examine new areas where the energies, expertise and experience available in Ireland across the public and private sectors and in research institutions can be appropriately and effectively harnessed to the international efforts to reduce hunger.37

The Task Force held two meetings in 2007 and is expected to produce its first report in 2008, with the Government committed to acting on its findings.38 The year 2007 also saw the recruitment of individuals for the Rapid Response Corps, a roster of experts in humanitarian relief who can be deployed at short notice to assist in emergencies, which in fact transpired in 2007, when individuals were deployed to Somalia, Sri Lanka, and Mozambique. The Corps is part of a larger Rapid Response Initiative which also saw the first Irish Aid humanitarian relief supplies being airlifted to the United Nations Humanitarian Response Depot in Brindisi, Italy, and material from there later dispatched to Peru where an earthquake had struck. Ireland also has such a depot at the Defence Forces’ Curragh Camp, County Kildare.39 the diaspora and consular services Addressing a conference at Dublin Castle on Ireland’s Attiude to the Diaspora, the Minister for Foreign Affairs noted that ‘maintaining and enhancing our links with our communities abroad has been a particular priority of the Government’, with the ‘needs of the Irish community in Britain, in particular . . . those at risk of social exclusion remain[ing] a key priority’.40 In February, the British Government decided to exempt Irish prisoners from automatic deportation from the United Kingdom upon the completion of their sentences but for exceptional circumstances. More than 85 per cent of Irish prisoners abroad are incarcerated in the United Kingdom. The British announcement was welcomed by Minister Ahern, who stated that this ‘will come as a great relief to individual prisoners and their families’, as many Irish prisoners are established in the United Kingdom, having married British citizens.41 37

See www.irishaid.gov.ie. See An Agreed Programme for Government, June 2007; available at: www.taoiseach.gov.ie. 39 See ‘Minister Ahern orders the first airlifts of Irish humanitarian relief supplies form Irish Aid stockpiles at UN Base in Brindisi’, Pres Release, 9 July 2007; available at: www.dfa.ie. 40 ‘Minister Ahern calls for a national debate on Ireland’s Attitude to its Diaspora’, Pres Release, 3 April 2007; available at: www.dfa.ie. 41 ‘Minister for Foreign Affairs, Mr Dermot Ahern, TD welcomes announcement on change of British Government policy on Irish prisoners’, Press Release, 19 February 2007; available at: www.dfa.ie. 38

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The issues of Irish prisoners abroad was of some importance in 2007, as the Department of Foreign Affairs had commissioned an independent report on the issue. The Minister for Foreign Affairs, in receiving the Report from Chris Flood, noted that: One important and demanding aspect of our consular service is the assistance we provide to Irish citizens incarcerated abroad, very often long distances from home and the network of family and friends. I am very conscious of the problems of isolation, communication and cultural difficulties which many Irish prisoners experience abroad. For their families back in Ireland, often elderly parents, the experience of having their loved ones detained in distant locations can be particularly distressing, and visits to the incarcerated family member can present considerable logistical challenges. Of course, if Irish people commit crimes abroad, they must face the consequences of their actions before the local criminal justice system. However, we have a responsibility to ensure that our people are not discriminated against as foreign prisoners, and that any concerns they may have regarding their safety or treatment, are brought to the attention of the relevant authorities within the local prison system or the civilian authorities where necessary.42

Mr Flood, in his ‘Report on Irish Prisoners Abroad’ (reproduced in the Document Section of this volume of The Irish Yearbook of International Law), noted that Ireland compared well with other European countries, but that an upgrade of efforts could take place in an number of areas, including the establishment of a new unit within the Department of Foreign Affairs dedicated to the needs of prisoners; the establishment of a register of Irish prisoners abroad; that all Irish prisoners receive annual consular visits; that Embassies ensure that consular staff receive automatic notification regarding people arriving at prison facilities; and in ‘view of the disproportionate number of deaths and self-harm incidents among Irish in custody, Embassies should assist bereaved families and advise on legal representation’.43 Finally, in January, the Department of Foreign Affairs opened a Consular Crisis Centre to respond to Irish citizens caught in emergency situations overseas. In conjunction with the opening of the Centre was the announcement of the establishment of a specialised consular emergency team, the Emergency Citizens Assistance Team, meant to, ‘on short notice . . . fly into an affected area and assist the local Embassy or Consulate in providing assistance to Irish citizens’. In making the announcement, the Minister for Foreign Affairs, Dermot Ahern TD, took the opportunity to state that ‘it may surprise many people that over half of all those employed by the Department of Foreign Affairs in Ireland are engaged in the delivery of consular services’.44

42 ‘Minister for Foreign Affairs, Mr Dermot Ahern, TD welcomes the Report on Irish Prisoners Abroad by Mr Chris Flood and announces grant of €218,000 to the Irish Commission for Prisoners Overseas’, Press Release, 13 July 2007. 43 Chris Flood, ‘Report on Irish Prisoners Abroad’ (2007); reproduced at p 313. 44 Speech by the Minister for Foreign Affairs, Mr Dermot Ahern TD, at the official opening of the Consular Crisis Centre at the Department of Foreign Affairs, Tuesday, 9 January, 2007, Press Release, 9 January, 2007.

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Ireland and the European Union—2007

Catherine Donnelly trinity college, dublin

The year under review was one in which the EU celebrated its 50th anniversary, noted Irish chef and TV personality, Darina Allen, had her porter cake and her Auntie Florence’s orange cake chosen as Ireland’s official EU birthday cakes,1 and young Irish people indicated that they had more confidence than other young EU citizens in the EU’s ability to protect citizens’ rights and improve Europe’s economic situation.2 It was also the year in which the EU abandoned its project of constitutionalisation,3 and the European Council agreed not to proceed with the Treaty establishing a Constitution for Europe. Instead, in June 2007, a mandate was issued for a new treaty, the Reform Treaty, subsequently re-named the Lisbon Treaty,4 which was signed by EU Heads of State on 13 December 2007. The year ended with a focus on Ireland’s central role in the future of the EU, as the only Member State to conduct a popular referendum on the ratification of the Lisbon Treaty. Elsewhere, Ireland’s traditional emphasis on multilateralism, peacekeeping and neutrality in international relations was to the fore in 2007, and the Dáil approved Irish participation in the Nordic Battlegroup. In the Area of Freedom, Security and Justice, the European Arrest Warrant and the Qualification Directive resulted in important judgments by Irish courts; while fittingly, perhaps, in this year of scrutinising deeper integration in the EU generally, the European Communities Act 1972 was amended to facilitate easier incorporation of EC law. Also in the context of EC law, EU citizenship, environmental law, public procurement, State aid, compulsory insurance, and competition law, featured highly for Irish interests. the lisbon treaty According to the Lisbon Treaty, the Treaty on European Union (‘the TEU’) and the Treaty establishing the European Community (‘the EC Treaty’) would remain separate; however, the EC Treaty would be re-named the Treaty on the Functioning of the European Union (‘the TFEU’),5 and the word ‘Community’ throughout both treaties would be replaced by ‘Union’.6 The Lisbon Treaty envisaged that the TEU would be 1 J Smyth, ‘Allen Cakes to Mark EU’s Birthday’, Irish Times (Dublin, 14 March 2007), http://www. ireland.com/newspaper/world/2007/0314/1173789818210.html, accessed 18 March 2008. 2 E Edwards, ‘Irish cite language problems for EU Jobs’, Irish Times (Dublin, 3 June 2007), http://www.ireland.com/newspaper/breaking/2007/0603/breaking24.html, accessed 18 March 2008. 3 Brussels European Council, 21/22 June 2007, Presidency Conclusions, Annex I, para 1. 4 Dáil Debates, 24 October 2007, vol 640, coll 514–15 (An Taoiseach). 5 Lisbon Treaty, Art 1(1). 6 Ibid, Art 1(2).

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divided into six titles.7 Article 6 of the revised TEU would contain a cross-reference to the Charter of Fundamental Rights, giving it ‘the same legal value as the Treaties’ and indicating that its scope of application would be as indicated in Title VII of the Charter, while Declaration One of the Final Act of the Lisbon Intergovernmental Conference states that the Charter does not extend the competences of the Union. Ireland had the option of joining a Protocol qualifying the application of the Charter,8 adopted for the UK and Poland,9 but chose not to do so, and indeed, had supported incorporation of the Charter into the Treaty.10 Meanwhile, revised Article 6 of the TEU provides for Union accession to the ECHR.11 The second title of the revised TEU contains provisions on democratic principles, including provisions aimed at strengthening the role of national parliaments in the policing of subsidiarity.12 Pursuant to this measure, the Oireachtas (National Parliament) would have eight weeks to examine draft legislative texts and to give a reasoned opinion on compliance with subsidiarity. As for the third title on institutions, the overall institutional scheme presented by the Treaty establishing a Constitution for Europe was not amended, a position advocated by the Irish Government.13 The European Council would be considered as a Union institution,14 with a duty to ‘provide the Union with the necessary impetus for its development and [to] define the general political directions and priorities thereof’.15 There would be a new President of the European Council, with a once renewable term of two and a half years,16 charged with such tasks as chairing and driving forward the work of the European Council, and facilitating cohesion and consensus within the European Council.17 The definition of ‘qualified majority’ voting in the Council, under the new ‘double majority’ system, would be phased in between 2014 and 2017, and would entail passing legislation in the Council if ‘at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union’ support the legislation.18 After 2014, Ireland, like other Member States, would no longer have a continuous entitlement to have a Commissioner in the Commission, and the Commission would instead consist of a number of members—including the President and the new High Representative of the Union for Foreign Affairs and Security Policy—rotated on a strictly equal basis, corresponding to two-thirds of the number of Member States.19

7 Ibid, Art 1(2)–(11) (common provisions); Art 1(12) (democratic principles); Art 1(13)–(21) (institutions); Art 1(22) (enhanced co-operation); Art 1(23)–(24) (external action); Art 1(25)–(52) (common foreign and security policy); Art 1(53)–(63) (final provisions). 8 Dáil Debates, 3 July 2007, vol 637, col 1222. 9 See Lisbon Treaty, Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom. 10 Dáil Debates, 10 October 2007, vol 639, col 490 (An Taoiseach); 24 October 2007, vol 640, col 495 (An Taoiseach). 11 Lisbon Treaty, Art 1(8). 12 Ibid, Art 1(12). 13 Dáil Debates, 3 July 2007, vol 637, col 1200. 14 Lisbon Treaty, Art 1(14) (revised Art 9(1) TEU). 15 Ibid, Art 1(16) (new Art 9B(1) TEU). 16 Ibid, Art 1(16) (new Art 9B(5) TEU). 17 Ibid, Art 1(16) (new Art 9B(6) TEU). 18 Ibid, Art 1(17) (new Art 9C(4) TEU). 19 Ibid, Art 1(18) (new Art 9D(5) TEU).

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The High Representative would conduct the Union’s common foreign and security policy, as mandated by the Council.20 In the Area of Freedom, Security and Justice (‘the AFSJ’), Ireland joined the optout negotiated by the United Kingdom in respect of police and judicial co-operation in criminal matters,21 which would now be subject to the ‘ordinary legislative procedure’.22 Ireland’s decision was taken on the basis that ‘as a small common law country’ involved in EU negotiations, it would have been at ‘a disadvantage and isolated in voting terms’.23 Concerns were also raised about ‘future changes’ to the European Arrest Warrant (‘the EAW’) which ‘could have an adverse effect’ on Irish citizens.4 However, differently from the UK, by Declaration 56 to the Final Act of the Conference, Ireland declared its firm intention to participate ‘to the maximum extent it deems possible’ in adoption of AFSJ measures, and to participate ‘to the maximum possible extent’ in the field of police co-operation. Ireland also declared that it would review the application to it of the relevant Protocol within three years of the entry into force of the Lisbon Treaty. One of the new competences adopted for inclusion in the TFEU, combating climate change, was adopted at the initiative of Ireland.25 Finally, in the area of common foreign and security policy, provisions on framing of a ‘common defence’ would be strengthened;26 while ‘permanent structured co-operation’ between willing Member States would be envisaged.27 However, in accordance with ‘one of Ireland’s red lines’,28 common foreign and security policy would remain subject to definition and implementation by the European Council and the Council acting unanimously, except where otherwise provided by the Treaties;29 while a common defence could be adopted only by the European Council acting unanimously.30 Any common defence would be recommended to Member States for adoption in accordance with their own constitutional requirements.31 common foreign and security policy In the area of European Security and Defence Policy, in April, Dáil Éireann (House of Deputies) approved the Memorandum of Understanding concerning the Principles for the Establishment and Operation of a Multinational Battlegroup to be made available to the European Union (‘the Establishment Memorandum’). It may be recalled, in Headline Goal 2010,32 that the EU set itself the objective of being able ‘to respond 20

Ibid, Art 1(19), (new Art 9E TEU). Protocol on the position of the UK and Ireland on policies in respect of the area of freedom, security and justice. 22 Ibid, Art 2(67)–(68) (new Arts 69A, 69F TFEU). 23 Dáil Debates, 24 October 2007, vol 640, col 516 (An Taoiseach). 24 Dáil Debates, 24 October 2007, vol 640, col 536. 25 Dáil Debates, 24 October 2007, vol 640, coll 516–17 (An Taoiseach); Lisbon Treaty, Art 2(143) (amended Art 174 TFEU). 26 Lisbon Treaty, Art 1(27) (amended Art 11, TEU); and Art 1(49) (new Art 28A to replace Art 17 TEU). 27 Ibid, Art 1(49)(c) (Art 28A(6) TEU). 28 Dáil Debates, 24 October 2007, vol 640, col 535. 29 Lisbon Treaty, Art 1(27) (amended Art 11 TEU). 30 Ibid, Art 1(49)(b) (new Art 28A(2) TEU). 31 Ibid. 32 Approved by General Affairs and External Relations Council on 17 May 2004 and endorsed by the European Council of 17 and 18 June 2004. 21

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with rapid and decisive action applying a fully coherent approach to the whole spectrum of crisis management operations covered by the Treaty on the European Union’.33 This includes the capability to deploy ‘Battlegroups’ at ‘high readiness’.34 Section 3 of the Defence (Amendment) Act 2006 facilitates deployment (on the authority of the Government) of Irish armed forces for participation in overseas activities, other than service with UN Forces, where such activities entail, for example, humanitarian tasks in response to an actual or potential disaster or emergency.35 While not solely related to possible participation in EU Battlegroups, the provisions in the 2006 Act were of relevance in facilitating Irish engagement in EU Battlegroups; and after the Act was passed, discussions ensued between Ireland and Sweden regarding the possibility of Ireland participating in the Nordic Battlegroup at the beginning of 2008.36 During the Dáil Debate on the Establishment Memorandum, the Minister for Defence stressed that the Battlegroups are not ‘linked to the concept of a possible EU common defence’.37 Rather, as indicated by section 538 of the Establishment Memorandum, the purpose is to ‘enable the Union to be more effective in contributing to international peace and security in support of the United Nations by putting in place a rapid response capability.’39 Between 80 and 100 Irish Defence Forces personnel will be involved where the Battlegroup is mobilised in an operation, while the number of personnel involved operationally during the stand-by period will be approximately 10 to 15.40 The Minister also stated that any deployment of the Irish element of the Battlegroup on an operational mission would be subject to the requirements of the ‘Triple Lock’,41 namely: (a) the authorisation of the operation by the Security Council or the General Assembly of the UN; (b) the agreement of the Irish Government; and (c) the approval of Dáil Éireann.42 As an agreement between the participants comprising the Nordic Battlegroup, namely Sweden, Norway, Finland and Estonia, the Establishment Memorandum sets out principles in relation to the operation, deployment and management of the Battlegroup. Important provisions include section 6, which specifically recognises the sovereignty of each participant in terms of any decision to deploy its forces being in accordance with its own national law. This means that any decision to participate in an actual Battlegroup operation, irrespective of Ireland joining the Establishment

33 Approved by General Affairs and External Relations Council on 17 May 2004 and endorsed by the European Council of 17 and 18 June 2004, para 2. 34 Ibid, para 4. 35 Section 3(f). 36 Dáil Debates, 5 April 2007, vol 635, col 1040. 37 Ibid. 38 Ibid, col 1041 39 Ibid, col 1040. 40 Different figures were suggested by the Minister for Defence at different stages in the Dáil Debates. On 1 February 2007 (see vol 630, coll 1335–1336), the Minister suggested a standby number of 10. On 5 April 2007 (vol 635, col 1041), he suggested 15. 41 Dáil Debates, 5 April 2007, vol 635, 1041. 42 National Declaration by Ireland, Seville, June 2002, para 6.

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Memorandum, is subject to a further decision in accordance with the provisions of the Defence (Amendment) Act 2006.43 Moreover, according to sections 6 and 7 of the Establishment Memorandum, the Battlegroup will only be deployed following the appropriate EU decision-making process; and each participant retains the right to deploy, or not to deploy, its forces irrespective of an EU decision to launch a Battlegroup operation.44 area of freedom, security and justice Police and Judicial Co-operation in Criminal Matters: The European Arrest Warrant In the year in which Ireland adopted an opt-out to the AFSJ amid concerns about future amendments to the EAW, of particular note was the large number of challenges in Irish courts to the EAW. As is well-known, the EAW was introduced by a Council Framework Decision in 2002 (‘the Framework Decision’),45 and implemented in Ireland by the European Arrest Warrant Act 2003 (‘the 2003 Act’). The EAW replaced traditional extradition procedures with ‘a new simplified system of surrender’.46 Overall in 2007, the Irish courts placed strong emphasis on ‘the corner stone of the entire system . . . the principle of mutual recognition of the judicial decisions and mutual trust of the legal systems of the other Member States’.47 The 2007 case law also clarified a number of specific aspects of the operation of the EAW. First, it was determined that the 2003 Act is constitutional, at least in the respects that it had received the prior approval of the Oireachtas in accordance with Article 29.4.6 of the Constitution, and that section 16(4), which requires that an individual be committed to prison pending extradition, does not constitute an unconstitutional interference with the right to liberty. These constitutional challenges were addressed in the Iqbal case.48 Iqbal based his first challenge on the fact that the final version of the Framework Decision—dated 13 June 2002, agreed by the Irish Government and implemented by the 2003 Act—differs in certain respects from the version which both Houses of the Oireachtas approved on 11 December 2001. For example, in December 2001, the Oireachtas approved in the list of offences for which double criminality is presumed, the offence of ‘counterfeiting the euro’; however, the June 2002 Framework Decision text listed instead ‘counterfeiting currency, including the euro’.49 Given that the Oireachtas retained the capacity to decide before giving effect to the 2003 Act that what was adopted on 13 June 2002 did not correlate with what had been previously approved, Iqbal had not met the ‘exceptionally high threshold’ of demonstrating ‘a clear, conscious and deliberate disregard of a constitutional obligation’ by the Oireachtas. On Iqbal’s second constitutional challenge relating to section 16(4), the Court was satisfied that it was the ‘plain and ordinary meaning’ of section 16(4) to 43

Dáil Debates, 5 April 2007, vol 635, col 1041. Ibid, col 1042. 45 Council Framework Decision 2002/584/JHA of June 13, 2002 on the European arrest warrant and surrender procedures between Member States. 46 Ibid, Preamble, Recital 5. 47 MJELR v Stapleton [2007] IESC 30. 48 MJELR v Iqbal [2007] IEHC 133; see also MJELR v Sulej [2007] IEHC 132. 49 Framework Decision, Art 2.2. 44

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exclude the possibility of bail once the order for surrender had been made, and that this was a proportionate deprivation of liberty to ensure that the respondent would be available for surrender at the appropriate time, thereby enabling the State to comply with its obligations under the Framework Decision. Secondly, Part II of the Extradition Act 1965 (‘the 1965 Act’), which formerly governed extradition to EU Member States, cannot be interpreted, even in light of the duty of conforming interpretation established in the Pupino case,50 to give effect to the Framework Decision. In the Abimbola case,51 a question arose regarding an extradition request made by Germany pursuant to the 1965 Act, where statutory instruments had revoked the application of Part II of the 1965 Act to EU Member States,52 including Germany. In the Supreme Court, Fennelly J held that Abimbola could not be lawfully extradited pursuant to the 1965 Act request for two reasons. First, section 8(7) of the 1965 Act provided, in ‘plain and clear’ language, that if Part II of the 1965 Act was revoked in relation to a country, it would cease to apply to that country; this included Germany. Secondly, Article 32 of the Framework Decision, the first sentence of which states that ‘[e]xtradition requests received before 1 January 2004 will continue to be governed by existing instruments relating to extradition’, could not be read to require extradition requests received before the coming into force of the 2003 Act to be processed under pre-existing legislation. Given that Article 34(2)(b) of the TEU indicates that Framework Decisions ‘shall not entail direct effect’, Article 32 could have legal effect only ‘by means of the interpretation of national law’. Fennelly J noted that, as ‘independent, autonomous national legal provisions’, the 1965 Act did not fall to be construed in light of the Framework Decision. With respect, this seems debatable since the obligation of conforming interpretation is not limited in this way and applies to ‘national law’ generally.53 In any event, however, the Pupino obligation of conforming interpretation could not, as Fennelly J noted, result in ‘an interpretation of national law contra legem’.54 Given the clarity of section 8(7), it was impossible to interpret the section as authorising existing requests to be processed pursuant to Part II after the revocation order without doing violence to its language, a conclusion reinforced by the fact that any provision authorising detention must be ‘clear, plain and unambiguous’. Overall therefore, Article 32 of the Framework Decision did ‘no more than recognise that existing laws will, depending on national law legal provisions, continue to apply to existing requests’. Thirdly, certain of the burdens placed on respondents challenging surrender pursuant to the 2003 Act were clarified during 2007: —Where a court is satisfied that an order for surrender should be made, the burden for an applicant seeking to challenge surrender is to provide ‘cogent grounds’ for refusing to make the order.55 50 51

Case C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5283, para 43. Attorney-General v Anthony Abimbola and Anthony Abimbola v Cloverhill Prison and Ors [2007] IESC

56. 52 See s 8, 1965 Act; Extradition Act (Application of Part II) Order 2000, SI 474/2000, as amended by the Extradition Act 1965 (Application of Part II) (Amendment) (No 2) Order 2004, SI 275/2004. 53 Pupino, above n 50, para 43. See also Case C-106/89 Marleasing SA v La Comercial Internacionale de Alimentacion SA [1990] ECR I-4135, para 8. 54 Abimbola, above n 51, citing Pupino, above n 50, para 47. 55 MJELR v Brennen [2007] IESC 21; [2007] 2 ILRM 241, 247.

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—Rebutting the presumptions created by the 2003 Act requires ‘something stronger than assertion, surmise or speculation’, and what appears to be required is ‘evidence which puts the matter beyond any uncertainty’.56 —The test in section 37(1)(c) of the 2003 Act requiring ‘reasonable grounds’ for believing that if surrendered the respondent will be subjected to torture or ill-treatment, requires the respondent to establish the facts on which he or she relies.57 The Court must consider whether those facts, duly established to a level of probability rather than possibility, amount to reasonable grounds for believing that the respondent will, if surrendered, be subjected to torture, ill-treatment or other forms of degrading or inhuman treatment or punishment. It is also necessary for the court to take into account the ‘well accepted mutual trust and confidence between Member States’.58 For example, in Raustys, although reports were presented regarding assaults in Lithuania by the police, such was not evidence that Lithuania was not in compliance with its obligations under Article 6 TEU. As indicated in paragraph 10 of its Recital, the Framework Decision should be suspended only ‘in the event of a serious and persistent breach by one of the Member States of the principle set out in Article 6(1) of the Treaty’.59 Fourthly, challenges to surrender asserting unfairness on account of disparities in proceedings and sentences between issuing Member States and Ireland will be extremely difficult to make: the respondent ‘has a very heavy onus to discharge, and it will be only in a very exceptional case that surrender will be refused on a fair trial ground’.60 As the Supreme Court clarified in the Brennen case, while the process for surrender will be scrutinised for constitutional conformity, and in particular due process, an order will not be refused pursuant to section 37(2) of the 2003 Act on the basis that ‘the manner in which a trial in the requesting State including the manner in which a penal sanction is imposed, does not conform to the exigencies of our Constitution as if such a trial or sentence were to take place in this country’.61 Rather, while the court has jurisdiction to ‘consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights’,62 Murray CJ held that the onus is on the respondent to demonstrate ‘a clearly established and fundamental defect in the system of justice of [the] requesting State where a refusal of an application for surrender may be necessary to protect such rights’.63 Fifthly, delay on the part of the issuing Member State was addressed in three Supreme Court cases in 2007: Stapleton,64 Gardener,65 and SR.66 In the Stapleton case, Fennelly J in the Supreme Court stressed the principles of ‘mutual recognition’ and 56 MJELR v Stuina [2007] IEHC 220. See also MJELR v Sulej [2007] IEHC 132; MJELR v Pavlovs [2007] IEHC 363; MJELR v Sakalauskis [2007] IEHC 364; MJELR v Balciunas [2007] IEHC 34; [2007] 1 ILRM 516. 57 MJELR v Raustys [2007] IEHC 370. 58 Ibid. 59 See also MJELR v Racz [2007] IEHC 158; MJELR v Busjeva [2007] IEHC 341. 60 MEJLR v JR [2007] IEHC 25; see also MJELR v Tobin [2007] IEHC 15. 61 [2007] 2 IRLM 241, 251. 62 Ibid, 252. 63 Ibid. 64 Above n 47. 65 MJELR v Gardener [2007] IESC 40; see also MJELR v Brady [2007] IEHC 209; Racz (above n 59); MJELR v McG [2007] IEHC 47. 66 MJELR v SR [2007] IESC 54.

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‘mutual confidence’; noted that there was no entitlement in Ireland to have a trial prohibited on the ground of delay without more; and concluded that any differences between Ireland and the UK, the issuing State, did not amount to ‘a clearly established and fundamental defect in the system of justice of [the] requesting State’, in accordance with the principle established in Brennen. Fennelly J made two further points specific to delay, which were subsequently highlighted in the Gardener case: first, there was a remedy available in the issuing Member State regarding the delay, and it was demonstrably more efficient and convenient to have the matters debated there;67 and, secondly, Stapleton was ‘himself the principal culprit’ for the delay, having, for a large part of the delay, resided in Spain, which did not have an extradition arrangement with the UK.68 Sixthly, if surrender is challenged on the grounds of ill-health of the respondent, the risk to the health of the individual directly related to his or her surrender must be balanced against the State’s obligations under the Framework Decision. In the SR case,69 it was held that the question for the Supreme Court was whether the fact that psychological or physical stresses attending SR’s surrender could precipitate acute coronary disease, which should if at all possible be avoided, outweighed the interest of the requesting authorities in having the alleged offences prosecuted. Finnegan J was satisfied that the respondent would receive ‘appropriate health care’ in the UK, and that while stress might precipitate acute coronary disease, in any event, pursuant to Article 40.3.2º of the Constitution, to prohibit a trial ‘something much more definite by way of threat to life would be required’. Seventh, issuing States need not adhere ‘strictly and slavishly’ to the precise terms of the Framework Decision and the 2003 Act, and minor deviances in form—provided they do not create ‘confusion or prejudice’ to the respondent or undermine the respondent’s fundamental rights, ‘thereby creating a real risk of injustice’—will not invalidate an EAW.70 Eighth, the question of whether a Minister for Justice of an issuing Member State can properly be considered as a judicial authority for the purposes of the Framework Decision is a question for the Minister for Foreign Affairs before designating the Member State, and is not for a respondent to raise on an application.71 Ninth and lastly, a number of specific aspects of the drafting of the 2003 Act were examined in 2007: —Section 10(d): The term ‘sentence of . . . detention’ in section 10(d) and ‘detention order’ in the Framework Decision are not confined to a ‘detention order imposed as a form of sentence’, and an EAW could be used to ensure surrender to continue detention pursuant to a ‘hospital order’ and restrictions order issued against the respondent following his conviction.72 —Section 10(d): This section states that an EAW can be issued in respect of a person who ‘fled from the issuing State’ before he or she commenced serving a sentence or completed serving a sentence. A person will not be deemed to have ‘fled’, however, 67 68 69 70 71 72

MJELR v Gardener [2007] IESC 40; . See also JR, above n 60 (respondent chose not to attend his own trial). Above n 66. See also Brady, above n 65. Tobin above n 60. See also SR, above n 66; MJELR v Desjatnikovs [2007] IEHC 332. MJELR v Ferenca [2007] IEHC 199. MJELR v M [2007] IEHC 443.

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where he or she left pursuant to a procedure permitted by the laws of the issuing State.73 —Section 16(7): This section—which requires release of a person to whom a surrender order applies, if the person is not surrendered within 10 days of the expiration of 15 days from the date of the order, unless the person is making a complaint pursuant to Article 40.4.2º of the Constitution74—must be read according to the principle of expressio unios exclusio alterius.75 Consequently, where an appeal against a surrender order is pending, as opposed to Article 40.4.2º proceedings, the person must be released after lapse of the relevant time.76 —Section 22: In Gotszlik, at issue were two EAWs issued by the same judicial authority, each in respect of a separate offence for which Gotszlik’s surrender was sought.77 Section 22 provides that surrender shall be refused where the person will be proceeded against, sentenced or detained for the purpose of executing a sentence or detention order in respect of an offence ‘other’ than that specified in the EAW.78 Given that there were two EAWs here, section 22 was engaged; and in respect of each EAW, Gotszlik would, indeed, be proceeded against for an offence ‘other’ than that in the EAW. Peart J noted that section 22 was ‘clear and unambiguous’, and although the interpretation created a ‘lacuna or an anomaly’, it could not be interpreted contra legem. —Section 38: This section provides that a person should not be surrendered unless the offence corresponds to an offence under the law of the State, is listed in Article 2 of the Framework Decision, ‘or is an offence that consists of conduct specified in that paragraph’. However, pursuant to this provision, surrender should not be refused for conduct coming ‘under a broad concept of fraud, even though the precise activity would not be covered by a particular offence in this country’ and is not listed in Article 2.79 Visas, Asylum, and Immigration: The Qualification Directive The H case,80 decided in July, involved important consideration of Council Directive 2004/83/EC81 (‘the Qualification Directive’) and its implementing regulations, the European Communities (Eligibility for Protection) Regulations 200682 (‘the Qualification Regulations’). The applicants had been refused a declaration of refugee status and humanitarian leave to remain in the State; and were subject to deportation orders notified prior to 10 October 2006. The question for the Court was whether the two applicants could apply for subsidiary protection, even though they fell outside the 73

MJELR Tobin, above n 60. Section 16(3), (5), (6) and (7). 75 In the Matter of Art 40.4 of the Constitution and of the Habeas Corpus Act 1782: Micheál Ó Fallúin v Governor of Cloverhill Prison and MJELR [2007] IESC 20; [2007] 2 ILRM 321, para 25. 76 Ibid. 77 [2007] IEHC 369. 78 Section 22(1) and (2)(b). 79 Ferenca, above n 71. 80 H v MJELR [2007] IEHC 277; see also appeal dismissed [2006] IESC 55. 81 Council Dir (EC) 2004/83 of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L304/12. 82 SI 518/2006. 74

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scope of the Qualification Regulations, since they had received deportation orders prior to 10 October 2006, the date on which the Regulations took effect. The first issue before the Court was whether the Qualification Directive created a ‘right’ to apply for subsidiary protection, or whether it merely established minimum standards to be applied under existing procedures. After considering the title, the text, recitals 6 and 25, and the travaux preparatoires, Feeney J concluded that, although not ‘creating a new system of protection per se’, the Qualification Directive had ‘the express purpose of harmonising existing concepts and methods of subsidiary protection within the EU’ and may ‘impose certain limited new protection obligations on individual Member States where existing practices within certain Member States were wider or more extensive than in other Member States.’ Thus, after the transposition of the Qualification Directive, persons who fail to qualify as a ‘refugee’ within the State, have an automatic right to apply for subsidiary protection. A second issue was whether the Qualification Directive involved a different assessment from that already undertaken when considering applications for humanitarian leave to remain pursuant to section 3 of the Immigration Act 1999 and section 5 of the Refugee Act 1996 (‘the 1996 Act’). Feeney J noted a number of differences between the humanitarian leave assessment and the requirements of the Qualification Directive. First, section 5(1) of the 1996 Act limits the protection of non-refoulement to situations where life or freedom are threatened on account of an applicant’s race, religion, nationality, membership of a particular social group or political opinion; and by section 5(2), a ‘threat to freedom’ entails likelihood of being subject to serious assault. None of the limitations of section 5(1) is present in Article 15, while Article 15(c) refers not to ‘serious assault’ but to ‘a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. Secondly, section 4(1) of the Criminal Justice (United Nations Convention Against Torture) Act 2000 (‘the 2000 Act’), bolstered by Article 3 of the ECHR and section 3 of the ECHR Act 2003, prohibits return if there are substantial grounds for believing the person would be subject to torture on return. However, section 186 of the Criminal Justice Act 2006 limits the definition of ‘torture’ in the 2000 Act to acts or omissions done or made or at the instigation of, or with the consent or acquiescence of a public official. That limitation does not apply in Article 15 of the Directive. Thirdly, Feeney J concluded that the Qualification Directive did not purport to back-date the application of standards for qualification for subsidiary protection to decisions. This meant that the applicants in this case did not have an automatic right to apply for subsidiary protection. The applicants could, however, apply pursuant to regulation 4(2), which granted the Minister discretion to consider applications from individuals other than persons automatically entitled to apply for subsidiary protection. That discretion must be exercised in accordance with the requirements of constitutional justice and would require the Minister to consider on a case-by-case basis whether or not a person had identified altered facts or circumstances from those which pertained at the time that the Minister determined to make the deportation order.

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european community treaty European Communities Act 2007 One of the most important developments of 2007 was the amendment made to the European Communities Act 1972 (‘the 1972 Act’) by the European Communities Act 2007 (‘the 2007 Act’). Secondary legislation has always been the primary means of implementing EC measures, as facilitated by section 3(1) of the 1972 Act. Generally, to ensure constitutionality, secondary legislation must be limited to giving effect to ‘principles and policies’ outlined in primary legislation.83 Similarly—although never ‘necessitated’ for the purposes of Article 29.4.10° of the Constitution—secondary legislation transposing EC law will be constitutional, provided it is does no more than ‘fill in the details of principles and policies contained in the EC and EU legislation’.84 However, further limitations on the implementation of EC law by secondary legislation were exposed in two Supreme Court cases decided in 2003, Browne v AttorneyGeneral and Kennedy v Attorney General.85 The purpose of the 2007 Act was to address the consequences of these judgments.86 Section 3(3) of the 1972 Act had never permitted use of secondary regulation to give effect to EC law where it entailed the creation of indictable offences.87 In Browne, at issue was the validity of regulations88 creating an indictable offence, intended to give effect to EC law but promulgated not pursuant to section 3 of the 1972 Act, given the indictable offence exception, but pursuant to section 223A of the Fisheries (Consolidation) Act 1959 (‘the 1959 Act’). A similar issue arose in Kennedy—namely, the validity of regulations89 creating an indictable offence promulgated under section 223A. While section 223A of the 1959 Act contained no reference to EC law, section 224B(1) of the 1959 Act provided, in relevant part, that ‘[w]ithout prejudice to the generality of section 3(1)’ of the 1972 Act, a Minister could make regulations to implement any provision of the Treaties or any act of an EC institution to ‘regulate’ fishing in the State’s waters. The reasoning in Kennedy and Browne is complex, and need not be examined in detail here. In short, the regulations were invalidated in both cases, albeit that the explanations varied between different judges. In the Supreme Court in Browne, Keane CJ reasoned, in accordance with the maxim expressio unius est exclusio alterius, that since section 224B(1) of the 1959 Act permitted creation of an indictable offence by secondary legislation to give effect to an EC measure, section 223A could not be read to provide such permission.90 By contrast, Denham J reasoned that, in light of section 3(3) of the 1972 Act, any statute purporting to give power to a Minister to create an 83

Cityview Press Limited v An Chomhairle Oiliúna [1980] IR 381. Maher v Minister for Agriculture, Food and Rural Development [2001] IESC 32; [2001] 2 IR 139; [2001] 2 ILRM 481, para 99. 85 Browne v Attorney General [2003] IESC 43; [2003] 3 IR 205; Kennedy v Attorney General [2005] IESC 36. 86 See, eg, Seanad Debates, 7 December 2006, vol 185, coll 1211–12; see also the Long Title of the 2007 Act. 87 See ss 2 and 3(1) of the 1972 Act. 88 Sea Fisheries (Drift Nets) Order 1998. 89 Mackerel (Licensing) Order 1999. 90 [2003] 3 IR 205, 221. 84

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indictable offence had to set out the power in ‘clear and plain language’, which was not provided by section 223A of the 1959 Act.91 In Kennedy, Denham J, for the majority, appeared to adopt the reasoning of Keane CJ in Browne, focusing on the relationship between sections 223A and 224B(1). Thus, Kennedy and Browne highlighted two limitations to usage of secondary legislation to implement EC law: first, most obviously, creation of indictable offences to give effect to EC law could not be achieved by secondary legislation unless expressly permitted by the primary legislation; and, secondly, secondary legislation giving effect to EC law could only be enacted pursuant to a provision of primary legislation specifying as one of its purposes that of giving effect to EC law, namely, provisions like section 224B of the 1959 Act, and not provisions like section 223A of the 1959 Act.92 This latter element of the judgment had the additional impact of casting doubt over the validity of regulations already enacted to give effect to EC measures pursuant to primary legislation which did not specify that purpose.93 Seeking to remedy the ‘indictable offence’ limitation, the 2007 Act makes provision for regulations to create indictable offences, where the Minister making the regulations ‘considers it necessary for the purpose of giving full effect’ to EC law.94 Regulations may also make such provision as the Minister considers necessary to ensure that penalties are ‘effective and proportionate, and have a deterrent effect’,95 subject to maximum fine and imprisonment limitations.96 Procedurally, regulations creating indictable offences shall be laid before both Houses of the Oireachtas and may be annulled by resolution within 21 days.97 Dealing with the second limitation identified in Browne and Kennedy, section 4(1) of the 2007 Act makes it clear that a power to make a statutory instrument, conferred on a Minister by a provision of primary legislation, may be exercised for the purpose of giving effect to ‘a European act’, if the obligations imposed on the State under the European act concerned ‘relate, in whole, to matters to which that provision relates’. The term ‘European act’ is defined in section 1 of the 2007 Act as a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of the European Communities or any other body competent under those treaties. It was stressed in discussion of the bill that the inclusion of the words ‘provision of an act’ was necessary, since certain EC acts will give rise to a range of obligations, which may have to be transposed pursuant to different statutes.98 Furthermore, given that doubt had been raised by Kennedy and Browne about the validity of statutory instruments previously passed to give effect to EC law but pursuant to primary legislation not explicitly providing for that purpose, the 2007 Act treats such acts, subject to constitutional rights, as Acts of the Oireachtas.99

91 92 93 94 95 96 97 98 99

[2003] 3 IR 205, 243. Dáil Debates, 8 February 2007, vol 631, coll 372–73. Seanad Debates, 7 December 2006, vol 185, coll 1218–19, 1239. Section 2, 2007 Act (new s 3(3)(a) of the 1972 Act). Section 2(a), 2007 Act; s 3(3)(b), 1972 Act, as amended. Section 2(a), 2007 Act; s 3(3)(b), 3(5), 1972 Act, as amended. Section 3, 2007 Act; s 3A, 1972 Act, as amended. See, eg, Select Committee on European Affairs, 7 March 2007. Section 5, 2007 Act.

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EU Citizenship One of the ECJ’s most important decisions in 2007, the Jia case,100 decided in January, was considered in Ireland shortly afterwards, in May.101 A national of India, SK, claimed that he had a right of residency in Ireland, as he was married to TT, an Estonian and EU citizen, who was resident and working in Ireland. SK had applied for asylum in Belgium and was refused; he had then entered the UK and resided there illegally for a period of approximately three years, during which time he met TT. After difficulties in the UK, TT and SK decided to move to Ireland in January 2006, with a view to setting up their family home in Ireland. SK made an asylum application in February 2006, and married TT in May. However, on discovering that SK had already made an asylum application in Belgium, the Irish authorities alerted Belgium and Belgium agreed to take SK back, pursuant to its obligation under Article 16(1)(e) of Council Regulation (EC) 343/2003.102 SK and TT complained that the European Communities (Freedom of Movement of Persons) Regulations 2006 (‘the 2006 Regulations’),103 under which SK’s residency was refused, were ultra vires Directive 2004/38/EC (‘the 2004 Directive’),104 which deals with the rights of EU citizens and their family members to move and reside freely within the territory of the Member States. Specifically, the applicants contended that the requirement of regulation 3, that a spouse or family member who is a national of a non-EU State be lawfully resident in another Member State before entering Ireland, either with or without a view to joining a spouse who is a national of another EU State, went beyond the provisions of the 2004 Directive to such extent as would require primary legislation to be enacted into law.105 On the facts, Hanna J concluded that the intention of SK and TT had at all material times been to avoid the provisions of Irish immigration law with a view to obtaining a right of residency for SK as the spouse of an EU citizen. Determining the validity of regulation 3 required particular consideration of two ECJ cases, Akrich106 and as already noted, Jia. In Akrich, at issue was the proposed deportation by the UK of Akrich, a non EU-national spouse. The ECJ ruled that since Akrich was not lawfully resident, he was therefore not covered by EC law on the free movement of workers or services. However, the fact that he was married to an EU citizen, returning to the UK from Ireland, meant that the UK was required to ensure due respect for the right to family life. In Jia, by contrast, the non EU-national spouse had been lawfully resident in Sweden,107 and it had not been alleged that she was seeking to evade national immigration legislation.108 Consequently, the ECJ concluded in Jia that 100

Case C-1/05 Jia v Migrationsverket [2007] 1 CMLR 41. SK and Another v MJELR [2007] IEHC 216. 102 Council Regulation (EC) 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, [2003] OJ L50/1. 103 SI 226/2006. 104 Parliament and Council Directive (EC) 2004/38 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directive 64/221/EEC, [2004] OJ L158/77. 105 Arguments were also raised regarding the constitutional right to marry and Art 8 ECHR which were rejected. 106 C-109/01 Secretary of State for the Home Department v Akrich [2003] 3 CMLR 26. 107 Jia, above n 100, para 31. 108 Ibid. 101

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the prior Akrich ruling did not require Member States to make the grant of a resident permit to non-EU nationals, who are members of the family of a community national who has exercised his or her free movement right, subject to the condition that those family members have previously been residing lawfully in another Member State. As Hanna J noted in SK, the ECJ did not demur from Akrich in Jia, but held rather that the approach of the ECJ in Akrich could not ‘be transposed into the Jia case’. The facts in Akrich, however, bore a closer resemblance to SK’s situation than those in Jia. Consequently, Hanna J concluded that the 2006 Regulations reflected and gave effect to the 2004 Directive and the Akrich decision, taking account of ‘the scope and latitude afforded to individual Member States to enact and maintain the integrity of their respective immigration laws’. As such, regulation 3 was valid. Hanna J added that the 2004 Directive was intended to apply to families ‘established in a Member State prior to the move to the host Member State’,109 and to facilitate family members ‘lawfully resident in another Member State’ seeking to join or accompany a spouse to the host State. Given that SK and TT had been unmarried and had not contracted a registered partnership at the time of their entry into Ireland, SK did not fall within the definition of ‘family member’ in Article 2 of the Directive; and given that the purpose of SK’s asylum application was ‘to buy time’ in order to ‘circumvent the immigration laws of the State’, the 2004 Directive did not apply to him. Environmental Law Ireland’s environmental record was tested throughout 2007, with the ECJ finding a number of violations. The Habitats Directive Twice in 2007, Ireland was found in breach of the Habitats Directive.110 Beginning in January, Ireland was found to have failed to implement Articles 12 and 16 regarding a system of strict protection for listed animal species.111 On the second occasion, in December, violations of the Habitats Directive arose in conjunction with violations of the Birds Directive,112 and are considered in ‘The Birds Directive and Habitats Directive Case’ below. In respect of Article 12(1), a number of inadequacies in Ireland’s practices were identified. Ireland had failed to establish species action plans;113 and although Ireland had initiated a number of studies, these had not been completed and Ireland was not in possession of required information.114 Ireland’s network of full-time officials, responsible for conservation, did not suffice to satisfy Article 12(1), and a number of species were not covered by an appropriate monitoring system.115 Ireland required 109

Emphasis added. Council Directive (EEC) 92/43 of 21 May 1992 on the conservation of natural habitats and wild fauna and flora, [1992] OJ L206/7. 111 Case C-183/05 Commission v Ireland, [2007] Env LR 23, ECJ. 112 Council Directive (EEC) 79/409 of 2 April 1979 on conservation of wild birds ([1979] OJ L103/1) as amended by Commission Directive 97/49/EC of 29 July 1997, [1997] OJ L 223/9. 113 Above n 111, para 14. 114 Ibid, paras 19–25. 115 Ibid, paras 26–33 110

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environmental impact assessments for only a limited number of subjects, and required property developers to provide information on protected species only after development consent had been granted for the project.116 Moreover, although Ireland had amended the scheme in section 23(7)(a)–(c) of the Wildlife Act 1976 (as amended by the Wildlife (Amendment) Act 2000, the ECJ noted that this section, by providing that acts which unintentionally interfere with or destroy breeding sites or resting places of wild species do not constitute an offence, was incompatible with Article 12(1)(d) of Directive 92/43 which prohibits such acts, whether intentional or not.117 The Shellfish Waters Directive Case June saw Ireland declared in breach of the Shellfish Waters Directive118 for the second time,119 the first time being in 2003.120 The Directive is concerned with the quality of shellfish waters and applies to those coastal and brackish waters designated by Member States as needing protection or improvement in order to support shellfish life and growth, thus to contribute to the high quality of shellfish products directly edible by man.121 Article 3 requires Member States to set values for certain parameters for designated waters. The parameters are listed in the Annex, and refer to concentration limitations for substances such as metals. Article 4 requires Member States to designate shellfish waters, and most other obligations of the Directive pertain to the designated waters. Article 5 requires Member States to take necessary measures to establish pollution reduction programmes for designated waters. Ireland challenged the admissibility of the action, on the basis that its rights of defence had been violated in the pre-litigation procedure. It argued that the Commission had failed to comply with its Article 226 EC duty to provide reasons: first, by drafting its formal notice too generally;122 and, secondly, by altering, in its reasoned opinion, the scope and nature of the complaints set out in the letter of formal notice.123 Ireland also argued that the Commission had misinterpreted its replies to the formal notice and reasoned opinion as a concession of failure to comply with the Directive.124 Affirming the ‘essential guarantee’ of ‘proper conduct of the pre-litigation procedure’,125 the ECJ stressed, however, that the letter of formal notice could not ‘of necessity, contain anything more than an initial brief summary of the complaints’.126 By referring to breaches of Articles 3–5 and 8 of the Directive, the letter had enabled Ireland to be informed of the complaints and to present its defence.127 On the issue of the Commission’s change of position, the ECJ stressed that the letter of formal notice 116

Ibid, paras 34–37 Ibid, paras 47–48. 118 Council Directive (EEC) 79/923 of 30 October 1979 on the quality required of shellfish waters, [1979] OJ L281/47. 119 Case C-148/05 Commission v Ireland, ECJ, [2008] Env LR 7. 120 Case C-67/02 Commission v Ireland [2003] ECR I-9019 (breach of Art 5). 121 Art 1. 122 Above n 119, paras 21–22. 123 Ibid, paras 23–25. 124 Ibid, para 26. 125 Ibid, para 30. 126 Ibid, para 32. 127 Ibid, para 33. 117

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and the reasoned opinion delimit the subject-matter of the dispute, so that it cannot thereafter be extended.128 However, this requirement cannot be ‘stretched so far as to’ require that the formal notice, reasoned opinion and order sought must be ‘exactly the same where the subject-matter of the proceedings has not been extended or altered but simply limited.’129 Here, the Commission had noted in the reasoned opinion for the first time that its complaint in relation to Article 3 concerned not only parameters 8 and 9 of the Annex, but also parameter 10; however, on its application, the Commission had limited its complaint to parameters 8 and 9. Similarly, an extension of the complaint concerning infringement of Article 5 in the Commission’s reasoned opinion, had not been reproduced in its application to the Court.130 As for Ireland’s contention that the Commission had incorrectly analysed its replies, even if wellfounded, this would not constitute a ground of inadmissibility but a factor which the Court would consider in its assessment of the substance of the case.131 On the substantive questions, the Commission alleged that Ireland was in breach of Articles 3, 4 and 5 of the Directive;132 and breaches of all three articles were found by the ECJ.133 Ireland argued that Article 4 of the Shellfish Waters Directive granted Member States discretion as to the designation of shellfish waters.134 The ECJ’s response was that this discretion was limited to ascertaining whether the conditions of need for protection and improvement apply; however, if they do apply, the Member State must designate.135 Ireland’s attempt to raise as a defence that the relevant domestic institutions were co-operating and that there had been difficulty collecting large quantities of data and information136 was dismissed, since Member States ‘may not plead domestic circumstances or practical difficulties’ to justify non-compliance with Community directives.137 In so far as the breach of Article 3 was concerned, the Commission submitted that Ireland had failed to set the required numerical values for the relevant parameters.138 Contrary to Ireland’s arguments, it could not be accepted that Member States only had to comply with obligations arising under Article 3 where waters had already been designated, as such an interpretation would defeat the object of the Directive.139 Secondly, regarding the failure to set numerical values for the parameters, given that Article 3(1) and the sixth recital in the preamble required Member States to set values for each parameter to protect designated waters, and that one of the objectives of the Directive, as articulated in Article 1, is to protect human health through the monitoring of the quality of waters which support, or could support, shellfish ‘directly edible by man’, it was particularly important that the mandatory nature of transposition measures was undeniable.140 Given that the Irish legislation transposing the Directive 128 129 130 131 132 133 134 135 136 137 138 139 140

Ibid, para 34. Ibid, para 35. Ibid, paras 36–37. Ibid, para 39. Ibid, para 1. Ibid, paras 53, 71, 77, 79. Ibid, para 45. Ibid, paras 46–48. Ibid, para 49. Ibid, para 50. Ibid, para 63. Ibid, paras 61–62. Ibid, paras 63–68.

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did not set compulsory limit values for parameters 8 and 9, the legislation was insufficient to achieve the aim of protecting shellfish waters imposed by the Directive and Ireland was found in breach of Article 3.141 With regard to Article 5, the Court reasoned that since Ireland had not established pollution reduction programmes for shellfish waters which satisfied the Article 4 designation criteria, Ireland had also breached Article 5.142 The Groundwater Directive Case In October, breaches of the Groundwater Directive143 were found.144 A number of complaints were made based on: first, a municipal landfill on an old mine at Ballymurtagh by Wicklow County Council;145 secondly, unauthorised discharges to groundwater from hotel premises at Creacon Lodge, County Wexford;146 and, thirdly, a report concerning eutrophication problems in the Lakes of Killarney, County Kerry, which indicated that premises with septic tanks were a cause of serious contamination.147 With regard to the Ballymurtagh complaint, the ECJ found that the requirements of Article 4(2) of the Groundwater Directive (permitting discharge of substances in ‘list I’ of the Directive in limited conditions) were not satisfied, because discharges had occurred into the Avoca, which belongs to an aquatic system.148 Ireland had chosen to dilute and disperse the leachate at Ballymurtagh rather than sealing the base of the pit, which would have made it possible not to exacerbate pollution of the Avoca. Consequently, Ireland had failed to take all technical precautions to ensure the substances discharged could not reach other aquatic systems or harm other ecosystems.149 Secondly, with regard to the introduction into groundwater of substances in ‘list II’ of the Directive, Ireland had not taken all the technical precautions necessary to avoid pollution by these substances, and had therefore violated Article 3(b).150 Moreover, Ireland had failed to satisfy the requirements laid down in Article 5, whereby authorisation for discharge can be granted if all technical precautions to prevent pollution of groundwater have been taken.151 The ECJ also noted that since Ireland had failed to take all the technical precautions required by Articles 4 and 5, with regard to substances in ‘list I’ and ‘list II’ respectively, the authorisation granted by Ireland in respect of the Ballymurtagh site was improper, as the grant of such authorisation was conditional on adoption of the technical precautions specified by the Articles.152 As for the disposal of wastewater from Creacon Lodge and the Lakes of Killarney, the Commission did not seek declarations of specific violations but, rather, sought a 141

Ibid, paras 69–71. Ibid, para 74. 143 Council Directive (EEC) 80/68 of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances ([1980] OJ L20/43), as amended by Council Directive (EEC) 91/692 of 23 December 1991 standardising and rationalising reports on the implementation of certain directives relating to the environment ([1991] OJ L377/48). 144 Case C-248/05 Commission v Ireland, ECJ, [2008] Env LR.13. 145 Ibid, para 14. 146 Ibid, para 15. 147 Ibid, para 16. 148 Ibid, para 41. 149 Ibid, para 42. 150 Ibid, para 43. 151 Ibid, para 44. 152 Ibid, paras 52–59. 142

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declaration that these exemplified an administrative practice contrary to Community law.153 While the ECJ found a violation of the Groundwater Directive in respect of Creacon Lodge,154 and a possible violation in respect of the Lakes of Killarney,155 such defective application of the Directive was geographically confined, and could not provide grounds for inferring that there existed throughout the Irish countryside an administrative practice relating to indirect discharges into groundwater of effluents from septic tanks that violated the Groundwater Directive.156 The Birds Directive and Habitats Directive Case In December,157 Ireland was found in failure of various obligations under the Birds Directive158 and the Habitats Directive.159 First, Ireland had failed to classify as special protection areas (‘SPAs’), in accordance with obligations in Article 4(1) and (2) of the Birds Directive, a number of territories meeting the ornithological criteria specified in the Article.160 Secondly, Ireland had failed to comply with its obligation in Article 4(4) of the Birds Directive to take appropriate steps to avoid pollution or deterioration of habitats or disturbances affecting birds in areas which should have been classified as SPAs;161 the protection objectives of the Birds Directive could not be achieved if Member States were required to comply with Article 4(4) only where an area had been previously classified as an SPA.162 Thirdly, Ireland had failed to comply with the obligation in Article 4(4) of the Birds Directive to strive to avoid pollution or deterioration of habitats beyond SPAs.163 The ECJ noted that this obligation does not require that certain results be achieved, but Member States must nonetheless make a ‘serious attempt’ at protection.164 Various efforts made by Ireland were inadequate,165 and Ireland’s pollution-reduction measures were considered ‘partial’ and ‘isolated’.166 Fourthly, Ireland was found to have failed to transpose Article 10 of the Birds Directive, which creates an obligation on a Member State to encourage research and any work required for protection, management and use of bird species.167 Section 11(3) of the Wildlife Act 1976 (as amended by the Wildlife (Amendment) Act 2000) (‘the Wildlife Act’) provides for the possibility for the competent Minister to carry out or cause to be carried out research which he considers desirable for performance of his functions under that statute, but does not lay down an obligation for the competent Minister to encourage such activities.168 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168

Case C-248/05 Commission v Ireland, ECJ, [2008] Env LR.13, para 63. Ibid, paras 90–95. Ibid, paras 98–106. Ibid, paras 114–15. Case C-418/04, Commission v Ireland, ECJ, 13 December 2007. Above n 112. Above n 110. See paras 68–148. Ibid, paras 169–75. Ibid, para 172. Ibid, paras 179–93. Ibid, para 179. Ibid, paras 182–90. Ibid, para 191. Ibid, paras 270, 275. Ibid, para 269.

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Fifthly, Ireland had failed adequately to transpose Article 6(2)–(4) of the Habitats Directive.169 Article 6(2) of the Habitats Directive requires Member States to take appropriate steps to avoid the deterioration of habitats and disturbances having a significant effect on the species for which the SPAs were classified or recognised. The ECJ concluded that regulations 13 and 14 of the Habitats Regulations were inadequate as they were based on a notice-based scheme of landowner liability and notices were not issued for all the SPAs.170 While regulation 17 empowered the competent Minister to seek injunctive relief to stop operations or activities that appear to be damaging to a European site, including an SPA, and regulation 18 provided for similar ministerial powers in the event that an operation or activity damaging to an SPA was carried on in an area outside the SPA, these provisions did not make it possible to avoid the deterioration of natural habitats and the habitats of species.171 Ireland’s Foreshore Acts were also inadequate as they protected only coastal areas and not SPAs outside those areas.172 In the field of recreational activities, Ireland was found in breach as, while regulation 14(1) placed restrictions on operations and activities, which applied to all persons, if the operation or activity is referred to in a notice,173 regulation 14(3) did not allow for proceedings to be brought against third parties who were not aware of that notice.174 There was also no guarantee that the procedure in regulations 17 and 18 could be applied to a person who had not received a notice.175 Sections 22, 23 and 76 of the Wildlife Act provided power to act where, for instance, there had been evident and wilful disturbance of protected birds as they nested, but did not cover all types of damage likely to be caused by recreational use.176 Moreover, criminal law provisions on trespass on private property were not specifically linked to protection of natural habitats and habitats of species against deterioration or against disturbances.177 In respect of Article 6(3) and (4)—dealing with appropriate prior assessment of plans and projects and compensatory measures—while regulations 27–33 of the Habitats Regulations required various development proposals, Ireland had not demonstrated that such proposals were ‘plans’ within the meaning of Article 6(3); and the Planning and Development Act 2000 concerned only information relating to likely significant effects on the environment, whereas Article 6(3) requires prior assessment of the implications of development plans.178 Moreover, assessment pursuant to Directive 85/337179 and Directive 2001/42180 could not replace an Article 6(3) assessment as they related to the deliberation procedure without binding the Member State, 169

Ibid, paras 197–265. Ibid, paras 205–06. 171 Ibid, para 207. 172 Ibid, para 210. 173 Parliament and Council Directive (EC) 2001/42 of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, [2001] OJ L197/30. 174 Commission v Ireland, above n 157, para 216. 175 Ibid, para 217. 176 Ibid, para 218. 177 Ibid, para 220. 178 Ibid, paras 228–29. 179 Council Directive (EEC) 85/337 of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, [1985] OJ L175/40. 180 Parliament and Council Directive (EC) 2001/42 of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, [2001] OJ L197/30. 170

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and only related to certain projects and plans.181 Furthermore, an environmental impact assessment report was required only for plantations over 50 hectares, and the average surface area of a plantation in Ireland is 8 hectares.182 The ECJ also found that Ireland had failed to ensure systematically that aquaculture programmes likely to have a significant effect on SPAs are made subject to an appropriate prior assessment;183 and in particular, to have failed to comply with Article 6(2)–(4) in respect of drainage works at Glen Lough.184 Free Movement and Public Procurement Payment of Social Welfare Benefits Ireland fared better in 2007 in compliance with free movement obligations than in its environmental law compliance, and on two occasions successfully defended violation claims related to public procurement. The first case involved the transfer of provision of services relating to payment of social welfare benefits to An Post.185 It was accepted by all that the contract fell within the scope of Directive 92/50186 and that, since the services related to social benefit payments, they belonged to the non-priority category of services listed in Annex IB of the Directive.187 By Articles 9, 14 and 16 of the Directive, the award of contracts for Annex IB services was subject to minimal procedural constraints, involving definition of technical specifications and sending notice of the results of the award procedure to the Publications Office. Ireland had complied with these obligations, but the Commission argued that, by not advertising the contracts, Ireland had failed to comply with the additional obligation of transparency, which, as the ECJ had held previously in Telaustria,188 derives directly from the Treaty.189 The ECJ concluded that it was clear from a combined reading of Articles 9, 14 and 16 that the award of contracts concerning services under Annex IB attracted only the obligations set out in those provisions, and did not require prior advertising.190 This derived from the assumption that contracts for Annex IB services are not, given their specific nature, of cross-border interest such as to require a tendering procedure to facilitate participation of undertakings from other Member States.191 Nonetheless, the ECJ noted that the award of public contracts is subject to the fundamental rules of Community law, and in particular to the Treaty principles on the right of establishment and the freedom to provide services.192 Given that the purposes of co-ordinating procedures for the award of public contracts, in Directives such as 92/50, are to eliminate barriers to the freedom to provide services and goods and to protect the interests 181

Commission v Ireland, above n 157, para 231. Ibid, para 232. 183 Ibid, para 241. 184 Ibid, paras 248–64. 185 Case C-507/03 Commission v Ireland, [2008] 1 CMLR 34, ECJ. 186 Council Directive (EEC) 92/50 of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, [1992] OJ L 209/1. 187 Commission v Ireland, above n 185, para 21. 188 Case C-324/98 Telaustria and Telefonadress [2000] ECR I-10745. 189 Commission v Ireland, above n 185, paras 14–15. 190 Ibid, para 24. 191 Ibid, para 25. 192 Ibid, para 26. 182

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of cross-border traders,193 for contracts with cross-border interest, Directive 92/50 attracted the application of general principles resulting from Articles 43 and 49 EC.194 In the absence of any transparency, the award of a contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings in other Member States which might be interested in that contract;195 and unless justified by objective circumstances, such a difference in treatment constitutes indirect discrimination on the basis of nationality.196 However, the Commission had failed to satisfy its burden that the contract was of certain interest to an undertaking located in a different Member State from that of the contracting authority, and that that undertaking was unable to express its interest in that contract because it did not have access to adequate information before the contract was awarded.197 Emergency Ambulance Services In the second case,198 the Commission claimed that the arrangement under which emergency ambulance services are provided by Dublin City Council (‘DCC’) to the Eastern Regional Health Authority (‘the Authority’)—without there having been any prior advertising—constituted a breach of Articles 43 EC and 49 EC and of the general principles of Community law.199 Relevant provisions of national law included: section 65(1)(a) of the Health Act 1953 (‘the 1953 Act’), providing that a health board may contribute to the expenses of any body which provides or proposes to provide a service similar or ancillary to a service the health board may provide; section 57 of the Health Act 1970 (‘the 1970 Act’), providing that a health board may make arrangements for providing ambulances or other means of transport for the conveyance of patients; and section 25 of the Fire Services Act 1981, providing that a fire authority, which includes the council of a county,200 may carry out or assist in any operations of an emergency nature, whether or not a risk of fire is involved, and accordingly may make such provision for the rescue or safeguarding of persons and protection of property as it considers necessary for the purposes of that function. Dublin City Council, which is responsible for the fire service in Dublin, provided emergency ambulance services in part of the area served by the Authority, including in the city of Dublin.201 The East Coast Area Health Board (‘the Board’), separate from the Authority but a delegate of it, made annual payments to DCC, the final amount of which was determined by negotiations between DCC and the Board and which represented only part of DCC’s expenditure on the provision of the services in question. The Commission could not point to a written contract but relied on correspondence between the Authority and DCC,202 which indicated a draft agreement, 193 194 195 196 197 198 199 200 201 202

Ibid, paras 27–28. Ibid, para 29. Ibid, para 30. Ibid, para 31. Ibid, paras 32–34. Case C-532/03 Commission v Ireland, ECJ, 18 December 2007. Ibid, para 14. Section 9(1)(a). Commission v Ireland, above n 198, para 7. Ibid, para 31.

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including financing arrangements between the two bodies and an overview of the management of the public expenditure.203 The agreement had not been subject to prior advertising.204 In the absence of a written contract, the provision of the services fell outside the scope of Directive 92/50; however, the Commission argued that the arrangements should be considered in the light of the fundamental freedoms and the general principles of Community law, including the principles of non-discrimination and transparency.205 The ECJ did not address all the defences made by Ireland but, in brief, stressed that in an action for failure to fulfil obligations it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled.206 Pointing to the Irish legislation, the ECJ noted that it was conceivable that DCC provided services to the public in the exercise of its own statutory powers and applying its own funds, although it was paid a contribution by the Authority for that purpose, which covered part of the costs of those services.207 The mere fact that, as between two public bodies, funding arrangements existed in respect of such services did not imply that the provision of the services concerned constituted an award of a public contract which would need to be assessed in the light of the fundamental rules of the Treaty.208 State Aid A Commission decision on State aid against Ireland was annulled in December. Alumina (or aluminium oxide) is a white powder mainly used in foundries to produce aluminium,209 and there is only one producer of alumina in Ireland, Aughinish Alumina Ltd.210 By letter dated 28 January 1983, the Irish authorities informed the Commission that they were preparing to implement an undertaking to grant to Aughinish Alumina an exemption of excise duty on heavy fuel oil used for the production of alumina, in accordance with Article 8(4) of Directive 92/81, and authorised by Council Decision 92/510/EEC of 19 October 1992.211 The Commission stated that the exemption constituted State aid which had to be notified. It also stated that if the aid were to be implemented only at that time, the Commission could regard Ireland’s letter of 28 January 1983 as notification for the purposes of Article 88(3) EC. In May 1983, Ireland asked the Commission to regard the letter as such notification; however, the Commission did not adopt any decision following that correspondence.212 In December 2005, after asking Ireland to notify it of contested exemptions and receiving comments,213 the Commission adopted Decision 2006/323/EC, holding that the contested exemptions constituted ‘State aid’; that it would be contrary to the general principles of Community law to seek to recover incompatible aid granted between 203

Commission v Ireland, above n 198, para 9. Ibid, para 11. 205 Ibid, paras 15–16. 206 Ibid, para 29. 207 Ibid, para 35. 208 Ibid, para 37. 209 Case T-50/06, Ireland v Commission, 12 December 2007, para 5. 210 Ibid, para 6. 211 Ibid, para 19; Council Directive (EEC) 92/81 on the harmonisation of the structures of excise duties on mineral oils, [1992] OJ L316/12. 212 Ireland v Commission, n 209. 213 Ibid, paras 21–27. 204

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17 July 1990 and 2 February 2002; however, that Ireland was obliged to take all necessary steps to recover aid granted between 3 February 2002 and 31 December 2003. Rather than responding to Ireland’s defences, the ECJ resolved this case by raising of its own motion a plea relating to the reasons on which the Commission’s decision was based, in so far as the non-application of Article 1(b)(v) of Regulation 659/1999 was concerned.214 Regulation 659/1999 establishes detailed rules for the application of Article 88 EC, and in Article 1(b)(v) ‘existing aid’ includes aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid and ‘subsequently became an aid due to the evolution of the common market and without having been altered by the Member State’. Article 1(b)(v) also provides that, where certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation. Repeating well-established principles, the ECJ noted that a lack or an insufficiency of reasoning constitutes an infringement of an essential procedural requirement;215 and that the statement of reasons must set out ‘the facts and the legal considerations having decisive importance in the scheme of the decision’.216 In light of the factual circumstances,217 the Commission was under an obligation to ascertain whether the conditions of Article 1(b)(v) of Regulation 659/1999 were satisfied;218 and could not ‘merely make the statement’ that the Article ‘does not apply in this case’.219 Compulsory Insurance In the Farrell case,220 a question arose as to whether Article 1 of the Third Directive on insurance against civil liability in respect of the use of motor vehicles221 requires that compulsory insurance should cover injuries to persons travelling in a part of a vehicle which has not been designed for the carriage of passengers or fitted with seating accommodation for that purpose. Rejecting all Ireland’s arguments, the ECJ noted that Article 1 of the Third Directive provides that compulsory insurance is to cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle.222 Since that article clearly extends insurance cover to all passengers, it would be contrary to the objectives of the Community legislation to exclude from the concept of ‘passenger’, and thus from insurance cover, injured parties seated in a vehicle which was not designed for their carriage or equipped for that purpose.223 The ECJ noted that Community legislation laid down exceptions to the obligations to protect victims of accidents, which did not include those on board a part of a vehicle 214 Ibid, para 46; Council Regulation (EC) 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC], [1999] OJ L83/1. 215 Ireland v Commission, n 209, para 47. 216 Ibid, para 49. 217 Ibid, paras 56–62. 218 Ibid, para 63. 219 Ibid, para 64. 220 Case C-356/05 Farrell v Whitty, Minister for the Environment, Ireland, Attorney General and Motor Insurers’ Bureau of Ireland, [2007] 2 CMLR 46, ECJ. 221 Council Directive (EEC) 90/232 of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, [1990] OJ L129/33. 222 Farrell v Whitty, above n 220, para 22. 223 Ibid, paras 23–24.

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not designed for their carriage,224 and Member States were not entitled to introduce additional restrictions.225 The ECJ also noted that while the obligation to provide insurance cover for passengers is guaranteed and defined by Community law, the question of the ‘extent of the compensation to be made available to them’ is ‘essentially governed by national law’,226 but the rules of civil liability must comply with the relevant EC directives,227 and national rules could not restrict to a disproportionate extent the compensation available to a passenger solely on the basis of his contribution to the occurrence of the injuries.228 On a second question of whether Article 1 of the Third Directive was directly effective against the Motor Insurers’ Bureau of Ireland (MIBI), the ECJ held that the provision was ‘unconditional and sufficiently precise’,229 but that insufficient information had been provided to it to determine whether the MIBI satisfied the criteria of Foster v British Gas.230 Competition Law Lastly, and prominent in the headlines during the year, in June 2007231 the Commission issued its decision on Ryanair’s proposed acquisition of Aer Lingus, and barred what would have been the first takeover of a national flag carrier by a low-cost rival. The decision also constituted only the second time that the European Competition Commissioner, Neelie Kroes, had invoked her power to prohibit a merger since taking office in 2004. The Commission even conducted a Customer Survey at Dublin Airport, given that there had been so little information available as regards the views of individual customers on the substitutability between the two carriers.232 The results of the Commission’s price regression analysis indicated that Ryanair’s presence was associated with Aer Lingus charging around 7–8% lower prices when considering city-pairs and around 5% lower when considering airport pairs; and that Ryanair’s presence had a much stronger economic impact on Aer Lingus fares than any other type of carrier.233 Given that the two airlines were clearly close competitors,234 there was a concern that post-merger the merged entity would have an incentive to set higher fares for Aer Lingus, as most of the customers lost would be captured by Ryanair.235 Moreover, the merger would have created a monopoly on 22 routes of 35 overlapping routes between Aer Lingus and Ryanair; and a dominant market share above 60% on the remaining 13 routes.236 At the end of 2006, and at various stages in 2007, Ryanair had made a series of remedial commitments to the Commission,237 none of which involved business 224

Farrell v Whitty, above n 220, paras 27–28. Ibid, para 29. 226 Ibid, para 32. 227 Ibid, paras 33–34. 228 Ibid, para 35. 229 Ibid, para 38. 230 Ibid, paras 40–41; Case C-188/89 Foster v British Gas [1990] ECR I-3313, para 20. 231 Commission Decision of 27 June 2007 declaring a concentration to be incompatible with the common market and the EEA Agreement (Case No COMP/M4439-Ryanair/Aer Lingus). 232 Ibid, para 414, Annexes I and II. 233 Ibid, para 485. 234 Ibid, para 489. 235 Ibid, para 491. 236 Ibid, paras 342, 1240. 237 Ibid, para 1153. 225

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divestiture.238 Rather, Ryanair had proposed slot-related and behavioural remedies.239 The slot-related remedy involved commitments making slots on a number of routes available to other airlines for specified periods of time, while the behavioural remedies included an offer to reduce Aer Lingus’s short-haul fares by at least 10% immediately, to eliminate the fuel surcharges that Aer Lingus applies on its long-haul flights immediately, to retain the Aer Lingus’s brand, and to continue to operate Ryanair and Aer Lingus separately, as well as a frequency freeze on the overlap routes.240 In general, the Commission found that the commitments did not satisfy the minimum standards of providing ‘a sufficient degree of legal certainty as concerns their content’ and being ‘fully workable’.241 Additionally, the Commission was not persuaded that the commitments eliminated the identified competition problems.242 For example, one problem with the air-fare commitment was that there was no certainty as to its content and duration.243 Problems with the slot-related remedies included the fact that they were not likely to trigger substantial entry on the overlap routes;244 their scope was insufficient and would not have permitted a viable competitor to emerge;245 and slots at important destination airports were missing.246 Ryanair filed its appeal to the Court of First Instance in September.247 conclusion As noted above, in so far as the European Union is concerned, 2007 involved emphasis on, but not digression from, Ireland’s traditional focus on multilateralism, peacekeeping and neutrality. The Lisbon Treaty would arguably strengthen co-operation in the area of common foreign and security policy; however, the requirement of unanimous voting means that Ireland could protect its traditional foreign policies. Peacekeeping and multilateralism were high on the political agenda with approval of Ireland’s participation in the Nordic Battlegroup. The extensive case law on the European Arrest Warrant perhaps warranted the caution demonstrated in Ireland’s opt-out to the Area of Freedom, Security and Justice as re-constituted in the Lisbon Treaty; while, by contrast, the European Communities Act 2007 facilitated easier compliance with European Community obligations. Decisions relating to immigration, citizenship, environmental law, free movement, State aid, compulsory insurance and competition law—although evidencing the reach of the EU’s impact on Irish life—did not affect Ireland’s multilateralism, peacekeeping activities or neutrality. Lastly, 2007 drew the EU’s attention to Ireland’s practice of conducting referenda and to the importance of this practice to the entire EU project. No doubt, the first issue for discussion in the 2008 update will be the outcome of the Lisbon Treaty referendum. 238 239 240 241 242 243 244 245 246 247

Ibid, para 1183. Ibid, paras 1155–65. Ibid, para 1164. Ibid, paras 1167–68. Ibid, para 1221. Ibid, para 1222. Ibid, paras 1186–96. Ibid, paras 1199–1206. Ibid, paras 1207–09. Case T-342/07: Action brought on 10 September 2007, Ryanair v Commission, [2007] OJ C269/59.

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Developments in the North–South Bodies—2007

Ursula Kilkelly university college cork

Last year, this Correspondent Report considered the origins of the North–South bodies established by the Good Friday/Belfast Agreement and brought the reader up to date on developments to the end of 2006. This year’s Report considers events and progress in 2007. It focuses primarily on the activities of the North–South Ministerial Council (NSMC), both at its Plenary Meeting of July 2007 and in the various sectoral meetings, wherein relevant ministers, North and South, meet to consider an area of cooperation established under the Good Friday Agreement. It is important to note that due to the suspension of power-sharing in Northern Ireland, most of these bodies did not meet formally between 2002 and 2007, with decisions being made in accordance with agreed interim procedures. This year thus marked a renewed interest in the North–South institutions and a strong period of activity in all its fora. plenary meeting of the north‒south ministerial council The NSMC meets in both plenary and sectoral session. In 2007, there was one (the fifth) plenary session on 17 July 2007. This was the first plenary meeting to take place since 2002, with the Northern Delegation being led by the Right Hon Dr Ian Paisley, MP, MLA, First Minister, and Mr Martin McGuinness, MP, MLA, Deputy First Minister. The Irish Government was represented by An Taoiseach, Mr Bertie Ahern. The Joint Communiqué issued following the conclusion of the meeting reported progress in a number of areas, as follows.1 Work of the North–South Ministerial Council The Council received a report from the Joint Secretaries on the work of the NSMC since 2002. It noted that the work of the North–South Implementation Bodies and Tourism Ireland had continued, and noted the mutually beneficial co-operation taken forward between Ministers and Departments. The St Andrews Agreement—Review As noted in last year’s Report, the St Andrews Agreement provides for a review of the North–South Implementation Bodies and the Areas for Co-operation. At its plenary session of July 2007, the Council announced that this review would commence in

1

Joint Communiqué, 17 July 2007, available at www.northsouthministerialcouncil.org.

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September 2007 and that a final report would be presented to the first NSMC plenary meeting in 2008. The terms of reference were agreed as follows: To examine objectively the efficiency and value for money of existing Implementation Bodies; To examine objectively the case for additional bodies and areas of co-operation within the NSMC where mutual benefit would be derived; and To input into the work on the identification of a suitable substitute for the proposed Lights Agency of the Foyle, Carlingford and Irish Lights Commission.2

The Review is to be undertaken by a group of senior officials, together with an advisory panel of four experts/advisers, two nominated by the Northern Ireland Executive and two nominated by the Irish Government. The experts/advisers appointed by the Northern Ireland Executive are Peter King and Seán Oliver, those appointed by the Irish Government are Eoin O’Shea and John Hynes. Written observations and submissions were invited on issues within the terms of reference. North/South Consultative Forum The St Andrews Agreement contains a commitment to establish a North/South Consultative Forum supported by the Northern Ireland Executive, appointed by the two Administrations and representative of civil society.3 The 2007 Council meeting noted the intention of the Irish Government to consult the social partners on the establishment of the North/South Consultative Forum and the review of arrangements for consulting civic society in Northern Ireland. The Council agreed to consider this matter once that review is complete. North/South Parliamentary Forum It was agreed under the St Andrews Agreement that the Northern Ireland Executive would encourage the parties in the Assembly to establish a North/South Parliamentary Forum, bringing together equal numbers from the Oireachtas (National Parliament) and the Assembly, and operating on an inclusive basis.4 In 2007, the NSMC recognised that any development of a joint parliamentary forum is a matter for the Northern Ireland Assembly and the Oireachtas. It proposed that officials from the two administrations would make contact with the Northern Ireland Assembly and the Oireachtas, and report back to the Council at the earliest opportunity on the prospects for developing such a forum. Cross Border Co-operation on the Ulster Canal The NSMC agreed to proceed with the restoration of the section of the Ulster Canal between Clones and Upper Lough Erne in the light of the Irish Government’s offer to cover the full capital costs of the project. Waterways Ireland, a North–South Implementation Body, will be responsible for the restoration of this section of the 2 3 4

Joint Communiqué, 17 July 2007, available at www.northsouthministerialcouncil.org. Annex A, para 22. Agreement at St Andrews, 13 October 2006, available at 1 IYIL 473. See Annex A, para 19, ibid.

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Canal and, following restoration, for its management, maintenance and development principally for recreational purposes. Relevant Ministers in the NSMC Inland Waterways Sector will agree plans to take forward this restoration work and will report on progress to NSMC plenary meetings. Cross Border Co-operation on Roads Significant co-operation was agreed on roads. In particular, the Irish Government announced that it will contribute £400m/€580m towards road development within Northern Ireland, on routes serving the North West Gateway (A5)—that is, providing access to the North West section of the Republic of Ireland which forms the western border of Northern Ireland—and on the eastern seaboard corridor from Belfast to Larne (A8). These were agreed in principle by the Northern Ireland Executive, which will take forward the Larne route with its agencies, while the North West Gateway will be managed jointly with the Irish Government. The relevant ministers agreed to take the necessary steps to move this project forward, including the early commencement of a route corridor study. sectoral meetings of the north‒south ministerial council The 2006 Correspondent Report on North–South Developments noted that the NSMC also meets in sectoral format, wherein the relevant ministers of the Northern Ireland Executive and the Irish Government come together to address one of the 12 areas of co-operation set out by the Belfast Agreement—the six areas where North–South implementation bodies exist (inland waterways; food safety; trade and business development; special EU programmes; language; and aquaculture and marine) and the six areas of co-operation (transport; agriculture; education; health; environment; and tourism). At these sectoral meetings, the Irish Government is represented by the Minister or the Minister of State responsible for that Sector, while the Northern Ireland Administration is represented by two Ministers nominated by the First Minster and Deputy First Minister on a cross-community basis, one normally being the Minister with responsibility for that Area within the Executive. This is in line with the requirements of the Agreement and the Northern Ireland Act 1998 that participation by the Executive in the NSMC must be on a cross-community basis. After each sectoral meeting, a Joint Communiqué is issued reporting progress achieved and agreement reached.5 In 2007, there were sectoral meetings in all areas except the Trade and Business Development sector (InterTradeIreland) and the Health Sector. These were the first sectoral meetings since 2002, and since the restoration of the Northern Ireland Executive and Assembly. Transport Sector There were two meetings of the Transport Sector in 2007, meeting first in Fermanagh in September 2007 and then in Meath in December. The principal issues discussed 5 All Joint Communiqués are available on the NSMC website at www.northsouthministerialcouncil.org (18 March 2008).

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were strategic transport planning and road safety. In relation to the former, the Council agreed the necessary steps to progress the A5 and A8 Major Roads Projects (agreed by the plenary meeting in July 2007). It also agreed to the formation by October 2007 of a management structure for the A5 project comprising a Cross Border Steering Group, Technical Group and dedicated Roads Service Project Team to evaluate and monitor progress as required, and the early appointment of consultants to enable a route corridor study of the A5 project to commence. In addition it welcomed progress on co-operation to restore two bridges on the Tyrone /Monaghan border, funded by the Irish Government, while the Northern Ireland Roads Service has agreed to improve the approach roads in Northern Ireland. The Council also noted the Irish Government’s proposal for the construction of a bridge at Narrow Water, linking Co Louth with Co Down. Discussions are also taking place between Iarnród Éireann and Translink on the preparation of plans for the further development of the major cross-border rail link between Dublin and Belfast. These discussions include consideration of options for the short and medium term, including limited stop services, hourly frequency, removal of speed restrictions and new rolling stock, and a phased implementation programme. The Council agreed to consider the outcome of these discussions and the plans at the next NSMC meeting in the Transport Sector. A study into community-based transport services to local crossborder communities was also welcomed; it is proposed to consider the report at a forthcoming meeting of the NSMC in the Transport Sector. The Council discussed cross-border co-operation on road safety, including consultation on road safety strategies. In relation to the mutual recognition of penalty points, the Council noted that a study on co-operation between the UK and Ireland is currently underway, and agreed that efforts to promote road safety through joint advertising and publicity campaigns should continue while the available evidence on the effectiveness of the existing approach should be reviewed. It also agreed that work should continue through the Steering to Safety project on finding practical ways of improving road safety in border areas. It was noted that the NSMC provides good potential for sharing the results of relevant road safety research, and that the opportunities for improving and harmonising arrangements for collecting, collating and reporting road safety information should continue to be explored. At the December meeting of the Transport Sector, progress on all these issues was reported, including the appointment of consultants on the bridge and road projects. In addition, the Council noted that a Report on Cross Border Community Based Rural Transport has been considered by both Departments. While Ministers recognised the potential benefits and noted the regulatory, resource and organisational constraints on the provision of such services at this time, they agreed that a pilot cross-border exercise should now be considered. Officials were requested to work together to consider such a pilot and report progress at a future NSMC meeting in Transport Sectoral format. On road safety, the Council welcomed the presentation from the Road Safety Authority of the new Road Safety Strategy for Ireland for the period 2007–12. Ministers noted that the mid-term review of the Northern Ireland Road Safety Strategy 2002–12 is underway, with an announcement about the way forward expected in early 2008. The Council welcomed the continuing co-operation between the authorities on a range of issues, including advertising and publicity, the mutual

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recognition of driving disqualifications and penalty points, and road safety in border areas. Health and Food Safety The NSMC Health and Food Safety sectoral meeting was held in Dublin on Wednesday, 28 November 2007. Ministers welcomed the progress made since the last meeting in 2002 on a range of issues, including planning for major emergencies, pandemic ‘flu planning, technology, cancer research, and health promotion. In view of the recent reorganisation and reform programmes for health and social services in both jurisdictions, Ministers noted that a joint feasibility study was underway that would identify the potential for a more strategic approach to co-operation in health and social well-being. On Accident and Emergency services, the Council received a report on continuing co-operation and welcomed work commissioned by Co-operation and Working Together to examine issues concerning the implementation of a cross-border out-of-hours General Practitioner service. It noted that two pilot projects were currently underway in the Derry/Letterkenny and Keady/Castleblaney catchment areas, and that the outcome of these pilots would inform decision-making on the provision of the General Practitioner services in border areas. On-going work, involving cooperation on paediatric and congenital cardiac services between the Royal Victoria Hospital Belfast and Our Lady’s Hospital for Sick Children Dublin, was also noted and officials were asked to report on the further development of both services to the next Health and Food Safety meeting of the NSMC. The Council welcomed co-operation on training and planning for major emergencies, and Ministers were briefed on a major cross-border emergency planning exercise which took place in 2007. They welcomed the close co-operation between the two Departments and the Health Service Executive on infectious disease emergency planning, and they noted plans for a cross-border exercise on pandemic ‘flu planning linked to a similar exercise in the EU. Ministers also welcomed the excellent cooperation between the fire and rescue services in dealing with emergencies and road accident responses in the border areas. Consideration was given to a report on high technology equipment, which focused on the provision of improved access to radiotherapy services. Ministers welcomed an agreement between Belfast City Hospital, Altnagelvin Hospital and the Health Service Executive to provide cancer patients from County Donegal with radiotherapy treatment at Belfast City Hospital. They agreed that the development of additional radiotherapy capacity should be taken forward in parallel with work on the joint feasibility study. Ministers also received a presentation from the Chief Medical Officers, Dr Jim Kiely, Department of Health and Children, and Dr Michael McBride, Department of Health, Social Services and Public Safety, on the work of the Ireland–Northern Ireland–National Cancer Institute of the USA Cancer Consortium. They noted and welcomed the successful implementation of programmes on cancer research, as well as the continuing expanding activity in a number of related areas. The Council welcomed the broad range of co-operation on health promotion in key areas such as tackling obesity, research, health promoting hospitals, training, smoking, workplace health promotion, men’s health, mental health and breastfeeding, and noted the work of the Institute of Public Health, particularly in relation to addressing

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health inequalities. Ministers also noted and welcomed progress and co-operation on mental health, and in particular that an all-island suicide prevention action plan has been developed and agreed. They agreed that the Internet played a significant role in relation to suicide and agreed to work together to influence change in this area. In relation to food safety, the Council received a progress report from Martin Higgins, the CEO of the Food Safety Promotion Board, safefood, and welcomed the wide range of promotional and support activities undertaken by safefood since 2002. It noted its plans for the period 2008–10, including major consumer information campaigns, the delivery of a joined-up approach to food safety and healthy eating, the establishment of a collaborative forum to tackle obesity, and the development and maintenance of in-house knowledge and expertise to interpret reliably the scientific evidence to inform its activities. Ministers also approved the safefood Corporate Plan for the period 2008–10 and the Business Plan for 2008, subject to the Finance Departments’ agreement and to budgetary considerations by the Executive and the Irish Government. Aquaculture and Marine (Foyle, Carlingford and Irish Lights Commission) Sector This meeting took place on Wednesday, 21 November 2007 and discussed progress, future plans and the Marine Tourism Development Strategy. In particular, Ministers welcomed the passing of legislation in both jurisdictions in 2007, which provided the Loughs Agency with the powers to regulate aquaculture and wild shellfisheries in both the Foyle and Carlingford areas. They also welcomed the introduction of a hardship package to provide a measure of relief to those affected by the cessation of commercial drift or draft net salmon fishing in the Foyle area. Ministers approved the Loughs Agency’s Corporate Plan for the period 2008–10 and the Business Plan for 2008, subject to budgetary considerations, and also noted that the Agency’s future plans may require consideration in light of the St Andrews Review. The Council approved the implementation of the Loughs Agency’s Marine Tourism Development Strategy for the period 2008 to 2013, subject to the availability of funding under the EU programme for Cross Border Territorial Co-operation. It noted that the Strategy will work through partnerships with State authorities and private bodies, providing support for projects, developing access infrastructure, project development, skills training, marketing and communications activities. Ministers also approved the Loughs Agency’s Financial Assistance Policy to oversee how grant aid will be administered in the support of angling development, conservation and protection of fisheries, marine tourism and aquaculture. Ministers approved the Loughs Agency’s proposed purchase of a monitoring vessel, subject to the availability of funding under the EU Financial Instrument for Fisheries Guidance. They also approved the Foyle Area and Carlingford Area (Angling) (Amendment No 2) Regulations 2007, which are designed to improve conservation and protection of salmon stocks in an area of the River Finn. The Council noted that regulations currently being developed should improve the control of salmon and coarse angling, and for the licensing and development of aquaculture.

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Inland Waterways Sector This sectoral meeting took place in Cavan on 17 October 2007. It noted progress, notably from Waterways Ireland, and discussed the further restoration of the Ulster Canal. In particular, the Chief Executive of Waterways Ireland reported to the Council on significant achievements since the Council last met in this sector on 26 June 2002. These included major work on restoration of the waterways, including work on the Royal Canal and the decision to proceed with the renewal of a section of the Ulster Canal. Ministers also welcomed progress on the new Headquarters building in Enniskillen, the opening of a Western regional office in Scarriff, Co Clare, and the sponsorship of major sporting events such as the Classic Fishing Festival on Lough Erne, the world Ski Cup Championship in Enniskillen and the Triathlon in Athlone. The Council welcomed the decision of the NSMC plenary meeting in July 2007 to proceed with the restoration of the Clones to Upper Lough Erne stretch of the Ulster Canal, and agreed on how to proceed with this major infrastructural project. It agreed that Waterways Ireland should appoint a single-entity consortium to design and construct the restoration of the Clones to Upper Lough Erne section of the Ulster Canal. Ministers noted that the full capital cost (estimated at €35m/£23.8m) of the project will be met by the Irish Exchequer, with annual maintenance costs on the completion of the project, in the order of €300,000/£201,000, to be met by the Northern Ireland Executive and the Irish Government. Waterways Ireland will establish a project team for the day-to-day management of the project, which will report monthly on progress to a Monitoring Committee chaired jointly by the Department of Community, Rural and Gaeltacht Affairs and the Department of Culture, Arts and Leisure. It was stressed that good local liaison will be key to the smooth running of the project, and in this regard Waterways Ireland is to engage with all key stakeholders in taking forward the project. They welcomed Waterways Ireland’s intention to put in place a targeted marketing programme during construction to highlight the attractions and uniqueness of the Clones to Upper Lough Erne stretch of the Ulster Canal. Language Sector The 2007 meeting of the Language Sector took place in Armagh on 26 October 2007. The meeting dealt with issues relating to the Language Body and its two constituent agencies, Tha Boord o Ulstèr Scotch (The Ulster Scots Agency) and Foras na Gaeilge (The Irish Language Agency). The Chief Executives of both agencies reported developments to the meeting and detailed a number of projects on which they have worked jointly, including joint funding of the posts of ‘Arts Development Officer for Language Arts’ (with the Arts Council of Northern Ireland) and ‘Cultural Officer’ in Altnaveigh House Cultural Society in Newry. In addition, they piloted a joint lecture series on ‘Our Shared Heritage’ which was made available to a variety of bodies. In relation to the work of Tha Boord o Ulstèr Scotch, Ministers welcomed the Agency’s successful introduction of the first ever Ulster-Scots summer schools in 2006, leading to 33 summer schools in 2007. In culture, the major area of growth was in dance and musical tuition. The Youth Development Officer, funded by the Irish Youth Foundation in 2006, enabled the Agency to work with young people in innercity areas. In Education, the Agency commissioned a schools’ drama, with 120

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primary schools receiving the production this year. The Agency has piloted UlsterScots after-school clubs in a number of locations. The Council discussed the Ulster Scots Agency’s community programmes and noted in particular the significant progress in music, dance and drama, and work with young people. It noted that the Agency will establish a new Development Grant scheme beginning in February 2008. Recognising the very positive reception given to Ulster-Scots language, heritage and culture at the Smithsonian Festival in Washington earlier this year and the planned activities associated with the 400th anniversary of the Plantation of Ulster, the Council invited the Agency to bring forward a proposal for a programme to develop links and cultural exchanges with UlsterScots communities in Scotland and North America. Ministers welcomed a report on the work of Foras na Gaeilge, especially in the eGovernment area with the development of an online database of terminology— www.focal.ie, the launch (with Microsoft) of an Irish language version of Windows XP and the development of Córas Creidiúnaithe/an Accreditation Scheme for Irish Language translators. A successful three-year local community support scheme which provided funding to 20 groups throughout the island of Ireland has been extended to 2010. The success of the scheme has led the Foras to widen the scheme to post-primary level this year. The Council approved the proposal to transfer the functions of Bord na Leabhar Gaeilge (the Irish Language Books Board) to Foras na Gaeilge from 1 January 2008. Bord na Leabhar Gaeilge was established in 1952 as a non-statutory State body, and its objective is to assist writers and publishers in supplying Irish language material for the general public. Ministers noted that funding for Bord na Leabhar Gaeilge will continue to be provided by the Department of Community, Rural and Gaeltacht Affairs. The Council discussed administrative and governance issues arising in relation to Colmcille, an organisation established in 1997 and funded jointly by the administrations in Ireland, Northern Ireland and Scotland, to develop stronger links between Gaelic speakers. It noted that work had been undertaken in relation to possible new arrangements to take that work forward under the aegis of Foras na Gaeilge in Ireland and Bord na Gaidhlig in Scotland. The Council asked officials to continue their work in examination of the issues arising and future options, and agreed to consider the matter further at its next meeting on the basis of a report prepared by officials. Special EU Programmes Sector The first NSMC Special EU Programmes sectoral meeting since the restoration of the Northern Ireland Executive and Assembly, took place in Dublin on Wednesday, 7 November 2007 and discussed the various EU funding programmes and strands. The Chief Executive of the Special European Union Programmes Body (SEUPB) reported on developments since the Council last met in this sector on 9 October 2002, including the successful closure of the PEACE I Programme and the achievement of annual expenditure targets by the PEACE II and INTERREG IIIA Programmes.6 6 The EU Programme for Peace and Reconciliation (PEACE Programme) is a unique EU-funded programme for Northern Ireland and the Border Regions of Ireland (Cavan, Donegal, Leitrim, Louth, Monaghan and Sligo), the aim of which is to promote reconciliation and help to build a more peaceful and stable society. The INTERREG Programme is an EU Community Initiative designed to support cross-border co-operation, social cohesion and economic development between regions of the EU. See further www.seupb.org.

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Ministers welcomed the adoption on 6 November 2007 by the European Commission of the Peace III and the Northern Ireland/Ireland/Scotland Cross Border Cooperation Programme (INTERREG IVA). They noted that, including matching funding from the Irish Government and the Northern Ireland Executive, a total of €589m will be made available through these programmes for investment in Northern Ireland and the creation of a more prosperous cross-border region. Ministers requested the SEUPB to make arrangements to launch the two programmes as soon as possible. The Council welcomed the focus of the new PEACE Programme on (i) Reconciling Communities and (ii) contributing to a Shared Society. Ministers noted that the PEACE III Programme has a European Regional Development Fund allocation of €225 million and will be funded under the EU’s Territorial Co-operation Objective. Including match funding from the Irish Government and the Northern Ireland Executive, the PEACE III Programme will be worth almost €333 million. The Council welcomed the focus of the new cross-border INTERREG IVA Programme on (i) Co-operation for a more prosperous border region (ii) Co-operation for a sustainable border region. Ministers also welcomed the inclusion of Western Scotland in the Northern Ireland/Ireland cross-border programme, and look forward to working with Scottish colleagues in this programme. The budget of the Programme will be €256 million (including match funding from the Irish Government and the Northern Ireland Executive), a significant increase on INTERREG IIIA’s budget of €183 million. Ministers noted that the UK has allocated €139 million of its share of Cross Border European Regional Development Funding to the Northern Ireland/Ireland/Scotland Programme, and that Ireland has allocated €53 million. Agriculture Sector This sector met on Friday, 9 November 2007 in Donegal, and discussed animal health, plant health, Common Agricultural Policy and co-operation issues. The Ministers welcomed the beneficial collaborative work in response to outbreaks of Foot and Mouth Disease, Bluetongue disease and Avian Influenza in Britain. It was noted that this co-operation had ensured the adoption of a common approach to preventing these diseases from entering the Island of Ireland while maintaining trade levels. The Council noted an all-Island Animal Health and Welfare Strategy Paper developed by the North/South Animal Health and Welfare Steering Group.7 They restated that the free movement of animals on the island continues to be the ultimate aim of the animal health and welfare strategy, and that the way forward is through cooperation and the development of complementary policies. The Strategy includes a list of initial activities for delivery of key elements, with various milestones and deadlines for the immediate period ahead, and Ministers requested that officials continue to oversee progress. The Council agreed that North–South co-operation on plant health should focus on the status of pests and diseases threatening the Island’s plant health and co-operation 7 Consultation on the draft strategy is ongoing. See further details at the website of the Department of Agriculture and Rural Development at www.dardni.gov.uk.

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on EU matters. Ministers noted that the Department of Agriculture and Rural Development (in Northern Ireland) is developing a plant health strategy which will include a section on North–South co-operation consistent with the Department of Agriculture, Fisheries and Food plant health strategies. Ministers also agreed that the work of the North–South Pesticide Steering Group should focus on the production of co-ordinated pesticide usage surveys for grassland and fodder crops, and for arable crops. The Council agreed that officials from the Departments should remain in close contact on a range of key Common Agricultural Policy issues, including the EU Commission’s recent adoption of a single Common Market Organisation, the reform of the Fruit and Vegetable sector and the Common Agricultural Policy ‘Health Check’. Ministers noted that future NSMC meetings will consider and review common challenges and opportunities arising from the EU dimension of agriculture. The Council noted the work of the North–South Steering Committee on Cross Border Rural Development. It agreed that the future work of the Committee should focus on developing maximum co-operation in the implementation of rural development programmes and policy, including EU programmes, and to examine the scope for a common approach to the feasibility of developing cross-border area based strategies and rural development research. Ministers welcomed the progress achieved under the funding provided by the EU Peace Programmes, particularly the strong focus on rural areas which had been particularly disadvantaged as a result of the conflict. They requested officials to bring forward a report and recommendations to the next meeting in respect of the Rural Development Programme 2007–13 and co-operation projects. Education Sector The Education Sector meeting of the NSMC took place in Dublin on 14 November 2007 and addressed educational underachievement, school, youth and teacher exchanges, special educational needs and teacher achievements. The Council first welcomed progress on addressing educational underachievement, including successful initiatives for the promotion of literacy and numeracy in schools, and requested officials to develop proposals on educational underachievement for consideration at the next meeting. Ministers welcomed the ongoing co-operation between the Department of Education and Science and the Department of Education in the area of crossborder school, youth and teacher exchanges. They noted that a formal review of co-operation on educational exchanges and supporting mechanisms, including the North–South Exchange Consortium, will shortly commence with a view to identifying a range of options for future progress in the light of current and future funding availability. Ministers welcomed a report from the Chief Executive and Chair of the Centre of Excellence for Autism at Middletown, reporting the significant progress made to date on the establishment of a Centre of Excellence for Autism at Middletown and plans to carry out a consultation exercise with all relevant stakeholders involved to inform how the services will be delivered. Ministers endorsed the future plans for the Centre, which include the provision of training/advisory and information/research services and education, learning and support services which are due to come on stream once build-

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ing work is completed. The Council also discussed proposals for a joint Autistic Spectrum Disorder Conference in 2008, and welcomed the distribution of parent and teacher videos/CD-ROMs and guidance material on Autism and Dyslexia. Other joint projects in the field of special educational needs were noted, including the ‘Cross Border School and Parent Community Partnership Programme’ which was supported by the EU Peace and Reconciliation Programme and co-funded by both Departments of Education. This project, run from September 2006 to August 2008, is intended to create a cross-border schools/parents/community partnership approach to the education and socialisation of children with special educational needs. The Council noted the progress made to date by the Teacher Qualifications Working Group. It recognised that significant changes have been made to the previous requirements for proficiency in the Irish language in respect of teaching posts, and that a specific professional development programme (funded by the Department of Education and Science and developed in Marino College of Education, Dublin) has been introduced to address the needs of primary teachers undertaking the Scrúdú le haghaidh Cáilíochta sa Ghaeilge: an Irish proficiency examination. The Council welcomed ongoing communication and co-operation between the Inspectorates of both Departments of Education in relation to the sharing of best practice and research, and acknowledged the contribution made by The Standing Conference on Teacher Education, North and South, which provides support for allisland conferences on social, scientific and environmental education, initial teacher education, citizenship education and special educational needs, and for cross-border research projects. Under the auspices of the Organisation for Economic Co-operation and Development, the two Education Departments jointly hosted a conference of participating countries in Dublin on 7 and 8 November 2007. As a result of the Conference, a joint research initiative will be developed, aimed at attracting and developing school leaders. The issue of joint professional development programmes for agreed groups will also be explored. Environment Sector The Environmental Sector met in Fermanagh on Friday, 26 October 2007. Progress welcomed since 2002 included joint work on the implementation of the EU Water Framework Directive to enhance water management on a co-ordinated cross-border basis; over 175,000 waste fridges and freezers recycled under a Northern Ireland/ Ireland contract; and a successful cross-border waste awareness campaign. The Council agreed that implementation of the EU Water Framework Directive for the three International cross-border River Basin Districts (IRBDs) falling within the scope of the Directive should proceed on the basis of single management plans for each IRBD. The River Water Districts are: the North Western IRBD; the Neagh Bann IRBD; and the Shannon IRBD. The EU Directive requires that member States maintain high status of waters where it exists, prevent any deterioration in the existing status of any waters and achieve at least ‘good status’ in relation to all waters by 2015. Ministers requested the North South Water Framework Coordination Group of officials, which takes forward this work, to report on progress at the next meeting.

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The Council welcomed the progress made by the North South Market Development Steering Group, which worked on a mutually beneficial approach to the development of the waste and recycling market, exploiting opportunities to benefit from economies of scale. It agreed that the Steering Group should require the market development delivery agencies in Ireland and Northern Ireland to develop proposals for a joint Market Development Action Programme, guided by the respective strategies and programmes in both jurisdictions. The Council also agreed that the Steering Group should be chaired by a representative from the business sector, and should include members from the business sector as well as relevant Non-Governmental Organisations. Lastly, it recognised the continuing joint work on the feasibility of establishing a paper mill, capable of reprocessing waste paper generated on the Island, contingent on the mobilisation of private sector support and funding, and requested a progress report for its next meeting. Ministers welcomed the significant progress made in tackling the movements of illegal cross-border waste, and specifically joint enforcement actions designed to prevent such illegal activities. They endorsed a Road Map developed in response to a request by the European Commission, which sets out the responsibilities of both jurisdictions within the context of the relevant legislation. The Road Map outlines a step-by-step approach for the removal and disposal of waste which has already been illegally dumped, and sets out a series of joint enforcement actions designed to prevent future illegal movements. The Council approved the commissioning of a review of two environmental research websites—a North–South website of environmental research incorporating an environmental database—which were developed under the auspices of the NSMC and launched in 2002. It welcomed the intentions of the Environment Protection Agency and Environment and Heritage Service to meet to determine the potential opportunities for the co-ordination of joint environmental research. The Council also noted the successful outcome of a cross-border waste awareness campaign and requested officials to explore the scope for further work, including information exchange, environmental awareness campaigns and funding options. Tourism Sector The Tourism Sector of the Council met in Dublin on 8 November 2007. The meeting considered a report from Tourism Ireland and welcomed progress made since the last meeting in April 2002. In particular, it noted the strong growth in revenue and visitor numbers, which are forecast to have grown by €1.3/£0.87 billion and 2.17 million respectively, including an increase of 391,000 in visitors to Northern Ireland during this period.8 It also received a presentation on the future plans of Tourism Ireland, and welcomed the broad objectives outlined in Tourism Ireland’s three-year Corporate Plan, including the two key goals of increasing tourism to the island of Ireland and supporting Northern Ireland to realise its tourism potential.

8

See Joint Communiqué, Tourism Sector, 8 November 2007, available at: www.northsouthministerialcouncil.org.

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instit utional format Beyond meeting in Plenary and as Sectors, the NSMC can also meet in institutional format, with the Northern Ireland Administration represented by the First Minister and Deputy First Minister, and the Irish Government represented by the Minister for Foreign Affairs. In this format, the NSMC considers institutional and cross-sectoral issues, including in relation to the EU, and endeavours to resolve disagreements and difficulties in the operations of the NSMC. Although it had not met in this format since 2001, institutional format meetings were re-established in 2007, with two meetings (the second and third altogether) in October and December 2007. Matters discussed at the October meeting included the expiry of the boards of the North–South bodies, the need to identify new premises for the joint secretariat of the NMSC, and issues in relation to cross-border mobility. In particular, the Council noted progress on the implementation of the recommendations contained in the Study of Obstacles to Mobility commissioned by the NSMC in 2001, including: progress on the mutual recognition of qualifications, including in the education and health areas; the introduction of single tariffs by some mobile phone operators; and the greater availability of public service information for people who wish to cross the border to live, work and study.9 The Council also launched the Cross-Border Mobility Website (www.crossbordermobility.info), which provides a central access point for information on a range of issues for people who wish to move across the border to live, work and study. The Council requested the Secretariat to keep the website’s operation, development, marketing and management under review, and to examine options for its future funding, including possible EU funding, and report back to a future NSMC meeting. The Council agreed that the NSMC Secretariat should convene two working groups—one to explore options for going forward on the transfer of pension rights on a crossborder basis, and the other to examine cross-border banking issues, including transaction charges. Both groups will report back to a future NSMC meeting. A further meeting of the NSMC in institutional format was held on 17 December 2007 at Stormont in Belfast. The principal purpose of this meeting was to approve the appointment of members of the Management Boards to the Trade and Business Development Body (InterTradeIreland), the North South Language Body (Foras na Gaelige and the Ulster Scots Agency), the Foyle Carlingford and Irish Lights Commission, Tourism Ireland Limited and the Advisory Board to the Food Safety Promotion Board, including Chairs and Vice Chairs.10 joint committee of representatives of the human rights commissions It was noted in last year’s Report that the Good Friday/Belfast Agreement made provision for a joint committee of representatives of the Human Rights Commissions 9 This report is available on the NSMC website at www.northsouthministerialcouncil.org (18 March 2008). 10 Full details of these appointments and the full texts of all communiqués are available at www. northsouthministerialcouncil.org.

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North and South to act as a ‘forum for the consideration of human rights issues in the island of Ireland’. The Agreement (Strand Three, para 10) envisages that the Joint Committee will consider, among other matters, the possibility of establishing a charter, open to signature of all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland. The Committee appears to have met just once in 2007, on 27 February in Belfast. At that meeting the representatives discussed the Commissions’ joint response to the call for support for a cross–border public inquiry into the Omagh bomb on 15 August 1998. It was noted that both Commissions wrote to the Secretary of State for Northern Ireland and the Taoiseach respectively about this matter and were awaiting a reply. The Committee has two sub-groups, one on racism and migration, the other on the Charter of Rights for the Island of Ireland. The issues reported by the racism subgroup included work underway to research the Republic of Ireland’s and Northern Ireland’s compliance with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.11 It is proposed that the two sets of research will result in a joint document to support work by the Commissions to encourage the respective governments to ratify the Convention. The nature of the document, and funding to publish it, needs to be agreed by the two Commissions. It was noted that the Northern Ireland Commission’s investigation into the detention of immigrants and asylum seekers was underway, and there may be potential for collaboration between the Commissions in reviewing the arrangements for the handling of immigrants and asylum seekers at the Northern Ireland/Republic of Ireland border. The Charter of Rights sub-group reported to the meeting that agreement had been reached on the need to apply for funding for a researcher to review existing research and compile a paper outlining various models and options for consultation. The Joint Committee agreed to support such a bid. It was reported that this paper would form the basis of a consultation event on models and options for a Charter of Rights, possibly in 2008, when the Bill of Rights Forum in Northern Ireland has concluded its work. The Joint Committee also noted that the tenth anniversary of the Good Friday/Belfast Agreement in 2008 would be an appropriate time to promote serious debate on the Charter. It was agreed to write to those individuals who had responded to the 2003 consultation to inform them of the proposals to take the issue forward, and a draft letter was agreed to this end. conclusion There is clearly considerable potential for mutually beneficial cross-border cooperation and communication on a range of issues like transport, agriculture education, and tourism. Moreover, this has been translated into real progress in these areas, particularly since the sectoral meetings have recommenced following the reinstatement 11 Adopted by GA Res 45/158 of 18 December 1990. The Convention entered into force on 1 July 2003. See www.ohchr.org.

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of the Northern Ireland Executive and Assembly. The fact that such meetings are taking place at ministerial level is a key feature that adds to their effectiveness. The review of the institutions under the St Andrews Agreement is now awaited. Its conclusions on the value for money of the institutions, and on the case for additional bodies and areas of co-operation within the NSMC where they would be of mutual benefit, will define the future of the NSMC, and indeed cross-border relations generally.

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Human Rights Law in the Republic of Ireland—2007

Liam Thornton* university college cork criminal justice Debates on criminal justice, police powers and human rights of the accused were present throughout much of 2007 in the Republic of Ireland. Human rights concerns were raised in relation to the introduction of anti-social behaviour orders, the continuing focus on ‘balance’ within the Irish criminal justice system and limitations on the right to silence. There were also some positive developments in the field of human rights, including the introduction of the Prison Rules. ‘Balance’ and the Criminal Justice System The rhetoric of the need for ‘balance’ in the criminal justice system, so as to ensure an equalisation of rights between the alleged victim and the alleged perpetrator of a crime, continued to be an underlying theme to criminal justice legislation in 2007.1 In February, the Balance in the Criminal Law Review Group issued an Interim Report on the right to silence within the criminal justice process.2 The Group recommended, inter alia, that inferences should be drawn from the silence of an accused for all arrestable offences.3 The Group stated that possible safeguards to be introduced if this power was enacted included gaining leave of the court to introduce such evidence, and allowing a solicitor to be present during questioning or the video-recording of the interview (unless the accused specifically requested that the interview not be recorded).4 In March, the Final Report of the Balance in the Criminal Law Review Group was released.5 As well as the recommendations made in the February Interim Report, the Balancing Group also recommended changes in the law in introducing character evidence where an accused attacks the character of an incapacitated or a * Government of Ireland Scholar 2005–08, Centre for Criminal Justice and Human Rights, Faculty of Law, University College, Cork. 1 Mr Justice Adrian Hardiman of the Supreme Court stated that the central notion of ‘re-balancing’ suggests that the criminal justice system is somehow ‘unbalanced’ and cautions against such assumptions. Hardiman J has stated that for the last 20 years all law reform has assisted the State and prosecution in making it easier to convict an accused. Hardiman J also refers to the incorrect impression that the prosecution are somehow at a great disadvantage within the criminal justice system. He goes on to note the downgrading of the rights of the accused to mere ‘technicalities’ which hinder effective crime prevention. See Adrian Hardiman, ‘Weasel Words and Doubtful Meanings: A Study in the Language of Law “Reform” ’ [2007] Judicial Studies Institute Journal 1. 2 Department of Justice, Equality and Law Reform, Interim Report of the Balance in the Criminal Law Review Group: The Right to Silence (February 2007). 3 Ibid, 40–41. 4 Ibid. 5 Department of Justice, Equality and Law Reform, Final Report of the Balance in the Criminal Law Review Group (March 2007).

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deceased party. A majority of the Group recommended that unconstitutionally obtained evidence could be admitted at the discretion of the court. The judge would have to consider the totality of the circumstances and the effects this would have on the victim. The Group further recommended that an accused should have an outline of his or her defence before commencement of the trial. Many of the recommendations of the Balance Group were contained within the Criminal Justice Act 2007,6 (‘the 2007 Act) enacted in May. The 2007 Act set out further guidelines to be considered in a bail application, as well as the possibility of electronic tagging for those charged with an offence but not yet convicted.7 In addition, the prosecution may appeal the grant of bail by a lower court.8 There is a range of additional requirements to consider when applying a statutory minimum sentencing for a variety of offences. The courts are not to depart from the minimum sentence unless is would be unjust or inappropriate in the circumstances to apply the minimum sentence. Additional factors which the judiciary have to consider in the area of sentencing include the issue of repeat offenders and issues relating to ‘organised crime’. In addition, there is more scope for the imposition of post-release orders.9 criminal justice (human trafficking) bill 2007 In October, the Irish Government published the Criminal Justice (Human Trafficking) Bill. The Bill is intended to ensure that Ireland can agree to be bound by international agreements on human trafficking.10 The 2007 Bill seeks, inter alia, to criminalise the exploitation of persons for labour, sexual or organ removal purposes.11 Those guilty of trafficking persons,12 causing another to traffic13 or attempts to traffic persons14 are liable for a punishment of up to life imprisonment or a fine. This includes where a person who is an Irish citizen or normally resident in Ireland commits such offence abroad.15 The Bill is currently navigating through the Houses of the Oireachtas and it is unclear as to when it will come into law. The Bill has been welcomed for specifically criminalising the offence of trafficking, although a number of bodies have criticised it 6

See generally Part 4 of the Criminal Justice Act 2007 (hereinafter ‘the 2007 Act’) . See generally Part 2 of the 2007 Act . 8 Ibid. 9 See Part 3 of the 2007 Act. 10 The Criminal Justice (Human Trafficking) Bill 2007 (hereinafter ‘2007 Bill’) was based on the 2006 Scheme, see Siobhan Mullally et al, ‘Human Rights—2006’ (2006) 1 Irish Yearbook of International Law 313, at 314. The Bill intends to provide a framework for Ireland to adopt various international agreements and standards on human trafficking, including the UN Protocol to Prevent, Suppress and Punish Trafficking (‘the Palermo Protocol’); implementation of the EU Framework Decision on Combating Trafficking in Human Beings; and the Council of Europe Convention Against Trafficking. 11 Clause 3(1) of the 2007 Bill in relation to the exploitation of children, and cl. 5(1) of the 2007 Bill for persons other than children. 12 Cl. 3(5) of the 2007 Bill (child trafficking other than for sexual exploitation) and cl. 4(1) (in relation to sexual exploitation of a child); cl. 5(6) of the 2007 Bill (includes those who are not children and those who are mentally handicapped). 13 Cl. 4(4) of the 2007 Bill (causing a person to traffic a child for sexual or non-sexual exploitation); cl. 5(6) and (7) of the 2007 Bill (causing a person to traffic a person other than a child for sexual or nonsexual exploitation). 14 Cl. 4(5) of the 2007 Bill (attempting to traffic a child for sexual or non-sexual exploitation); cl. 5(5) and (7) of the 2007 Bill (attempting to traffic a person other than a child for sexual or non-sexual exploitation). 15 Cl. 7 of the 2007 Bill. 7

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for failing adequately to deal with, for instance, the care and protection of victims of trafficking.16 In publishing this Bill, the Minister for Justice, Equality and Law Reform stated that the rights of victims would be catered for in immigration legislation which had not been published by the year’s end.17 Anti-social Behaviour Orders Anti-social behaviour orders (ASBOs) are a civil injunction against behaviour of individuals, both adults and children. This behaviour may or may not be criminal in nature. The introduction of ASBOs in Ireland raises serious questions of compliance with international and European human rights law and standards. In the 2006 edition of The Irish Yearbook of International Law, the human rights concerns which were raised by the introduction of similar provisions within the UK were noted, as were the concerns raised by the Irish Human Rights Commission.18 Part 11 and Part 13 of the Criminal Justice Act 2006 introduced anti-social behaviour orders (ASBOs) into Irish law from January.19 Part 11 of the 2006 Act applies to those above the age of 18,20 while Part 13 of the Act applies to children.21 Under Part 11, those who behave in an anti-social22 manner may receive a behaviour warning 23 or a civil order 24 to prevent their continuing to behave in a manner which has been deemed anti-social. Behaviour orders can be issued by a member of An Garda Síochána (Irish Police Force).25 Such orders oblige an individual to cease acting in an anti-social manner.26 They may be issued only within a month of the offending or 16 IHRC, Observations on the Scheme of the Criminal Justice (Trafficking) Bill 2007 (June 2007); Migrant Rights Centre, No Way Forward, No Going Back: Identifying the problem of trafficking for forced labour in Ireland (2007); Cork Anti-Trafficking Group, Observations on the Scheme of the Criminal Justice (Trafficking) Act 2006 (2006). 17 The Immigration Residence and Protection Bill 2007 was introduced by Senator Mary Rourke on 25 April 2007. With the calling of the 2007 Irish General Election and the dissolution of Dáil Eireann (Irish Lower House of Parliament) and Séanad Eireann (Ireland’s Upper House of Parliament), the Bill lapsed. In October 2007, the then Minister for Justice, Equality and Law Reform, Mr Brian Lenihan TD, indicated, when introducing the Human Trafficking Bill, that there would be a new Immigration, Residence and Protection Bill sometime in 2008; see Press Statement of Mr Brian Lenihan TD, http://www.justice.ie/en/JELR/ Pages/Human_Trafficking_Bill_Published. 18 Siobhán Mullally et al, above n 10, at 313. 19 Section 1(3) of the Criminal Justice Act 2006 (hereinafter ‘the 2006 Act’) allowed the Minister for Justice, Equality and Law Reform to introduce Parts 11 and 13 upon signing an order to bring those provisions into effect. On 29 December 2006, the then Minister for Justice, Equality and Law Reform brought these provisions into effect. Part 11 was operational from 1 January 2007, while Part 13 came into effect on 1 March 2007. 20 Section 113(3) of the 2006 Act. 21 Section 159 of the 2006 Act inserts Part 12A into the Children’s Act 2001 (hereinafter ‘the 2001 Act’). Children are defined for the purposes of the 2006 Act as being at least 12 years of age but below the age of 18 (s 257A of the 2006 Act). 22 Section 113(2) of the 2006 Act defines ‘anti-social behaviour’ in the following manner: “[A] person behaves in an antisocial manner if the person causes or, in the circumstances, is likely to cause, to one or more persons who are not of the same household as the person, (a) harassment, (b) significant or persistent alarm, distress, fear or intimidation, or (c) significant or persistent impairment of their use or enjoyment of their property.” 23 Section 114 of the 2006 Act. 24 Section 115 of the 2006 Act. 25 Section 114(1) of the 2006 Act. 26 Section 114(3)(b) of the 2006 Act.

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persistent behaviour taking place.27 Behaviour orders subsist for a period of three months from the date of issue.28 Where behaviour orders are deemed ineffectual,29 it is possible for a Garda, not below the rank of superintendent, to apply for a civil order.30 The judiciary may impose terms and conditions in the order, as deemed appropriate. The standard of proof required for the granting of a civil order is ‘on the balance or probabilities’.31 The person against whom the civil order is sought (‘the respondent’) is entitled to civil legal aid if he is of low means and the interests of justice so require it.32 Breach of the civil order can result in a fine and/or imprisonment.33 A civil order can remain in force for a period of up to two years, or for a shorter period of time as the court sees fit.34 The imposition of a civil order may be appealed to the Circuit Court;35 however, the civil order may continue to be operational and enforced until the determination of the appeal.36 Children may be subject to a behaviour warning by a member of An Garda Síochána on the same grounds as an adult; however, the issuance of the warning must be notified to the child’s parent(s) or guardian(s).37 Prior to the issuance of a behaviour warning, and with a view to its not being issued,38 there can be meeting to discuss the anti-social behaviour between members of the Gardaí, the child who is allegedly undertaking the anti-social behaviour, parents and guardians, and other persons.39 Within the meeting, a Garda Superintendent must explain to the child and his or her parent(s) or guardian(s) the exact nature of the offending behaviour by the child, and the effect that this is having on an individual or individuals. The child must acknowledge that he or she has engaged in anti-social behaviour and agree not to repeat his or her actions. The parent(s) or guardian(s) of the child must acknowledge the anti-social behaviour of the child and commit to taking action to prevent its reoccurrence.40 Upon such agreements and undertakings being reached, a good behaviour contract may be signed, wherein the child agrees to desist from engaging in anti-social behaviour.41 Where there is a refusal 27

Section 114(5) of the 2006 Act. Section 114(6) of the 2006 Act. 29 In this regard, the Garda Superintendent must be satisfied that the respondent is not complying with the behaviour order, and can apply for a civil order only where at least three behaviour orders have been issued within a consecutive six-month period: s 115(4) of the 2006 Act. 30 Section 115(3) of the 2006 Act. An application can be made where the respondent has behaved in an anti-social manner and the civil order is necessary to prevent the respondent from behaving in such a manner. The application for making a civil order must be ‘reasonable and appropriate’ in the circumstances (s 115(1) of the 2006 Act). 31 Section 115(9) of the 2006 Act. 32 Section 118(2) of the 2006 Act. 33 Under s 117(3) of the 2006 Act, an individual who breaches a civil order of the court may face a fine of up to €3,000 and/or up to six months’ imprisonment. 34 Section 115(6) of the 2006 Act. 35 Section 116(1) of the 2006 Act. The person(s) to whom a civil order applies must bring an appeal within 21 days; however, this period of time may be extended by the Circuit Court judge if it is deemed appropriate (s 116(6) of the 2006 Act). 36 Section 116(3) of the 2006 Act. It is for the District Court judge to decide whether to place a stay on the order. 37 Section 160 of the 2006 Act inserts s 257B into the 2001 Act. 38 Section 161 of the 2006 Act inserts s 257C(b) into the 2001 Act. 39 Section 161 of the 2006 Act inserts s 257C into the 2001 Act. 40 Section 161 of the 2006 Act inserts s 257C(7) into the 2001 Act. 41 Section 161 of the 2006 Act inserts s 257C(7)(d) into the 2001 Act. A good behaviour contract is in force for six months. The duration of a good behaviour contract can be extended where the Superintendent or parent(s)/guardian(s) of the child believe that he or she may re-engage in anti-social behaviour. This contract can be extended for a period of between six to nine months. 28

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to acknowledge the anti-social behaviour, or where there is a breach of the good behaviour contract,42 there may be an application to the Children’s Court for the imposition of a behaviour order. In addition to requiring the child to desist from acting in an antisocial manner, there are further reporting requirements, either to the Gardaí or to a ‘responsible person’ (such as a teacher), and there may be a school attendance obligation as well as a requirement to be supervised by a named person.43 As with the civil orders for adults, these behaviour orders may last up to two years.44 The imposition of the behaviour order can be subject to an appeal to the Circuit Court.45 The behaviour order may remain in force until the appeal is heard.46 Where a child fails to comply with the behaviour order, he or she may be fined or could face a sentence of up to three months in a child detention school.47 Prison Law In March, the Prisons Act 2007 came into force. The main reason for the introduction of this Act was the need to modernise the administration of prisons, fully legislate for the introduction of prison rules, to set up a formalised disciplinary system, and to set out ministerial powers in relation to the extension of existing prisons and the building of new prisons. In May, the Minister for Justice, Equality and Law Reform issued the Prison Rules.48 These set out in statutory format the rights and obligations of prisoners while in detention, including the treatment of prisoners, association with the outside community, privacy rights, grievance procedures, the disciplinary procedures to be followed in the event of breach of the Prison Rules, and the treatment of young offenders. The Prison Rules also set down provisions relating to access to education, vocational training and religious instruction. Many of these rules had their origins in recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). In the CPT’s latest report, released in October 2007, concerns were raised in relation to ill-treatment in custody; conditions of detention within Irish prisons; and the failure of the State to separate those on remand from convicted prisoners. The CPT also recommended the need to end ‘slopping out’ within prisons, and noted issues surrounding educational and vocational activities and meaningful work-related activities for prisoners throughout the prison service.49

42

Section 162 of the 2006 Act inserts s 257D(4) into the 2001 Act. Section 162 of the 2006 Act inserts s 257D(4) into the 2001 Act. This is in addition to the requirement that all those 16 years of age and under are obliged to be within full-time education, see Education Act 1998. 44 Section 162 of the 2006 Act inserts s 257D(b) into the 2001 Act. 45 Section 163 of the 2006 Act inserts s 257E into the 2001 Act. 46 Section 163 of the 2006 Act inserts s 257E(3) into the 2001 Act. 47 Section 164 of the 2006 Act inserts s 257F(3) into the 2001 Act. 48 Section 35 of the Prisons Act 2007 allows the Minister to issue Prison Rules. 49 CPT, Report to the Government of Ireland on the visit to Ireland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 2 to 13 October 2006 (10 October 2007). 43

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Criminal Justice Jurisprudence International law arguments did not feature in a significant way within criminal justice litigation during 2007; however, there is evidence that those accused of crimes are becoming more aware of the international human rights obligations of the State. In Binéad and Donohue,50 the co-accused were convicted in the Special Criminal Court of membership of an unlawful organisation styling itself upon Óglaigh na hÉireann (Irish Republican Army).51 Due to its perceived sensitive nature, the Court examined the evidence and refused to provide information on its nature to the defence. The Court stated that there was nothing in the documents which would assist the accused persons in establishing their innocence.52 Relying, inter alia, on Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the co-accused appealed to the Court of Criminal Appeal (CCA). Both argued that an independent advocate, rather than the three judges of the Special Criminal Court, should have assessed the evidence.53 In addition, the co-accused were deprived of the opportunity to cross-examine the Chief Superintendent in relation to the evidence put forward.54 The CCA rejected the arguments in relation to Article 6 of the ECHR. Macken J relied55 in particular on the European Court of Human Rights (ECtHR) judgments in Doorson,56Van Mechelen57 and Rowe,58 which established the legitimacy of protecting police sources and informers so as to ensure the fair administration of justice.59 The issue of illegally obtained fingerprint evidence and compatibility with admittance into a trial was raised in DPP v Cash.60 Mr Justice Charleton, delivering judgment, noted that the ECtHR did not exclude the possibility of admitting illegally obtained evidence into the trial of an accused.61 In applying the European Convention on Human Rights Act 2003 (ECHRA 2003), the judge noted that he was under an obligation to consider not only the rights of the accused, but also the rights of the community in deciding whether illegally obtained evidence should be excluded. Reflecting the current encroachment of ‘balance’ within the criminal justice system, Charleton J 50

The People (Director of Public Prosecutions) v Niall Binéad and Kenneth Donohue [2007] 1 IR 374. The Special Criminal Court is a three-judge non-jury court that has a legal base under the Offences Against the State Act 1939. The Director of Public Prosecutions can direct a case against an accused to take place in this Court. Historically, the Court only heard trials on the subversive activity of paramilitary organisations. In the last number of years the Court has also been referred cases, due to fears of interference with juries and the alleged involvement of organised crime. 52 [2007] 1 IR 374, at 383. 53 Ibid. 54 Ibid. 55 These cases were cited with approval by Fennelly J in the Supreme Court judgment of Director of Public Prosecutions v Kelly [2006] 3 IR 115. 56 Doorson v Netherlands (1996) 22 EHRR 330. 57 Van Mechelen and Others v Netherlands (1998) 25 EHRR 647. 58 Rowe and Davis v United Kingdom (2000) 30 EHRR 1. 59 [2007] 1 IR 374 at 388, quoting Fennelly J at [2006] 3 IR 115 at para 73 of his judgment. 60 DPP (at the suit of Detective Garda Barry Walsh) v Cash [2007] IEHC 108 (28 March 2007). 61 Charleton J cited X and Y v The Netherlands (1986) 8 EHRR 235 as authority for the proposition that rules which hinder a fair prosecution may be incompatible with the ECHR. He further relied on Schenk v Switzerland (1988) 13 EHRR 242 and application of the ECHR to rules of illegally obtained evidence by the House of Lords in Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91. As well as the human rights jurisprudence of Strasbourg and the UK, Charleton J also examined the position under the Irish Constitution, the United States Constitution, the Canadian Charter of Fundamental Rights and the case law of the Court of Appeal of New Zealand. 51

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stated that ‘the victim, being the subject of a crime, can have interests which should be weighed in the balance as well of those of the accused’.62 One argument of note in cases relating to the European Arrest Warrant has been the interaction of the right to life with the sending-back provisions under the issue of the arrest warrant. The Supreme Court overturned a decision of the High Court in relation to the execution of a warrant in SR.63 In the High Court, the judge, relying on Article 2 of the European Convention on Human Rights (ECHR), refused to allow the transfer of SR to the UK to face sexual abuse charges. This was due to the poor health of SR and the High Court ensuring protection of his right to life. The Supreme Court in dismissing this stated that the positive obligations in relation to the State’s protection of the right to health and the right to life were not yet fully developed by the Strasbourg Court.64 migration law In January 2007, the Department of Justice, Equality and Law Reform issued Asylum and Nationals of Member States of the European Union: Information Note, which prohibits all nationals of EU member States from claiming asylum within Ireland.65 With the accession of Romania and Bulgaria to the European Union, the then Minister for Justice, Equality and Law Reform, Mr Michael McDowell TD, announced that he was going to take ‘firm action to deal with [the] influx of Romanian asylum seekers’.66 Minister McDowell stated that Romanians were entering Ireland so as to access the labour market, and also to access health and housing services within the State. The Immigration, Residence and Protection Bill 200767 was based on the muchcriticised Scheme to the Immigration, Residence and Protection Bill 2006.68 The 2007 Bill was introduced in the middle of an Irish General Election campaign. With the calling of the 2007 Irish General Election and the dissolution of Dáil Eireann (Irish Lower House of Parliament) and Séanad Eireann (Ireland’s Upper House of Parliament), this Bill lapsed. A new immigration-related bill is expected in 2008. Jurisprudence The High Court and Supreme Court were faced with many questions of international human rights law in relation to migration in 2007. In general, the courts adopted a cautious approach to the protection of human rights within the field of immigration. As will be demonstrated from a brief look at some of the main cases, there was a tendency to defer to what could be deemed the ‘inherent prerogative’ of the Executive arm of the State in immigration matters. 62

[2007] IEHC 108 at para 50. Minister for Justice, Equality and Law Reform v SR [2007] IESC 54 (15 November 2007). 64 The Supreme Court relied on LCB v United Kingdom (1998) 27 EHRR 212 in making this finding. 65 Member States of the EU are Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and United Kingdom. 66 Minister for Justice, Equality and Law Reform, McDowell takes firm action to deal with influx of Romanian asylum seekers, 18 January 2007. See www.inis.gov.ie for full press release. 67 This Bill was introduced by Senator Mary O’Rourke on 25 April 2007. 68 For overview of the 2006 Scheme, see Siobhán Mullally et al, above n 10, at 316. 63

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In Agbonlahor, the issue arose as to whether the deportation of a family with a child with Attention Deficit Hyperactivity Disorder (ADHD) was contrary to the right for respect for private and family life under Article 8 of the ECHR.69 The Agbonlahor family argued that treatment for ADHD was not available in Nigeria. This treatment in Ireland formed a crucial part of the child’s private life. Removal would prevent the child’s treatment and would constitute an unjustifiable interference with his right to a private life. The Government argued, inter alia, that removal of the child and his family from Ireland was in pursuance of lawful immigration control and did not constitute a breach of the right to ‘respect’ for the Agbonlahors’ private life. The State also relied on the British case of N v Home Secretary.70 Mr Justice Kevin Feeney noted that the ECtHR had already stated that immigration policy of a contracting State is not reviewable under the ECHR.71 In dismissing the case, he noted that while positive obligations may flow from Article 8,72 this did not mean that there was an obligation on the State to continue to allow an alien to benefit from medical, social, or other forms of assistance by the expelling State.73 Such arguments could be accepted only in the most exceptional of circumstances, such as in D v UK.74 Feeney J stated that in this case, the lack of educational and medical facilities within Nigeria would not endanger the child’s life. Failure to ensure the child applicant’s personal and emotional development in his country of origin would not violate the ECHR.75 The risks of attracting other people in the same position as the applicants were also highlighted by the judge.76 Feeney J finally noted that only in the most exceptional of cases would applicants be able successfully to rely on the ECHR to prevent deportation.77 The Supreme Court considered the application of principles of the ECHR to the administrative Irish Born Child 05 Scheme (IBC 05) in Bode and Others.78 The IBC 05 Scheme laid down the administrative framework for the consideration of whether non-national parents of Irish children born before 1 January 2005 would be given permission to reside in Ireland for a period of time, which would initially be two years, subject to review, re-application and possibly renewal of the residence period at the end of the initial two-year time-frame. In the High Court, Mrs Justice Finlay Geoghegan held, inter alia, that Article 8(1) of the ECHR required Ireland to examine the rights of the Irish child when deporting his or her non-national parent(s). This could not be limited by the margin of appreciation which the State enjoyed under Article 8(2).79 On appeal, Ireland argued, inter 69 Agbonlahor and ors v Minister for Justice, Equality and Law Reform and ors [2007] IEHC 166. For a full analysis of the issues within the case, see Liam Thornton, ‘Agbonlahor and ors v Minister for Justice, Equality and Law Reform and ors’ [2007] Oxford Reports on International Law 820, http://www.oup.com/ online/law/oril/. 70 [2005] 2 AC 296. 71 [2007] IEHC 166, at para 3.2, relying on Abdulaziz et al v UK (1985) 7 EHRR 471. 72 Ibid. 73 Ibid, at para 3.10. 74 D. v United Kingdom (1997) 24 EHRR 423 75 Ibid, at paras 3.11–3.12. 76 Ibid, at para 3.13. 77 Ibid, at para 3.14. 78 Bode and Others v Minister for Justice, Equality & Law Reform & Others [2007] IESC 62 (20 December 2006). For an overview of the human rights implications and judgment within the High Court case, see Siobhán Mullally et al, above n 10, at 317–18. 79 See generally Bode and Others v Minister for Justice, Equality & Law Reform & Others [2006] IEHC 341 (14 November 2006).

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alia, that since the IBC 05 Scheme was simply the exercise of ministerial discretion, there was no obligation to consider Article 8(1) of the ECHR. The Supreme Court agreed with this assessment. Mrs Justice Susan Denham, delivering the judgment of the Supreme Court, stated that the High Court judgment was ‘misconceived’ in considering human rights arguments. The IBC 05 Scheme did not set out to analyse whether rights to family life were respected. This Scheme was an exercise of executive power by the Minister for Justice, Equality and Law Reform. Issues relating to the Convention rights of the applicants were irrelevant.80

gender, sexuality and the law In April, the Irish Government released the National Women’s Strategy 2007–2016.81 European Union Law, the recommendations of the Committee on the Elimination of Discrimination Against Women82 and the Beijing Declaration83 were viewed as the key factors which shaped the formation of the Strategy.84 Some of the recommendations of the Committee included elimination of gender stereotyping, elimination of domestic violence, the need to increase representation of women within democratic institutions and the need for increased protection of the social rights of vulnerable women.85 These recommendations fed into the key priority areas outlined within the Strategy, which include equalising socio-economic opportunity for women, ensuring the well-being of women, and engaging women as equal and active citizens.

Jurisprudence The European Convention on Human Rights Act 2003 (ECHRA)86 obliges the Irish courts to interpret statutory provisions and rules of law in a Convention-compliant manner.87 Where this is not possible, the High Court or Supreme Court may grant a declaration of incompatibility with Irish law.88 Where this declaration is granted, the rule of law or statutory provision which is incompatible with the ECHR will continue in operation.89 The Taoiseach must place a copy of the declaration of incompatibility before the Oireachtas within 21 days.90 Once an individual is granted a ‘declaration of incompatibility’, the individual is entitled to apply to the Attorney-General for an

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[2007] IESC 62, at para 24. Department of Justice, Equality and Law Reform, National Women’s Strategy 2007–2016 (April 2007). 82 CEDAW, Concluding Observations: Ireland (22 July 2005), UN Doc CEDAW/C/IRL/CO/4-5. 83 Beijing Declaration and Platform for Action, Fourth World Conference on Women, UN Doc A/CONF 177/20 (1995) and A/CONF 177/20/Add 1 (15 September 1995). 84 Above n 81, at 14. 85 Above n 82. 86 The ECHRA 2003 indirectly incorporated the ECHR into Irish law. 87 Section 2(1) of the ECHRA 2003. Section 2(2) states that this applies to statutory provisions and rules of law in force before and after the coming into operation of the 2003 Act. 88 Section 5(1) of the ECHRA 2003. 89 Section 5(2)(a) of the ECHRA 2003. Section 5(2)(b) states that a declaration of incompatibility does not prevent an individual from bringing a case against Ireland before the ECtHR. 90 Section 5(3) of the ECHRA 2003. 81

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ex gratia payment.91 The Government in its sole discretion will then consider whether any payment will be made.92 Since the 2003 Act came into force there has been one declaration of incompatibility. In Foy93 the applicant was a post-operative male to female transsexual. Foy sought to have her acquired gender recognised through amendment of her birth certificate by the insertion of her acquired sex and name. The Registrar General of Births and Deaths refused to amend the certificate. The applicant claimed, inter alia, that this was a breach of her right to a private life under Article 8 of the ECHR. In the first judgment, on 9 July 2002, McKechnie J refused the relief sought on the basis that the ECtHR had consistently refused to recognise the right of transsexuals to have their birth certificates altered.94 Three days later, the ECtHR, reversing positions adopted in previous cases, declared in Goodwin that the failure of the UK to recognise and amend the birth certificate of a post-operative transsexual was, inter alia, a violation of Article 8 of the Convention.95 On appeal in Foy, the Irish Supreme Court remitted the case back to McKechnie J for decision, inter alia, on the effect the Goodwin judgment would have on the substantive case. In analysing the effect of Goodwin in light of the ECHRA 2003, McKechnie J stated that Ireland was now one of the few countries which had failed to deal with the legal rights of transsexuals.96 In light of the Goodwin decision McKechnie J granted a declaration of incompatibility in relation to Ireland’s failure to provide for a mechanism to change the sex on an individual’s birth certificate. A stay was put on the issue of this declaration of incompatibility, and by the end of the year proceedings within the High Court were ongoing. (Somewhat of an aside from this case, the Irish Equality Authority reported in May that the State Examinations Commission and the Department of Education and Science had agreed to re-issue the past examination results of a male to female transsexual in her acquired gender.97) education and housing law 98

In O’C it was argued, inter alia, that provisions of Irish law and educational policy which did not provide a certain form of education for a child with autism99 should result in an award of damages for breach of ECHR rights. Peart J rejected this argument, noting that the right to education does not encompass a right to a particular type of education.100 91

Section 5(2) of the ECHRA 2003. Section 5(2)(c) of the ECHRA 2003. The Government may appoint an adviser who will examine the level of payment which may be made. In doing so, the adviser is to have regard to the level of damages which the ECtHR awards. This will generally be set at a low level. 93 Foy v An t-Ard Chláraitheoir & Ors [2007] IEHC 470 (19 October 2007). 94 Foy v An t-Ard Chláraitheoir & Ors (unreported, McKechnie J, 9 July 2002). 95 Goodwin v United Kingdom (2002) 35 EHRR 18. 96 [2007] IEHC 470, at paras 92–98. 97 Equality Authority Press Release, ‘State Examinations Commission Moves to Recognise Transsexual People’ (31 May 2007). See www.equality.ie to access the press release. 98 O’C v Minister for Education & Science & Ors [2007] IEHC 170 (16 May 2007). 99 The parents in this case wanted to use a technique known as ABA (Applied Behaviour Analysis). The Department of Education had a different, multi-layered educational programme in place. 100 Damages in the case were awarded for the failure of the State to provide certain services, but these awards were not based on a breach of the Convention by Ireland. 92

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Elsewhere, the impact of the ECHR on provisions of housing law—in particular, issues to with regard to respect for private and family life and claims to a certain form of housing—is an issue which was discussed in the cases of Doherty 101 and O’Donnell.102 In Doherty, the plaintiffs were an elderly couple who were members of the Travelling Community. Both suffered from a number of ailments. The local housing authority offered the plaintiffs a house into which they could move. The plaintiffs refused this offer, however, and argued that there was an obligation under the ECHRA 2003 (in particular Article 8 of the ECHR) for the housing authority to provide an adequate caravan for them. Charleton J in the High Court noted the position taken by the ECtHR in Chapman, in particular the contention by the ECtHR that ‘[w]hether the State provides funds to enable everyone to have a home is a matter of political not judicial decision’.103 The High Court then examined a number of decisions of the English courts in relation to positive obligations to provide accommodation after local authorities had assessed the needs of vulnerable individuals.104 In coming to the decision in this case, Charleton J stated that there was no obligation under the ECHR to provide persons with a particular form, type or standard of accommodation. He noted the decision in ECtHR decision in Codona,105 which reaffirmed the view expressed in Chapman that positive obligations under Article 8 of the Convention do not extend to provision of a preferred choice of accommodation. In concluding, Charleton J noted that when dealing with issues of social security and social welfare, the courts must pay due regard to the responsibility of the legislature and executive in allocating resources.106 In O’Donnell, the plaintiffs were also members of the Travelling Community. Each of the children within the family suffered from a condition which resulted in orthopaedic complications with pain and immobility, obstructive airways disease with repeated respiratory infections, cardiac complications, visual impairment, loss of hearing and learning disabilities. The family lived in very cramped and overcrowded conditions. The main ECHR issue which arose was the positive obligation upon the State to provide the plaintiffs with adequate housing in light of Article 3 and Article 8 of the Convention. Laffoy J noted the decision in Doherty and the authorities of the English and European courts cited by Charleton J. Laffoy J dismissed the Article 3 claim on the basis that the treatment suffered did not reach the minimum threshold to engage this article. The State argued that the ECtHR had consistently held that Article 8 does not confer any right to be provided with a home, or any positive obligation to be provided with alternative accommodation of the plaintiffs’ choosing. In finding a breach of Article 8, Laffoy J relied on the assessment of the English High Court in Bernard. In Bernard, O’Sullivan J awarded damages to a woman who was unable to 101

Doherty v Dublin South County Council [2007] IEHC 4 (22 January 2007). O’Donnell v South Dublin County Council [2007] IEHC 204 (22 May 2007). 103 Chapman v The United Kingdom (2001) 33 EHRR 399, para 99. 104 Charleton J discussed the English cases of R (Bernard) v Enfield LBC (2003) LGR 423 damages awarded for breach of the Human Rights Act 1998 when the local authority failed to implement measures after conducting an assessment of the family’s needs) and Anufrijeva v Southwark LBC [2004] 1 All ER 833 (where the domestic law of a State imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of Art 8, provided that the impact on private or family life is sufficiently serious and was foreseeable). 105 Codona v United Kingdom, App No 484/05 (7 February 2006). 106 [2007] IEHC 4, at para 46. 102

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enjoy her right to a private and family life due to a severe disability, which was agitated by the poor condition of local authority housing. Laffoy J in O’Donnell stated that this decision did not mean every member of the Travelling Community was entitled to a caravan at the expense of the State but only this particular family, who had three disabled children living in cramped, overcrowded and inappropriate conditions. Laffoy J distinguished the case before her from Doherty on the ground that the plaintiffs in this case had not been offered any form of alternative accommodation.107 It remains to be seen whether the Irish courts will expand on their jurisprudence on the ECHR, positive obligations and social rights. military law The disciplinary provisions and the requirement for observation of natural justice where a military officer is accused of a breach of discipline are notable human rights elements of the Defence (Amendment) Act 2007.108 These changes in military law in 2007 were necessitated by Article 6 of the ECHR and influenced by previous judgments of the ECtHR in Engel109 and Findlay.110 In both these cases the ECtHR held, inter alia, that fair procedures must be present within military justice.111 human rights treaty bodies Unlike last year, where Ireland was obliged to report to a number of international human rights treaty bodies,112 Ireland reported to just one body this year in relation to the implementation of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.113 While the Concluding Observations of the Committee on the Rights of the Child were not issued in 2007, in responding to the Irish Government’s report the Committee did release its List of Issues.114 Some of the issues on which the Committee sought further information included the issue of recruitment of under-18s into the Defence Forces;115 whether Ireland provides extra-territorial jurisdiction for the offence of conscription or enlisting of those under 15 for participation in hostilities;116 and the protection afforded to 107 The case was adjourned so that an assessment could be carried out of the level of damages which would be awarded. Laffoy J hinted at the figure of €58,000, which would roughly equate to the cost of a caravan which would suit the needs of the plaintiffs. 108 See Siobhán Mullally et al, above n 10, at 319 for observations made on the Defence (Amendment) Bill 2006. There were no substantial differences between the 2006 Bill as initiated and the 2007 Act as passed. 109 Engel v Netherlands (1976) 1 EHRR 647. 110 Findlay v United Kingdom (1997) 24 EHRR 221. 111 In its observations, the Irish Human Rights Commission noted that citizens in uniform are entitled to human rights protections subject only to legitimate restrictions which are provided for by law; see IHRC, Observations on the Defence (Amendment) (No 2) Bill 2006 (February 2007). 112 Siobhan Mullally et al, above n 10, at 325–26. 113 Department of Foreign Affairs, Irish Report in regard to its obligations under the First Protocol to the Convention on the Rights of the Child, UN Doc CRC/C/OPAC/IRL/1 (5 February 2007). 114 Committee on the Rights of the Child, List of Issues: Ireland, in relation to its obligations under the First Protocol to the Convention on the Rights of the Child, UN Doc CRC/C/OPAC/IRL/Q/1 (29 October 2007). 115 Ibid, paras 2–3. 116 Ibid, para. 4.

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child asylum seekers and refugees coming from areas of armed conflict.117 The Irish response to the List of Issues stated that Ireland would not be increasing the voluntary recruitment age to 18.118 In addition, Ireland stated that it provided extra-territorial jurisdiction if recruitment of under-15s for participation in hostilities was carried out on Irish soil, by an Irish national anywhere in the world, or by persons on Irish crafts or ships.119 The Department of Defence also detailed the supports which they believed were provided to child asylum seekers and refugees who came from areas of armed conflict.120 Also with regard to international human rights treaties, Ireland became a signatory to the UN Convention on the Rights of Persons with Disabilities on 30 March 2007.121 By the end of 2007, the Convention had not yet come into force. It is unclear when, or if, Ireland will ratify the Convention.122 council of europe In October 2007, the Committee on Social Rights declared admissible a case against Ireland in relation to the discrimination suffered by persons living abroad in receipt of an Irish contributory old age pension and concerning entitlement to free travel when such persons return to Ireland. Were such persons, who would be over-65, living within Ireland, they would be entitled to free travel on all public transportation within Ireland.123 The International Federation of Human Rights Leagues (IFHR) claimed that such actions were contrary to Article 23 (right of elderly persons to social security), Article 12(4) (undertaking to conclude bilateral and multilateral agreements to ensure equal treatment in social security provision) and Article E (non-discrimination in the enjoyment of rights) of the European Social Charter (Revised).124 In response to the merits of the case, Ireland argued, inter alia, that the European Social Charter did not protect the right to free travel as it was not intrinsically linked to the grant of contributory old age pension. Free travel is available to all persons resident in Ireland over the age of 65. Residency is the key test which an individual must meet so as to qualify for free travel. In the view of the Irish Government, the exclusion of non-resident Irish persons who are entitled to contributory old age pension could not be considered discrimination under the Social Charter.125 A decision had not been reached on the merits of the case by the end of 2007. 117

Ibid, para. 7. Department of Defence, Response to the list of issues to be taken up in connection with the consideration of the initial report of Ireland, UN Doc CRC/C/OPAC/IRL/Q/1/Add 1 (10 December 2007), para 4. 119 Ibid, para 2 and para 6. 120 Ibid, paras 8–36. 121 Department of Justice, Equality and Law Reform, Statement by Mr Michael McDowell TD, (28 March 2007). See www.justice.ie for the full statement. 122 For an overview of the negotiation process and the provisions of the UN Convention on the Rights of Persons with Disabilities, see Agustina Palacios and Maria Walls, ‘Changing the Paradigm—the Potential Impact of the United Nations Convention on the Rights of Persons with Disabilities’ (2006) 1 Irish Yearbook of International Law 121–65. 123 Complaint No 42 of 2007, International Federation of Human Rights Leagues (IFHR) v Ireland, Decision on Admissibility, 16 October 2007. 124 CETS no. 163, European Social Charter (revised), 3 May 1996. 125 Submission from the Irish Government on the Merits of International Federation of Human Rights Leagues (IFHR) v Ireland, 30 November 2007. 118

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statutory agencies Irish Human Rights Commission The IHRC continued to add range to the depth of research into human rights concerns within the formation of Irish law and policy. The IHRC made a number of submissions within the legislative field, in areas such as criminal justice,126 law of evidence127 trafficking128 and military law.129 All of these submissions contained recommendations for the strengthening of human rights protections within the respective legal fields. In April 2007, the IHRC released its first enquiry report in relation to social welfare law, the self-employed and old age pensions.130 The IHRC made two notable amicus curiae (friend of the court) interventions within the Irish Superior Courts in 2007. It intervened in the Bode case in the Supreme Court in relation to the human rights implications of ministerial immigration schemes.131 The IHRC also intervened in a case regarding the funding of guardians ad litem by the Legal Aid Board.132 Ombudsman for Children Finally, in October, the Office of the Ombudsman for Children released a report on the Examination of Ireland’s First Report under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.133 Throughout 2007, the Ombudsman, aiming to highlight the international human right of children to be heard and consulted134 when decisions are being made about them, held the Big Ballot. The Big Ballot allowed children to vote on issues which were of concern to them. The results were released on 20 November 2007. Children decided that family was the most important concern for them (31.5%), followed by play (24%), having a voice (16.5%), health, wealth and well-being (16%), and education (12%).135

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IHRC, Observations on the Criminal Justice Bill 2007 (March 2007). IHRC, Observations on the General Scheme of the Criminal Justice (Forensic Sampling and Evidence) Bill 2007 (August 2007). 128 IHRC, Observations on the Scheme of the Criminal Justice (Trafficking in Persons and Sexual Offences) Bill 2007 (June 2007). 129 IHRC, Observations on the Defence (Amendment) (No 2) Bill 2006 (February 2007). 130 Under the Irish Human Rights Commission Act 2000 (as amended by the Irish Human Rights Commission Act 2001), the IHRC has the right to begin an enquiry on issues of human rights compliance and Irish law, policy or practice. This enquiry may be carried out of its own volition, or after a specific request from a member of the public (see generally s 9 of the 2000 Act). 131 IHRC, Submission to the Supreme Court in the case of Bode v Minister for Justice, Equality and Law Reform (May 2007). 132 IHRC, Submission to the Supreme Court in the case of Legal Aid Board v District Judge Patrick Brady et al (March 2007). 133 OCO, Examination of Ireland’s First Report under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed ConflictConflict (October, 2007). 134 United Nations Convention on the Rights of the Child, Art 12. 135 See generally the website of the Office of the Ombudsman for Children (OCO), www.oco.ie . 127

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Human Rights in Northern Ireland—2007

Brice Dickson queen’s university belfast introduction At the dawn of 2007 there was still a great deal of uncertainty surrounding the political future of Northern Ireland. The British and Irish Governments had reached the St Andrews Agreement in October 2006, but there was not yet any firm indication that it would lead to a new settlement as far as the local political parties were concerned. The Northern Ireland Assembly had not sat since October 2002 and there was no guarantee that elections for a new Assembly would go ahead in March 2007, or that, if they did, the people elected would then agree to form an Executive later in the year. As things turned out, Assembly elections did occur on 7 March and the Assembly was officially restored on 8 May, with a coalition of four parties forming the Government, headed by a First Minister from the Democratic Unionist Party and a Deputy First Minister from Sinn Féin. Just as a rising tide raises all boats, so this fillip to political life in Northern Ireland made the prospects for improvements on the human rights front somewhat rosier. By the year’s end, however, not a great deal had been achieved, and such progress as was made could hardly be attributed to decisions taken by elected Members of the Legislative Assembly. The account of the year given here will begin with some general issues that affected Northern Ireland because it is a constituent part of the United Kingdom. It will then proceed to explain developments relating to the functions of the Northern Ireland Human Rights Commission before charting specific developments affecting particular human rights.1 the scope of the human rights act 1998 The centerpiece of human rights protection in Northern Ireland is the Human Rights Act 1998, in force as far as the Assembly is concerned from 2 December 1999 and for all other purposes from 2 October 2000. Rulings made on the Act by English appellate courts, especially the House of Lords, are effectively binding in Northern Ireland, and in 2007 there were several important decisions by the House of Lords on the overall reach of the Act. Probably the most important was YL v Birmingham City Council,2 where the House decided, by three to two, that the Act does not apply to private care homes, even if those homes are caring for people who have been placed there, and are being paid for, 1 For an account of human rights practices in the UK as a whole during 2007, with several references to Northern Ireland, see the UK country report issued by the US Bureau of Democracy, Human Rights and Labor, published in March 2008. 2 [2007] UKHL 27, [2008] 1 AC 95.

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by a local council acting under statutory authority. Such a home is not a ‘public authority’ for the purposes of the Act because it is not exercising ‘a function of a public nature’. The case is one of those classic occasions where there are very good arguments on each side, some favouring a rather literal interpretation of the Act and suggesting that it is up to Parliament to correct any anomalies which such an interpretation may create, others opting for a more activist approach whereby judges can develop the law in the way they think best for society, even if in doing so they create other anomalies which may be just an inexcusable as those they have removed. Lady Hale, who was one of the dissentients, thought the conclusion she reached was ‘inexorable’ and she had ‘no doubt’ that it matched Parliament’s intention. Lord Mance, giving the leading judgment for the majority, did not want to produce a result which meant that some residents of a care home would be protected by the Human Rights Act 1998 while others in the same home, paying entirely for themselves, would not be. Strangely, the Government itself intervened in the case to argue that the Act should be interpreted so as to cover the applicant. Having lost in the courts, the Government will doubtless try to rectify the position through legislation. That is the course of action which Parliament’s Joint Committee on Human Rights recommended in a report published in March 2007.3 Rather oddly, the Committee was opposed to amending the Human Rights Act itself, ‘because of its status as a significant and important constitutional measure’. Instead it argued for ‘a separate, supplementary and interpretative statute’ to clarify the meaning of ‘functions of a public nature’ in section 6 of the Act. No doubt 2008 will see some legislative initiative in this field. The scope of the Human Rights Act 1998, in terms of the duty it places on public authorities, was at issue in two further House of Lords decisions in 2007. In Huang v Secretary of State for the Home Department,4 the question was how an appellate immigration authority, when dealing with an appeal on a European Convention ground against a decision taken by a primary decision-maker refusing leave to enter or remain in the United Kingdom, should go about its task. Should it simply review the decision as if it were handling an application for judicial review, or should it decide for itself whether the challenged decision is incompatible with a Convention right and therefore unlawful? Their Lordships unanimously preferred the latter approach and so, because the Asylum and Immigration Tribunal in the two appeals considered in this case had not so acted, the decisions were remitted to the Tribunal for reconsideration. If this is a welcome reminder that courts and tribunals are themselves public authorities for the purposes of the Human Rights Act 1998, and so must make sure that they do not perpetuate a human rights violation which they are considering, the House’s decision in the second 2007 decision, in an appeal from Northern Ireland, is not so laudable. In Miss Behavin’ Ltd v Belfast City Council5 the House confirmed the stance it had taken the previous year in a much-publicised case about school uniform policies and Muslim dress, R (SB) v Head Teacher and Governors of Denbigh High School.6 This stance means that when a public authority is considering how to exercise its public functions, it does not need to ensure that it takes into account the human rights implications of what it proposes to do; it is enough if, in the end, what it does is not in 3 4 5 6

9th Report of 2006–07, The Meaning of Public Authority under the Human Rights Act, HL 77/ HC 410. [2007] UKHL 11, [2007] 2 AC 167. [2007] UKHL 19, [2007] 1 WLR 1420. [2006] UKHL 15, [2007] 1 AC 100.

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violation of anyone’s human rights. This is surely a short-sighted approach, for it does not encourage the development of a human rights culture within public authorities. It contrasts with the approach which is now statutorily required, especially in Northern Ireland, as regards the potential equality implications of policies proposed by public authorities.7 In the Miss Behavin’ case the respondent argued that his right to free speech had been violated because the City Council had refused him a licence to open a sex shop in Belfast city centre, but the Lords held that his right had not been disproportionately restricted, given that Article 10(2) of the Convention permits limits based on the protection of health or morals. Lady Hale, after giving the case a prize for having the most entertaining name of any that had come before the House in recent years,8 said ‘there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast city centre’.9 Two cases reached the House of Lords on whether the Human Rights Act 1998 has any relevance to the actions of British armed forces outside the United Kingdom— specifically in Iraq. In R (Al-Skeini) v Secretary of State for Defence,10 their Lordships held (with Lord Bingham dissenting) that the Act applies outside the United Kingdom on the same basis as the European Convention applies outside member States. The relevant test, as laid down by the Grand Chamber of the European Court of Human Rights in Bankoviç v Belgium,11 is whether a State exercises such ‘effective control’ over an area as to enable it to provide the full package of rights and freedoms guaranteed by the Convention. In the six appeals dealt with in Al-Skeini, the claims by the families of five men who were shot dead by British soldiers in separate incidents on the streets of Basra were all rejected, but the appeal by the family of Baha Mousa, who died after being brutally beaten in a British military base in Basra, was allowed. The British were held to be in effective control of that military base in the same way as they were presumed to be in effective control of their embassies and consulates, but they were not in effective control of Basra’s streets. In R (Al-Jedda) v Secretary of State for Defence,12 the claimant had been detained without charge for more than four years in various British army detention facilities in Iraq. He argued that this was a breach of his right to liberty under Article 5 of the European Convention. The first issue for their Lordships was whether the British forces in Iraq were operating on behalf of the British State or on behalf of the United Nations. While it can be argued that the UN never sanctioned the invasion of Iraq in March 2003, the Security Council did pass a Resolution in October 2003 authorising a multi-national force to take all necessary measures to contribute to the maintenance of security and stability in Iraq. The House of Lords held, however, with one dissenter, that, unlike the forces deployed in Kosovo in 1999, the forces in Iraq remained under 7 See s 75 of, and sch 9 to, the Northern Ireland Act 1998, and (eg) s 76A of the Sex Discrimination Act 1975, inserted by s 84 of the Equality Act 2006, applicable in England and Wales and in Scotland (but a failure to perform these equality duties does not confer a cause of action at private law). 8 [2007] UKHL 19, [2007] 1 WLR 1420, para 30. 9 Ibid, para 38. In October 2007, the Court of Appeal allowed a Belfast-based newspaper’s appeal against a jury’s finding, which made headlines as far away as New York, that the paper’s restaurant critic had libelled a restaurant owner and that the paper should pay £25,000 in damages: Convery v The Irish News Ltd [2007] NICA 37. 10 [2007] UKHL 26, [2008] 1 AC 153. 11 (2001) 11 BHRC 435. 12 [2007] UKHL 58, [2008] 1 AC 332.

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their national, not UN, command.13 Even so, the House went on to hold that the European Convention did not protect the likes of Mr Al-Jedda because it was, in effect, trumped by other international law. In particular, Article 103 of the UN Charter provides that: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’ and, under Article 25 of the same Charter: ‘Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. In 2004 the Security Council passed Resolution 1546, which gave the multi-national force ‘the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution,’ and one of the annexed letters stated that the multinational force stood ready to undertake internment ‘where this is necessary for imperative reasons of security’. The House of Lords decision is, therefore, a ringing endorsement of the hierarchical approach to international law, whereby even international human rights norms must take second place behind decisions of the Security Council. One further House of Lords decision in 2007 has great importance for the Northern Ireland Assembly and Executive. In Somerville v Scottish Ministers,14 their Lordships held that the one-year time limit for bringing actions based on the Human Rights Act 1998, imposed by section 7(5) of that Act, does not apply to proceedings taken against the devolved administrations in respect of an act or failure to act which is alleged to be ultra vires because it is outside the statutory competence of the devolved body as conferred (in the North’s case) by the Northern Ireland Act 1998. It needs to be remembered, of course, that judgments issued by the European Court of Human Rights are not binding on British courts; section 2(1) of the Human Rights Act 1998 only requires domestic courts to ‘take account’ of those judgments. In a valuable report by Parliament’s Joint Committee on Human Rights, published in June 2007, attention was drawn to the respects in which the UK Government is not as efficient as it should be in responding to adverse judgments of the European Court of Human Rights.15 Many of the examples given affect the law in Northern Ireland as much as the law in Great Britain. Thus, there is still no adequate remedy anywhere in the United Kingdom for breaches of privacy, and the law on trying civilians in courtsmartial and on judicial review of administrative decisions may still be in breach of Article 6 of the European Convention (which confers the right to a fair trial).16 the functions of the northern ireland human rights commission The year 2007 finally saw a significant development regarding the campaign to get more powers conferred on Northern Ireland’s Human Rights Commission. It is not, however, the breakthrough which many were hoping for and, given what they had asked for in briefing papers and reports prior to the enactment of the 2007 legislation, 13

Lord Rodger dissented and Lord Brown was dubious about the point. [2007] UKHL 44, [2007] 1 WLR 2734. 15 Monitoring the Government’s Response to Court Judgments Finding Breaches of Human Rights, 16th Report for 2006–07, HL 128/HC 728. 16 Ibid, paras 32–62. 14

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neither the Commission itself nor the Parliamentary Joint Committee at Westminster can be very happy with the new situation.17 When the Commission’s remit was being discussed during the debates on what was then the Northern Ireland Bill in 1998, the British Government staunchly resisted allowing it the power to compel the production of information, something which the UN’s principles relating to the functions of national human rights institutions stipulate as an essential.18 The only concession the Government made was to insert in the Bill a requirement that the Commission should report within two years of its establishment on whether its existing powers were adequate.19 The Commission duly reported within that timeframe, but the British Government took 15 months to respond to that report and a further four-and-a-half years to produce legislation. When it finally appeared, many saw it as the curse of the answered prayer, because the new powers conferred by the Justice and Security (NI) Act 2007 are hedged around with so many conditions and qualifications that the Commission is arguably less well off now than it was before, when it operated under the much looser formulation of its powers set out in the Northern Ireland Act 1998. Thus, the new sections 69A and 69B of the Northern Ireland Act 199820 allow the Commission to require a person to provide information to the Commission, but it can do so only if it has concluded that no one else has sufficiently investigated the matter to date,21 and the Public Prosecution Service is totally exempt from having to provide information about a prosecutorial decision.22 A person who is asked to provide information can apply to a county court to get the requirement cancelled on the ground that it is, for example, ‘unnecessary’ or ‘unreasonable’,23 and he or she must refuse to comply with it if he or she thinks it would require the disclosure of, for example, ‘information relating to an intelligence service which would prejudice the interests of national security’.24 If the Commission wants to challenge such a refusal it has to apply to the Investigatory Powers Tribunal established under the Regulation of Investigatory Powers Act 2000.25 Likewise, the new sections 69C and 69D of the 1998 Act26 expressly confer on the Commission the power to enter specified places of detention, but they qualify this so extensively that it will hardly ever be exercisable. The Commission must again first conclude that entry is required because the matter being investigated has not been sufficiently investigated by anyone else,27 it must allow at least 15 days to elapse between giving notice of the terms of reference of its investigation and entering the place of detention,28 and a 17 See eg Justice and Security (NI) Bill: NIHRC briefing to Public Bill Committee and draft amendments on NIHRC powers; 5th Report of the Joint Committee, 2006–07, HL 46/HC 303, paras 1.51–1.72. 18 The so-called Paris Principles, approved by the General Assembly on 20 December 1993 in Resolution A/RES/48/134. 19 Northern Ireland Act 1998, s 69(2). 20 Inserted by the Justice and Security (NI) Act 2007, s 15. 21 Section 69A(4). 22 Section 69A(10). 23 Section 69A(5). 24 Section 69B(1)(e). The person can also apply to the High Court to have the requirement to provide information cancelled on the catch-all ground that it is ‘undesirable for reasons of national security’: s 69B(4). 25 Section 65. See too the Investigatory Powers Tribunal Rules 2000 (SI 2000/2665) and the Tribunal’s website, www.ipt-uk.com/default.asp. 26 Inserted by the Justice and Security (NI) Act 2007, s 16. 27 Section 69C(4). 28 Section 69C(5).

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person responsible for the place of detention can apply to a county court for an order that the entry should be disallowed or restricted on grounds such as necessity or reasonableness.29 Perhaps the worst feature of all in the new legislation is that all the new powers just mentioned may be exercised only to investigate matters arising after 31 July 2007.30 At a stroke this prevents the Commission from investigating any matter that arose during the Troubles, or even in the nine years subsequent to the Good Friday Agreement. The only really positive aspect of the new set of powers conferred on the Human Rights Commission is provided by section 14 of the Justice and Security (NI) Act 2007. This permits the Commission to bring human rights cases to a court or tribunal even though the Commission itself is not an actual or a potential victim of any breach of human rights, provided only that there is or would be some other such victim.31 This effectively puts the Human Rights Commission in a privileged position in Northern Ireland, for no other person or body (apart from the Attorney-General, the Attorney-General for Northern Ireland, the Advocate-General for Scotland and the Lord Advocate32) is exempt from the stipulation in the Human Rights Act 1998 that only victims can take human rights cases to court.33 The Human Rights Commission was always at liberty to make applications for judicial review if it had ‘standing’ (which does not require victimhood), but the new power allows it to lodge other types of civil proceedings, including actions for compensation if (for example) someone’s right to life has allegedly been violated. The Bill of Rights debate During 2007 the Human Rights Commission kept a watchful eye on attempts to move forward the debates around a Bill of Rights for Northern Ireland. In December 2006 the Government had established, pursuant to the St Andrews Agreement of October 2006, a Bill of Rights Forum, comprising 14 representatives of political parties34 and 14 representatives of civil society. This met throughout 2007, with a distinguished part-time chairman from abroad, Mr Chris Sidoti,35 in place from February. The Forum was due to report to the Human Rights Commission by the end of March 2008, having secured a three-month extension to its initial deadline. To help it achieve its goal the Forum set up a number of working groups and appointed legal advisers to each of these. It also employed outreach workers to help spread the word in Northern Ireland that a debate about the Bill of Rights was taking place. The challenge facing the Forum is a formidable one. The Northern Ireland Human Rights Commission has produced no fewer than three drafts of a Bill of Rights for Northern Ireland (in September 2001, April 2004 and February 2005), but all of the political parties had objections to elements of those drafts, as did some parts of civil society. The main purpose of the Forum is to try to reach agreement among the 29

Section 69C(7). Section 20(1). 31 Section 14(2) of the 2007 Act inserts a new s 71(2A), (2B) and (2C) into the Northern Ireland Act 1998. 32 See s 71(2) of the Northern Ireland Act 1998. 33 Section 7(1). See too the Equality Act 2006, s 30(3). 34 Three each from the Democratic Unionist Party, Sinn Féin, the Ulster Unionist Party, and the Social Democratic and Labour Party, and two from the Alliance Party. 35 A former Human Rights Commissioner in Australia. 30

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political parties, which the Human Rights Commission can then pass on to the Secretary of State as its advice on what scope there is for defining rights in a Bill of Rights supplementary to those in the European Convention on Human Rights. At the year’s end, however, the omens were not good. Although no one had walked away from the Forum’s discussions, there were signs that almost all of the sectors represented were adopting an uncompromising position. The participants had not even agreed on what ‘consensus’ should mean for the purposes of the Forum’s final report. The Forum’s task was made even more difficult by the fact that in July 2007 the UK Government issued a Green Paper entitled The Governance of Britain,36 a document which ‘explores the rights and responsibilities that shape the relationships which the people of this country have with each other’.37 Amongst many other things, this Green Paper proposed that there should be a British Bill of Rights and Duties to supplement the rights in the European Convention, for the Human Rights Act 1998 was only ‘a first, but substantial step towards a formal statement of rights, articulating the relationship between individuals and between the State and the citizen’.38 A Bill of Rights and Duties ‘could give people a clear idea of what we can expect from public authorities, and from each other, and a framework for giving practical effect to our common values’.39 It could ‘provide explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others’.40 The Ministry of Justice later made it clear that this proposed Bill of Rights and Duties would apply throughout the United Kingdom, not just to Great Britain. In August 2007, David Cameron, the leader of the Conservative Party, also proposed a British Bill of Rights, but one which would replace rather than supplement the Human Rights Act 1998.41 He appointed a panel of lawyers, chaired by the Shadow AttorneyGeneral, Dominic Grieve, to draft the proposed Bill. All of these party ideas were still at an embryonic stage by the year’s end, but they have the potential to complicate, if not completely derail, the specific Bill of Rights process for Northern Ireland as provided for by the Belfast (Good Friday) Agreement. the right to life Throughout 2007 attention continued to be paid to how to deal with the past in Northern Ireland. The group called ‘Healing Through Remembering’ had published a comprehensive survey of possible ways forward in this area in October 2006,42 and in June 2007, not to be outdone, the Northern Ireland Office set up its own ‘Consultative Group on the Past’ to examine the options further, co-chaired by retired Church of Ireland Archbishop Lord Robin Eames and former vice-chair of the Policing Board, Denis Bradley.43 The Group is due to report in the summer of 2008. 36

Cm 7170 (3 July 2007). Ibid, at para 6. 38 Ibid, para 205. 39 Ibid, para 209. 40 Ibid, para 210. 41 Daily Telegraph, 24 August 2007. See too Mr Cameron’s speech to the Centre for Policy Studies in London on 26 June 2006, available on www.conservatives.com. 42 Making Peace with the Past: Options for truth recovery regarding the conflict in and about Northern Ireland, written by Kieran McEvoy. Available on www.healingthroughremembering.org. 43 Its website is www.cgpni.org. 37

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There are, of course, no fixed international human rights standards concerning truth recovery mechanisms, but the European Court of Human Rights has laid down quite demanding standards regarding the investigation of suspicious deaths, particularly those allegedly involving members of the security forces. The leading European Court judgments were pronounced as far back as May 2001 in four cases emanating from Northern Ireland, but six years later the Council of Europe’s Committee of Ministers was still not satisfied that the UK Government had complied fully with what the European judges laid down in those judgments. In its Resolution 73 (2007) the Committee urged the UK authorities ‘to take all necessary investigative steps in these cases in order to achieve concrete and visible progress without further delay’. The stumbling block is that, according to domestic UK law, deaths occurring before 2 October 2000, when the Human Rights Act 1998 came into force, do not have to be investigated in ways which comply with Article 2 of the European Convention, whereas according to the European Court they do. The UK legal position was made clear by the House of Lords in 2004, in the Northern Ireland case of In re McKerr,44 and in 2007 this position was confirmed by the same court in R (Hurst) v London Northern District Coroner,45 although Lady Hale and Lord Mance dissented, saying that the coroner in that case should have been guided by, even if not governed by, the European Convention standards. In the first of two appeals from Northern Ireland heard by the same Law Lords immediately after the hearing in Hurst, their Lordships split the same way on whether coroners and juries at inquests could return verdicts of lawful or unlawful killing in Northern Ireland.46 The majority held that they could not—because of the peculiarities of the wording of the legislation applying in Northern Ireland and because the legislation did not have to be interpreted in a Convention-compliant manner as regards deaths occurring before 2 October 2000. In the second appeal, however, the Lords unanimously held, without needing to rely on the Human Rights Act 1998, that the police in Northern Ireland were under a continuing statutory duty47 to disclose documents relating to the death in question to the coroner, even though it occurred long before the Human Rights Act 1998 came into force.48 The significance of this decision for the many pending judicial review applications relating to pre-Human Rights Act deaths in Northern Ireland was then considered by the High Court in In re Bradley’s Application.49 Weatherup J confirmed that the police had a continuing duty to supply information to the coroner, but only if an inquest had not already taken place (which it had in the case before him). As time goes by it will become less and less likely that investigations fully compliant with Article 2 can occur in relation to pre-2000 deaths. The Committee of Ministers at the Council of Europe will probably eventually be satisfied by a combination of other steps taken by the UK Government, such as subjecting the killings to further analysis 44

[2004] UKHL 12, [2004] 1 WLR 807. [2007] UKHL 13, [2007] 2 AC 189. 46 Jordan v Lord Chancellor [2007] UKHL 14, [2007] 2 AC 226. This appeal involved one of the deaths which had been the subject of the European Court’s judgments in May 2001: Jordan v UK (2001) 37 EHRR 52. 47 Coroners Act (NI) 1959, s 8. 48 McCaughey v Chief Constable of the Police Service of Northern Ireland [2007] UKHL 14, [2007] 2 AC 226. The claimant’s son was killed by British soldiers in 1990. 49 [2007] NIQB 98, [2008] 3 BNIL 26. 45

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by the police’s Historical Enquiries Team50 or its Retrospective Murder Review Unit,51 providing information to inquiries conducted by the Police Ombudsman, or giving evidence to tribunals established under the Inquiries Act 2005. In July 2007, the Government asked the Police Ombudsman to reinvestigate the 1982 killing of Gervaise McKerr, allegedly by undercover army officers, but, as the Ombudsman can look only at police (not army) actions, it may not be possible for that reinvestigation to get to the bottom of what really happened 25 years ago. In 2007 the Ombudsman also published a very significant report (‘Operation Ballast’) which suggested that police officers in Northern Ireland who were handling a number of informers within Loyalist paramilitary organisations had, between 1991 and 2003, turned a blind eye to murders and other crimes committed by those organisations for fear of the identity of the informers coming to light. The report had been prompted by the tenacious Raymond McCord, whose son of the same name had been murdered by the UVF in 1997.52 Unfortunately many retired police officers refused to co-operate with the investigation (and the Police Ombudsman lacks the power to compel their co-operation), but the report nevertheless concluded that: This investigation demonstrates that one of the greatest dangers to any anti-terrorist work is that, if those charged with intelligence gathering and investigation do not abide by the rules, and if those who manage them do not operate effectively to ensure compliance with both law and policy, the risk of terrorist attacks is enhanced, not reduced.53

The Northern Ireland Human Rights Commission issued a statement condemning the human rights violations revealed in the Operation Ballast report and called it ‘a landmark contribution to dealing with the legacy of the conflict in Northern Ireland’. Deaths in custody remained a problem in Northern Ireland, with three occurring in 2007. They are investigated by the Prisoner Ombudsman and by the police, but Northern Ireland does not have representation on the Forum for Preventing Deaths in Custody, which has been created in England and Wales. In November 2007, the Government announced that it would put the office of the Prisoner Ombudsman on a statutory footing, renaming it the Northern Ireland Commissioner for Prison Complaints. The current Ombudsman, Mr Brian Coulter, was of the view that this would still not adequately secure the independence of his office from the Secretary of State, and he was unhappy at the proposal that responsibility for the investigation of prisoners’ complaints about healthcare should be removed from his remit. The Omagh bomb and tribunals of inquiry In 2001, the Police Ombudsman had lambasted what was then the Royal Ulster Constabulary for their bungled handling of the investigation into the deaths of 29 people in the Omagh bomb in August 1998. In 2007, Mr Sean Hoey was tried for his involvement in that bomb and in 12 other terrorist incidents but, after a trial lasting 50 The HET is examining 3,268 deaths occurring between 1969 and 10 April 1998, when the Belfast (Good Friday) Agreement was concluded. 51 The RMRU is principally looking at about 150 murders occurring between 10 April 1998 and April 2004, when the PSNI’s new Crime Operations Division began functioning. 52 The report is available at www.policeombudsman.org. See too Nuala O’Loan’s article in NIHRC Review, No 4, 2007, at 2. 53 At para 33.18.

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56 days spread over 10 months, Weir J acquitted him of all charges (there was no jury). In the course of his judgment the judge severely criticised the Northern Ireland Forensic Science Service for their poor forensic work and two police officers for their lies in the witness box.54 Forensic scientists had examined bomb timers used in the attacks, and had tried to link them to the accused through fibres and Low Copy Number DNA. Defence counsel, Orlando Pownall QC, was able to cast serious doubt on the reliability of LCN DNA, to the extent that its use in previous trials leading to convictions in England has since had to be reviewed. The acquittal of Sean Hoey obviously left many bereaved and injured people feeling grossly dissatisfied with the legal process in Northern Ireland. Earlier in the year the two Human Rights Commissions on the island had jointly called on the British and Irish Governments to establish a review of the Omagh bombing and surrounding events, conducted by a serving or retired judge of international standing, ‘to determine whether it is appropriate to institute an independent, cross-border, public inquiry into the atrocity’. After Sean Hoey’s acquittal, the Northern Commission reiterated that call. Fortunately there were no incidents in Northern Ireland during 2007 in which members of the security forces used lethal force. But the relevant legal test to apply when a police officer is asking the State for protection against the risk of being killed in Northern Ireland did come up for consideration in another House of Lords case, In re Officer L.55 The case involved a claim for anonymity made by police officers who were called to give evidence at the tribunal inquiring into the killing of Robert Hamill in Portadown in 1997. Police officers had allegedly failed to intervene when they saw Mr Hamill being attacked by a crowd of Loyalists. At first instance Morgan J held that the tribunal had not applied the right test when coming to the conclusion that the officers were not entitled to anonymity, and the Northern Ireland Court of Appeal agreed.56 But the House of Lords allowed the inquiry’s appeal, saying the inquiry was right to ask itself whether the pre-existing risk of death facing the police officers would be materially increased if they were required to give evidence without being granted anonymity. The Lords criticised the Court of Appeal for holding that the tribunal should simply have asked itself whether the requirement to give evidence gave rise to a real risk to life. Lord Carswell, for the House, said the focus should be on the increase in risk.57 With respect, however, there seems to be very little difference between these two formulations. If a risk now exists which did not previously exist, is it any more helpful to describe this as an increase in risk rather than as the presence of risk? This squabble over anonymity for police witnesses helped to delay the taking of evidence at the Hamill Inquiry, which is not now due to start until mid-2008, chaired by Sir Edwin Jowitt.58 The inquiry into the killing of the Loyalist paramilitary leader Billy Wright by Republican prisoners in the Maze Prison in 1997,59 chaired by Lord MacLean, did begin to take evidence in 2007, and a challenge by way of judicial review to its conversion into an inquiry under the Inquiries Act 2005 was unsuccessful.60 The inquiry into the murder of the solicitor Rosemary Nelson by Loyalist paramilitaries in 54 55 56 57 58 59 60

R v Hoey [2007] NICC 49 (20 December 2007). [2007] UKHL 36, [2007] 1 WLR 2135. [2007] NICA 8. Ibid, para 24. www.roberthamillinquiry.org. www.billywrightinquiry.org. [2007] NICA 24.

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1999, chaired by Sir Michael Morland, officially opened in April 2005, but was not due to start hearing evidence until April 2008 and has not been converted into an inquiry under the 2005 Act.61 No inquiry at all has yet begun into the murder of solicitor Patrick Finucane, also by Loyalist paramilitaries, in 1989; the Government is willing to set up an inquiry under the Inquiries Act 2005, but there is strong opposition to this, not least from the Finucane family, because of the risk that it might lead to sensitive information being suppressed. In June 2007, the Public Prosecution Service (PPS) announced that no further prosecutions would be brought against any individual following Lord Stevens’ third investigation into alleged collusion between Loyalist paramilitaries and the security forces: 46 people had already been convicted as a result of the three investigations, including Ken Barrett, who pleaded guilty to murdering Pat Finucane. The Human Rights Commission expressed its regret at the PPS statement, adding that: [t]he limited number of prosecutions that have resulted from the three Stevens inquiries have almost all involved possession of documents, as opposed to the role of State agents in passing on that information, collusion in planning acts of terrorism, or otherwise breaking the law.62

The Commission intimated that in this case the public interest did require further prosecutions. Incredibly, the whole of 2007 passed without any report issuing from the Saville Inquiry into the killings by British army soldiers on ‘Bloody Sunday’ in Derry in 1972.63 The hearings were concluded in 2004 (with one additional witness, of the 922 called in total, being heard in January 2005), but the report is not expected to be ready for publication until late 2008 or even 2009. Even the most ardent seeker after truth and advocate of human rights must surely query whether the Bloody Sunday inquiry has needed to be so long drawn out. Corporate manslaughter The major legislative development concerning the right to life in Northern Ireland in 2007 was probably the Corporate Manslaughter and Corporate Homicide Act, enacted in July and due to be commenced sometime in 2008. This has at long last created the statutory offence of corporate manslaughter,64 defined in section 1 as managing an organisation’s activities in a way which causes a person’s death and which constitutes a substantial element in a gross breach of a relevant duty of care owed by the organisation to the deceased. The Act means that it is no longer necessary to identify one or more individuals as the ‘directing mind’ of an organisation. It is not, however, retrospective in effect,65 and any prosecution in Northern Ireland will require the consent of the Director of Public Prosecutions (DPP).66 An early version 61

www.rosemarynelsoninquiry.org. NIHRC Press Statement, 25 June 2007. 63 www.bloody-sunday-inquiry.org.uk. 64 The common law offence is abolished by s 20, and s 18(1) makes it clear that an individual cannot be guilty of aiding, abetting, counselling or procuring the statutory offence of corporate manslaughter. The Law Commission of England and Wales first proposed statutory intervention in this field in its 1996 Report ‘Legislating the Criminal Code: Involuntary Manslaughter’ (Law Com 237). 65 Section 27(3). 66 Section 17(b). 62

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of the Act was heavily criticised by the Parliamentary Joint Committee on Human Rights for excluding deaths in custody from its scope,67 an exclusion which the Committee felt would prevent the United Kingdom from complying with its obligation to protect the right to life under Article 2 of the European Convention. The Committee was also concerned at the exclusion of unincorporated bodies from the scope of the new offence. In the course of the Parliamentary debates on the Act the Government made some concessions, so that in its final form it does extend to partnerships and to Crown bodies (including government departments), but not to corporations sole (such as the Police Ombudsman for Northern Ireland). The Act also now covers deaths in custody, but only if and when Parliament chooses to commence that particular provision,68 and section 5 excludes the police from liability when, for example, they are dealing with terrorism, civil unrest or serious disorder in which they come under attack, or when they are responding to emergency calls. The police also cannot be prosecuted for this new offence because of the way they have conducted their operations or exercised their powers, but they will still remain subject to relevant health and safety legislation, as occurred when the Metropolitan Police were convicted on 1 November 2007 of endangering the public when they fatally shot Juan Charles de Menezes at Stockwell tube station in July 2005, having mistaken the innocent Brazilian for a suicide bomber.69 policing and criminal justice On policing and criminal justice more generally, 2007 ended without any prospect of responsibility for these matters being devolved from the UK legislature at Westminster to the Northern Ireland Assembly by the deadline of May 2008, as suggested in the St Andrews Agreement of October 2006. In June 2007, the Assembly agreed that the Assembly and Executive Review Committee should prepare a report on the matter, as required by the Northern Ireland (St Andrews Agreement) Act 2006.70 The Democratic Unionist Party seemed convinced that there was not yet adequate support within the unionist community for a transfer of powers. Hence, legal reforms in this area remained the responsibility of the Northern Ireland Office during 2007, with one Act and two Orders in Council being approved at Westminster. The Terrorism (NI) Act 2006 had stated that the special emergency powers applying in Northern Ireland by virtue of Part VII of the Terrorism Act 2000, including the power to try suspected terrorists without juries in so-called ‘Diplock courts’, would cease to have effect on 31 July 2007. The Justice and Security (NI) Act 2007, in turn, was passed to implement the Government’s ‘normalisation’ policy in Northern Ireland,71 but rather than completely abolish juryless courts the Act provides for their 67

2nd Report of 2006–07, HL 34/HC 263 (January 2007). See s 27(1). 69 The Metropolitan Police were fined £175,000 and ordered to pay £385,000 in costs. 70 Section 18(1), which required the report to be presented to the Secretary of State by 27 March 2008. Various organisations submitted evidence to the Committee, including the Northern Ireland Human Rights Commission and the Committee on the Administration of Justice. The Act itself did not specify a deadline for devolution to occur, neither did the Northern Ireland (Miscellaneous Provisions) Act 2006, Part IV of which contained other provisions relating to the devolution process. 71 Many of its provisions were brought into force on 1 August 2007 by a Commencement Order made on 17 July 2007 (SI 2007/2045). 68

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retention in cases where the DPP issues a certificate saying that one or more of four prerequisite conditions have been met. These include the condition that the offence in question was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons.72

In addition, the DPP must certify that hehseorh is e satisfied that there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. At the same time the Act introduces reforms to ensure that jurors, when they are used, are more randomly selected and can be more easily protected against intimidation. The Act also confers on the police and army in Northern Ireland some powers of stop, arrest, entry, search and seizure comparable to those that were previously conferred by Part VII of the Terrorism Act 2000,73 and it makes provision for the permanent regulation of the private security industry. The Northern Ireland Human Rights Commission strongly advised Parliamentarians against including the additional police and army powers in the Act, saying: These are, beyond any doubt, extraordinary powers, of a kind that a State should require only in the most exceptional emergencies. When Parliament considers whether to make new law putting such powers in a statute without limit of time, it must demand of the Government a most thorough and persuasive case as to why the powers are required. Powers of this kind are not currently used or needed by the Army in Northern Ireland.74

The Commission’s advice, however, was ignored, and the powers were officially made available to the police and army from 1 August 2007. The concerns of Parliament’s Joint Committee on Human Rights concerning potential breaches of Articles 5 and 8 of the European Convention were also dismissed.75 The overall effect of the two Orders in Council dealing with policing and criminal justice was to bring the position in Northern Ireland into line with that which already obtained in England and Wales. Amongst other things, the Police and Criminal Evidence (Amendment) (NI) Order 2007 authorises the police to arrest a person for any offence (subject to a necessity test), increases the range of search warrants for which the police can apply, allows the police to take fingerprints of suspects and to photograph arrested persons elsewhere than at a police station, extends police powers to take fingerprints without consent, lowers police authorisation levels for conducting intimate searches and taking intimate or non-intimate samples, and enables reviews of detention without charge to be conducted by telephone or video-conferencing.76 The Policing (Miscellaneous Provisions) (NI) Order 2007 allows the police to close roads if this is considered necessary for the preservation of the peace or the maintenance of public order, and to examine documents and electronic records in order to establish whether they contain evidence that someone has committed or is preparing to commit serious crime. These are two powers which were previously contained in Part VII of 72 73 74 75 76

Justice and Security (NI) Act 2007, s 1(6). Ibid, ss 21–32. NIHRC Briefing on the Justice and Security (NI) Bill, January 2007, para 36. See 5th Report for 2006–07, HL 46/HC 303, paras 1.73–1.97 (February 2007). Explanatory Memorandum, para 8.

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the Terrorism Act 2000 and which for some reason were not preserved by the Justice and Security (NI) Act 2007, unlike many other such provisions as noted above. By the end of 2007 Westminster was debating the Criminal Justice and Immigration Bill, several of the provisions of which gave rise to human rights concerns, as intimated in the briefing paper prepared on the Bill by the Northern Ireland Human Rights Commission.77 In particular the Bill raised worries about allowing convictions to stand that previously would have been quashed on grounds of procedural irregularity, restricting the right to compensation for miscarriages of justice, and re-introducing the notion of ‘special immigration status’ for some migrants. Section 8 of the Justice (NI) Act 2004 provides that the Attorney-General for Northern Ireland (a post which, until responsibility for criminal justice is devolved to the Northern Ireland Assembly, remains occupied by the Attorney-General for England and Wales) must issue guidance to criminal justice organisations, including the Northern Ireland Office, the Public Prosecution Service, the Police Ombudsman, the Northern Ireland Court Service and the Probation Board for Northern Ireland, on how those bodies should exercise their functions in a manner that is consistent with international human rights standards relevant to criminal justice. Various ideas have been submitted to a team working on this project, but by the end of 2007 guidance had still not been published. This seems to be another casualty of the delay in devolving criminal justice. Anti-terrorism measures For a change there was no UK-wide legislation on terrorism enacted in 2007, but debate did continue over whether the 28-day maximum pre-charge detention period was justified. There was speculation that the new Prime Minister, Gordon Brown, was in favour of extending it, and indeed on 6 December 2007 the Home Secretary announced the Government’s intention to provide for 42-day detentions in the proposed Counter-Terrorism Act 2008. Parliament’s Joint Committee on Human Rights issued two influential reports on aspects of counter-terrorism, in the second of which it stated that the Government ‘has failed to build the necessary national consensus for this very significant interference with the right to liberty’.78 The Committee also believes 42-day detentions would breach Article 5 of the European Convention, but this is not a clear-cut issue since Article 5(2) appears to guarantee an arrested person the right to be informed promptly of any charge against him or her only if such a charge has indeed been formulated.79 As Continental criminal justice systems tend not to share the common law’s concept of ‘charge’, and often keep suspects in detention for months on end while they are investigated by examining magistrates, the European Court of Human Rights may be reluctant to declare long ‘pre-charge’ detentions to be unlawful in common law jurisdictions. In Ward v Police Service of Northern Ireland, a young man suspected of involvement in the €34 million robbery at the headquarters of the Northern Bank in Belfast in 77

Available on www.nihrc.org. 19th Report of 2006–07, HL 157/HC 790 (July 2007) and 2nd Report of 2007–08, HL 23/HC 156 (December 2007). 79 2nd Report of 2007–08, HL 23/HC 156 (December 2007), paras 74–78; 3rd Report of 2005–06, HL 75I/HC 561-I (December 2005), paras 85–92. 78

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December 2004 argued that his detention should not be extended within the then allowable 14-day maximum period unless he and his legal representatives were given the opportunity to challenge the extension on the basis of the line of questioning which the police wished to pursue during the extended period in custody. But the House of Lords rejected that argument, saying: there is no rule of law which requires the police to reveal to a suspect the questions that they wish to put to him when he is being interviewed. Nor are they required to reveal in advance the topics that they wish to cover, even in the most general terms, in the course of an interview. In some cases providing these details in advance will not prejudice their inquiries. But in others it may well do so. This is a judgment that must be left to the police. The interview must be conducted fairly. But advance notice of the topics to be covered is not a prerequisite of fairness. The judicial authority may want to know what the topics are in order to be satisfied that the warrant or an extension of it should be granted. But that is information that the police are entitled to withhold from the suspect until he is being interviewed.80

In June 2007 the Court of Appeal dismissed the appeal of Abbas Boutrab against his conviction for possessing 25 computer disks containing information likely to be useful to a person preparing an act of terrorism.81 This is the North’s first case of ‘Islamist’ terrorism. the right to liberty The House of Lords delivered three sets of judgments on the legality of control orders issued under the Prevention of Terrorism Act 2005,82 but to date no such order has been issued in relation to a person within Northern Ireland. Parliament’s Joint Committee on Human Rights again expressed reservations about aspects of the control order regime,83 but it has survived reasonably intact. There seems to be substantial judicial support for a rule of thumb that confinement to one’s home for up to 16 hours a day does not per se amount to a deprivation of liberty,84 but obviously a lot depends on the facilities available in one’s home and on the restrictions placed on one’s movements outside the home during the remaining eight hours of each day. There were other interesting judicial decisions on the right to liberty within Northern Ireland itself during 2007. In In re Mullan’s Application,85 the Court of Appeal endorsed Girvan J’s decision that there had been a breach of Article 5(4) of the European Convention when the Life Sentence Review Commissioners failed to consider expeditiously the applicant’s claim to be released after being recalled to prison while on licence, but the judges awarded no compensation for the violation. In In re Doherty’s Application,86 the Life Sentence Review Commissioners had decided not to direct the release of the applicant, an ex-lifer who had been returned to prison after 80

[2007] UKHL 50, [2007] 1 WLR 3013, para 22. [2007] NICA 23. 82 Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385; Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC 440; Secretary of State for the Home Department v E [2007] UKHL 47, [2008] 1 AC 499. 83 8th Report of 2006–07, HL 60/HC 365 (March 2007). 84 See, eg, Lord Brown of Eaton-under-Heywood in the JJ case, above n 82, para 108. 85 [2007] NICA 47, [2008] 3 BNIL 123. 86 [2007] NICA 33. 81

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allegedly sexually assaulting two young girls. The Court of Appeal held that the Commissioners had not applied the correct standard of proof: ‘the panel should have recognised that the offences alleged against the appellant called for a flexible approach to the civil standard of proof requiring more cogent evidence than would be conventionally required’. Whether this ruling will survive an appeal to the House of Lords in 2008 remains to be seen. In an application to extradite Roisin McAliskey, a suspected member of the Irish Republican Army, for her alleged involvement in a mortar attack on a British Army in Germany in 1996, Judge Burgess ruled in November 2007 that this would be oppressive, given that in 1998 the Home Secretary had told Parliament that he was refusing to extradite Ms McAliskey because of her mental and physical health, that in 2000 the Attorney-General had told Parliament that there were no grounds for prosecuting her in the United Kingdom, and that in 2007 her health was still in a fragile state.87 The European Court of Human Rights held in Gault v UK 88 that the Court of Appeal in Northern Ireland had violated the applicant’s right to liberty when, after she had won her appeal against her conviction for aiding and abetting her husband’s murder, on the basis that the trial judge had misdirected the jury, she was refused bail for two months pending the start of a re-trial. The European Court decided that this was a breach of Article 5(3) because there was no good reason for keeping Ms Gault in custody; the fact that she had been on bail even during the trial itself (and that she was the mother of young triplets) weighed heavily with the Court. Also in 2007, the Select Committee on Northern Ireland Affairs at Westminster reported on the Northern Ireland Prison Service. While it stated that it had ‘seen or heard nothing to lead it to conclude that the human rights of any prisoner are being infringed’, it felt that comments by two witnesses on the regime used for ‘separated’ (ie paramilitary) prisoners ‘must be borne carefully in mind’.89 The Human Rights Commission published another impressive report highlighting the less than ideal conditions under which women are imprisoned in Northern Ireland.90 Little progress was made during 2007 on giving prisoners in Northern Ireland the right to vote, following the condemnation of the general UK ban on such voting by the Grand Chamber of the European Court of Human Rights in Hirst (No 2) v UK.91 The UK Government continued to consult on how to comply with the ruling from Strasbourg.92 Meanwhile, two prisoners in Northern Ireland tried to force the issue by applying for judicial review of their disqualification from voting in the Northern Ireland Assembly elections in March 2007, but they failed on all counts.93 Perhaps the most important judicial decision on a human rights issue in the field of criminal justice in 2007 was In re C, A, W, M and McE,94 where the Divisional Court had to consider when, if ever, it is lawful secretly to record the conversations between detainees and their legal representatives or their medical advisers. On the facts before 87

[2007] NICty 1. App No 1271/05 (20 November 2007). 89 1st Report for 2007–08, HC 118-I, para 96 (December 2007). 90 Phil Scraton and Linda Moore, The Prison Within: The Imprisonment of Women at Hydebank Wood 2004–06. 91 (2006) 42 EHRR 41. 92 It issued a Consultation Paper on 14 December 2006. 93 Re Toner and another [2007] NIQB 18 (Gillen J). 94 [2007] NIQB 101. 88

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them, the three judges held that there was no legal authority for the bugging that had allegedly occurred because, in the words of Kerr LCJ, there was no ‘enhanced authorising regime’, that is, one where an independent authority approved of the bugging.95 In particular, direct surveillance under the Regulation of Investigatory Powers Act 2000, and the accompanying Code of Practice, was not lawful, as had been claimed by the police. Their Lordships left open the question whether it would be lawful under the different surveillance regime allowed by the Police Act 1997. The case will go on appeal to the House of Lords in 2008. equality rights In 2007 there were fewer significant House of Lords’ decisions in this area than usual. In St Helens Borough Council v Derbyshire, the Lords held that 39 women had been subjected to adverse treatment by the Council simply because they had chosen to persist with their claim for equal pay.96 In two allied cases decided in November 2007, challenges from both England and Scotland to legislation banning fox-hunting were unsuccessful.97 The Lords ruled that the new laws did not breach any of the articles in the European Convention on Human Rights, the EU’s rules on free movement of goods and services or, in Scotland’s case, the devolution provisions in the Scotland Act 1998. The hunting of foxes, deer and hares with dogs is still lawful in Northern Ireland, but these decisions tell us that banning it would not infringe human rights. In February 2007, nearly three years late, the UK Government submitted its second report on compliance with the Council of Europe’s Framework Convention for the Protection of National Minorities.98 The position in Northern Ireland is mentioned at several points in this report. Amongst other things it promised that a Single Equality Bill for Northern Ireland would be a legislative priority in 2007 and that a second implementation plan for the Racial Equality Strategy for Northern Ireland would be published that year—but in fact neither materialised. The report noted the support of the Framework Convention’s Advisory Committee’s for the 50:50 recruitment of Catholics and non-Catholics to the Police Service of Northern Ireland.99 It also justified the right of employers in Northern Ireland to designate their employees as coming from a Protestant background or a Catholic background. This is strange, because Article 3 of the Framework Convention confers the right freely to choose to be treated or not treated as a person belonging to a national minority, but the UK Government believes that allowing employers in Northern Ireland to designate their employees as coming from a particular religious background does not breach that provision because such employees are not ‘treated as’ such, ‘in the sense of being dealt with or subjected to some action on the basis of the determination. The determination for the individual only has statistical consequence, and no disadvantage flows to the individual’.100 This does, in truth, seem to be sophistry, for surely most people would say that 95

Ibid, para 80 of the judgment of Kerr LCJ. [2007] UKHL 16. 97 R (Countryside Alliance) v Attorney-General [2007] UKHL 52, [2008] 1 AC 719; Whaley v Lord Advocate [2007] UKHL 53. 98 Available on the Council of Europe’s website: www.coe.int. 99 Ibid, para 418. 100 Ibid, at page 101. 96

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if they are counted as a member of a group, this is an example of being ‘treated’ as a member of that group? Sectarianism and racism remained a big problem in Northern Ireland, with the police recording 1,831 sectarian or faith-related incidents, and 1,047 racist incidents, between April 2006 and March 2007, nearly twice the number recorded during 2005–06.101 However, we know from the 2007–08 statistics that in the second half of 2007 the rate of occurrence dropped significantly.102 Sexual orientation The most important legislative development concerning equality rights in Northern Ireland in 2007 was the entry into force on 1 January of the Equality Act (Sexual Orientation) Regulations (NI) 2006.103 Issued under section 82 of the Equality Act 2006, these Regulations make it unlawful to discriminate on the grounds of sexual orientation in the provision of goods, facilities, services, education and public functions. They were issued several months before the comparable regulations for England, Wales and Scotland, and they went further than the latter in also outlawing harassment on the basis of sexual orientation. The Northern Ireland Regulations were soon made the object of judicial review proceedings brought by a group of Christian organisations, the two main grounds for challenge being that there had been insufficient consultation before the Regulations were made and that the Regulations breached the applicants’ European Convention rights.104 Weatherup J refused to rule in the abstract on the latter point—he said that any such decision should turn on the facts of specific cases—but on the former point he held that there had indeed been insufficient consultation and that the harassment provisions arguably went further than the definition of ‘harassment’ contained in the EU Directive on equal treatment in employment.105 He therefore quashed the harassment provisions. Age and disability discrimination The year 2007 saw the first tribunal decision based on the Employment Equality (Age) Regulations (Northern Ireland) 2006, which came into force on 1 October 2006.106 It went in favour of a 58-year-old man who was not appointed to a post as salesman with a timber firm after they advertised for someone with ‘youthful enthusiasm’.107 However, Northern Ireland still lacks legislation protecting people against age discrimination when accessing goods, facilities or services. On 31 October 2007, changes to the Disability Discrimination Act 1995 came into effect in Northern Ireland. From that date the definition of disability was changed to ensure that people who have cancer, multiple sclerosis or HIV are protected against 101

See www.psni.police.uk (under Statistics, then Hate Incidents and Crimes). Ibid. 103 SR 2006/439. 104 The Christian Institute’s Application for Judicial Review [2007] NIQB 66; see also Russell Sandberg, ‘Gods and Services: Religious Groups and Sexual Orientation Discrimination’ [2008] Ecclesiastical LJ 205. 105 Council Directive 2000/78/EC. 106 SR 2006/261. 107 McCoy v James McGregor & Sons Ltd [2008] 2 BNIL 40. 102

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discrimination from the time their condition is diagnosed, rather than only from the time when their condition begins to have an adverse effect on their ability to carry out normal day-to-day activities. Also, the requirement in the Act that a mental illness must be ‘clinically well recognised’ before it can qualify as an ‘impairment’ for the purposes of the Act was removed, thereby bringing the protection given to people with mental illnesses into line with that given to people with physical impairments. The year 2007 also saw an end to the long-running Bamford Review on mental health and learning disabilities in Northern Ireland.108 It was initiated in 2002 and was expected to take just two years, but it lasted almost five. The Review’s reports published in 2007 cover dementia and mental health amongst older people, the promotion of social inclusion, and proposals for a new legal framework for mental health and learning disability. This new legal framework, says the Review, should be human rights-based and should apply to all persons who require substitute decision-making. Provisions in the Mental Capacity Act 2005 (which applies only in England and Wales) should, it says, be introduced in Northern Ireland ‘with minimal amendment’, but by the end of the year no such legislation had been put before the Northern Ireland Assembly. Westminster, however, did pass the Safeguarding Vulnerable Groups (NI) Order 2007,109 which mirrors an Act of the same name passed for England and Wales in 2006. It reforms the system for barring certain people from working with children or with vulnerable adults, a system which previously was full of inconsistencies and loopholes.110 Most of the Order was due to come into force during 2008. The United Kingdom signed the UN Convention on the Rights of Persons with Disabilities (adopted in 2006) in March 2007, but not the Optional Protocol to that Convention, which creates a Committee on the Rights of Persons with Disabilities to consider communications from or on behalf of individuals who claim to be victims of a violation of the main Convention. In the same month the UK Government signed the Council of Europe Convention on Action against Trafficking in Human Beings (adopted in 2005). But by the end of the year neither of these Conventions was in force because they had not yet attracted the required number of ratifications, and the United Kingdom had not ratified either of them. When the Convention on Action against Trafficking does come into force it will require countries which have ratified it to provide victims of trafficking with secure accommodation, access to emergency medical assistance, counseling, and legal advice. The Convention also gives victims a 30-day reflection period after they arrive in the country, during which they are eligible for medical care. The extent of trafficking in Northern Ireland is not known, but even if the incidence is very low, the victims deserve to have the benefit of such provisions. Of interest to migrant workers more generally are the guides to their rights issued jointly in 2007 by the Northern Ireland Human Rights Commission, the Law Centre (NI) and ANIMATE, an NGO.111

108 www.rmhldni.gov.uk. Unfortunately Professor David Bamford, the chairperson of the review team, died before its work was completed. 109 SI 2007/1351. 110 Highlighted by the Bichard Inquiry Report, HC 653 (2004). 111 Action Now to Integrate Minority Access to Equality: www.animate-ccd.net.

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Children’s rights and family rights In December 2007, Gillen J gave judgment in judicial review proceedings brought by the Northern Ireland Commissioner for Children and Young People (NICCY) against the Secretary of State for Northern Ireland, challenging article 2 of the Law Reform (Miscellaneous Provisions) (NI) Order 2006, which allows the physical punishment of children in some situations.112 Article 2 states that battery of a child cannot be justified on the ground that it constituted reasonable punishment, but only in relation to specified offences such as wounding with intent, aggravated assault, assault occasioning actual bodily harm, and cruelty. The NICCY therefore argued that the legislation did not go far enough to protect children against violence and that it was incompatible with Convention rights, especially those contained in Articles 3, 8 and 14. Gillen J held that the Commissioner, not being a victim, had no right to bring the case in the first place; but if he was wrong in this, he went on to hold that in any event he did not think the Order breached any of the Convention rights. Neither did he think that the applicant’s ‘legitimate expectations’ had been unlawfully thwarted. In particular, and most regrettably perhaps, he held that there was no basis for asserting that the applicant had a legitimate expectation that the Government policy’s in Northern Ireland was to ensure compliance with the UN Convention on the Rights of the Child.113 During 2007 the Northern Ireland Office consulted on proposals for new Juvenile Justice Centre Rules and Juvenile Justice Centre Order (Supervision) Rules. The Rules were not formally approved by the end of the year, but in February a new purposebuilt Juvenile Justice Centre, known as Woodlands, was opened in County Down. It is supposedly the most advanced facility of its kind in Europe. Also during 2007, the UK Government submitted two periodic reports to UN treaty monitoring bodies: a combined 3rd and 4th report to the Committee on the Rights of the Child (CRC), and a 6th report to the Committee on the Elimination of Discrimination against Women (CEDAW). Each of these reports records the Government’s perspective on the current situation in Northern Ireland. In fact, the report to the CRC has an appendix devoted entirely to Northern Ireland.114 This itemises the various points made in the Committee’s previous Concluding Observations relating to Northern Ireland, issued in 2002, and explains what progress has been made on each of them. The report is scheduled to be scrutinised publicly by the Committee in 2008, as is the report to CEDAW. The UK’s 6th periodic report to the Human Rights Committee (which looks at civil and political rights) was submitted in 2006 but will also not be examined by the Committee until 2008. In In re P (a child),115 the Court of Appeal ruled that the legislation which prevents unmarried cohabiting couples from jointly adopting a child in Northern Ireland116 was not inconsistent with Convention rights, specifically with Article 8, the right to a private life. The Court agreed with Gillen J at first instance, who had stressed that this kind of decision was best left to elected politicians. Unmarried couples elsewhere in the United Kingdom can adopt, but there is nothing in the European Convention that 112 113 114 115 116

In the matter of an application by NICCY [2007] NIQB 115. Ibid, para 115. Annex 4, running to 109 pages. [2007] NICA 20. Adoption (NI) Order 1987, SI 1987/2203, Art 14.

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requires laws to be uniform throughout the same country, and in any event the Convention itself does not directly confer a right to adopt. This case is also going to the House of Lords, and it will be interesting to see if the Law Lords are as restrained as their Northern Irish judicial colleagues. The Forced Marriage (Civil Protection) Act 2007, which extends to Northern Ireland,117 gives greater protection to many people, especially young girls, who are required to marry without giving their free consent. It allows a court to issue a forced marriage protection order, which may contain such prohibitions, restrictions or requirements as the court considers appropriate, and the terms of the orders may apply, for example, to conduct either within or outside Northern Ireland and to people who may in future become involved in attempting to force another person to enter into a marriage. But the Act was still not in force by the end of the year.

117

See s 2 and sch 1.

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Irish Society of International Law—2007

Patrick O’Brien chairman

The Irish Society of International Law was founded in 2002 as a scholarly society dedicated to the promotion of study and debate in the field of international law. It aims, through its events and activities, to increase general awareness of international law and the international legal system, and to stimulate informed debate and scholarship in Ireland about international law and related topics such as international relations and politics. It provides a forum for international legal issues that is of equal value and interest to laypeople, professionals, students and academics alike. The Irish Society of International Law holds regular discussion groups and lectures, including the annual Seán Lester Lecture, an event dedicated to the Irishman who served as the last Secretary-General of the League of Nations. The annual Seán Lester Lecture is delivered by a high-profile person on a topic of international importance. During 2007, the Irish Society of International Law hosted the following events: Do We Need the UN?—17 January 2007 Noel Dorr, former Irish Ambassador to the United Nations and former Secretary General of the Department of Foreign Affairs, led a discussion group on themes related to the United Nations, offering a diplomat’s perspective on the United Nations and its effectiveness in the modern world. Was Saddam Hussein’s Execution Legal? The Death Penalty in International Law—5 March 2007 Professor Ivana Bacik, Trinity College Dublin, offered her perspective on the death penalty in international law. She set current international agreements to restrict or prohibit the death penalty in the context of historical, philosophical and criminological treatment of the issue. The International Criminal Court—2 April 2007 Anticipating the first case to take place in the International Criminal Court, Professor William Schabas, Director of the Irish Centre for Human Rights at NUI Galway, led a discussion group on the development and future of the Court. He noted that the treaty which created the Court was ratified with unexpected speed, and suggested that this was in part due to the fact that States which were in conflict situations saw the Court as a way to achieve a resolution. He also gave an explanation of the three cases which were before the Court.

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Irish Diplomacy and Irish Identity in the 1930s—2 May 2007 Following the publication of Documents on Irish Foreign Policy: Volume IV, 1932–1936, Dr Michael Kennedy, Executive Editor of the series, led a discussion group on Irish diplomacy in the 1930s. He discussed the role of President Éamonn De Valera as President of the Council of the League of Nations, and that of of Seán Lester as its Secretary General, as well as the trends in Irish diplomacy of this period. The Double-edged Sword: International Law in Domestic Courts—12 December 2007 Professor Vaughan Lowe, University of Oxford, delivered the Third Annual Seán Lester Lecture to the Irish Society of International Law. He discussed the merits and disadvantages of making international-law based claims. He noted the significant separation of powers issues that may arise in this context, but also adverted to the authority of international law. International law does not have functional legal authority in all cases, but frequently demonstrates ‘epistemic’ or moral authority, which can be drawn in domestic courts without necessarily breaching the separation of powers. The event was chaired by Michael McDowell SC. For more information about the Irish Society of International Law, including membership information, and past and future events, visit www.isil.ie.

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Law in Times of Crisis: Emergency Powers in Theory and Practice by Oren Gross and Fionnuala Ní Aoláin, Cambridge Studies in International and Comparative Law, Cambridge, Cambridge University Press, 2006, 516 pp, Hbk £55.00, ISBN: 9780521833516; 516 pp, Pbk £27.99, ISBN: 9780521541237 A systematic, comparative legal analysis of emergency powers in liberal constitutional democracies is long overdue. Law in Times of Crisis makes an important and timely scholarly contribution to understanding the diversity of approaches to conceptualising, implementing, checking and terminating emergency powers when democracies face acute, violent and often protracted emergencies. The emphasis in the book is sensibly on confronting violent emergencies (such as armed conflict, rebellion and terrorism) rather than other crises such as natural disasters or economic distress, despite emergency powers often crossing over into different fields. The long historical frame of the book also looks beyond contemporary preoccupations with anti-terrorism powers after 11 September 2001, although equally the authors forensically dissect how post-9/11 responses fit into (or depart from) the legacy of earlier emergency regimes. The four chapters of Part I set out a range of theoretical models in approaching how legal systems respond to violent national emergencies. There is value in this effort to classify emergency powers into overarching models, which helps to make sense of otherwise disparate and localised national traditions. The risk is an inevitable reductionism which accompanies any attempt at classification across different legal orders and temporal frames, and the authors are conscious of the potential ‘vagueness, ambiguity and overlap’ between different categories (p 45). The book is not, however, a mere exercise in descriptive classification, but critically engages with each of the models and weighs their advantages and disadvantages. It also finds important commonalities between the models (in chapter 4), in that despite the ‘assumption of separation’ between normalcy and emergency underpinning many of them, in practice ‘bright-line distinctions . . . are frequently untenable’ (p 171). Chapter 1 explores various ‘models of accommodation’ which permit, to varying degrees, some relaxation (or even partial suspension) of legal or constitutional structures in the face of an acute emergency, while simultaneously insisting that normal legal principles should apply as far as possible. Such models are said to include Roman ‘constitutional’ dictatorship; the ‘state of siege’ in civil law systems and its common law counterpart, martial law; explicit or implicit emergency powers (of varying scope and purpose) in written constitutions (and which are often silent on judicial review and, in practice, thinly constrained by legislatures); legislative adjustments which either modify ordinary laws or superimpose special emergency provisions onto the existing legal framework; and ‘emergency-sensitive’ approaches to the interpretation of constitutions and legislation. Certainly the ‘rush to legislate’ (p 68) is one of the most common modern responses to terrorist attacks—often without due deliberation about the capacity and resilience of existing legal structures. The authors acknowledge the political reality facing governments to demonstrate that they are adequately protecting public safety, in order to preserve public confidence in political authority (p 70), but one wonders whether political or social ‘disintegration’ is a genuinely probable consequence of a failure to satisfy a fearful democratic public, and whether passing unnecessary or imprudent legislation is ever an appropriate means of satisfying such concerns.

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In assessing models of accommodation, the authors observe that such models ‘confront the inevitable by allowing it rather than by futilely resisting it’ (p 80), and bring emergency responses within the law rather than leaving them outside of it. The rule of law is thus preserved, even as it bends; more draconian or extra-legal responses are deflected; governments can act preventively before an emergency escalates out of control; legal means of control and supervision are retained; and overall the benefits of accommodation outweigh the costs. On the other hand, the authors concede that such models might be viewed as ‘unprincipled, apologetic, and open to abuse’, and leading to popular disillusionment with the law; measures of supervision and control are often empty shells; executive power often seeks to expand emergency powers ever further; and emergencies frequently become normalised. The rule of law may vanish into nothingness: ‘. . . if government can provide itself with whatever powers it wishes while acting within the framework of the system, there seems to be little sense in maintaining that our government is, indeed, government of laws and not of men’ (p 81). What is left a little unclear is where the authors themselves stand in all of this; they are obviously sympathetic to models of accommodation, but equally wary of the risks of abuse; and one wonders whether their position is that this is simply among the least worst methods for dealing with emergencies. This even-handed approach flows through to chapter 2, where there is a similar reluctance to take sides or push an argument. The more rigid and absolutist ‘Business as Usual’ model examined in chapter 2 demands that ordinary legal and constitutional norms must be followed even during an emergency. Rather than constitutionalism being accordion-like—waxing and waning according to the prevailing threat—this model is a form of constitutional ‘absolutism’ or ‘perfectionism’, designed to cover all circumstances and without the need for special emergency powers. While there are ‘soft’ and ‘hard’ versions of this model (the former permitting a degree of interpretive accommodation in times of emergency), the model seeks to ‘hold the line’ against encroachments on the rule of law which flow from any emergency regime. Such resistance aims to minimise abuses by governments and champions the symbolic importance of maintaining normalcy in legal institutions in times of crisis—even if such insistence may be unrealistic and out of step with the public and political mood. One advantage it has over accommodation models is that the latter are susceptible to public fears in the face of crises, which distorts the balancing of rights and security in favour of stronger executive powers and thus encourages everwider accommodation. A third, less restrictive ‘Extra-Legal Measures’ model is considered in chapter 3. It is first distinguished from a kind of pure realism, in which in acute emergencies, ‘necessity knows no law’, or in its modern permutation, ‘the gloves come off’; the idea is that terrorists take themselves outside the law and therefore deserve to be met by an equivalent lawlessness. Constraints on such measures are not legal but dictated only by efficiency and resources. Such a model is not seriously proposed in this book; rather a more sophisticated ‘extra-legal measures’ model envisages that public officials may sometimes act extra-legally where doing so is necessary to protect the public against extreme threats, as long as there is open and public acknowledgement of their actions and reasons are given. A sovereign ‘people’ then decides the fate of the wrong-doer ex post, including whether there will be legal, political or social consequences. The

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model does not provide automatic indemnity or immunity for illegal conduct, but may (or may not) excuse or justify conduct; in this context, international lawyers will think of debates about humanitarian intervention, or torture in the much fantasised ‘ticking bomb’ scenario. The rationale for the model is that ‘going outside the law in appropriate cases may preserve, rather than undermine, the rule of law in a way that constantly bending the law to accommodate emergencies will not’ (p 112). Strict obedience to rigid law can sometimes be irrational or immoral (p 134) and hence more damaging to the law than exceptional disobedience. The authors differentiate the model from Carl Schmitt’s state of exception, which arguably aligns more closely with the idea of constitutional necessity. Antecedents of the theory lie in emergency responses in Jewish law; Locke’s theory of prerogative power (‘doing public good without a rule’) (p 119); Jefferson’s exceptionalism in early US constitutional history; Dicey’s view of discretionary powers; Weber’s ‘ethic of responsibility’ (good can follow from political evil) and Walzer’s problem of political ‘dirty hands’. The model seems ‘more troubling’ than the previous two models (p 146) and is more difficult to justify. One great risk inherent in the model is whether it leads to the inevitable contamination of the legal system as a whole; whether, indeed, the exception dissolves the rule of law and constraints on arbitrary power. Post facto ratification of wrongdoing by the public or parliament is not necessarily a constraint, since approval may simply follow the success of the action; a post facto process also does not necessarily provide certainty to public officials deciding whether to act. The authors place considerable faith in the likelihood of the ‘people’ doing the right thing, when, of course, populist sentiment may equally ratify discriminatory measures against minority groups on a majoritarian view of the public interest. It is, however, possible to provide a role for parliament or even the courts in the aftermath of violence (p 153), although one wonders whether competing institutional actors may simply produce inconsistent and irreconcilable views (and prolong uncertainty) about the legitimacy of the extra-legal measures, further undermining constitutionalism. Again, it is initially frustrating that the authors’ own views on the preferred model(s) are not readily apparent from among the impressive catalogue of arguments presented for and against the different models. Nor is there a final chapter in the book which draws together the different strands and expresses firm conclusions about their relative strengths. Perhaps it asks too much to pick and choose between the regimes, since the strength of the book is its ability to classify and digest the diversity of what is happening in different legal systems, each of which has attractions and flaws, in order to allow informed judgments by politicians about which system is preferable in a given legal order. Even so, there is a lingering sense of indecision and relativity about this book, a sense that the authors are unwilling or unable to choose, which, in a highly charged security environment, arguably vacates the policy ground in favour of those in power—whose intentions and concerns are not the same as the authors’. Part II of the book moves away from emergency regimes in domestic legal orders to examine how international law applies to emergency situations. For international lawyers, this is more familiar territory, but it is well-trodden and of less scholarly significance than the first part of the book. The real innovation in Part II comes in applying the classificatory lenses developed in the first part of the book, in the context of domestic liberal constitutional orders, to the international plane. While conceptually

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valuable, given the roots of various international law developments in national legal orders, there are also limitations in straining domestic analogies. Chapter 5 begins with international human rights law and its well-known derogation mechanism in times of public emergency threatening the life of the nation, and applies the domestic emergency models in explaining the approach of international law. The special regime of international humanitarian law in armed conflict is explored in chapter 6. Humanitarian law is cast as an accommodation model, since the law subjects the extreme emergency of war to the rule of law while accepting that significant deviations from ordinary legal rules are necessary. A key argument here is that the distinction between high-intensity emergency (governed by international human rights law and derogation) is frequently indistinguishable from low-intensity armed conflict (governed by humanitarian law), particularly in a world of protracted emergencies which fluctuate in intensity and in the involvement of numerous non-State actors. This is a genuine area of ambiguity and difficulty in humanitarian and human rights law, with critical legal consequences, and international law has failed both adequately to delineate the boundary and to articulate the rationale for the threshold itself. The final chapter analyses how models of emergency powers apply to the contemporary threat of terrorism, particularly in the light of recent international legal responses to terrorism, but there is little new here for those familiar with the abundant international scholarship on terrorism. In general, the emphasis in the book is on how liberal democracies respond to violent emergencies, since it is claimed that ‘authoritarian regimes are not faced with the tragic choices that violent emergencies present to democracies’ (at p 3). While there may be good reasons for limiting the scope of this work to liberal democracies, the justification for the limitation is not entirely convincing. Dividing the world into a neat binary of liberal democracies and authoritarian regimes is an oversimplification of the complexity of legal and political forms that exists worldwide, and indeed plays into the totalising and unhelpful rhetoric of the post-9/11 world-view dominant in certain western political orders. While a binary approach may be analytically convenient, in practice there is a vast middle ground between the poles of democracy and authoritarianism, and it is inaccurate to suggest that liberty and legalism count for little outside liberal democracies. A more nuanced and shaded analysis could have contributed important insights into how, for instance, strong (but not necessarily authoritarian) States are sometimes normatively constrained by values of liberty, rights and legalism in responding to emergencies. Such analysis may have been particularly fruitful given that many of the most violent and protracted emergencies have occurred outside of liberal democracies, and the realist constraints identified by the authors (such as efficiency, resources, or political and physical survival of the State) are not (as is claimed) the only relevant parameters in evaluating responses by undemocratic, quasi-democratic or transitional societies. While it true that emergencies had not attracted much legal scholarship prior to 11 September 2001 (at p 2), the existing scholarship was squarely anchored in a tradition of liberal constitutionalism. For that reason, understanding the ways in which emergency powers are conceptualised, utilised and resisted in less familiar legal and political contexts is an especially important enterprise, certainly for international lawyers, but also for comparative public or constitutional lawyers. Part II of the book

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(comprising three chapters) applies models of emergency powers derived from democracies to its analysis of international law frameworks applicable to emergency situations. There is, however, a tension in framing an analysis of emergency responses in international law by exclusive reference to liberal democratic experiences, since international law applies universally to govern legal and political orders of all stripes. Humanitarian law, human rights law and contemporary anti-terrorism measures are frequently invoked and applied well outside the boundaries of liberal democracies, and examining the theory and practice of emergency powers in those contexts is certainly as important as deeper analysis of liberal democratic responses. None of this critique is intended to detract from the importance of what is covered and the quality of that scholarship. This is a landmark work; it is thoroughly researched, amassing and effectively processing wide and deep sources; it is deeply thought-out, conceiving and defending an original theoretical scheme for understanding emergency powers; it is underpinned by sincere concern about the uses to which emergency laws are put and whom they adversely affect; and it addresses an area of law of fundamental importance in our time. If only governments and publics would use this book to put their own constitutional houses in order, the exercise of emergency powers would become a more principled and less savage enterprise. Dr Ben Saul Director, Sydney Centre for International Law Faculty of Law, The University of Sydney

The History and Development of the Special Criminal Court 1922–2005 by Fergal Francis Davis, Dublin, Four Courts Press, 2007, 219 pp, Hbk €60, ISBN: 9781846820137 There are a number of important issues in national and international law arising from the resort to special courts and tribunals in times of emergency: a) the political context and legislative detail of any particular special court; b) the legitimacy of what has been established in both national and international law; c) the effectiveness of any special court in delivering justice in comparison with ordinary criminal courts and especially those involving jury trial. Ireland, both North and South, is an important testing ground for these issues. There is a long history of reliance on military courts and special non-jury courts in the Irish Republic. In Northern Ireland the special non-jury Diplock Courts have been operating since 1973. In both there has been a complex interplay between reliance on courts of this kind and resort to internment without trial. This book is based largely on experience in the Irish Free State and later the Irish Republic since 1922, with some comparisons with the position in Northern Ireland and occasional forays wider afield. It is best on the political context and legislative detail of the successive regimes for the Special Criminal Court, drawing heavily on contemporary governmental papers and memorandums from the State archives. These papers give a fascinating account of the internal manoeuvring by successive governments on the choice between dealing with the IRA and other subversive groups by internment without trial; by military courts and tribunals; and, later, by the

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non-jury special criminal court. Oddly enough, the author does not give much detail on the background to the use of military courts and tribunals during British rule under the Defence of the Realm Acts and Regulations, and later the Restoration of Order in Ireland Act and Regulations which provided the basic model for successive regimes after 1922. Neither does he give adequate coverage to the military courts and committees which operated during the Civil War in 1923–24, despite the fact that the title promises an account from 1922 to the present. Despite these gaps, the book highlights the importance which each succeeding government gave to avoiding jury trials in cases against subversives of all kinds. This was later extended to black market and organised crime cases. There are some interesting statistics on the number of cases dealt with in the pre-war/emergency period. But the account of the intricate details of the legislation and judicial challenges during the 1920s and 1930s is sometimes rather hard to follow. There are occasional passages in which there is a somewhat cavalier approach to the order of events. For example, the details of some high-profile murders after 1931 are used to justify the introduction of the Article 2A regime in that year. The Article 2A regime dealt with the specific Irish Free State constitutional amendment, which is described by the author as an ‘elaborate anti-terrorism law’. Chapters 7 to 9 deal with the use of the Special Criminal Court in the period since its reconstitution as a wholly judicial body in 1972, and have a rather different focus. There is very little detail on the extent to which the court has been used, or on the pattern of convictions and acquittals or sentences. Instead the main emphasis is on the various grounds on which reliance on the court has been challenged by judicial review. The author makes a strong case for subjecting the discretion granted to the Attorney-General and later the Director of Public Prosecutions to refer cases to the Special Criminal Court to a more searching review. But the author does not fully consider the implications of allowing what would in effect become two trials in many cases, since defendants would presumably want to challenge whether a reference to the Special Criminal Court was objectively justified on the ground that ‘the ordinary courts are inadequate to secure the effective administration of justice’ as the legislation requires. This would raise interesting, but awkward, questions not only about the potential for intimidation, but also about the reputation of Irish juries in political cases over the years. There is also some useful material on the independence of the judges who sit on the Special Court, an issue of some importance in international law: the fact that they can be appointed and dismissed by the Government at any time has been neatly circumvented by a Supreme Court ruling to the effect that any such interference would be unconstitutional. In this section of the book (chapter 8.6), the author tends to drift into interesting, but essentially unrelated issues, such as the definition of terrorism, the practice of the Israeli High Court in reviewing the grounds for administrative detention, and the nature of Al Qaeda as a network of similarly-minded terrorists rather than a hierarchical organisation. On this he seems to confuse the looser network of Islamist terrorist cells with the more tightly controlled independent cell-structure of the IRA in its more recent campaigns. None of these matters is directly relevant to the use of special courts, and they divert both the author and the reader from a consistent and coherent focus on the key issues to which the book is addressed. The discussion of the international standards on the use of special courts is correspondingly limited. The Kavanagh case and the comments by the Human Rights

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Committee on the issue of the reference of his trial to the Special Criminal Court are covered in detail. But there is no reference to the case law of the European Court of Human Rights on the issues of independence or fair trial, nor to the non-derogable standards required for trials under the Geneva Conventions and Protocols. The discussion of the wider issue of the effectiveness of special non-jury courts in general and the Special Criminal Court in particular in delivering justice is even less impressive. On p 151 there is a passing reference to the ‘proven track record’ of the Special Criminal Court in dealing with terrorism. But there is no comparison of conviction rates or sentences in jury and non-jury trials of the kind that has been regularly carried out in respect of the non-jury Diplock Courts in Northern Ireland. Neither are there comparisons with the problems of the string of miscarriages of justice in jury trials of Irish suspects in Britain. The initial, somewhat idiosyncratic, discussion of the general justification for jury trial is not followed through into the final conclusion. Overall there is a tendency to assume rather than establish the conclusion highlighted in the blurb, that ‘the importance of the right to trial by jury has been grossly overstated’. There is a lot of interesting material in this book on which that case could be argued. But there is no sustained analysis of the various issues on which the choice between jury and non-jury trial in cases against terrorists, subversives and organised criminals should be based. Tom Hadden. Queen’s University Belfast

Caste-based Discrimination in International Human Rights Law by David Keane, Aldershot, Ashgate, 2007, 322 pp, Hbk £55, ISBN: 9780754671725 International human rights law places a high premium on equality and nondiscrimination, especially in relation to matters concerning race.1 State parties to the various international human rights law declarations and agreements are under the obligation to ensure that their citizens enjoy equal protection and benefit from the law, free from discrimination. The standards set by international law agreements provide a yardstick for the appraisal of the legal measures adopted and applied by member States in this regard. In Caste-based Discrimination in International Human Rights Law, David Keane explores the international law standard as it relates to racial discrimination, and he links this to the caste system as it is practised in India. The caste system is a complex system of social ordering stemming from the Hindu religion.2 The system divides Hindu society into four main castes—Brahmans, Kshatriyas, Vaishyas and Shudras—each fulfilling a particular role in society.3 Hindus who are not born into any of these castes are outcastes—the Untouchables (as they were previously known) or Dalits. Over thousands of years, the caste system has 1 For example, the United Nations Charter, Preamble, Arts 1(3), 13(1)(b), 55, 56, 62(2) and 68; Universal Declaration of Human Rights, Arts 2 and 7; International Covenant on Civil and Political Rights, Preamble, Arts 2, 4, 6, 14, 16, 20(2), 23 and 26; and the International Convention on the Elimination of All Forms of Racial Discrimination. 2 Keane, at 4–8. Keane (at 5) refers to the Vedas that have been in existence since 1500 BC as containing the ‘oldest extant passage on the fourfold origin of the castes’. 3 Ibid, at 24.

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remained intact because of endogamy—members of a caste may marry only fellow caste members.4 Dalits and members of the lower castes remain economically and socially disadvantaged because of the caste system, and are denied benefits and opportunities because of their status as determined by the system.5 Caste-based Discrimination in International Human Rights Law consists of three parts of two chapters each, along with an introductory and a concluding chapter. The introductory chapter starts off rather provocatively by pronouncing the caste system to be the oldest form of racial discrimination.6 It also provides an overview of the other chapters in the book. It briefly explains the position of the Dalits who fall outside the caste system, and summarises the legal responses of international law and Indian constitutional law to the enforced inequality suffered by Dalits. The author explains that the wide definition of racial discrimination in international law (specifically Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the word ‘descent’ as used in this definition) allows for an interpretation of caste-based discrimination as racial discrimination. This will be examined in more detail below. The first part of the book is devoted to the explanation of the terms ‘caste’ (chapter 1) and ‘race’ (chapter 2). Keane provides a religious history of the caste system and discusses political responses or attempts at reforming this hierarchical (and thus unequal) system which is rooted in the Hindu religion.7 The religious basis of the caste system provides it with immense force. Confronting the inequalities which arise from the caste system historically resulted in two approaches—the ‘evangelical’ approach favoured by Ghandi, which sought to cleanse Hinduism of ‘untouchability’,8 and the secular approach favoured by Dr B R Ambedkar, who believed the caste system and the resultant untouchability to be inextricably linked with the religion. The eradication of untouchability would, on Ambedkar’s view, require a response from outside the religion. Dr Ambedkar was the first Untouchable to obtain a Western-style professional education, and his secular approach sought to eradicate the inequalities resulting from the caste system through the award of civil, social and economic rights to Hindus.9 In the process of constitution-making for an independent India the secular approach has prevailed, and it has resulted in numerous constitutional provisions to guard the position of the Dalits and other disadvantaged castes and tribes. These legal measures are discussed in detail in a later chapter of the book. In chapter 2 Keane considers different viewpoints on race, namely ‘monogenism’, which views race as lineage, and ‘polygenism’, which views race as type. Together with a discussion of race and evolution, these theoretical approaches provide a background for the consideration of 20th-century perspectives on race. Keane concludes that race as a biological fact has no scientific basis.10 However, he notes that racism and racial discrimination which are based on perceptions of racial differences and beliefs about 4

Keane, at 7. For example, in terms of the caste system Dalits have to perform certain menial and/or dangerous jobs, and they are, in terms of the caste system, denied equal access to public places like wells. 6 Keane, at 1. 7 Ibid, at 69. 8 Ibid, at 55–57. 9 Ibid, at 55. 10 Ibid, at 112–13. 5

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racial superiority and inferiority, do exist. Keane holds that the caste system, which, like racism, is built on perceptions of superiority and inferiority, can also be viewed as a system of racial discrimination because of this similarity.11 While the caste system is founded on the idea of caste superiority and inferiority, the similarity can render caste discrimination to be racial discrimination only if race and caste are the same, or if racial discrimination, per definition, includes caste-based discrimination. The former is not Keane’s argument,12 and I submit that the analogous reasoning based on the superiority/inferiority similarity between racial and caste-based discrimination can be challenged. The second part of Keane’s book deals with the legal responses to caste-based discrimination, first as provided for in the Indian Constitution (chapter 3) and, secondly, as a form of racial discrimination in terms of international law put forward and promoted by the United Nations (chapter 4). From Keane’s discussion in chapter 3, it is clear that the Indian Constitution contains a full arsenal of measures to combat the inequalities resulting from the caste system. These measures include a constitutional guarantee of equality before the law and equal protection of the laws of India (Article 14); a prohibition of discrimination by the State on the grounds of religion, race, caste, sex or place of birth, as well as prohibition on the denial of access to shops, public restaurants, hotels, places of entertainment, and a number of wholly or partially Statefunded public places (Article 15); a provision concerning equality of opportunity in public employment, including a provision allowing preferential treatment to members of the Scheduled Castes and Scheduled Tribes in this regard (Article 16)13; the abolition and prohibition of untouchability (Article 17); reservation of seats in the lower house of the legislature for members of the Scheduled Castes and Scheduled Tribes (Article 330); and the constitutional directive principles relating to promotion of the welfare of the Scheduled Castes and Scheduled Tribes and their protection from social injustice and exploitation (Article 46). These legal provisions address the consequences of the caste system, but the Constitution did not cleanse Indian society of the caste system itself.14 As a consequence, ‘practices relating to untouchability, pollution and degradation continued, and appear to continue today’.15 In view thereof, the author identifies a need to ‘enhance protection against caste-based discrimination’.16 He finds the source for ‘enhanced protection’ in international law. Keane traces the international law provisions developed under the auspices of the United Nations relating to race and racial discrimination in chapter 4 of his book. The meanings assigned to the term ‘race’ in the four UNESCO Statements of the Race Questions and the build-up to the acceptance of the ICERD form the background to his discussion of the particular articles of the Convention. While Keane welcomes the firm international rejection of racial discrimination as embodied in the Convention,17 he laments its failure to denounce the existence of the very concept of race emphatically.18 For Keane, this does not undermine the significance of the Convention— 11 12 13 14 15 16 17 18

Ibid, at 114. Ibid, at 268. Ibid, at 119. This group includes Dalits and members of other underprivileged groups. Ibid, at 157. Ibid. Ibid. Ibid, at 207. Ibid, at 206.

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and international human rights law—in setting standards for the elimination of racial discrimination within States. Like many of the authorities he quotes,19 Keane expresses confidence in the ability of the Committee on the Elimination of Racial Discrimination, as authoritative interpreter of the Convention, to assist in the identification (and ultimately the eradication) of racial discrimination. The final part of Caste-Based Discrimination in International Human Rights Law explains the link between caste-based discrimination and racial discrimination as it exists in international law, and puts forth suggestions for enhancing protection against caste-based discrimination. The link between caste-based discrimination and racial discrimination is established by the word ‘descent’ in the definition of racial discrimination contained in the ICERD.20 Keane explains that the term ‘descent’ entered the definition at the drafting stage of the ICERD at the insistence of India.21 The Indian delegation to the Third Committee of the General Assembly proposed the inclusion of the term ‘descent’ in the definition of racial discrimination in an attempt to found a justification for its system of reservations for Scheduled Castes and Scheduled Tribes.22 In doing so India was also motivated by what Keane calls ‘its incorrect use of the word “discrimination” ’.23 At the time of its introduction, it was unclear what the Indian delegation meant by the word ‘descent’.24 The Committee has interpreted caste-based discrimination to amount to racial discrimination on the basis of descent, since ‘descent’ on its interpretation strikes wider than ‘race’ or racial descent.25 In international law, then, caste-based discrimination amounts to racial discrimination. The Indian Government has maintained in its reports to the Committee that castebased discrimination does not amount to racial discrimination as defined in the Convention.26 India maintains, for example, that its own Constitution distinguishes between race and caste as prohibited grounds,27 and that the caste-based discrimination is therefore distinguishable from racial discrimination. While this view of the domestic law of India is indeed true, the interpretation of ‘descent’ by the Committee, in the absence of a precise meaning in international law, broadens the scope of racial discrimination to include caste-based discrimination. An international law response to caste-based discrimination requires ‘a coordinated effort between the United Nations treaty-based and charter-based bodies’.28 Synchronised criticism from the various human rights bodies would, according to Keane, ‘provide invaluable impetus to the Dalits struggle’.29 This assertion is followed 19

Keane, at 206–09. Art 1 of the ICERD defines racial discrimination as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose of effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural and any other field of public life’. 21 Keane, at 215 and 227. 22 Ibid, at 203. 23 Ibid, at 230. India interpreted the word ‘discrimination’ as differentiation, while the term carries a definite pejorative meaning in international law. 24 Ibid, at 231. 25 CERD General Recommendation No 29: Article 1, Paragraph 1 of the Convention (Descent): 01/11/2002. Gen Rec No 29, para 1. 26 Keane, at 216. 27 Ibid, at 217. 28 Ibid, at 239. 29 Ibid. 20

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by a discussion of the responses of the different human rights treaty bodies to India’s State reports as they relate to caste-based discrimination. There is widespread condemnation of caste-based discrimination by the various treaty-based human rights bodies. However, there is a failure within the Indian constitutional framework, and especially that of the reservations system. This system attempts to reserve a percentage of places in the legislature, within educational establishments and within public employment to address the plight of those within lower castes. This failure thus necessitates reconsideration of the reservation system as a means of addressing the plight of the Dalits and a consideration of other means to enhance their position. Keane considers the so-called Bhopal Declaration, which requires ‘supplier diversity’ amongst other things to address the plight of the Dalits,30 as part of the wider means to address caste-based discrimination. An honest confrontation of caste-based discrimination and the resultant inequality in Indian society will require, according to the author, political will on the part of the Indian Government and insistence by the international community that India abides by her international obligations to eradicate caste-based discrimination as a form of descent-based discrimination.31 Keane concludes his book in the bold fashion with which he began. He states that the caste system ‘is the “longest living social hierarchy in the world”, the first and the oldest known form of systematic discrimination on the basis of birth, which in the modern times has been labelled “racial discrimination” ’.32 This statement, so late in the book, takes the argument one step too far. Racial discrimination in international law encompasses caste-based discrimination, as Keane has successfully argued. But racial discrimination cannot be equated with discrimination on the basis of birth in an unqualified fashion.33 On this argument, sex discrimination would also amount to discrimination on the basis of birth, rendering the need for a separate prohibited ground unnecessary. Caste-based discrimination violates international human rights law, and Keane convincingly argues that this kind of discrimination amounts to racial discrimination under international law. His arguments are generally sound and well presented, despite his overstatement of some issues. David Keane’s contribution is well researched and a valuable contribution to the body of scholarly works on international law pertaining to racial discrimination and its links with caste-based discrimination. The challenge facing India, however, remains effective implementation and enforcement of legal measures to ensure equality and non-discrimination, not for the purposes of appeasing the international community, but for the purposes of respecting the dignity of all its citizens within the framework of the Indian Constitution. Rósaan Krüger Rhodes University, South Africa

30

Ibid, at 260ff. Ibid, at 265. 32 Ibid, at 267. 33 For example, Art 4 of the ICCPR lists birth and race separately as prohibited grounds. See also the interpretation of the term by the South African Constitutional Court in Bhe and others v Magistrate, Khayelitsha and others 2005(1) SA 580 (CC) to relate to legitimacy or illegitimacy (paras 54–59). 31

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Can Might Make Rights? Building the Rule of Law after Military Interventions by Jane Stromseth, David Wippman and Rosa Brooks, Cambridge, Cambridge University Press, 2006, 689 pp, Pbk £45, ISBN: 9780521678018 Since the end of the Cold War, individual States, regional bodies and the United Nations have engaged in ever more complex military interventions and subsequent reconstructions of society for a variety of humanitarian and security reasons. After interventions in Cambodia, Somalia and Haiti, policy-makers came to realise that without the rule of law, military interventions could not usher in sustainable liberal rule and human rights without the functioning societal checks and balances that can keep both tyranny and State failure at bay. This requirement has been recognised internationally in the UN Brahimi Report1 and Rule of Law and Transitional Justice Reports,2 and in other reports such as that of the International Commission on Intervention and State Sovereignty (ICISS).3 The need for the institutional structures that can underpin democracy, human rights and prosperity is appreciated to the extent that they have been described as a ‘foreign policy mantra’.4 However, the trend in rule of law reconstruction over the past two decades has been a tale of failure and wasted opportunities with short- and long-term adverse consequences. For example, failure to reform the justice system in Haiti contributed to the long-term failure of the 1994 intervention which restored Aristide to power, only to be removed a decade later after a rule characterised by corruption and human rights violations. In Kosovo, the UN achieved the difficult feat of alienating both local populations in the justice sector—Kosovar Albanian judges and prosecutors refused to apply the post-1989 ‘Serb law’ they viewed as illegitimately imposed by UNMIK, while Serbs refused to serve and helped administer parallel Serb institutions. Most notably, a number of catastrophic mistakes have been made in Iraqi rule of law reconstruction, such as over-zealous de-Baathification, the forced collapse of the local police, and the abuses in Abu Ghraib, which call into question the potential for creating a functioning justice system committed to human rights. These failures beg the question of how and why powerful entities like the US and the UN so consistently fail to rebuild the rule of law. As academics and experienced practitioners, Stromseth, Wippman and Brooks approach this question in this timely and comprehensive book which attempts to collate in one volume the ‘disparate bits of knowledge’5 gleaned from rule of law reconstruction missions over the years, with the ultimate goal of helping policymakers, humanitarians, the military and academics understand why and how such programmes might succeed or fail. Though there is a growing literature in this area, this is the most comprehensive effort yet. This avowedly ‘pragmatic’ volume is divided thematically, studying a number of interventions.6 Its stated aim is to offer a ‘theoret1 Report of the Panel on United Nations Peace Operations (‘The Brahimi Report’), UN Doc A/55/305S/2000/809, of 21 August, 2000. 2 UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc S/2004/616 (3 August 2004). 3 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001), available at http://www.iciss.ca/report-en.asp (last accessed 29 February, 2008). 4 Stromseth et al, at 57. 5 Stromseth et al, at 10. 6 Somalia, Haiti, Bosnia-Herzegovina, Kosovo, East Timor, Sierra Leone, Liberia, Afghanistan, and Iraq are the interventions examined.

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ical, legal and historical background’7 to the issues of rule of law reconstruction, though theory and law are subordinate to a practical examination of what works and what does not work in such programmes. The most significant theoretical aspect is also the central theme of the book. The authors argue that aside from the obvious problems of resource constraints, limited timeframes and the difficult post-conflict terrain, the failure of rule of law reconstructions is due to ‘the failure of interveners to appreciate the complexities of the project of creating the rule of law’.8 After conflict or military intervention, domestic justice systems are frequently physically destroyed, judges and lawyers are generally nonexistant, and there may be little or no public confidence in the institutions of justice after periods of misrule and repression in which the courts may have been instrumental. In rebuilding the rule of law, our instincts about the key requirements are obvious or even truistic—that local actors must ‘own’ the process of reconstruction, that it must seem legitimate to local people, or that ‘one-size fits all’ solutions are eschewed. This book repeats these obvious intuitions, the converse of which is immediately unappealing or historically proven mistaken, but explains to the reader the justifications behind them and why failure follows when they are ignored.9 The key idea in the work is that rule of law creation is as much about cultural change (habits, commitments, beliefs) as it is about institutions or codes.10 While institutions like courts are essential to combat corruption, governmental abuse, inequality and crime, the book argues that the rule of law is culturally situated and needs to be conceived of as more than just institutions: ‘Without a widely shared cultural commitment to the idea of the rule of law, courts are just buildings, judges are just bureaucrats, and constitutions are just pieces of paper.’11 Historically, rule of law reconstruction has been approached in a manner in which formal and substantive aspects of the rule of law were conflated, under the assumption that culture would naturally flow from institutions, and herein lies one of the causes of failed reconstruction efforts. This book challenges the ‘simplistic assumptions about the relationship between formal legal institutions and durable cultural change’.12 Building on the sociological and psychological work of theorists like Tyler13 and Paternoster,14 the authors argue that good institutions are worth little if the people do not have faith in them. The book outlines a substantive conception of the rule of law15 which emphasises the creation of a rule of law culturally sensitive to 7

Stromseth et al, at 10. Ibid, at 9. 9 ‘Much of this may sound obvious, and on some level it is. Nonetheless, the international community and the US foreign policy establishment have been slow to learn these lessons, and slower still to turn abstract insight into concrete policy changes’ (ibid, at 10). 10 ‘The idea of the rule of law is often used as a handy shorthand way to describe the extremely complex bundle of cultural commitments and institutional structures that support peace, human rights, democracy and prosperity’ (ibid, at 4). 11 Ibid, at 76. 12 Ibid, at 389. 13 T Tyler, Why People Obey the Law (New Haven, Yale University Press, 1990). 14 R Paternoster, ‘Decision to Participate in and Desist from Four Types of Common Delinquency: Deterrence and the Rational Choice Perspective’ (1989) 23 Law and Sociology Review 7. 15 ‘For our purposes, it is most useful to define the rule of law in the following way: The “rule of law” describes a state of affairs in which the state successfully monopolizes the means of violence, and in which most people, most of the time, choose to resolve disputes in a manner consistent with procedurally fair, neutral and universally applicable rules, and in a manner that respects fundamental human rights norms (such as prohibitions on racial, ethnic, religious and gender discrimination, torture, slavery, prolonged arbitrary 8

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local understandings of society, and where citizens and government voluntarily respect the law. Only when these conditions are met can the might of international interveners be translated to rights for those in the host nation. Having laid out the theoretical underpinning the rule of law, the rest of the book is concerned with the measures necessary for its practical realisation. The authors argue for a synergistic approach to rule of law programmes with three elements. First, policies must be ends-based (order, equality, efficiency, for example) rather than rigidly institutionalist. Secondly, programmes must be adaptive to local conditions or culture, and dynamic when change occurs. Thirdly, rule of law creation must be approached systematically—rebuilding will succeed only if all the other components work too. There is little point in building the police service if there are no prisons in which to keep suspects or courts in which to try them. Again, this is simple and obvious, but the book’s strength lies in constantly reminding the reader where obvious needs were not met in past interventions, and how all successes and failures are interrelated. The book organises an array of necessary programmes for rule of law reconstruction on both micro and macro levels. In terms of the latter, chapter 2 examines the law and history of intervention, and argues that national and international legitimacy are essential. Chapter 4 deals with ‘blueprints’ for governance—how order, government, powers, elections and constitutions are planned, integrated and made legitimate. Chapter 9 deals with the planning and delivery of rule of law assistance at international level, and with how planning, resourcing, sequencing and local involvement can be framed at the highest levels. However, it is at the micro level that the book is strongest, as schemes for rebuilding security (chapter 5), the police and courts (chapter 6), accountability (chapter 7) and rule of law culture (chapter 8) are outlined. The book describes a number of essential, interrelated schemes both to develop the justice sector institutionally (resources, transparency, merit-based appointment, training, discipline) and to foster a rule of law culture (education, strengthening civil society, outreach, ownership). Though meticulous, most of these schemes lack fine detail, as the authors are more concerned with where these schemes fit in the grand rule of law project than with their minutiae. The authors are consistent in justifying methods that in the past were ignored, such as the need for domestic involvement and the use of traditional dispute resolution mechanisms in rural areas. The breadth and scope of the book is impressive. Such a comprehensive volume is an ambitious task, in a book which above all else urges modesty of object in intervention. The authors are neither optimistic nor pessimistic about intervention, but rather acutely realistic about the difficulty of rule of law creation16 and the emancipatory potential of rule of law reform alone.17 They acknowledge that some problems are unavoidable, but this realism only serves to reinforce the message that ‘moderate success’ is achievable if complexities are taken into account and planned for. Can Might Make Rights? is a measured, comprehensive, rigorous and above all else clear-headed detentions, and extrajudicial killings). In the context of today’s globally interconnected world, this requires modern and effective legal institutions and codes, and it also requires a widely shared cultural and political commitment to the values underlying these institutions and codes’ (Stromseth et al, at 78). 16 ‘Post-conflict reconstruction is slow, expensive, and fraught with difficulty’ (ibid, at 3); ‘In truth, the rule of law is a complex, fragile and to some extent inherently unrealizable goal’ (ibid, at 57). 17 ‘[L]aw reform focussing on the justice sector “will be of little help if the major obstacles to improved performance are such external factors as political intervention, formal or informal restrictions on institutional powers, or inadequate funding” ’ (ibid, at 202, quoting Linn Hammergren).

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examination of rule of law reconstruction. Many of the numerous rule of law reconstruction failures in Iraq, East Timor or Kosovo examined therein could well have been avoided if this work had been available and its counsel heeded. Padráig McAullife University College Cork

The European Convention on Human Rights: Achievements, Problems and Prospects by Steven Greer, Cambridge, Cambridge University Press, 2006, 386 pp, £23.99, ISBN: 9780521608596 Most people agree that the system for processing applications at the European Court of Human Rights (ECtHR) is straining at the seams. The backlog of cases is huge (103,600 at the end of September 2007—more than 20,000 against Russia alone) and is set to get larger; the length of time cases take to be processed is already close to the limits fixed by the Court itself if a trial is to be fair at the national level; and increasingly judgments of the Court are not being expeditiously implemented by respondent governments. Steven Greer’s book is a valiant attempt to analyse in detail what is wrong with the Convention system and to make suggestions as to what should be done to improve it. The first major problem, he says, is that the present objective of the system—to render justice to any individual who can show that a member State of the Council of Europe has breached his or her human rights—is not in fact the objective which the system was designed to deliver. But, secondly, even if the objective is now the provision of individual justice, the system just cannot deliver it. Although more than nine out of every ten applicants whose cases are considered on their merits are successful in Strasbourg, about 98 per cent of applications never get to that stage because they are filtered out as ‘inadmissible’. To boot, the rights protected by the European Court are but a selection of the human rights recognised by international human rights law, and even if particular individuals get a remedy in respect of the breach of some of their rights, this will not do a lot to counter systemic or structural compliance problems affecting countless others. Greer’s summation of these problems (in chapter 7), like his detailed exposition in the earlier chapters, is crystal clear and convincing. By tracing the development of the Convention jurisprudence from its earliest days, by trying to assess the compliance rates of member States (including the relatively new members from central and eastern Europe), and by analysing the adjudication and enforcement processes, the author lays the ground well for his proposals for change. In a Foreword to the book the then President of the European Court, Luzius Wildhaber, seems to endorse Greer’s diagnosis, especially as regards the ‘primordial soup’, which is Greer’s term for the concoction of principles of interpretation devised by the Court over the last half-century. Wildhaber stops short of approving the particular reforms suggested by Greer, but he does repeat the assertion he has made elsewhere (eg in the Human Rights Law Journal in 2002) that the Court must move towards becoming Europe’s Constitutional Court, with much more control over its own caseload. One wonders, however, whether the reforms proposed by Greer will really achieve the change which is needed. He calls for member States to have better mechanisms for

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protecting human rights at the national level, and thinks that national human rights institutions (NHRIs) and the Council of Europe’s Commissioner for Human Rights should do more to guarantee that those mechanisms are in place. He recommends that the European Court should declare applications inadmissible if they do not raise an allegation of a Convention violation which is ‘sufficiently serious for the applicant, the respondent State, and/or for Europe as a whole to warrant adjudication on the merits’. When it does adjudicate a case on its merits the Court should, suggests Greer, apply a more structured approach to the interpretation of the Convention, drawing a more formal distinction between what he terms primary and secondary constitutional principles. Finally, he thinks that the Council of Europe should set up a Fair Trials Commission to determine what States need to do to comply with Article 6 of the Convention, the right to a fair trial; he sees such a body operating along the lines of the European Convention for the Prevention of Torture (the ECPT) and the European Commission for Democracy (the Venice Commission). Alas, there could be grave difficulties in successfully implementing any of these four proposals in the way they are stated. This is most obviously the case as regards relying on NHRIs and on the Council’s Commissioner to improve protection at the national level. At present the standards governing the formation and operation of NHRIs are the Paris Principles, approved by the UN’s General Assembly in 1993. Even though the International Coordinating Committee of NHRIs construes these principles quite liberally, there are very few NHRIs in today’s world which can truly be said to comply with them fully, and even if they were to do so they would still fall far short of the kind of NHRI which Greer envisages. Paris Principle-compliant NHRIs have no executive power, having to rely instead on the power of persuasion and the threat of political embarrassment, perhaps at the international level. They have no legislative power, consisting as they do of unelected experts and a range of support staff. And very few of them have any adjudicative power, preferring to leave that function to the national courts. Numerous evaluations of NHRIs have been compiled in recent years but none of them, to my knowledge, has identified an institution which would be able to guarantee the kind of improvements to human rights protection at the national level which Greer’s proposal envisages. In Europe the unlikelihood of this happening is exacerbated by the fact that there are comparatively few NHRIs and that even the most firmly established of these experience severe tensions with their national governments from time to time. A better prospect for enhancing the protection of Convention rights nationally may be to capitalise on the role played by ombudsmen, or what francophone countries call médiateurs and the Spanish defensores del pueblo. These officials occupy a higher place than NHRIs in national power hierarchies. They often have extensive evidence-gathering powers (in the UK the Parliamentary Ombudsman can even see documents which are classified as secret on national security grounds), and although they may have no formal power to insist that their recommendations for reform be implemented, their views usually carry such weight that governments, politically speaking, cannot afford to ignore them. The snag is that the raison d’être of ombudsmen is to investigate allegations of maladministration, which may (but usually will not) embrace a violation of human rights. The former term is wide enough to cover everything from an official’s impoliteness to a department’s widespread corruption; it is not a legal term of art and ombudsmen are not hampered, as NHRIs are,

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by the penumbra of doubt which surrounds the definition of most, if not all, human rights. In recent months the Council’s Commissioner for Human Rights, Thomas Hammerberg, has been trying to enlist the help of both NHRIs and ombudsmen to ensure that he can act as a conduit for a two-way flow of information about human rights between nation States and the European Court. Under Protocol 14 to the Convention (still not in force because Russia is holding out against ratification) the Commissioner will gain the power to intervene in Court cases, but not to take cases in his own name. Quite how the Commissioner will be able to add value to the adjudication process, where the problem at present is not the lack of information about alleged violations but the sheer number of such allegations, has not been made clear. Nor does Greer grapple with this conundrum. When arguing for a simplified admissibility criterion that would allow only serious human rights violations to be examined by the European Court, Greer relies on the practice of two of the world’s most respected constitutional courts—the US Supreme Court and Germany’s Federal Constitutional Court. Each of those—and the House of Lords and the Irish Supreme Court are no different—has to be selective as to the cases it chooses to deal with at a full hearing. They do so by making a choice based on vague notions such as ‘matters of general public importance’ and they do not give written reasons of any length as to the precise basis for their choice. At present the European Court does not officially declare inadmissible cases that are less than serious, but it does frequently label an application as ‘manifestly ill-founded’ without being more explicit as to what that means. So Greer’s proposal has some precedents. Indeed the criterion currently applied by the five-judge panels which decide whether a decision of a Chamber of the Court should be exceptionally referred to the Grand Chamber of the Court is whether the case ‘raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance’ (Article 43(2)). But while we know which cases are referred and which are not, we do not know precisely why: the five-judge panels do not publish their reasons as to what makes a question or issue ‘serious’. Protocol 14 to the Convention, controversially, contains a provision (Article 12) which amends Article 35(3) of the Convention to allow the Court to declare an individual application inadmissible if ‘the applicant has not suffered a significant disadvantage . . . provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’. When it is in force this provision will depart for the first time from the principle that any individual whose Convention rights have been breached is entitled to a hearing before the Court. Despite assurances to the contrary from the Council’s Steering Committee on Human Rights, which drafted the Protocol, this may in the end be the thin edge of the wedge which will eventually be driven deeper into the Convention, allowing the Court to be much more selective in the cases it hears. But judging by attitudes struck during the Steering Committee’s debates, the thicker edge will not be accepted for many years to come. Greer is unduly optimistic in this regard. Greer’s third proposal (expanding upon an argument made in the Oxford Journal of Legal Studies in 2003) is that the European Court should develop the way it interprets the Convention by distinguishing between three primary constitutional principles and about a dozen secondary principles. His choice for the former are: (1) the principle

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that in a democracy Convention rights should be protected by courts; (2) the principle that in a democracy collective goods and public interests should be ‘pursued’ by accountable non-judicial bodies; and (3) the principle that conflicts between these first two principles should be mediated by recognising that Convention rights take procedural, if not substantive, priority. But one has to question whether this typology in fact adds anything to the secondary principles which Greer goes on to record. Doubts are immediately raised when Greer himself shows that he is uncertain, or indifferent, as to whether to categorise ‘the rule of law’ (here defined to mean that the protection, pursuit and prioritisation referred to in the first three principles must take place ‘through the medium of law’) as a sub-principle inherent in the other three principles or as a fourth discrete principle. He then goes on to align himself with Robert Alexy in the debate with Jürgen Habermas over whether the ‘balancing’ metaphor is an appropriate one to use in this context, concluding in the end that it is, although in a substantially revised version from the one favoured by Alexy. Greer’s bold claim is that the European Court has not yet realised that, when it seeks to reconcile a conflict between a Convention right and a collective goal, its key task is to determine if national courts have observed the Convention’s constitutional principles, by which he presumably means the three or four primary principles rather than the more numerous secondary principles such as ‘positive obligations’ ‘non-discrimination’, ‘proportionality’ and ‘margin of appreciation’. This part of Greer’s thesis is premised on the idea that the European Convention must be interpreted ‘in good faith according to the ordinary meaning of its terms in context . . . and in the light of its overall object and purpose’—the teleological principle (p 195). But are there not elements of circularity and platitudinism here? Is the Convention’s object and purpose set in stone, or does it develop over time? (Earlier in the book Greer seems to acknowledge that the latter is the case.) Can the European Court really not be aware that in determining the scope of Convention rights it has to make uncomfortable compromises because very few human rights can, or should, be absolute? And is Greer right to rely for support for his views on the opinion of Luzius Wildhaber, when all the latter has said is that the Court must be more selective in the cases it deals with, not that it must turn itself into a Constitutional Court overseeing the distribution of powers between judicial and non-judicial bodies? The suggestion that a European Fair Trials Commission should be established is ingenious but probably a non-runner. For a start, if the ECPT has been effective in raising standards for the treatment of detainees throughout Europe, this is because the Committee has been able to cite international law’s absolute prohibition on torture and inhuman or degrading treatment or punishment, and has operated in a largely confidential manner. A full evaluation of the Venice Commission has yet to be undertaken, but I would suggest that, as yet, there are few changes to law or practice which can be directly attributed to the intervention of its experts in the debates relating to particular countries. Secondly, there is already a plethora of European institutions in existence with a remit that impinges upon human rights—Greer himself questions the Council of Europe’s recent decision to create a Forum for the Future of Democracy— and the increasing interest of the European Union in human rights (witness the compiling of the Charter of Fundamental Rights and the creation of the Fundamental Rights Agency) is queering the pitch still further. Most important of all, perhaps, is the fact that States take a very possessive attitude to their criminal justice systems and are

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unlikely to take kindly to more focused international interference in this regard. The European Court already acknowledges the sensitivities by refusing to dictate to member States what kinds of rules they should adopt on whether trials should take place with or without a jury, whether certain types of evidence should be used, whether a defendant’s previous convictions should be brought to the court’s attention and whether appeals should be permitted. This is quite apart from the fact that States differ greatly as to what amounts to a crime in the first place (or to a civil wrong). It should not be thought, however, that just because Greer’s proposals for reform may not be fully thought through they are therefore discountable. Nor that there are not many other changes that could be made to the Convention system to prevent it from getting clogged with applications and to help it become more efficient. Unfortunately, even when Protocol 14 comes into force, it is not going to alleviate the problems for long, mainly because it does not deal adequately with the issues of ‘repeat applications’ and ‘pilot judgments’. It will not put an end to the flood of Article 6 complaints against Italy, or Article 3 complaints against Russia and Ukraine. The European Court should be more insistent that cases on Convention rights, especially those which turn on where to strike a balance between individual rights and society’s interests, should be dealt with by the highest national court before being taken to Strasbourg; even then committees of European judges should treat these applications as applications for leave to appeal rather than as claims for a declaration of admissibility. The European Court should devise new jurisprudential principles, allowing it to be more selective of the cases it deals with on the merits, the more so because it is not bound by a doctrine of precedent and can easily change its mind on whether to examine certain issues if circumstances change. Litigation is not as adventitious in Strasbourg as in any single national legal system because the Convention now protects some 800 million people, and non-governmental organisations are alert to what issues may be worth re-presenting to the Court. Without interfering unduly in the Court’s work area, the Committee of Ministers, and the Parliamentary Assembly of the Council of Europe, should publish suggestions as to the sorts of issues they would like to see the Court examine. Thought should be given to amending Article 47 of the Convention so as to enlarge the scope for Advisory Opinions from the Court, and the Secretary General should make more use of the power in Article 52 to request States to explain how their law ensures the effective implementation of any of the Convention rights (so that this can help guide the Court in determining where the Continental consensus lies on controversial issues). Greer’s book is an extremely welcome addition to the literature on the Convention, and is undoubtedly one of the most thoughtful and thought-provoking accounts of the Convention’s problems and prospects. Along with other recent books by Dembour (Who Needs Human Rights?) and Goldhaber (A People’s History of the European Court of Human Rights) it deserves to be very widely read. Of particular interest are the sections where the record of individual member States is outlined. There is perhaps excessive reliance on the 2001 compilation by Blackburn and Polakiewicz (Fundamental Rights in Europe) but this is doubtless because there have been few recently published assessments (in English) dealing with the newer member States (though the EU’s Network of Experts has issued annual reports on some of the countries and a useful English work on Russia was published by Anton Burkov in 2006).

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What is still awaited is an account of the impact of the domesticisation of the European Convention in the UK and Ireland on the record of those States in Strasbourg. At the time of writing only one decision of the House of Lords on the Human Rights Act has been overturned in Strasbourg (Sand Marper v UK), a fact which gives cause for hope that improvements in the judicial enforcement of Convention rights at the national level can help to alleviate the pressure at Strasbourg. There has also been a diminution in the number of applications lodged against the United Kingdom, and the number of such applications declared admissible is falling. If this picture is to be repeated throughout Europe then changes to the Convention system need to be made as much at the national level as in Strasbourg itself. Brice Dickson Queen’s University Belfast

UN Peacekeeping in Lebanon, Somalia and Kosovo by Ray Murphy, Cambridge, Cambridge University Press, 2007, 375 pp, Hbk £55, ISBN: 0521843057 Dr Murphy’s balanced and thorough analyses of peacekeeping operations in Lebanon, Somalia, and Kosovo, are intriguing not only for the insights into the operations themselves but also for the view of the UN that is pictured through this particular prism. In Dr Murphy’s view, which can best be described as bleakly optimistic, peacekeeping remains one of the organisation’s more successful efforts at maintaining peace and security, principally because peacekeeping’s ‘extraordinary flexibility’ has enabled it to adapt to different circumstances whilst retaining a core ‘essence of what is acceptable to the UN membership at large’. But he also recognises that some of the organisation’s most serious failures are associated with its peacekeeping. Flexibility can have negative as well as positive effects; whilst it facilitates the tailoring of a mission to particular circumstances, it also facilitates deviance from accepted norms in order to accommodate the interests of the powerful. The heart of Murphy’s book examines the core essence of peacekeeping principles as they were applied and adapted in three very different peacekeeping scenarios: Lebanon, Somalia and Kosovo. Chapters 2, 3, 4 and 5 discuss, in relation to each mission or group of missions: the political and diplomatic background; the legal framework and command and control issues; the use of force; and the relevance of international humanitarian and human rights law. Each chapter begins with a section analysing the development of the principles and concepts in general terms, and then discusses in detail their application to each of the studies. Thus the book provides an up-to-date and thorough critique of the key issues affecting contemporary peacekeeping. Murphy argues that fundamental mistakes were made with all the missions discussed in his case studies. Many of the difficulties faced by peacekeeping missions have stemmed from the Security Council’s focus on securing a political consensus rather than on the most effective means of resolving the security threats, or from the United States’ insistence on doing things their way. Moreover, it is often the States that bear primary responsibility for the deployment of a peacekeeping force that also engage in the political manoeuvres that undermine the mission. However, some of the problems are a result of the poor conduct of a minority of mission personnel, both military and

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civilian, who have exploited local people, often for sex, but also for money and for ‘tithes’ on the communities’ wealth, such as gold and diamonds. Such arrogant disregard for the rights of people more vulnerable than oneself is, in a way, merely the mirror image of the Security Council’s preoccupation with power relationships, to the neglect of its responsibilities in relation to human security. Power relationships are the foundation of international diplomacy, but at the same time, as Murphy rightly states, ‘there are issues and events that it is not acceptable to remain neutral in respect of—genocide, ethnic cleaning, mass rapes, and other crimes against humanity or war crimes.’ In his view, whilst it is a mistake to assume that ‘the square peg of UN humanitarian intervention’ will fit into the round hole of peacekeeping or enforcement operations, ‘there is no reason why the UN cannot regain much of its lost credibility and adapt to the changed international environment.’ At the time of writing of this review, May 2008, there is a powerful groundswell of American opinion which does not share Murphy’s view. Prominent figures on both sides of the Republican/ Democrat divide, currently campaigning in preparation for the next presidential elections, have proposed the idea of a US-led ‘league of democracies’, willing to act where the UN does not. Such a league would suffer from a lack of legitimacy for, unlike the UN, it would not represent all States, and even if democracy were to be considered a valid discriminating factor, it is likely that not all democracies would be welcome. Murphy is right—whatever the weaknesses of the UN, it is our best hope. It is not possible to comment on all of the issues raised by Murphy, therefore I will focus on two that are of particular interest to me: the protection of women and children; and troops’ responsibilities as regards the conduct of third parties. One of the endemic problems noted by Murphy is the pervasive lack of respect for women and children, especially young girls, in armed conflict. Whilst the majority of peacekeepers do not exploit, abuse, or rape girls in the local community, some abusers are to be found in all peacekeeping forces. It is an even greater problem amongst local militias. Murphy details the extent of the abuse; the reports and investigations that have been published since its prevalence became known some 10 years ago; and the UN’s policy of ‘zero tolerance’. Save the Children UK have since published another report No One to Turn To, on 17 May 2008, which suggests that despite the investigations, resolutions and ‘zero tolerance’ commitments, not nearly enough is being done to tackle the problem. David Mepham, Save the Children’s director of policy, insists that there is no international agency that is immune. In 2007 the charity investigated 15 allegations of abuse against its own workers; four members of staff were dismissed a result.1 Murphy suggests that each UN Status of Forces Agreement should contain an express reference to the relevant international human rights instruments. These would include the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), as well as Security Council Resolution 1325 of 13 October 2000 on Women, Peace and Security. This Resolution calls on all parties to take special measures to protect women and young girls from gender-based violence and all other forms of violence in situations of armed conflict. Murphy also supports the idea of a broad ‘Peacekeeping Bill of Rights’ that could be applied to the functions that individual missions undertake, in order to remove uncertainty surrounding the human rights obligations of such operations; and 1

James Sturcke, ‘Q&A: Child abuse by aid agency staff ’, Guardian, 27 May 2008.

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the establishment of an Ombudsman to oversee all UN activities. It is important to push these proposals forward. Despite numerous investigations, reports and talk of ‘zero tolerance,’ very little is actually being done to improve the situation. The need for local complaints mechanisms to make it easier for victims to report abuses has been reiterated once again by Save the Children UK in its May 2008 No One to Turn To report. It is time action was taken on these recommendations. In Chapter 5, Murphy describes an incident that occurred in 1994 when Serb troops were advancing on the UN declared safe area of Bihac; the municipal hospital stood in their line of advance; the commander of UN forces showed no signs of taking action to protect the hospital. Security Council Resolution 836 of 4 June 1993, mandating the protection of the safe areas, has been widely criticised for its lack of clarity. However, the UN civil affairs officer was particularly concerned in the case of the hospital, because, quite apart from the safe area policy, under the Geneva Conventions, attacks on hospitals are normally prohibited. He asked his superior to issue a formal request asking UNPROFOR to protect the hospital, which he did. On receiving this request the commander instructed Bangladeshi troops to drive their armoured personnel carriers on to the hospital grounds; the Serbs refrained from attacking the hospital. A short time later the UN Office of Legal Affairs issued a statement with the intention of ensuring that the incident did not create a precedent: UN forces are bound only by their Security Council mandate and are not legally obligated to uphold the Geneva Conventions, as obligations arising under international humanitarian law are only binding on States. Since the early 1990s, following serious misconduct by peacekeepers in Somalia, (discussed in detail by Murphy), there has been considerable debate on the extent of UN troops’ obligations under international humanitarian law. The SecretaryGeneral’s Bulletin on the Observance by UN Forces of International Humanitarian Law of 1999 affirms that international humanitarian law is applicable to UN forces when actively engaged as combatants in situations of international armed conflict. As Murphy notes, despite this, the parameters of the applicability of international humanitarian law to UN troops remain unclear; a threshold level of violence must be reached before troops are considered to have combatant status, but different actors may have different opinions as to when that level is reached. Moreover, even where there is no disputing the applicability of international humanitarian law, there remain questions as to the nature and extent of the obligations that arise under it, particularly as regards troops’ obligations to intervene to prevent violations of international humanitarian law by third parties. Since 1999, most peacekeeping mandates contain provisions granting qualified authorisation to provide protection to civilians, but interpreting these is difficult as they are normally hide-bound by a range of constraining factors. Murphy suggests that whilst acknowledging that a duty to provide protection exists (by expressly providing for it in the mandate of the force) ‘may make the mission more difficult . . . it cannot be right to allow a UN force to stand idly by in circumstances where breaches of international humanitarian law and human rights take place in their area of operations.’ Murphy adopts a measured tone throughout that recognises that there are no easy solutions to the critical issues he deals with. Hence it comes as a surprise when he chooses to be blunt; which he does in relation to a number of issues, but most noticeably in the opening to his concluding chapter, where he states that the permanent

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members of the Security Council form a ‘ruling oligarchy [that] represents one of the major obstacles to the proper functioning of the UN and is a major impediment to peace based on justice and universal suffrage’. Coming from a supporter of the UN who believes that ‘there are few visions of a more effective alternative’, it is as surprising as if the priest in mass were one day to say that the Cardinals in the Vatican were a major obstacle to peace based on justice; but all in all Catholicism is the best framework for guidance in life, it is just that the distribution of power and authority within the Church needs reforming. Murphy is under no illusions that the oligarchic nature of the Security Council might be changed any time soon (it would remain oligarchic even if the permanent five were to expand its membership), but nevertheless he speaks his mind. His writing is unusually impartial; his assessments comprehensively thought through; but on some matters, such as the conduct of the permanent five, he is unexpectedly direct. Perhaps his writing style unconsciously reflects a combination of the qualities that he admires in good peacekeeping. Murphy writes to inform for the purpose of finding solutions to problems, not to advance a theory; the result is a fully-rounded picture of the workings of the UN in relation to peacekeeping. His analyses of each of the three peacekeeping studies are thoughtful and comprehensive; but the book is more than a sum of its parts. At a time when both of the major political parties in the US are discussing potential proposals for overriding the UN’s restrictions on intervention, but failing to think them through, Murphy’s careful, balanced analysis of peacekeeping, currently the UN’s main means of deploying military force, provides a timely and valuable contribution to a critical debate. Dr Siobhán Wills University College Cork

Non-State Actors and Terrorism: Applying the Law of State Responsibility and the Due Diligence Principle by Robert P Barnidge, Jr, The Hague, TMC Asser, 2008, 244 pp, Hbk £ 45.00, ISBN: 9789067042598 Terrorism, and more particularly international terrorism in the guise of the ‘war on terror’, dominates today’s headlines, with the mounting civilian death toll in Iraq on the foot of an increasingly virulent insurgency arguably occupying centre stage. While the deficiencies of the existing international legal framework to address international terrorism were revealed in the ashes of the World Trade Centre, the current situation in Iraq reveals those cracks in the edifice of international law to be particularly deep, especially in relation to non-State actors that engage in terrorist activities. Dr Barnidge’s book, Non-State Actors and Terrorism: Applying the Law of State Responsibility and the Due Diligence Principle, is a timely and needed assessment of the international law framework as it pertains to non-State actors that perpetrate terrorist acts. It contributes to a small, and growing, literature in the field, closely following, and indeed in many respects resonating with, Tal Becker’s excellent 2006 volume, Terrorism and the State: Rethinking the rules of state responsibility. In essence Dr Barnidge argues that a State can be held responsible for ‘its actions or omissions with regard to its international legal obligations to act with due diligence in

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confronting non-State actors that engage in terrorism’ (p 6). The idea that State responsibility attaches when a State has acted or failed to act in conformity with its international legal obligations is not new to international law, a fact which the author readily acknowledges in his exposition in Chapter Three of the ancestry of the due diligence principle in the law of State responsibility. Indeed, the author seeks to harness the heritage of the due diligence principle found in a series of key diplomatic protection cases at the turn of the 20th century. International environmental law has embraced the due diligence principle particularly in relation to developing the idea of transboundary harm, In a number of judgments and advisory opinions of the International Court of Justice (ICJ), notably the Corfu Channel Case and the Tehran Hostages Case, asserted that the the application of the due diligence principle was to ‘hold States responsible for their actions or omissions when dealing with terrorism committed by non-State actors’ (p 110). While the author refers in the Introduction (p 5) to the recent decision of the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case, it is absent from the section canvassing recent developments in this particular area of State responsibility. Nonetheless, the publishing date augurs against concluding that the absence of a considered analysis of the ICJ’s decision in respect of the duty to prevent genocide found in the Genocide Convention is a glaring omission on the part of the author. Indeed the decision supports the author’s observation in respect of the application of the due diligence principle in international human rights law as one which ‘has undermined the public versus private divide’(p 107). However, as James Crawford and Simon Ollesen remark, ‘State responsibility can only be engaged for breaches of international law’ and ‘what is a breach of international law by a State depends on what its international obligations are’.1 In setting out the due diligence obligation in the context of non-State actors that engage in terrorism, Chapter Four identifies the pertinent international legal obligations of States in respect of terrorist acts by non-State actors. These are found in international treaties, of which 13 have been concluded to date under the auspices of the UN. While this section testifies to the fact that ‘[i]nternational law has long been engaged in addressing terrorism’,2 the author also scrutinises the multitude of regional treaties related to terrorism. Indeed, it is here that Dr Barnidge provides a refreshing contribution to the Anglo-American literature on terrorism which tends to focus on the international legal response. The litany of treaties emanating from regional organisations such as the Organisation of the Islamic Conference, the Arab League, the South Asian Association for Regional Cooperation, the Commonwealth of Independent States and the Shanghai Cooperation Organisation, along with the Organisation of American States, the African Union and the European Union, illustrates the strength of concern as to addressing terrorism within the global system, and in particular in respect of non-State actors that perpetrate acts of terrorism. While the author stresses that the international legal obligations in respect of terrorist activities by non-State actors ‘only exist within each particular treaty context to the extent that the underlying instrument classifies particular acts of violence as terrorism’ (p 123), it is equally 1 James Crawford and Simon Ollesen, ‘The Nature and Forms of International Responsibility’ in Malcolm Evans (ed), International Law, 2nd edn (Oxford, OUP, 2006), 254–55. 2 Alan Boyle and Christine Chinkin, The Making of International Law (Oxford, OUP, 2007), 3.

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important to emphasise that the legal obligations of States vary according to the treaties, whether regional or international, to which they are a State party. The second prong identified by Dr Barnidge under which States have an international legal obligation to act with due diligence in confronting non-State actors that engage in terrorism, is a trilogy of UN Security Council (UNSC) Resolutions: UNSC Resolution 1267 (1999), UNSC Resolution 1373 (2001), and UNSC Resolution 1540 (2004). The importance of these Resolutions, in particular UNSC Resolution 1373 (2001), is tantalisingly intimated in the observation that the UNSC has ‘taken upon itself a quasi-legislative role’ (p 132). Granted an examination of whether the UNSC has etched out a legislative role is arguably beyond the scope of the book, but nonetheless the basis of the international legal obligation arising from this trilogy of UNSC Resolutions needed to be clearly explicated before the due diligence principle can be applied. This is particularly so as it is a breach of international law that attracts State responsibility. Indeed, the neglect clearly to identify the international legal obligation the breach of which incurs State responsibility, is mirrored in respect of UN General Assembly (UNGA) Resolution 60/417 in respect of remedies and reparation for gross violations of human rights and serious violations of international humanitarian law, when the author asserts that ‘the question whether a State has complied with the obligations’ (p 108) under the UNGA Resolution ‘will trigger an assessment on the basis of a reasonableness standard’ (p 109), ie the application of the due diligence standard. However, it is important to stress, as Tal Becker does, that ‘international law does not impose an absolute duty on the State to guarantee that no act of terrorism will emanate from its territory’.3 Indeed Dr Barnidge in Chapter Five considers the outstanding question of the standard of due diligence required as part of an examination of ‘theoretical issues’ pertaining to the operation of the principle in the context of counterterrorism. That the due diligence standard is an elusive and contested one is unsurprising in light of the cases canvassed in Chapter Three. Indeed, as the author acknowledges, ‘the due diligence principle means, or at least can be construed to mean, everything to everyone and nothing to no one’ (p 139), and he attempts to remedy this, or at least etch out a way forward, by recourse to ‘interpretative tools’ such as good faith and pacta sunt servanda as found in treaty law, along with ideas of foreseeability, available means and balance drawn from academic commentary. Nonetheless, there are inherent limitations to this proposed way forward, as disputes not only as to the proper application of these interpretative tools but also as to the nature of the dispute itself, may and do arise, as illustrated in the chapter by contemporary examples such as Iranian involvement in the insurgency in Iraq. For Dr Barnidge the difficulty in arriving at a due diligence standard is not unexpected, as it serves to underscore the relationship between law and politics and the need to acknowledge, particularly on the part of international lawyers, the dynamics of power relations when discussing international law. These chapters, Three, Four and Five, form the core of the volume, as they set out and apply the law of State responsibility, and in particular the due diligence principle, to non-State actors that engage in terrorism. It is arguable that other commentators have applied this particular branch of the international law on State responsibility with 3 Tal Becker, Terrorism and the State: Rethinking the rules of state responsibility (Oxford, Hart Publishing, 2006), 132.

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a stronger degree of legal scholarship, such as Margot Salomon in her recent book on Global Responsibility and Human Rights, and indeed the continuous contribution of Alan Boyle to this particular area of State responsibility in the context of international environmental law. Nonetheless, Dr Barnidge is correct to observe that the responsibilities of non-State actors in international law is under-explored, and as such this exploration in terms of terrorism is a welcome addition to the scholarship which directly engages with the ‘interface’ of four issues currently besieging international law—State responsibility, non-State actors, due diligence and terrorism. In this light, the inclusion of a chapter, while intuitively welcomed, on the uneasy and intricate relationship between human rights and national security appears misplaced. Indeed, the relevancy, and even significance, of examining the US/Al Qaeda nexus in terms of international humanitarian law, and concluding with an entreaty to challenge the underlying and dichotomous assumptions that the pursuit of national security is ‘bad’ for human rights, to the larger project at hand is at best unclear and at most doubtful. That said, the chapter is illuminating, and thus for this reviewer the book works best as discrete parts. There is much to commend the reader to this volume, not least the considered treatment of the subject matter of the book—the seemingly intractable issue of non-State actors and terrorism—in a time of politically charged neologisms such as the ‘war on terror’. Moreover, the recognition of the political and historical context within which law, and international law in particular, must operate permeates the book and adds a depth of analysis that would otherwise be missing from a direct application of the due diligence principle to the subject matter at hand. Lastly, the evaluation of the dichotomous symmetry between ‘terrorist’ and ‘freedom fighter’, and the problem of definition in Chapter Two, stands out as particularly welcome and as lending a much-needed even-handedness to a particularly emotive and value-laden debate. As such, Non-State Actors and Terrorism will appeal to students of both international law and international relations. Dr Emma McClean University of Westminster

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Department of Foreign Affairs Annual Report 2007 mission statement The Mission of the Department of Foreign Affairs is to advance Ireland’s political and economic interests in the European Union and in the wider world, to promote Ireland’s contribution to international peace, security and development both through the European Union and through active participation in international organisations, in particular the United Nations, to protect our citizens abroad, and to pursue reconciliation and partnership on the island of Ireland.

foreword by the minister for foreign affairs I am delighted to accept the Annual Report for 2007, which has been prepared in line with the provisions of the Public Service Management Act, 1997. 2007 was a momentous year for the island of Ireland. It was marked in particular by the restoration of the Assembly and the Executive in Northern Ireland and by the convening of a plenary meeting of the North/South Ministerial Council in Armagh, the first in 5 years. These developments were vividly symbolised by the meeting between the Taoiseach, Mr Bertie Ahern TD, and the First Minister Dr Ian Paisley in Farmleigh, by the former Taoiseach’s address to the Joint Houses of Parliament at Westminster and by Dr Paisley’s visit to the Battle of the Boyne site. As we move forward with the final implementation of the Good Friday Agreement, we must also ensure that we address the difficult legacy issues arising from over thirty years of conflict. In the international arena, the Department of Foreign Affairs continued to work to ensure that Ireland contributed to addressing the difficult political, humanitarian and human rights challenges in the Middle East, Darfur, Burma and elsewhere. The Department worked closely with the Minister for Defence and his Department to help bring about a major Irish role in the EU mission to Chad. This mission will underpin efforts to protect refugees from Darfur and other displaced persons. In line with the commitment in the Programme for Government, the Department has developed a work programme for the new Conflict Resolution Unit. During 2007, Ireland was also at the heart of international efforts to ban cluster munitions. At the recent Diplomatic Conference in Croke Park, which was hosted and chaired by Ireland, a new Convention prohibiting the use, manufacture and acquisition of cluster munitions was adopted by consensus. It will be signed in Oslo on 3 December 2008 and will enter into force once ratified by 30 states. I look forward to advancing this important work. In Europe, the Reform Treaty was signed in Lisbon on 13 December 2007 and preparations began immediately afterwards on legislation to enable the Irish people to endorse the Treaty by way of a referendum. At the beginning of 2007, the Irish language became an official and working language of the Union, and last year also saw the enactment by the Oireachtas of legislation to streamline the way we transpose EC law in this jurisdiction.

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In my previous Ministerial roles, I have seen at first-hand the economic work of Irish Embassies. As Minister for Foreign Affairs, I will support the continued development of this aspect of the Department’s work, encouraging ongoing efforts to promote trade and business opportunities for Irish companies. The Department has prepared guidelines for our Embassies to further focus their work in promoting trade and investment opportunities. In addition, specialised training on trade issues was also provided during 2007 to equip our diplomats with the necessary knowledge and skills for this important work. The Department’s Development Cooperation Directorate, Irish Aid, drove significant progress on a wide range of fronts as part of Ireland’s efforts to reduce poverty and promote sustainable growth in developing countries. As an indicator of our leadership on the development agenda, Ireland was the sixth highest contributor in the world to Overseas Development Assistance (ODA) funding in 2007. We also established a Hunger Task Force to examine the particular contribution Ireland can make to tackle the root causes of food insecurity, particularly in Africa. The Task Force, which comprises some eminent leaders in this area, met twice last year and is to report later in 2008. Work was concluded on the Irish Aid Volunteering and Information Centre, which was opened in January 2008. A new Irish Embassy was opened in Malawi and a bilateral aid programme for that country was established, bringing our priority countries to nine. In addition, new Country Strategy Papers, which set out Irish Aid’s strategy for development cooperation in specific countries, were agreed for Mozambique, Tanzania, Uganda, Vietnam, Zambia and South Africa. We also concluded multiannual programmes with a number of Irish NGOs under which €326M will be provided to this important sector over the next four years. In 2007, the Department opened a purpose-built Crisis Centre in Dublin, which can be operationalised at short notice in response to emergencies overseas. Emergency consular assistance teams have been established from amongst volunteers in the Department and training has been provided. Since last year, the Department also provides consular assistance to the public from its offices in Cork and new passport legislation which will add to the security of Irish passports was introduced in 2007 and enacted earlier this year. I believe we can look back on 2007 as a year of considerable achievement across the range of activities of the Department of Foreign Affairs. I wish to record my thanks to my predecessor, Minister Dermot Ahern for his work and commitment in the period covered by this Report. I look forward to working closely with my colleagues Minister of State Dick Roche and Minister of State Peter Power, in the areas of European Affairs and Overseas Aid, respectively. I also wish to acknowledge the work of the staff of the Department in support of its strategic goals. I am confident that the work done in 2007 will serve as a platform for the further development of Ireland’s role in the world in pursuance of its interests and values. Micheál Martin TD Minister for Foreign Affairs

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introduction I am delighted to present this Annual Report for 2007 to the Minister for Foreign Affairs, Mr Micheál Martin TD. The restoration of the Northern Ireland Assembly and Executive in May 2007 was one of the defining moments of the year for the Department of Foreign Affairs and, indeed, the country as a whole. It was the culmination of many years of work by many people, but the staff of the Department of Foreign Affairs, working under the direction of the Minister, can rightly be proud of their contribution to this enormous achievement. Of course, challenges remain but the nature of those challenges has changed, and we are adapting to meet those changed circumstances. The Department also contributed to the drafting of the EU Reform Treaty, which was signed by the Taoiseach and the Minister for Foreign Affairs in Lisbon in December. In 2007, we gave greater clarity and focus to the economic work of the Department, with the publication of a new guide to assist our Missions in promoting trade and business opportunities for Irish companies 2007 saw the Irish Aid budget once again reach record levels. The effective and efficient management of the aid programme, to deliver real change, is a key challenge for the Department. Last year’s establishment of a high-level Inter-Departmental Committee on Development is just one reflection of the changes being brought about to meet this challenge and maintain the highest quality programme. A management review of the structures needed for the programme as it continues to grow, undertaken in conjunction with the Department of Finance, got underway in 2007 and will complete its work in 2008. The Department made very significant progress in meeting its commitments under the Government’s programme of decentralisation. An advance party of over 50 people is now working in Limerick and the remainder of those being decentralised will transfer once the new offices are completed later this year. In the area of Conflict Resolution, in many respects a new priority for the Department, the work done in 2007 has laid a firm foundation for more visible work in 2008 and beyond, drawing on a wide range of resources from within and without the Department. Building on the experience of the successful Lebanon evacuation in 2006, and that of a number of structured exercises, the Department upgraded its capacity to respond, at short notice, to emergency situations abroad which threaten the security of Irish citizens. This is just one example of our ongoing efforts to improve the level of service we offer to Irish people travelling and living abroad. This report is presented in the context of the Statement of Strategy for 2005–2007. In reporting on the last of the years covered by that Statement, I feel we can confidently say that the Department has made enormous progress in meeting the challenges we set for ourselves over that period. I again wish to acknowledge the dedication and commitment of the Department’s staff, both at Headquarters and across our network of Missions, for continuing to provide a first class service to the Irish people, the Minister and the Government. Dermot Gallagher Secretary General

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our strategy Ireland’s foreign policy is shaped by our values and by the external environment to which we relate them. The Department of Foreign Affairs’ Strategy Statement 2005–2007 defined the Department’s priorities for the period covered by this report. Documents referenced in this Annual Report such as the Strategy Statement for 2005–2007, the White Paper on Irish Aid and the St Andrews Agreement are all available on the Department’s website: www.dfa.ie. Structure of the Department Under the political direction of the Minister for Foreign Affairs, the Department is managed by the Secretary General, who is also the Accounting Officer for its two Votes—Vote 28 (Foreign Affairs) and Vote 29 (International Cooperation). The Secretary General is supported by a Management Advisory Committee (MAC) comprising the Heads of the main Divisions in the Department. The work of the Department is divided between eleven divisions at headquarters (HQ) and a total of 76 diplomatic and consular offices abroad (referred to as ‘Missions’), as well as the British–Irish Intergovernmental Secretariat in Belfast and the North–South Ministerial Council Joint Secretariat in Armagh. HQ Divisions: Anglo-Irish Division Bilateral Economic Relations Division (BERD) Corporate Services Division Cultural Division Development Cooperation Directorate European Union Division Inspection Unit Legal Division Passport and Consular Division Political Division Protocol Division external environment The Department of Foreign Affairs operates in a complex and ever-changing environment shaped by European and wider international influences. The realisation of objectives depends, therefore, not just on the efforts of the Department but also on the behaviour of other States and entities. Because of the complexity of the external environment, it is essential that the resources available to the Department are deployed to the optimum effect. We cannot and do not work in isolation. The Department acts in close cooperation with other Government Departments that have external responsibilities, in order to contribute effectively to the attainment of the goals set down in the Programme for Government and in successive Partnership Agreements.

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high level goal, 2005‒2007 The Department’s high level goals for the period 2005–2007, on which this report is largely based, are: Northern Ireland and Anglo–Irish

Work to achieve the full implementation of the Good Friday Agreement and the sustained operation of all its institutions, promoting

Relations

co-operation, mutual understanding and respect between both traditions on the island, between North and South in Ireland and between these islands.

Ireland’s Role in the World

Pursue Ireland’s foreign policy in accordance with the ideals enshrined in the Constitution and in conformity with the principles of the United Nations Charter, through the development of our bilateral relations with other States, our participation in the European Union’s Common Foreign and Security Policy, and our active and principled participation in international organisations.

The European Union

Promote and protect Ireland’s interests at the heart of the European Union as it continues to evolve and enlarge, including through the further development of our relations with our current and future EU partners.

Advancing Ireland’s Promote Ireland’s trade, investment and other interests, including its Economic and culture, in close co-operation with other Departments, State Agencies Cultural Interests and the private sector, ensuring that the State’s network of diplomatic and consular missions adds real value to this task. Irish Aid

Make a substantive and effective contribution to achieving the Millennium Development Goals, and to poverty reduction and sustainable growth in developing countries, through the policy and programmes of Development Cooperation Ireland, and by working for a just and stable international economic system.

Consular and Passport Services

Protect and support the interests of Irish citizens abroad, maintain and strengthen links with people of Irish ancestry, and provide a modern and efficient passport and consular service.

2007: summary of developments and achievements Northern Ireland • Elections to the Northern Ireland Assembly. and Anglo–Irish • Securing of all-party support for policing and criminal justice system in Relations Northern Ireland. • Restoration of Northern Ireland Assembly and Executive. • North/South Ministerial Council Plenary in Armagh, followed by 13 NSMC meetings at Ministerial level. • All-island co-operation is a key horizontal theme of the National Development Plan 2007–2013.

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2007: summary of developments and achievements (cont.) Northern Ireland • British–Irish Council Summit in Belfast chaired by First & Deputy First and Anglo–Irish Ministers. Relations (cont.) • Minister Ahern hosted the second Reconciliation Networking Forum. • Completion of British Army Security Normalisation programme in Northern Ireland. • Address by the Taoiseach to the Joint Houses of Parliament at Westminster. • Meetings between Taoiseach and First Minister Paisley at Farmleigh and at the Battle of the Boyne site. Ireland’s Role in • Ireland remained active in working for a strong and balanced EU the World approach to the continuing crisis in the Middle East, as well as in relation to the situations in Burma, Iran and Zimbabwe which provoked international concern throughout the year. • Successful visits were made by Minister Ahern to the Middle East (Israel, Palestine, Egypt and Lebanon) in January, and to Sudan/Chad and Bosnia/Herzegovina, Serbia and Kosovo in November. • The visit to Sudan/Chad demonstrated Ireland’s continuing strong engagement in efforts to resolve the serious humanitarian crisis in Darfur, including through financial support for UN and African Union-mediated peace talks and the Government’s decision to deploy up to 450 troops to the ESDP EUFOR mission in Chad/CAR. • Increased Irish commitment to conflict resolution, through continuing progress in development of a dedicated unit for Conflict Resolution within the Department of Foreign Affairs, the decision to establish an Academic Centre for Conflict Resolution, and substantially increased funding for conflict resolution efforts in the developing world. • Continuing strong commitment to disarmament and non-proliferation, including through lead role in efforts to negotiate the first specific international legal instrument on cluster munitions, hopefully to be concluded at a major diplomatic conference in Dublin in May 2008. The European Union

• The Reform Treaty was agreed and signed at Lisbon on 13 December 2007. • The European Communities Act 2007 was enacted to improve and modernise the way EU legislation is transposed into Irish law. • The Spring European Council put climate change and the development of a new energy policy at the top of the EU agenda. • Irish became an Official and Working language of the EU.

Advancing • Ireland’s Economic and Cultural • Interests •

Supported Taoiseach’s visit to Saudi Arabia and the UAE in January and followed-up throughout the year. Prepared policy guidelines on the economic work of missions, following consultations with heads of missions, state agencies and business bodies. Arranged for substantive training on trade issues for officers going abroad on posting in 2007. • Supported the Government’s Asia Strategy through participation in High Level Group, and facilitation of increased economic linkages. • Used opportunity provided by 50th anniversary of diplomatic relations to enhance economic, trade and cultural links with Japan. • Facilitated the promotion abroad of Ireland’s diverse cultural heritage.

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• An Inter-Departmental Committee for Development was established and held three meetings. • Ireland gave 0.075% of its GDP as humanitarian funding, the third highest level in the world. • Ireland’s stockpiles of humanitarian supplies were put in place at the UN’s humanitarian response base in Brindisi, Italy and at the Curragh Camp in Ireland. • Recruitment to the Rapid Response Corps began in February and deployments of individual volunteers began in September. • The Hunger Task Force was established and held two meetings. • There was significantly increased engagement in two Fragile States, Sierra Leone and Liberia. • Significant progress was made in decentralising the Development Cooperation Directorate to Limerick. By the end of 2007, an advance party of over fifty staff was in place in Limerick and 83% of the Directorate staff to be decentralised had been designated. • Work on the Irish Aid Volunteering and Information Centre was completed, allowing the Centre to be officially opened in January 2008. • Irish Aid launched its five year strategy plan for development education in November 2007. • New Country Strategy Papers (CSPs) were put in place for Mozambique, Tanzania, Uganda, Vietnam, Zambia and South Africa. • A new Embassy was opened in Malawi and the establishment of a bilateral aid programme for that country was well advanced. • Significant progress was achieved in restructuring Irish Aid’s relationship with the UN Funds Programmes. • Irish Aid continued to prioritise the reform of the UN development system and actively engaged with country-level UN reform programmes in Vietnam and Tanzania. • Multi-annual programme agreements for the period 2007–2011 concluded with Concern, Trócaire, Goal and Christian Aid.

Consular and • Dedicated Crisis Centre opened. Passport Services • Emergency Consular Assistance Teams established. • Provision of comprehensive consular support for major sporting fixtures abroad. • Effective response to large volume of consular cases including over 130 deaths abroad. • Renewed contact with our partners in the travel, health, insurance industries, the Defence Forces and Garda Síochána to further develop services to assist citizens abroad. • New Passport Bill Published. • Some 600,000 e-passports issued. • Additional range of Consular Services provided to the public from the Department’s offices in Cork. • Emigrant funding expanded to include capital, cultural and heritage projects. • Comprehensive Value for Money and Policy Review completed on support programme for Irish emigrants.

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northern ireland and anglo-irish relations High Level Goal, 2005–2007: Work to achieve the full implementation of the Good Friday Agreement and the sustained operation of all its institutions, promoting co-operation, mutual understanding and respect between both traditions on the island, between North and South in Ireland and between these islands. 2007 in Review 2007 was a year of unparalleled progress for the peace process on this island. The combined efforts of the two Governments and the Northern Ireland political parties had culminated in the St Andrews Agreement in October 2006. The first quarter of 2007 saw the implementation of key elements of that agreement, including all party support for policing and the holding of the Assembly elections in March, with strong support expressed for pro-Agreement parties and candidates. These developments paved the way for agreement to restore the power-sharing Institutions of the Good Friday Agreement. On 8 May, the Northern Ireland Assembly and Executive were restored, in the presence of the Taoiseach and Prime Minister Blair. This was followed by the North/South Ministerial Council Plenary in Armagh last July, the first in 5 years. Following that meeting the NSMC met at Ministerial level on 13 occasions in 2007 to discuss a variety of issues of mutual concern in areas such as health, education, agriculture and the environment. Also in July, the British–Irish Council Summit was held in Belfast for the first time, jointly chaired by the First and Deputy First Ministers and attended by the Taoiseach and Prime Minister Brown. In keeping with these developments, the past year also witnessed significant events which demonstrated the improved relations between the two traditions on this island, and between Ireland and Britain, with very positive meetings between the Taoiseach and First Minister Paisley at Farmleigh and at the Battle of the Boyne site, and the Taoiseach’s historic address to the Joint Houses of Parliament at Westminster. 2007 also saw the completion of the British Government’s Security Normalisation Programme, which had provided for comprehensive reductions in the number of military installations and troops deployed in Northern Ireland, in keeping with the hugely improved security situation there. 2007: Developments and Achievements Restoration of the Northern Ireland Assembly and Executive Building on the progress of the Good Friday and St Andrews Agreements and following the Assembly elections on March 2007, restoration of devolution took place on May 8th with the new Assembly appointing a power-sharing Executive led by First Minister Paisley and Deputy First Minister McGuinness. Since restoration, the Executive has begun to address a number of key policy challenges, including the drafting of a Budget, Programme for Government and Investment Strategy. The close of

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the year saw the First and Deputy First Minister undertaking a successful visit to New York and Washington, culminating in a meeting with US President Bush. Improved Security Environment 2007 saw important achievements, including all-party support for the institutions of policing and criminal justice and all-party representation on the Policing Board and District Policing Partnerships. Reflecting the transformed security environment, the British Government’s Security Normalisation programme in Northern Ireland was completed, culminating in the end of British military operations in Northern Ireland on 31 July 2007. Building on the continuing improvement in the security situation over recent years, 2007 saw a largely peaceful Parading Season. The collective efforts of the Parades Commission and political and community representatives were important factors in this. Both the UVF and UDA issued statements signalling a movement away from paramilitary activity. The International Monitoring Commission continued to confirm the decisive shift to a political path by the IRA. North–South Ministerial Council and North/South Cooperation The fifth plenary meeting of the North–South Ministerial Council took place in Armagh in July 2007, with Government and Executive Ministers contributing to a free-flowing and wide-ranging discussion. Since that date, there have been eleven Sectoral Meetings of the NSMC, advancing policy cooperation in areas such as transport and education, agriculture and tourism. The NSMC has also met twice in Institutional Format, launching a website on cross-border mobility, and approving new appointments to the boards of North/South bodies. The National Development Plan 2007–2013 laid the basis for all-island infrastructural investment in 2007, shaping the following key decisions taken in NSMC meetings and between Departments North and South: A contribution of €580 million towards upgrading the A5 road to Derry/ Letterkenny was agreed at the Plenary meeting in July and work is being taken forward through Transport Sectoral Meetings. Government contribution of €35 million towards restoring the Ulster Canal from Clones to Lough Erne also agreed at July Plenary meeting, with work to be advanced through NSMC Waterways Sectoral Meetings. A Single Electricity Market for the island was introduced with effect from November 1st 2007 and launched jointly by Minister Ryan and Minister Dodds in Belfast. Agreement on new EU PEACE III Programme, with focus on reconciling communities and contributing to a shared society, was welcomed by the Tánaiste and Minister Robinson in November 2007. Total PEACE III funding of €333 million to accompany INTERREG IVA programme for territorial cooperation with budget of €256 million.

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Work was also taken forward on the North/South Consultative Forum and the North/South Parliamentary Forum, in line with the mandate given at the NSMC Plenary meeting in July. Work also commenced on the Review of the North/South Implementation Bodies and Areas of Co-Operation as provided for in the St Andrews Agreement. British–Irish Council and British–Irish Intergovernmental Conference The Department continued to support and develop the work of the British–Irish Council (BIC) throughout 2007. A meeting at Summit level on 16 July 2007 in Belfast (the first since devolved government was restored) discussed the strategic direction of the BIC itself, as well as progress in the work areas of Transport, Misuse of Drugs, Environment, e-Health, Tourism, Knowledge Economy, Indigenous/Minority and Lesser Used Languages, Social Inclusion and Demography. A meeting of the British–Irish Intergovernmental Conference (BIIGC) took place in February 2007. Jointly chaired by Minister Ahern and the Secretary of State for Northern Ireland, the meeting reviewed progress on the implementation of the St Andrews Agreement and assessed the political and security situation in Northern Ireland. Promoting Reconciliation The Department continued to support the valuable reconciliation work of crosscommunity groups and organisations. In 2007, funding of over €2.7 million was awarded to 103 groups engaged in reconciliation initiatives across the island of Ireland. The second annual Reconciliation Networking Forum was held in the Royal Hospital Kilmainham on 19 April 2007, offering various organisations, including those that have previously received funding from the Reconciliation Fund, the opportunity to interact and share experiences of working in this field. The International Fund for Ireland (IFI) continued to provide much needed financial support to reconciliation activities throughout Northern Ireland and the six border counties. Thanks to the continuing support of the European Union, the US Administration and the governments of Canada, Australia and New Zealand the IFI was able to commit (approx) €23m under its ‘Sharing this Space’ strategy to a diverse range of projects. Addressing the legacy of the conflict In June 2007, the Government welcomed the announcement by the British Government of the formation of an independent consultative group to seek a consensus across the community in Northern Ireland on the best way to deal with the legacy of the past. The Department continued to encourage, and cooperate with, the work of the various inquiries recommended by Judge Cory.

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ireland’s role in the world High Level Goal, 2005–2007: Pursue Ireland’s foreign policy in accordance with the ideals enshrined in the Constitution and in conformity with the principles of the United Nations Charter, through the development of our bilateral relations with other States, our participation in the European Union’s Common Foreign and Security Policy, and our active and principled participation in international organisations. 2007 in Review The Department continued to work in support of the Government’s efforts to achieve the above goal, through active participation in all aspects of the EU’s Common Foreign and Security Policy (CFSP), our committed membership of the United Nations and other international organisations, and through the development of our bilateral political relations with other States. This work provided the basis for active Irish input on a range of international issues throughout the year, including: Support for a strengthened and reformed UN, capable of maintaining international peace and security, addressing humanitarian crises, and responding to new global challenges such as climate change; the question of final status for Kosovo; the Iranian nuclear question; strengthening the partnership between the EU and Africa; developing the EU’s relations with important strategic partners such as Russia, China, India and Latin America; promoting the early adoption of the strongest possible international agreement for a ban on cluster munitions; and, efforts to promote human rights and democracy internationally, including in such states as Burma, Zimbabwe and Belarus. Considerable international attention in 2007 continued to be focussed on the interlinked crises in the Middle East and the complex political and humanitarian crisis in Darfur. Ireland continued its active engagement on both of these issues, including through a successful visit by the Minister for Foreign Affairs to the Middle East in January, increased financial support for reconstruction in Lebanon and, following the Annapolis peace conference in November, significantly increased multi-annual financial assistance from Ireland to the Palestinian institutions. Minister Ahern also visited Chad and Sudan, where he announced increased funding for the Darfur Peace Process and briefed the governments of both countries on Ireland’s decision to participate in the EU mission to Chad/CAR, in recognition of the growing regional dimension to the Darfur crisis.

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2007: Developments and Achievements Africa Ireland continued to be actively engaged in the most pressing political and humanitarian crises on the continent, paying particular attention to those in Darfur and Zimbabwe. Minister Ahern visited Sudan and Chad in November 2007 when he delivered clear messages to the Government of Sudan on the need for its full cooperation in facilitating both humanitarian access and the deployment of the UNAMID mission (UN–African Union Mission in Darfur). Minister Ahern also met with Chadian leaders in N’Djamena and visited refugee camps in eastern Chad. In recognition of the growing regional dimension to the Darfur crisis, the Government decided in November 2007 that up to 450 Irish troops would participate in the EU mission being deployed to Chad/Central African Republic. Lieutenant General Patrick Nash of the Permanent Defence Forces is the Operational Commander of EUFOR Chad/CAR. The Taoiseach and Minister of State for Development Assistance represented Ireland at the second EU–Africa Summit in Lisbon in December at which a Joint EU–Africa Action Plan and Strategy was adopted. The Summit also provided an opportunity for the EU to express its clear concern to African leaders, and in the presence of President Mugabe, regarding the serious political and humanitarian crisis in Zimbabwe. Middle East While the situation in the Occupied Territories remained difficult, particularly following the takeover by Hamas of Gaza in June, significant political progress was registered in 2007, with the agreement at Annapolis to launch negotiations on the final status issues with the aim of conclusion by the end of 2008. Ireland actively responded to these events in a constructive and practical manner by: 1) Holding political discussions with leaders in Israel, Palestine, Egypt and Lebanon. During his visit to the region in January, Minister Ahern outlined the role which the Government is playing, directly and in cooperation with our EU partners, to promote a lasting and just peace in the region. 2) Working to ensure that the EU maintained its financial support for the Palestinian people. At the Paris Donors’ Conference on 17 December, Ireland made a significant multi-annual pledge of €40 million. 3) Supporting democracy and national unity within Lebanon and reinforcing its sovereignty within the region. Ireland pledged €2 million to support reconstruction efforts, bringing total Irish humanitarian funding for Lebanon to €5 million. Ireland also maintained its 150 strong contingent in the strengthened UNIFIL mission in Lebanon in the period up to September 2007.

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Asia Ireland upheld a forward position on the serious human rights situation in Burma, particularly following the brutal suppression of pro-democracy demonstrations in September, and was successful in pressing for the adoption of strong EU measures. Ireland’s concerns were outlined by Minister Ahern in his address to the UN General Assembly in October. The issue was also raised bilaterally at Ministerial and official level with China, India and ASEAN member states. Ireland urged intensified efforts to strengthen democracy and the transition to civilian rule in Pakistan, following President Musharraf’s imposition of a State of Emergency in November, and the assassination of Pakistani opposition leader, Benazir Bhutto in December. Western Balkans The difficult and sensitive issue of Kosovo’s final status remained high on the international agenda throughout 2007. Ireland welcomed the Comprehensive Proposal submitted by UN Secretary-General’s Special Envoy, Martti Ahtisaari, to the UN Secretary General in March. However, intensive efforts within the UN Security Council to agree a new Resolution on the basis of the Ahtisaari proposals were not successful. It was agreed in July that a further four months of talks between the two sides would be facilitated by an international Troika. Ireland strongly supported the Troika initiative but regrettably these talks concluded without success in December. During the Minister’s visit to the Balkans in November, he met with political leaders in both Serbia and Kosovo and urged both sides to refrain from any activities or statements which might destabilise the security situation in the region. Ireland, with its partners in the European Union and the international community, remains committed to playing its full part in the efforts to resolve this important European issue. In August 2007, Ireland strengthened its contribution to KFOR, the UN-mandated international military presence in Kosovo, assuming the role of Framework (Lead) Nation in the Multinational Task Force in Kosovo. In addition, it was confirmed that we would contribute members of the Garda Síochána to the planned ESDP Mission in Kosovo in 2008. Human Rights Ireland continued to be active in the defence of human rights within the UN and the Council of Europe. Activities in 2007 included facilitating reports on Ireland by the European Commission against Racism and Intolerance and the Committee on the Prevention of Torture. Council of Europe Commissioner for Human Rights, Thomas Hammerberg, visited Ireland in November to review the implementation of Ireland’s human rights commitments. The Commissioner met with the Taoiseach, the Minister as well as several other members of the Cabinet. UN High Commissioner for Human Rights, Louise Arbour, also visited Ireland in November. Ireland continued to play an active role in the UN Human Rights Council in Geneva, in particular in working with EU partners to ensure consensus outcomes on

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Darfur and the convening of a Special Session on Burma. Following the agreement on a UN Convention on the Rights of Persons with Disabilities in 2006, Ireland was one of 22 EU Member States to sign the Convention on the day it opened for signature. Ireland also signed the Convention on Enforced Disappearances and the Optional Protocol to the Convention Against Torture in 2007, as well as submitting Ireland’s Third Report under the International Covenant on Civil and Political Rights. In June 2007 the Department also organised a highly successful NGO Forum on Human Rights, at which the keynote speaker was former US President Jimmy Carter. United Nations Ireland engaged closely with the full range of UN issues in 2007 and continued to pursue our commitment to UN reform. This commitment to UN reform was further acknowledged when the President of the General Assembly, Ambassador Srgian Kerim, appointed Paul Kavanagh, Permanent Representative of Ireland to the United Nations, as Co-Chair for System-wide Coherence in the UN General Assembly. Disarmament and Non-proliferation Ireland played a leading role in the core group of countries driving the ‘Oslo Process’, which was launched in early 2007, with the aim of negotiating the first specific international legal instrument on cluster munitions. Preparations began for the Dublin Diplomatic Conference for a Convention on Cluster Munitions, which will take place in May 2008. Meanwhile, preparatory work aimed at achieving a positive outcome to the 2010 Review Conference of the Nuclear Non-Proliferation Treaty continued. Ireland chaired the New Agenda Coalition during the first half of the year, including during the NPT Preparatory Committee meeting in Vienna. Ireland was one of almost 100 countries which made submissions to the UN Secretary General on the need for an Arms Trade Treaty. Conflict Resolution Progress was made in developing a work programme for the Conflict Resolution Unit (CRU) established within the Department and in developing a wide range of valuable international contacts. A first field mission was held to Timor Leste. In line with Programme for Government commitments, the CRU has been developing plans for the establishment of an Academic Centre for Conflict Resolution and the creation of a Stability Fund, to support increased Irish engagement in conflict resolution activities in the developing world. International Security and Defence The Department continued to play an active and constructive role in the development of policy on international security and defence matters, in close coordination with the Department of Defence. This work included coordination of Irish participation in,

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and support for, missions in the framework of the European Security and Defence Policy (ESDP). The EU Battlegroups, which provide the EU with a rapid response capability for emergency crisis management missions, reached full operational capability as of 1 January 2007. In April, the Dáil passed a motion approving Ireland’s participation in the Nordic EU Battlegroup. Preparations continued throughout the year for our involvement with the Battlegroup, which is scheduled to be on standby in the first half of 2008. The Minister for Foreign Affairs continued to make clear Ireland’s total opposition to the practice of Extraordinary Rendition, including in response to reports by the European Parliament and the Irish Human Rights Commission. The Minister also made clear that the Government seeks to fully engage with EU and other partners to ensure that this practice does not occur, including by calling for a review of aspects of international civil aviation. the european union High Level Goal, 2005–2007: Promote and protect Ireland’s interests at the heart of the European Union as it continues to evolve and enlarge, including through the further development of our relations with our current and future EU partners. 2007 in Review The Department’s European Union (EU) Division continued to work closely with other Government Department’s to ensure a strategic and coordinated response across a wide range of EU issues in pursuit of Ireland’s objectives. Bulgaria and Romania joined the European Union on 1 January 2007. Accession negotiations continued with Croatia and Turkey. EU Heads of State and Government signed the Reform Treaty at a ceremony in Lisbon on 13 December 2007. The Taoiseach and the Minister for Foreign Affairs signed on behalf of Ireland. EU leaders agreed on EU-wide targets for emissions, and renewable energy at the Spring European Council in March 2007. These targets, set for 2020, commit the EU to cutting emissions by at least 20% of 1990 levels and to sourcing 20% of energy from renewable sources. The European Communities Act 2007 was enacted to improve and modernise the way EU legislation is transposed into Irish law as a result of the findings of the Supreme Court in the Browne and Kennedy cases. 2007: Developments and Achievements The Reform Treaty Twenty-Seven EU Heads of State and Government signed the Reform Treaty at a ceremony in Lisbon on 13 December 2007. The Taoiseach and the Minister for Foreign

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Affairs signed on behalf of Ireland. The Minister for European Affairs also attended the signing ceremony. The Reform Treaty is designed to make the European Union function more effectively and democratically so that it can better serve the interests of the people of Europe. It responds to the needs of today’s European Union with its increased membership. The negotiations on the Reform Treaty took place against the background of the failure to ratify the European Constitution which had been agreed in 2004. The Reform Treaty draws much of its substance from the European Constitution, negotiated under Ireland’s 2004 EU Presidency, but it takes the form of a series of amendments to the existing European Treaties. Visits 2007 saw a number of important incoming and outgoing visits which strengthened and enhanced Ireland’s relations with key EU partners. The Taoiseach visited France for talks with the new President, Nicolas Sarkozy, which reaffirmed our close partnership with France on issues of vital interest, particularly in defence of Irish agriculture. The Minister for Foreign Affairs met with the new British Foreign Secretary, David Miliband, for a substantive discussion on EU policy areas of mutual interest to Ireland and the UK. Irish in the EU Irish became an Official and Working language of the EU on 1 January 2007. The Department, in close cooperation with the Department of Community, Rural and Gaeltacht Affairs, has worked closely with the European Institutions to enable them to build Irish language translation and interpretation capacity in key personnel areas. The European Communities Act 2007 The European Communities Act 2007 was enacted to improve and modernise the way in which EU legislation is transposed into Irish law, as a result of the findings of the Supreme Court in the Browne and Kennedy cases. Those cases related to the use by the State of secondary legislation as a mechanism for giving effect to EC law and policy in domestic law. The Supreme Court found that a statutory instrument to give effect to EC law can only be validly made where the Oireachtas has specifically provided for this in the relevant primary legislation. The effect of the judgments was that the State had to revise the manner in which EC law is implemented into domestic law by secondary legislation. Climate Change and Renewable Energy The 2007 Spring European Council committed the EU to unilateral targets for emissions and renewable energy, which are to be met by 2020. The EU set itself a minimum

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unilateral target of a 20% cut in greenhouse gas emissions by 2020 from 1990 levels, with a negotiating offer of up to 30% by the same period in the context of parallel commitments by other developed nations, as well as a commitment to source 20% of energy consumed from renewable sources and a 10% target for biofuels by the 2020 deadline. Enlargement On 1 January 2007, Bulgaria and Romania joined the European Union. During the course of 2007, negotiations on accession continued with Croatia and Turkey. Eleven further negotiating chapters were opened with Croatia, and five with Turkey. The Department continued to provide training and assistance to the new Member States of the EU and to Candidate countries through its Bilateral Assistance Programme. Regular Briefings to Oireachtas Throughout the year, the Minister for Foreign Affairs and the Minister of State for European Affairs briefed the Oireachtas Joint Committee on European Affairs prior to meetings of the General Affairs and External Relations Council (GAERC) and submitted regular reports on EU business. advancing ireland’s economic and cultural interests High Level Goal, 2005–2007: Promote Ireland’s trade, investment and other interests, including its culture, in close co-operation with other Departments, State Agencies and the private sector, ensuring that the State’s network of diplomatic and consular missions adds real value to this task. 2007 in Review The Department’s Bilateral Economic Relations Division (BERD) worked closely with other Government Departments and State Agencies to promote Ireland’s economic interests abroad including through developing the trade potential of visits overseas by the President, Taoiseach, Minister for Foreign Affairs and other Ministers, and of high-level inward visits. The Department enhanced the capacity of our Embassies and Consulates to add real value in the area of foreign earnings by preparing a set of policy guidelines on the economic work of missions. A series of meetings with heads of missions, state agencies and business bodies fed into this work. The Department also arranged for specialised training on economic and trade issues to be provided for officers going abroad in 2007. The Department continued to focus on the Government’s Asia Strategy, including by participating in High Level Group meetings, and coordinating high-level visits to and from the region. The Department used the opportunity of the 50th anniversary of

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diplomatic relations to enhance bilateral economic and trade relations with Japan, including by arranging the Minister’s visit to Tokyo in November. The Department continued to develop economic relations with the Gulf States in a strategic manner and engaged in concrete follow-up to the Taoiseach’s January visit to the Gulf region, including through facilitating 9 inward visits from the region. The Department’s Cultural Division worked closely with the Department of Arts, Sport and Tourism, Culture Ireland and other Government Departments and agencies to optimise the enhancement of Ireland’s image abroad through the organization of a range of cultural events. 2007: Developments and Achievements Visits The Department worked closely with other government departments, state agencies and other relevant stakeholders to promote Ireland’s economic interests abroad. This included maximising the economic and trade potential of visits abroad by the President, Taoiseach, Minister for Foreign Affairs and other Ministers, and of highlevel inward visits. The 34 St Patrick’s Day visits overseas by Government Ministers, which were coordinated by the Department, provided a major opportunity to promote Ireland and advance our economic interests. Mission Guidelines and Training With a view to ensuring that Embassies and Consulates add real value to the economic objectives of the Department, policy guidelines on the economic work of missions were produced and distributed. This followed a series of consultations with a highlevel group of heads of missions, as well as state agencies and business bodies. To give practical expression to the approach outlined in the guidelines, a series of sub-regional meetings was held in Scandinavia, South-East Asia, Benelux, US and China. The Department also arranged for training on trade-related matters to be provided to officers going abroad in 2007. The training, which was provided by IMI/TCD, included seminars on foreign direct investment, increasing exports, competitiveness, the role of state agencies, and sectors of economic importance to Ireland. In addition, the quality of promotional material and briefing supplied to missions abroad was enhanced. Asia Strategy The Department continued to focus on the Government’s Asia Strategy, which seeks to intensify political, business and other forms of interaction with priority Asian countries. The Department coordinated several high-level visits to Asia including the President’s visit to New Zealand in October, and facilitated a significant number of high-level inward visits. The Department used the opportunity of the 50th anniversary of diplomatic relations to enhance economic and trade links with Japan, including by holding bilateral economic consultations in July, and arranging the Minister’s visit to Tokyo in

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November. The Anniversary was also marked by an extensive bilateral cultural programme. Gulf States The Department finalised a strategic review of economic relations with the Gulf States. It coordinated the Taoiseach’s January visit to Saudi Arabia and the UAE and, as follow-up, facilitated 9 inward visits from the region, participated in the 7th session of the Joint Economic Commission with Saudi Arabia and progressed work on agreements in a number of areas. Irish Beef The Department, in cooperation with the Department of Agriculture, Food and Fisheries and missions abroad, continued its efforts to re-open international markets to Irish beef: in the autumn, markets in Saudi Arabia and South Africa were re-opened to beef from Ireland.

irish aid High Level Goal, 2005–2007: Make a substantive and effective contribution to achieving the Millennium Development Goals, and to poverty reduction and sustainable growth in developing countries, through the policy and programmes of Development Cooperation Ireland, and by working for a just and stable international economic system. 2007 in Review 2007 saw the establishment of an Inter-Departmental Committee for Development, to strengthen coherence in the Government’s approach to development, and of the Hunger Task Force, as outlined in the 2006 White Paper on Development. In 2007, Ireland gave 0.075% of its GDP as humanitarian funding, the third highest level in the world. New Country Strategy Papers (CSPs) were put in place for Mozambique, Tanzania, Uganda, Vietnam, Zambia and South Africa. These strategy papers provide the framework for Irish Aid support and detail how this assistance is to be targeted. Following the commitment in the White Paper that Malawi was to become Ireland’s ninth partner country, the Irish Government approved the opening of a new Embassy and the establishment of a bilateral aid programme in 2007. The Embassy of Ireland in Lilongwe opened in November 2007. Significant progress was achieved in restructuring Irish Aid’s relationship with the UN Funds Programmes. Irish Aid continued to prioritise the reform of the UN development system and actively engaged with country-level UN reform programmes in Vietnam and Tanzania.

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Multi-annual programme agreements for the period 2007 to 2011 concluded with Concern (€148m), Trócaire (€116m), Goal (€100m) and Christian Aid (€17m). Work on the Irish Aid Volunteering and Information Centre was completed, allowing the Centre to be officially opened in January 2008. 2007: Developments and Achievements In 2007, Ireland gave 0.075% of its GDP as humanitarian funding, the third highest level in the world. Ireland’s humanitarian supplies, comprising essential shelter and housing, and water and sanitation equipment, were pre-positioned at the UN Humanitarian Response Depot in Brindisi, Italy, and at the Curragh Camp in Ireland by mid-2007. The Minister for Foreign Affairs and Minister of State for Overseas Development made an inspection visit to the Brindisi base in July. The supplies provided by Ireland to the Brindisi depot were used in response to humanitarian emergencies in Sudan, Pakistan, Peru, Burkina Faso, Uganda and Mali.

RAPID RESPONSE CORPS A campaign to recruit members to the Rapid Response Corps—a roster of skilled and experienced volunteers willing to be deployed to work with Ireland’s key partners in responding to humanitarian emergencies worldwide—was launched in February. In 2007, formal standby partnership agreements were signed with the UN Refugee Agency (UNHCR), the World Food Programme (WFP) and the UN Office for the Coordination of Humanitarian Affairs (OCHA). During 2007, Corps members were deployed to work with the UN Refugee Agency (UNHCR) office for Somalia, and the World Food Programme (WFP) in Sri Lanka and Mozambique.

The Inter-Departmental Committee for Development, established in 2007, met three times. Terms of reference for the Committee were agreed, as was the establishment of two Sub-Groups on (i) Multilateral Organisations and (ii) Skills Sets. Presentations were received from experts in the field of policy coherence for development.

HUNGER TASK FORCE 2007 also saw the establishment of the Hunger Task Force which is examining the particular contribution Ireland can make in addressing the root causes of food insecurity, particularly in Africa. The Task Force held two meetings in 2007 and is expected to produce its report by the middle of 2008.

In line with the White Paper’s commitment to increasing the focus on working in fragile states, significant advances were made in our involvement in Sierra Leone and Liberia. Of particular note was the substantial support to the National Election Commission to ensure a free and fair Presidential election in Sierra Leone.

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Bilateral Programme Countries In 2007 new Country Strategy Papers (CSP) were put in place for Mozambique, Tanzania, Uganda, Vietnam, Zambia and South Africa. These strategy papers provide the framework for Irish Aid support and detail how this assistance is to be targeted. In line with the increasing overall budget, as official development assistance approaches the target figure of 0.7% of GNP, these bilateral programmes have grown significantly. The Ugandan programme has grown from €96.5 million over the previous three year period to €112 million for the period 2007–2009. The budget allocation for Mozambique was €116 million from 2004–2006. For 2007–2010 it increases to €207.8 million (including funding to the health sector on foot of the Irish Aid agreement with the Clinton Foundation). Tanzania’s budget increases to some €170 million for 2007–2010, from €81 million in the previous CSP period. In recognition of the multidimensional nature of poverty, the country strategies for Uganda, Mozambique and Tanzania utilise a programmatic approach, focussing on areas which are in line with national poverty reduction plans and making the greatest impact on the lives of the poorest and most vulnerable members of these communities. The Irish Aid programme in Vietnam was established in 2005 and 2007 saw its first CSP being completed. It raised the Vietnam programme to full scale country programme level and involved a significantly increased budget allocation. The focus of the CSP for Vietnam is on poverty reduction and reducing inequality. Irish Aid finalised a five year programme to provide bilateral assistance of over €65 million to South Africa from 2008 to 2012. Ireland has been providing bilateral aid to South Africa since the transition from apartheid to a democratic, non-racial Government in 1994. The programme will focus on the areas of HIV and AIDS; propoor service delivery in Limpopo Province; supporting the response to Gender Based Violence and promoting economic growth through skills development. The new CSP agreed for Zambia will see over €123 million in bilateral assistance being channelled to that country between 2007 and 2010. The programme focuses primarily on education, good governance, supporting pro-poor service delivery in Northern Province and on addressing vulnerability and chronic poverty. Following the commitment in the White Paper that Malawi was to become Ireland’s ninth partner country, the Irish Government approved the opening of a new Embassy and the establishment of a bilateral aid programme in 2007. The Embassy of Ireland in Lilongwe opened in November 2007. UN Agencies & NGOs Significant progress was achieved in restructuring Irish Aid’s relationship with the UN Funds Programmes. The UN Development Programme (UNDP), UNICEF, the UN High Commission for Refugees (UNHCR) and the UN Population Fund (UNFPA) were designated as Irish Aid’s Priority Partners within the UN development system. Irish Aid concluded multi-annual Framework Agreements with UNICEF and UNHCR based on shared development objectives. Irish Aid continued to prioritise the reform of the UN development system and actively engaged with country-level UN reform programmes in Vietnam and

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Tanzania. This was part of a broader effort, launched as part of the UN’s System-wide Coherence programme, to improve the delivery of UN development assistance at country level, reduce overlap between UN bodies and ensure value for money. In recognition of its active role in this reform effort, Ireland was appointed, with Tanzania, as facilitator for the programme in the UN General Assembly in 2008. Irish Aid continued to work in close partnership with Irish NGOs throughout 2007. Multi-annual programme agreements for the period 2007 to 2011 were concluded with Concern (to the value of €148 million), Trócaire (to the value of €116 million), Goal (to the value of €100 million) and Christian Aid (to the value of €17 million). Evaluation and Audit In the context of lesson learning and of ensuring that Irish Aid resources are used to optimal effect, an enhanced programme of evaluation and audit was implemented by the Evaluation and Audit Unit. Key evaluation exercises completed included: a Value for Money and Policy Review of the Mozambique Country Programme, 2001–2006 and a Review of the Irish Missionary Resource Service. A systematic programme of audit was undertaken of Irish Aid’s programme in partner countries. The Department’s independent Audit Committee maintained oversight of the implementation of the Evaluation and Audit Unit’s work plan. VOLUNTEERING AND INFORMATION CENTRE Work on the Irish Aid Volunteering and Information Centre and its exhibition content was completed in 2007. The Centre, which promotes awareness and understanding of development issues, the role of Irish Aid and opportunities for the individual to engage, opened to the public in January 2008.

A summary version of the White Paper on Irish Aid was distributed to every house in Ireland in spring 2007. The document outlined the main recommendations of the White Paper and sources of further information on development. Irish Aid launched its five year strategy plan for development education in November 2007. The key aim of the new strategy is to ensure the Irish public have the opportunity to be more deeply informed about development and global justice issues, the role of government and civil society, and to be more critically engaged with the Irish Aid programme. 2007 was the first year the Programme of Strategic Cooperation between Irish Aid and Higher Education and Research Institutes was implemented. Grants totalling €7.3 million were awarded in the first round of funding in June 2007 to higher education institutions in Ireland. In line with the commitment made in the White Paper, Irish Aid provided support for cultural and academic events around Africa Day (May 25) to promote a positive image of Africa in Ireland.

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consular and passport services High Level Goal, 2005–2007: Protect and support the interests of Irish citizens abroad, maintain and strengthen links with people of Irish ancestry, and provide a modern and efficient passport and consular service. 2007 in Review The Department’s Consular Section in Dublin coordinates the actions of Irish missions abroad on behalf of Irish citizens and liaises with family members in Ireland. In 2007, there were 8 million trips abroad made by Irish residents. While the majority of the ever-increasing numbers of Irish citizens travelling overseas do not encounter serious difficulties, there has been a significant increase in demand for consular assistance and in the complexity of the cases dealt with. The Department’s dedicated Crisis Centre was opened officially in 2007 to respond to major emergencies overseas involving Irish citizens. Emergency Consular Assistance Teams, which can be deployed quickly to the scenes of disasters or terrorist attacks, were established and fully trained. The Report on Irish Prisoners Overseas by Mr Chris Flood was launched by the Minister of Foreign Affairs. Some 600,000 Passports were issued in 2007. Use of the Northern Ireland Passport Express (NIPX) service increased. In 2007, the Department’s Irish Abroad Unit underwent comprehensive review, as part of the ‘Value for Money and Policy Review’ of emigrant services, which was published in July. Offering a thorough analysis of the programme, the Review also provided recommendations on how to improve the efficiency of the grant aid process. Many of these recommendations are currently being implemented. 2007: Developments and Achievements Protecting and Supporting Irish Citizens Throughout 2007, the Department provided support in a wide range of areas, including comprehensive advice on travel to particular countries or regions, and assistance in situations of difficulty or distress. During the year, the Department dealt with the deaths of over 130 Irish people abroad and provided effective assistance to our citizens in other difficult and distressing situations, including repatriation, hospitalisation, victims of crime and detention abroad. Consular facilities were also provided for Irish citizens attending major sporting events including qualifying games for the 2008 UEFA European Football Championships, the Rugby World Cup, the Cricket World Cup, and the Special Olympics. The Department’s website provides up to date and comprehensive travel advice for Irish citizens intending to travel abroad. This advice reflects a considered assessment of the risks involved for Irish citizens travelling to individual countries. It is based on

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the best information available to the Department and draws on reports from Irish Diplomatic and Consular Missions abroad and advice issued by other countries, including Member States of the European Union. Contact was maintained with other Government Departments and various members of the travel industry to improve coordination, cooperation and best practice in responding to emergency issues effecting Irish citizens abroad. CRISIS CENTRE The Department’s Dedicated Crisis Centre was officially opened by the Minister for Foreign Affairs in Dublin on 9 January 2007. The Crisis Centre is of international standard, and is fully equipped to provide a modern emergency response service to deal with large-scale emergencies, crises and disasters, whether natural or man made, involving Irish citizens abroad. The Centre, staffed by volunteers from throughout the Department, is capable of linking up with Crisis Centres in other EU capitals, to share information and risk assessments.

EMERGENCY CONSULAR ASSISTANCE TEAMS These dedicated teams, which were established and trained during 2007, will be ready to be deployed, with support from trained professionals if necessary, in the immediate aftermath of a disaster affecting Irish citizens anywhere in the world.

Initiatives to Further Improve Consular Services During 2007, the Department advanced other practical initiatives which will further improve the quality of consular assistance provided to Irish citizens: • Preparation of a user-friendly Consular Service Charter detailing the range of services and assistance available to Irish citizens overseas; • Introduction of voluntary on-line Travel Registration for citizens travelling abroad for use in crisis situations; • Since March 2007, a range of Consular Services has been provided to the public from the Department’s offices in Cork, including authentication of Irish documents for use abroad; issuing civil letters of freedom to Irish citizens who intend to marry in other countries; and processing applications for Irish citizenship by Foreign Births Registration. Passport Service Some 600,000 e-passports were issued in 2007. The level of demand from Northern Ireland continues to grow with applications from persons born there now accounting for more than 10% of all applications. As a result of the major investment in passport development in recent years, the Irish passport now contains a range of sophisticated antifraud elements and is widely regarded as among the best and most secure in the world.

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A new Passports Bill was published in April 2007. The Bill will provide a comprehensive legislative basis for the regulation and issuance of Irish passports by the Minister for Foreign Affairs. It will supersede the more general administrative basis for the issuance of passports contained in the Ministers and Secretaries Act 1924, under which the passport issuing system has operated to date. Against the backdrop of heightened awareness about passport security, identity theft and fraudulent applications, there is a growing international emphasis on improving identity and passport security. The Passports Bill therefore introduces a range of offences and penalties relating to the fraudulent acquisition, misuse and abuse of passports, including a provision for the extra- territorial effect for those provisions. It will strengthen efforts to combat fraud and will complement the substantial investment made in recent years to improve the security of the passport book. The Bill was approved by the Foreign Affairs Committee on 6 December 2007 and it is hoped that it will have passed through all stages in the Dáil in early 2008. The Department will continue to focus on improving its service to the general public over the coming year and will take account of a Value for Money Review currently being undertaken. The Review, which is nearing completion, will evaluate the efficiency and effectiveness of the passport service and will propose recommendations to underpin the provision of a quality, cost-effective service in the coming years. Irish Communities Abroad 2007 saw the Irish Abroad Unit refine and advance its funding strategies by allocating additional resources to a broader range of emigrant services. Whilst increasing support for frontline information and welfare services for vulnerable Irish emigrants, the programme also expanded to include a number of capital projects, as well as projects which foster a greater sense of community abroad. Heritage projects attracted 27% of the €14.185 million expenditure in 2007, as compared to 8.11% in 2006. As the demographic profile of our Diaspora continues to change, supporting such cultural and social projects is likely to be an increasing feature of the Unit’s activities. In order to maximize the impact of allocated monies, the Unit has continued to improve financial control of the grant scheme. The Value for Money and Policy Review, published in July 2007, provided an excellent—and extremely positive— analysis of the emigrant support programme. In line with recommendations made in the Review, the Ireland Abroad Unit has begun to develop increasingly formalised systems of monitoring and evaluation of awarded grants. A restructuring and regionalisation of the Government-appointed Díon advisory committee on emigrant support in Britain was initiated in 2007 and will be completed in 2008. The geographic spread of the grants scheme also continues to develop. In the course of 2007, projects were grant aided in eleven different countries, compared to eight in 2006. The Unit also advanced the debate on our Diaspora, hosting a successful Diaspora Conference in Dublin in April, and engaging in regular dialogue with universities and the media. A follow-up conference is due to take place in Britain during the first half of 2008.

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support services Building Internal Capability: The Department of Foreign Affairs must ensure that it maintains and continues to develop the internal capability required to deliver on the foreign policy objectives of the Government. 2007 in Review The work of the Department’s officials at home and abroad towards achieving our high-level goals was further supported and facilitated by the Department’s corporate and support services. These provide an essential platform upon which the Department’s policy formulation and service delivery functions can be effectively discharged. Protocol Services Throughout 2007, the Department’s Protocol Division organised State and Official Visits abroad by the President and the Taoiseach, and State and Official Visits to Ireland by Heads of State, Prime Ministers, Foreign Ministers and other distinguished guests of the Government. In addition, it advised and assisted other Government bodies in relation to their official guests. Visits during 2007 Visits by the President to: Belgium, Canada, England, Guernsey, Holy See, Italy, Jersey, Latvia, Lithuania, New Zealand, Scotland, USA (Atlanta, Syracuse, New York). In January 2007, the Department co-ordinated the arrangements for the Taoiseach’s visit to Saudi Arabia and the United Arab Emirates. Inward High Level Visits to Ireland organised by the Department included: The President of Poland, The King and Queen of the Belgians, The Prime Minister of Iceland, The President of Slovakia, The President of Finland, and The Prime Minister of Lithuania The Department also worked with the resident and non-resident diplomatic corps accredited to Ireland, comprising 59 Missions in Dublin and 63 Missions accredited to Ireland on a non-resident basis. This involved the management of their privileges and immunities, organising the presentation of credentials to the President by 33 newly accredited Ambassadors in 2007 as well as other events attended by the Diplomatic Corps. It also ensured the smooth functioning of procedures for foreign Government aircraft and vessels to over-fly, land or dock in Ireland, and for Irish Governmental flights and naval visits abroad.

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Press Office The Press Office provides an effective media service to the Minister and the Department, including Divisions at HQ and Missions abroad. During 2007, it dealt efficiently and effectively with an increased number of press queries covering the entire range of issues handled by the Department, from national and local newspapers, from the broadcast media, and from representatives of wire agencies based in Ireland. The Department’s Press Office also worked closely with other Government Departments, Missions abroad and State Agencies to organise visits to Ireland by members of the foreign media, and handled press arrangements for several incoming high-level visits in 2007, including four State Visits. The Press Office monitored domestic and international media and published all speeches/press releases by the Minister for Foreign Affairs and the Ministers of State at the Department on the Departmental website, also distributing them directly to the media. Legal Services Legal Division assisted and advised the Department on various issues relating to each of the Department’s High Level Goals: Northern Ireland: Advised on implementation of the Good Friday Agreement, including in relation to the St Andrews Agreement, restoration of the Northern Ireland Assembly and the North–South Implementation Bodies. Foreign Policy: Ensured an integrated legal and policy approach to foreign relations in accordance with the Constitution and UN Charter. Advised on UN legal matters including the enforcement of UN and EU sanctions. Contributed to the continuing development of a new international instrument on cluster munitions. Progressed the State’s extended continental shelf claims. Ensured appropriate working relationships with states seeking extradition of suspects from Ireland, including the signing of an extradition treaty with the Hong Kong Special Administrative Region. Participated in Council of Europe discussions on the reform of the European Court of Human Rights. Ensured appropriate processing and publication of all international agreements to which Ireland became a party in 2006; and successfully identified and eliminated the historical backlog of over 280 international agreements which had previously awaited processing. European Union: Advised on EU legal matters, including on the enactment of the European Communities Act 2007 and legal aspects of the negotiations on the Reform Treaty. Trade and culture: Advised on international agreements on bilateral economic relations and cultural matters. Irish Aid: Advised Irish Aid on its work, including on drafting Agreements and Contracts that govern the transfer and use of Irish Aid funding to partner organisations and ‘Guidelines for dealing with Fraud in Partner Organisations’.

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Consular, Passport: Advised on Passports Bill 2007 and development of a consular charter, and on consular protection of the rights of Irish citizens abroad (including children). Inspection Unit The Inspection Unit continued to support the management of the Department in 2007 by carrying out inspection visits to Missions abroad. The purpose of these visits is to help Missions to maximise both their effectiveness, by ensuring that their activities are aligned as closely as possible with the Department’s strategic goals, and their efficiency, by promoting best practice in the management of their resources. The Inspection Unit conducted 14 visits to Missions abroad in 2007 as set out below. Reports were prepared on each visit for discussion by the Department’s Senior Management. Implementation of the Reports’ recommendations was monitored by the Inspection Unit. A joint inspection and audit visit to the Embassy in New Delhi was organised with the Evaluation and Audit Unit in October 2007. Missions Inspected in 2007: Brussels (Embassy), Brussels (Delegation to the Partnership for Peace), Brussels (Permanent Representation to the EU), London (Embassy), Bucharest (Embassy), New York (Permanent Mission to the UN), Paris (Delegation to the OECD and UNESCO), Valletta (Embassy), Luxembourg (Embassy), Moscow (Embassy), New Delhi (Embassy), Riga (Embassy), Sofia (Embassy) and Vilnius (Embassy) Corporate Services Corporate Services Division is responsible for the overall management of the financial and human resources of the Department, ensuring coherent operation across its various Divisions at Headquarters and its 78 Missions outside of the State. As required under the Public Service Management Act 1997, the Department prepared, and submitted to the Taoiseach in December, a new Statement of Strategy (2008–2010). The Department committed itself in the Statement to carry out a review of structures exercise in 2008; this will focus on the organisation of Divisions at Headquarters, the distribution and resourcing of Missions abroad and overall management systems in the Department. In discharging its human resource management responsibilities, the Department recognises that the quality of its staff represents a major asset. It seeks to fully comply with the obligations from successive Partnership Agreements, with the commitments arising from the various initiatives under the Strategic Management Initiative and with the best practice employment standards across the Civil Service. With over 1,500 staff at Headquarters and distributed across the world, the Department constantly reviews its policies and practices to optimise the performance and professional fulfilment of its human resources. During 2007, a dedicated subgroup of the Management Advisory Committee was established to oversee Human Resource Management issues. The Department remains committed to providing the highest standard of service to all our customers, at home and abroad, in accordance with the principles of Quality

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Customer Service approved by Government. Practical examples of our customer service commitments include our guarantee that a person using the Passport Express Service will receive his or her passport within ten working days, same day service for authentication of official documents, and the provision of an out of hours service at home and abroad for those who require passports on an emergency basis, both in the evening and at weekends. Our Customer Service Action Plan underlines our practical commitment to fulfilling the obligations of the Department’s Customer Charter, both of which are available on the Department’s website. The Department recognises the importance of ensuring that its financial resources are used efficiently and effectively. The details of the Department’s expenditure in 2007 under both of its Votes and penalty interest on late payments are contained in Appendices 1, 2 and 3. The Department is also very conscious of the need to secure good value for money for the expenditure it incurs. Appendix 4 outlines the various reviews being undertaken by the Department under the Government’s Value for Money and Policy Review Initiative. Appendix 5 reports on Regulatory Impact Analysis and Legislative Programme 2007. Significant achievements and developments during 2007 included: Continued implementation of the modernisation and flexibility changes mandated under Sustaining Progress and Towards 2016 Partnership Agreements; Significant progress in decentralising the Development Cooperation Directorate to Limerick. By the end of 2007, an advance party of over 50 staff was in place in Limerick and 83% of the Directorate staff to be decentralised had been designated; The purchase of two Mission properties abroad—Mexico and Brasilia—and the completed purchase of a site for a new Chancery in Addis Ababa. 2007 also saw the completion of refurbishment projects in a number of Embassies owned by the State, including The Hague and Lisbon; and The completion of a new ICT Strategy (2007–2010) for the Department and a complete refresh of desk-top PCs at Headquarters in Dublin.

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APPENDICES Appendix 1 Vote 28 (Foreign Affairs) Estimates and Provisional Outturn for 2007 Appendix 2 Vote 29 (International Cooperation) Estimates and Provisional Outturn for 2007 Appendix 3 Prompt Payment of Accounts Act, 1997 Appendix 4 Status Report on Value for Money Reviews (2006–2008 Programme) Appendix 5 Report on Regulatory Impact Analysis and Legislative Programme 2007 appendix 1 vote 28 (foreign affairs ) estimates and provisional outturn for 2007 Service Estimate Provision € 000

Provisional Outturn €000

ADMINISTRATION A.1. A.2. A.3. A.4. A.5. A.6. A.7. A.8

SALARIES, WAGES AND ALLOWANCES TRAVEL AND SUBSISTENCE INCIDENTAL EXPENSES POSTAL AND TELECOMMUNICATIONS SERVICES OFFICE MACHINERY AND OTHER OFFICE SUPPLIES OFFICE PREMISES EXPENSES CONSULTANCY SERVICES VALUE FOR MONEY AND POLICY REVIEWS

96,018 8,600 6,750 8,600 27,350 47,640 900 100

98,200 8,000 6,800 8,300 32,000 33,178 275 30

77

43

15,165 566 320

14,179 415 285

3,000 195 1,000 28

2,759 195 1,085 4

OTHER SERVICES B.1. C.1. D.1. E.1.

F.1 F.2. G.1 H.1

REPATRIATION AND MAINTENANCE OF DISTRESSED IRISH PERSONS ABROAD SUPPORT FOR IRISH IMMIGRANT GROUPS INFORMATION SERVICES CONTRIBUTIONS TO BODIES IN IRELAND FOR THE FURTHERANCE OF INTERNATIONAL RELATIONS (GRANTS-IN-AID) NORTH–SOUTH AND ANGLO–IRISH COOPERATION INTERNATIONAL FUND FOR IRELAND CULTURAL RELATIONS WITH OTHER COUNTRIES IRISH–AMERICAN ECONOMIC ADVISORY BOARD

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Table (cont.) Service Estimate Provision €000 I.1 J.1 K.1 L.1 M.1 N.1.

Provisional Outturn €000

CONTRIBUTIONS TO INTERNATIONAL ORGANISATIONS 32,498 TITLE V OF THE TREATY ON EUROPEAN UNION 582 ASSISTANCE TO EU CANDIDATE COUNTRIES 2,215 ATLANTIC CORRIDOR PROJECT 250 ASIA STRATEGY 200 SUPPORT FOR IRELAND FUNDS 2,000

Gross Total Deduct:– O. APPROPRIATIONS-IN-AID Net Total

37,652 582 1,347 250 168 0

254,054

245,747

39,000

38,300

215,054

207,447

appendix 2 vote 29 (international cooperation ) estimates and provisional outturn for 2007 Service

Estimate Provision €000

Provisional Outturn €000

SALARIES, WAGES AND ALLOWANCES 15,744 TRAVEL AND SUBSISTENCE 2,660 INCIDENTAL EXPENSES 3,531 POSTAL AND TELECOMMUNICATIONS SERVICES 1,500 OFFICE MACHINERY AND OTHER OFFICE SUPPLIES 1,020 OFFICE PREMISES EXPENSES 2,099 CONSULTANCY SERVICES 2,000

14,899 2,470 3,095 1,112 959 2,352 2,237

ADMINISTRATION A.1. A.2. A.3. A.4. A.5. A.6. A.7.

OTHER SERVICES B.

C. D. E.

PAYMENT TO GRANT-IN-AID FUND FOR BILATERAL AID AND OTHER COOPERATION (GRANT-IN-AID) EMERGENCY HUMANITARIAN ASSISTANCE PAYMENTS TO INTERNATIONAL FUNDS FOR THE BENEFIT OF DEVELOPING COUNTRIES CONTRIBUTIONS TO UNITED NATIONS AND OTHER DEVELOPMENT AGENCIES

Gross Total Deduct:– F. APPROPRIATIONS-IN-AID Net Total

426,510

426,510

60,000 22,650

60,000 22,637

62,900

62,900

600,614

599,171

135

656

600,479

598,515

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appendix 3 prompt payment of accounts act, 1997 Payment of invoices by the Department is governed by the provisions of the Prompt Payment of Accounts Act, 1997 as amended by the European Communities (Late Payment in Commercial Transactions) Regulations, 2002. The Department endeavours to pay all invoices as soon as possible after the satisfactory delivery of the goods and services. The total amount of penalty interest on late payments on the Department’s Vote in 2007 (Vote 28) was €1,805 in respect of 23 cases. In addition, a total of €402.88 was paid in penalty interest on late payments under Vote 29 (International Cooperation) in respect of 9 cases. appendix 4 status report on value for money reviews (2006‒2008 programme ) Vote 28—Foreign Affairs Value for Money Review

Purpose of Review

Support for Irish To evaluate the value for money achieved Emigrant Groups with the Department’s support for Irish Emigrant Groups Abroad Automated Passport To evaluate the efficiency and effectiveness Project of the passport service and provide appropriate recommendations to the Department that will underpin the provision of a cost effective, quality passport service in the coming years.

Target Date

Current Status

12/2006

Report finalised July 2007.

12/2007

Report to be finalised by mid-2008. Vote 29—International Cooperation Value for Money Review

Purpose of Review

Target Date

Current Status

Development Cooperation To analyse what has been achieved with 12/2006 Report Ireland’s Emergency Irish Aid support for the Tsunami-affected published Humanitarian countries. October Assistance for a specific To evaluate the relevance, effectiveness, 2007. disaster (Tsunami) efficiency, sustainability, attentiveness to cross-cutting issues and management of Irish Aid’s Tsunami response programme. Development Aid to To evaluate the implementation of the 12/2007 Report comMozambique Mozambique Country Programme, funded pleted third by Irish Aid quarter 2007 and published in February 2008.

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Table (cont.) Value for Money Review

Purpose of Review

Target Date

HIV/AIDS Budget Line

To (i) inform Irish Aid and the Irish 12/2008 Oireachtas on the overall quality of Irish Aid’s HIV / AIDS response; the management of Irish Aid’s HIV /AIDS 2000–06 expenditure (in line with the Value for Money Initiative Guidelines) with regard to its overall strategy; its effectiveness, efficiency, relevance, impact and sustainability taking one country case study as a sample and (ii) inform future decision making and assist in the strategic prioritisation of HIV/AIDS expenditure

Current Status Exercise currently underway. Final report expected end of August 2008.

appendix 5 report on regulatory impact analysis Legislative Programme 2007 European Communities Act 2007—No 18 of 2007 This Act was enacted to take account of two landmark Supreme Court judgements (Browne v AG and Kennedy v AG) which required changes to be made in the way Ireland transposes EU measures into our domestic law. The Act allows Ministers to use existing Acts of the Oireachtas to create Statutory Instruments to implement EU law, provided that the Act in question relates to the same policy area covered by the EU law. It also provides Ministers with a new power to create indictable offences for serious breaches of EU law. The maximum penalties have been capped at three years imprisonment and a fine of up to €500,000. In cases where Ireland implements major policy changes on foot of EU measures, the Government intends to continue to introduce primary legislation, in line with the practice to date. As this Act amounted to a technical amendment of existing legislation, a Regulatory Impact Analysis (RIA) was not required. Bills prepared by the Department in 2007 Passports Bill 2007—No 30 of 2007 A new Passports Bill was published in April 2007. The Bill will provide a comprehensive legislative basis for the regulation and issuance of Irish passports by the Minister for Foreign Affairs. It will supersede the more general administrative basis for the issuance of passports contained in the Ministers and Secretaries Act 1924, under which the passport issuing system has operated to date. A screening RIA was prepared and accompanied the submission to Government of the Heads of the Bill, which were approved by Cabinet on 12 April 2006. The Bill was

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approved by the Foreign Affairs Committee on 6 December 2007 and it is hoped that it will have passed through all stages in the Dáil in early 2008. Statutory Instruments (SIs) prepared by the Department in 2007 The following SIs were prepared by the Department in 2007. Each concerned the extension of privileges and/or immunities to additional bodies under existing legislation and, as a consequence, RIAs were not considered to be warranted. No 18 of 2007 European Arrest Warrant Act 2003 (Designated Member States) Order 2007 No 38 of 2007 European Communities (Amendment) Act 2006 (Commencement) Order 2007 No 39 of 2007 European Communities (Amendment) Act 2006 (Commencement) Regulations 2007 No 59 of 2007 European Arrest Warrant Act 2003 (Designated Member States) (No 2) Order 2007 No 553 of 2007 Tampere Convention (Privileges and Immunities) Order 2007 (Government Order) No 659 of 2007 Transfer of Execution of Sentences Act 2005 (Designated Countries) Order 2007

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Department of Foreign Affairs Agreed Programme for Government Progress Report April 2007 working for peace Building Peace and Justice Over the next five years, our overriding priority will be to secure lasting peace in Ireland through the full implementation of the Good Friday Agreement, the consolidation of its institutions, and the development of a spirit of friendship and cooperation between North and South. This we will do without prejudice to the ultimate goal of achieving a united Ireland in peace and agreement. • The Government is committed to securing the earliest possible restoration of he political institutions in Northern Ireland on an inclusive and sustainable basis and the resumed operation of the North–South Ministerial Council. • Significant progress has been made in the last year towards securing these aims. The St Andrews Agreement published by the Governments on 13 October 2006 underpins the Good Friday Agreement, and sets out a clear way forward for all parties to commit to the full operation of stable power-sharing government in Northern Ireland by 27 March 2007 and to full support for policing and the criminal justice institutions. • The decision in January 2007 by the Sinn Féin Ard Fheis in support of policing and the criminal justice institutions was an important step forward in that regard. The focus then shifted to secure delivery on support for power-sharing by the DUP. The Governments made clear that the Assembly election on 7 March was being held for the explicit purposes of endorsing the St Andrews Agreement and of electing an Assembly that would form a power-sharing Executive on 26 March in accordance with that Agreement and timeframe. • In the event of failure by the parties to agree to share power by that date, the Governments are committed to implementing new British–Irish partnership arrangements to ensure the Good Friday Agreement is implemented to the fullest extent possible, and in a manner which assures that the rights and interests of all in Northern Ireland and on these islands are fully protected and respected. We will work to consolidate the success of the North–South Ministerial Council, and of the Implementation Bodies. Also cooperate with the British Government in the British-Irish Intergovernmental Conference and bilaterally, on non-devolved matters. • Prior to the suspension of the Northern Ireland Assembly, the North-South Ministerial Council had met a total of sixty-five times. The Government continues to work for restoration of all the institutions of the Good Friday Agreement, including the North-South Ministerial Council. • The Implementation Bodies continue to operate throughout suspension on the basis of the arrangements put in place by the two Governments in 2002. • The Government’s recently launched National Development Plan for the period 2007–2013 includes a comprehensive statement of Government policy on

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North/South co-operation. All-island collaboration is a key horizontal theme of the Plan. The Plan contains proposals for significant Irish Government investment in North/South projects and initiatives for mutual benefit. • Notwithstanding suspension, the pace and range of North–South co-operation has continued to accelerate considerably. There has been marked progress in developing the all island economy. Last October, the Government agreed an ambitious agenda for strengthening economic co-operation with the British Government in a groundbreaking Comprehensive Study on the All-Island Economy. Both Governments agreed to pool our resources in trade promotion, including the opening up of trade missions to businesses across the island and the placing of the overseas offices of Enterprise Ireland and Invest NI at the disposal of companies, North and South. • Recognising that the North-West region of the island faces many of the same challenges either side of the border, in May 2006 the two Governments launched the North West Gateway Initiative. This Initiative aims to develop cross-border cooperation in a wide range of sectors from enterprise development to health and educational services in the region. The Initiative also included a commitment to examine the potential for joint investment in key infrastructure projects. • The Government is also developing co-operation in health, education and social inclusion. Within the framework of the British–Irish Council, seek to develop strong bilateral relations with Scotland and Wales, as well as with the UK as a whole. • The British–Irish Council continues to provide a valuable forum for consultation, discussion and the exchange of information among its membership. • There have been eight summit meetings since the inaugural meeting in 1999, including four since suspension in October 2002, in Scotland (2002), Wales (2003), Guernsey (2004), the Isle of Man (2005) and London (2006). • Work is continuing in the important areas of e-Health, Misuse of Drugs, Environment, Tourism, Knowledge Economy, Transport, Indigenous, Minority & Lesser Used Languages and Social Inclusion. • The British–Irish Council adopted demography as a new area of work at the last summit meeting in London. We will pursue an active policy of reconciliation between differing traditions. • The Government sees Reconciliation, both inter-community and cross-border, as a core value of the peace process and central to its efforts to promote a better future for all on this island. • 2006 saw significant steps towards recognition of the shared history of people on the island from every tradition, in particular the marking of the ninetieth anniversary of the Easter Rising and also the Government’s official commemoration to honour those from the island who died at the Battle of the Somme. • We support reconciliation work directly, through the Reconciliation Fund—which is administered by the Department of Foreign Affairs—and indirectly, through the wider EU PEACE initiatives and the programmes operated by the International Fund for Ireland. In July 2006, Minister Ahern hosted the first Reconciliation Networking Forum for groups from all over the island under the auspices of the Reconciliation Fund.

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• The IFI Regulation was adopted by the Council of Ministers on 21 December 2006. This provides for an EU contribution to the Fund of €60m [€15m annually] for the years 2007 to 2010. The International Fund for Ireland was established as an independent international organisation by the Irish and British Governments in 1986. With contributions from the European Union, the United States of America, Canada, Australia and New Zealand, the total resources committed by the Fund to date amount to €849m. • Work is on-going on the development of the historic Battle of the Boyne site. • We continue to monitor the work being done by various voluntary groups and state agencies, including that of the Interim Commissioner for Victims and Survivors on addressing the needs of victims and survivors of the conflict in Northern Ireland. • We also continue to monitor closely the work currently being undertaken by the Historical Enquiries Team and the NI Police Ombudsman in relation to past cases arising from the conflict in Northern Ireland. We will work for the formation of the North–South Parliamentary Body envisaged in the Good Friday Agreement. • This is primarily a matter for the Oireachtas and the Northern Ireland Assembly. • Further progress on this issue is dependent on the restoration of the Northern Ireland Assembly which is a core goal of the Irish Government. We will put in place an All-Ireland travel scheme for pensioners resident in all parts of this island. • The all-island free travel scheme has now been agreed and will be operational from 2 April 2007. We will support the principle of full public inquiries into the murders of Pat Finucane, Robert Hamill and Rosemary Nelson, and use our good offices to advance the establishment of the truth. • The Government continues to strongly urge the British Government to establish an independent judicial public inquiry into the Pat Finucane case, as demanded by the Finucane family, recommended by Judge Cory and supported by an All-Party motion adopted by Dáil Éireann in March 2006. • The Government continues to monitor the Hamill and Nelson inquiries and to report on their progress. It also continues to cooperate fully with both inquiries, including through the provision of relevant material. We will also fully support the work of Judge Peter Cory who has been appointed by the Irish and British Governments to investigate these and other cases. • The Government has established an inquiry into the murders of RUC officers Harry Breen and Bob Buchanan, as recommended by Judge Cory. It is chaired by Justice Peter Smithwick. We will act upon the recommendations of the Barron Enquiry into the Dublin and Monaghan bombings and continue to work to ensure that all persons and agencies, both here and abroad, cooperate fully with the enquiry.

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• The Government has raised serious concerns in relation to the findings of the various reports of the Oireachtas Joint Committee and Barron Inquiries directly with the British Prime Minister and Secretary of State for Northern Ireland, and at meetings of the British–Irish Intergovernmental Conference. The Government has stressed the need for these concerns to be addressed and the British Government has undertaken to examine the points raised and to revert. Both Governments have recognised the need to secure closure in these troubling cases. The Government is also currently awaiting receipt of the report of the MacEntee Commission of Investigation into the Dublin-Monaghan Bombings and will pursue any relevant issues of concern arising from that report with the British Government. We will work to ensure that that ‘the right to freedom from sectarian harassment’ set out in the Agreement becomes a reality. • The Government continues to press for greater protection for vulnerable/interface communities affected by sectarian violence, including by improved police action. Contact is maintained with these communities on an on-going basis. • The Government has earmarked funds under the Reconciliation Fund of the Department of Foreign Affairs to assist local efforts aimed at tackling sectarianism. • The Government continues to encourage community-based efforts to alleviate interface tensions, including in regard to contentious parades. • The Government welcomes the fact that the 2006 Marching Season was the most peaceful one for many years and acknowledges the combined efforts of the Parades Commission, political and community representatives, and the PSNI in securing this very positive outcome. We will support efforts to secure a similar outcome in 2007. • The Government fully supports and affirms the critical role of the Parades Commission in managing contentious parades and in progressively easing tensions during the marching season. • As agreed at St Andrews, a review of parading aimed at developing an agreed longer term strategic approach to this issue, taking into account the views of all the main stakeholders, will begin its work in April 2007. In so far as it lies within our power, we will strive to create and maintain a secure environment for political progress and bring about, both through the application of law and by persuasion, a complete and lasting cessation of all paramilitary activity in Northern Ireland and throughout these islands, including punishment beatings and shootings, and the transformation of movements linked to paramilitary organisations into exclusively democratic organisations and completion of the process of putting arms beyond use. • Clear progress has been made in bringing paramilitary and criminal activity to an end, as confirmed by the Independent Monitoring Commission in successive reports. The number of shootings and assaults by both republican and loyalist paramilitary groups continued to decline sharply throughout 2006. In addition, in its two most recent reports, the IMC confirmed that there had been no sanctioned paramilitary murders in the period under review. • The IMC has also reported in very positive terms on the Provisional IRA’s continuing commitment to exclusively peaceful means and following the political path. It

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has confirmed that terrorism and violence have been abandoned by that organisation and that its paramilitary structures have been dismantled. • There have been positive developments in loyalism, with paramilitary organisations moving towards community transformation processes. The Government has encouraged and supported these efforts. The Government will continue to encourage these groups to press ahead with these transformation initiatives, and also to deliver in relation to the decommissioning of all loyalist arms. • The continuing violent activities of dissident republican groups and elements within loyalist paramilitary groups continue to be a cause of concern, and individuals and organisations engaged in such activity will continue to be pursued vigorously by the law enforcement agencies North and South. • In the Joint Declaration in 2003, the Irish and British Governments agreed a comprehensive Security Normalisation programme. The clear improvement in the security situation in Northern Ireland has enabled this programme to proceed ahead of schedule, with an ongoing reduction in troop levels, the progressive removal of military installations, and the withdrawal of troops from police stations. This programme is due to be completed by July 2007. We will encourage maximum cooperation between police forces North and South. • The Intergovernmental Agreement on the implementation of the Patten Recommendations on co-operation between the Garda Síochána and the Police Service of Northern Ireland came into force in November 2002. • The Garda Síochána Act 2005 was enacted in July 2005. It incorporated the provisions of the Garda Síochána (Police Co-operation) Act 2003. The 2003 Act remains in force pending commencement of the 2005 Act. • The Garda Commissioner and Chief Constable commenced the programme of exchanges at Superintendent level on 10 October 2005. A number of exchanges have now taken place, with positive feedback from the participants. • We will continue to work towards enhancing North South co-operation in all aspects of criminal justice, including through the intergovernmental agreement on structured cooperation on criminal justice matters, which was signed in July 2005. Work is being taken forward through a number of North–South Advisory Groups on areas of possible cooperation such as forensic science, public protection, registered offenders, victims support and exchange of personnel. We will improve North–South infrastructural links and facilitate cross-border planning. • In the Comprehensive Study on the All-Island Economy, the two Governments agreed to strengthen co-operation in infrastructure and spatial planning. They identified co-operation on the planning and delivery of infrastructure as key to maximising returns on the major capital investments being made, North and South, and also to help ensure more balanced regional development. Among the concrete initiatives in the Study was a commitment to joined-up planning in delivery of key infrastructure. The Governments are jointly developing a new framework for collaborative action between the two spatial strategies on the island. • The National Development Plan 2007–2013 includes a statement of the range of current and planned North/South infrastructure projects. The Governments are committed to working together to create a more integrated and regionally-balanced

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road network, enhancing key routes between the major urban centres on the island. Some significant progress has already been achieved, for example in the upgrading of the Dublin/Belfast road. The two Governments have also agreed to joint investment in the development of the City of Derry Airport. The Government is also committed to taking forward plans for the restoration of the Ulster Canal to create a further major inland waterway for the border region. • At local level work is underway to reopen all remaining closed border roads. • In the energy sector, the Single Electricity Market will be operational in 2007 and plans are advanced for the development of further interconnection of our electricity and gas supply systems on a North/South and East/West basis. The two Governments have agreed to work together to maximise the contribution of renewable and sustainable energy to the future energy needs of the island. ireland and europe Based on the mandate conferred on both parties in the General Election, submit the Nice Treaty on enlargement to the people in a referendum to be held later this year in a way which seeks to address the concerns of the people as expressed during previous referendums and in the National Forum on Europe. • Following passage by the Oireachtas of the 26th amendment to the Constitution Bill, which was designed to authorise ratification of the Treaty of Nice and to prohibit the State from entering into a common defence without the approval of the Irish people, the necessary amendment to the Constitution was approved by referendum on 19 October 2002. • All formalities connected with ratification were completed in order to allow ratification in December 2002, in line with the objective set out above. An intergovernmental conference to agree any future changes to the Treaties will only take place in a few years time, probably in 2004, well after the expected conclusion of at least the first wave of enlargement negotiations; and We will play a full part in the European Convention and the Europe-wide debate on the future shape of the European Union. • Through its representatives at the Convention and in discussion with other Governments, the Government played an active and constructive role to shape an outcome which both protects specific Irish concerns and promotes the renewal and reform of the European Union. • In particular, Ireland worked with other Member States to ensure that the principles of institutional balance and equality between Member States were respected in the Convention’s Report. • The Convention concluded its work in July 2003, achieving broad consensus within its final Report, on a draft Treaty establishing a Constitution for Europe. The Intergovernmental Conference commenced on 4 October but it was not possible for the talks to conclude under the Italian Presidency in 2003. • Ireland subsequently undertook the role of chair of these negotiations during our Presidency, and managed them to a successful conclusion, under the Chairmanship of the Taoiseach, at the European Council in June 2004.

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• To date, eighteen Member States have ratified the Constitutional Treaty, including two, Luxembourg and Spain, by referendum. The rejection of the Treaty by voters in the Netherlands and France was a major setback and led to a period of reflection within Member States. • The June 2006 European Council extended the period of reflection and the European Council identified 2008 as the date by which the necessary steps will have been taken to allow the process to advance. The Presidency’s report to the June 2007 European Council is to provide a basis for further decisions. Spain and Luxembourg convened an informal meeting of “Friends of the Constitution” which took place in Madrid on 26 January, at which Ireland was represented by Minister of State Treacy. • Ireland continues to take the view that the provisions of the Constitution are the best means of equipping the Union to meet the challenges of the future. The 2004 text represents a carefully constructed balance of interests. As for Irish ratification, we would not wish to hold a referendum while the final form and content of the Constitution remains open to question. We hope that 2007 will begin to bring some clarity in this regard. We will continue to keep the matter of ratification under review. • The Government is engaging fully in the national debate on the Future of Europe. The Taoiseach and Government Ministers have been actively addressing European issues on public occasions and participating in Oireachtas debates. The National Forum on Europe ensures a continuing dialogue on European issues. A White Paper on the Constitution was published in October 2005 and widely distributed. Dedicated websites on the Constitution and the national debate on Europe have been created. We believe that the broad institutional balance, as it currently exists, serves the Union well. We will oppose efforts to have existing integration supplanted by purely intergovernmental cooperation, or important common policies, such as the Common Agricultural Policy or regional and social policy, extensively renationalized. • We helped to ensure that the institutional provisions of the draft Constitutional Treaty fully reflected the need to maintain a broad institutional balance, while at the same time, securing agreement on institutional changes which will improve decision making in the EU generally. These improvements, reflected in the EU Constitution, include the introduction of new, much more transparent, decision making rules at Council and give a greater role to the European Parliament by making co-decision the default decision making procedure. To the benefit of all institutions, the roles of the European Union and Member State competence were clearly defined through the clarification and codification of competences within the Constitution. • Ireland hosted the ‘Day of Welcomes’, which took place in Dublin on 1 May 2004, during the Irish Presidency of the EU. The recent accession of Bulgaria and Romania on 1 January completes the fifth enlargement of the Union, increasing its membership to 27 countries. • Accession negotiations with Turkey and Croatia are ongoing. Due to Turkey’s continued non-implementation of the Ankara Protocol to the Customs Union, the December 2006 General Affairs and External Relations Council (GAERC) decided to suspend negotiations on 8 (of 35) negotiating chapters and that no chapter could be provisionally closed until Turkey has implemented the Protocol.

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• The European Council in December 2006 reached agreement on the Union’s future enlargement strategy. This will be based on the three principles of consolidation of commitments, rigorous conditionality and communication. The Council also agreed that the pace of enlargement must take account of the capacity of the Union to absorb new members while reaffirming its commitments towards those countries already in the enlargement process. The Council stressed the importance of ensuring that the EU can maintain and deepen its own development. As the Union enlarges, successful European integration requires that the EU institutions function effectively and that EU policies are further developed and financed in a sustainable manner. • We also helped ensure that the financing arrangements for enlargement provided safeguards for the funding of the EU, including the Common Agricultural Policy up to 2013. • There are vital issues at stake for Ireland in the on-going World Trade Organization negotiations on the Doha Development Agenda. The Government will remain particularly vigilant to ensure that Ireland’s interests are protected and promoted in these negotiations, in particular where agriculture is concerned. The Government adheres firmly to the view that there can be no concessions by the EU that could call the reforms to the CAP, implemented in 2003, into question. • Ireland’s key priorities were protected in the negotiations on the 2007–2013 financial framework for the Union, on which political agreement was reached at the December 2005 European Council. The agreement preserved key Irish interests in agriculture and cohesion, while significant funding in the area of rural development has been secured. Support at EU level for competitiveness has increased. Continued EU support was also provided for the Northern Ireland peace process through the PEACE programme and the International Fund for Ireland. We believe that commitment to the EU and its development in no way implies support for a European super state or for an ambitious federalist project which is detached from public opinion; and In addition, we believe that fiscal policy should remain the preserve of national administrations. • We are very much in the mainstream in seeking an EU where sovereignty is pooled where appropriate to tackle common challenges, while preserving the primary role of the Member States as the cornerstone of a democratic Europe. This pragmatic approach has been enhanced by agreement on the Constitution which sets down the areas in which the Union has competence, and reserves all others to Member States. • On fiscal policy, the Government, along with others, succeeded in ensuring that unanimity was preserved in the decision making process at EU level. We believe Ireland’s best interests lie in assisting and working with the applicant countries. Within the next twelve months, we will publish a specific programme to ensure the expansion of social, cultural and economic cooperation with all countries that are joining the European Union. • Ireland now maintains a resident Mission in each of the new Member States, including Bulgaria and Romania. • Ireland continues to build its relations with the new Member States and candidate countries through its Bilateral Assistance Programme. This provides training to

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government officials from the countries concerned and serves to build beneficial links with them. • A comprehensive series of bilateral meetings at official level has been undertaken with senior officials covering EU issues in the new Member States and in the candidate States. • Embassies are actively promoting cultural links between Ireland and the newer Member States, as a complement to initiatives supported by the new arts promotion agency, Culture Ireland, established in 2005. We will take part in peace support and humanitarian operations (Petersberg tasks) in missions that are endorsed by the UN. We will work directly with the UN as well as with our EU partners under a UN mandate, to protect human rights and to prevent ethnic conflict and humanitarian disasters. We will work to ensure that the European Security and Defence Policy continues to develop in the service of peace. • Ireland has participated fully in the development of European Security and Defence Policy since the entry into force of the Amsterdam Treaty in 1999. Participation is very much in line with Ireland’s traditional approach of support for peacekeeping, conflict prevention and crisis management throughout the globe. • Ireland continues to contribute to maintaining balance and coordination between military and non-military EU crisis management capabilities and to promote the centrality of conflict prevention in ongoing development of EU crisis management capabilities. Ireland has been at the forefront of developing the Civilian Headline Goal, which defines the EU’s goals in the area of civilian crisis management in the period to 2008. • Ireland is currently contributing to the following ESDP operations: 1. The EU military operation in Bosnia and Herzegovina, Operation ALTHEA, which continues to work to establish a safe and secure environment in BiH. At present, over 30 members of the Defence Forces are participating in Operation Althea. 2. Three members of An Garda Síochána are currently serving with the EU Police Mission in Bosnia and Herzegovina. 3. The EU Police Mission in the Palestinian Territories (EUPOL COPPS) was launched on 1 January 2006 with a three-year mandate to assist the Palestinian Civilian Police in establishing sustainable and effective policing arrangements. During the second half of 2006, one member of the Garda was serving with the EUPOL COPPS mission. 4. The EU is continuing its civilian-military supporting action to the African Union Mission (AMIS II) in the Darfur region of Sudan. Three members of the Defence Forces are at present serving with this mission. 5. Operation EUFOR RD Congo concluded its operation in support of the electoral process in the DRC in November 2006. Ireland provided 7 members of the Defence Forces to this mission. • Arising from a request by the UN Secretary General, Ireland and twenty-six likeminded nations—including Turkey and Norway—have also committed to forming or joining the rapid response EU Battlegroups, which are now fully operational. At its meeting on 14 November 2006, the Government decided that Ireland would

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provide a contingent of the Defence Forces to participate in the Nordic Battlegroup, scheduled to be on stand-by in the first half of 2008. Any actual deployment of the Irish contingent of the Nordic Battlegroup will, of course, remain subject to the requirements of the ‘triple lock’ of Government decision, Dáil approval and UN authorization We will continue to contribute to ensuring effective scrutiny by the Oireachtas of EU draft legislation, policy and developments. • Since the introduction of enhanced provisions for the scrutiny by the Oireachtas of proposed EU legislation in July 2002, Ministers have submitted over 1,000 draft legislative proposals to the Oireachtas for review, accompanied by explanatory notes. • Ministers frequently brief the Oireachtas European Affairs Committee and other sectoral Oireachtas Committees on Council meetings and ongoing developments in the EU. • Ministers also submit reports to the Oireachtas every six months outlining key developments at EU level in their policy areas; sixty such reports have been forwarded to the Oireachtas covering the 2003–2005 period. • In 2004, the Minister for Foreign Affairs submitted the first Annual Report to the Oireachtas on Developments in the EU under the terms of the EU (Scrutiny) Act 2002. Subsequent reports covering 2004 and 2005 have since been submitted and the fourth annual report, covering 2006, will be submitted to the Oireachtas in the coming months. • The Government will continue to keep the scrutiny arrangements under review to ensure that members of the Oireachtas are afforded the opportunity to make their views known on proposed EU legislation. We will run a proactive and efficient EU Presidency in 2004. • Ireland ran a highly successful Presidency of the European Union from 1 January to 30 June 2004. The Union achieved major progress across a range of issues under our leadership. ireland and the world We believe Ireland must continue to play an active role on promoting development, human rights and democracy in the world; and In the pursuance of our foreign policy objectives, we remain committed to the primacy of the UN’s role in promoting constructive international relations • The Government is committed to the primacy of the UN’s role in promoting constructive international relations. • UN Secretary-General Kofi Annan’s term concluded at the end of 2006 and Ban Kimoon has taken over as his successor. The Government will work closely with the new Secretary General as he works to implement reforms to ensure that the United Nations is better equipped to meet the challenges of the twenty first century. • Working with our EU partners, progress on reform of the Security Council and management reform are priorities for Ireland. This will help to strengthen the UN and improve the effectiveness of multilateralism. The Irish Permanent Representative to

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the UN in New York has been co-chairing the committee tasked with reviewing all UN mandates, and considerable progress has been made. Ireland has been active in support of the UN Peacebuilding Commission, which is focussing initially on Sierra Leone and Burundi. A new scale of assessments for contributions to UN budgets was agreed in December. Ireland’s contribution has been increased from 0.35% to 0.445% approximately. This is in line with our increasing national income and represents an increase of nearly one third on our previous level of contribution. More than 750 members of the Defence Forces and the Gardaí are currently serving with UN-led or UN-authorised Missions including missions in Liberia, Lebanon, Cyprus, Sudan, Afghanistan, the Democratic Republic of the Congo and Kosovo in pursuit of conflict prevention, peace and security and the protection of human rights. Following the July/August 2006 crisis in Lebanon, the UN Security Council decided, under UN Security Council Resolution 1701 (2006) to extend the mandate of UNIFIL to the end of August 2007. In October 2006, the Government decided to send a contingent of approximately 150 members of the Permanent Defence Forces to serve with UNIFIL II. Deployment is for one year subject to renewal of the mandate and a satisfactory review of the mission at that time. The Irish contingent is part of a joint Irish–Finnish unit located in Camp IDA at Ebel Es Saqi, in the eastern sector of Lebanon. Its primary role is force protection though it can be called on for other duties by Force HQ. Reflecting a new phase of Irish foreign policy, a Conflict Resolution Unit has been established in the Department in order to focus Irish support for conflict resolution in areas where our expertise can best support international efforts in regions affected by conflict. Initial meetings have taken place with various domestic and international partners and a programme of work is being developed. We will make available to the international community the skills and experience we have developed in this area. At the UN World Summit in September 2005, it was agreed in principle to establish a Human Rights Council to replace the Commission on Human Rights as the primary global forum for human rights standard setting and protection. The new UN Human Rights Council had its first meeting in Geneva in June 2006 and was addressed by the Minister of State for European Affairs, Noel Treacy, TD. The Council has had three regular sessions and four special sessions since then and Ireland has played an active and constructive role in the proceedings. Ireland has also played an active role in the discussions on rules of procedure and working methods of the new Council. Ireland also worked to ensure progress both at EU and UN level of key priority issues such as the implementation of the EU Guidelines on Human Rights Defenders.

We will promote our strategic political and economic interests and contribute to other nations by expanding our resident diplomatic missions, in particular with EU applicant countries and in Asia and Latin America. • In 2005, Ireland opened new resident Missions in Bulgaria, Latvia, Lithuania, Malta, Romania and Vietnam.

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• In 2006, the Government recently decided that the Heads of Mission posts in Lesotho, Mozambique, Tanzania and Zambia should be upgraded to full Ambassador level. • The opening of further new Irish missions is considered by the Government on an ongoing basis. It is expected that an Embassy will soon be established in Malawi to facilitate the management of a new bilateral aid programme for that country. We will complete our major expansion of our overseas development aid programme with the objective of reaching the UN target of 0.7% of GNP in 2007. • The Government has firmly committed to achieving the UN target by 2012. In September 2005, speaking at the UN General Assembly, the Taoiseach announced that Ireland would reach the UN official aid spending target of 0.7% of GNP by 2012, reaching the interim target of 0.5% of GNP by 2007. • In 1996 the total ODA budget was €142m; in 2007 it will reach to a total of €813m; making Ireland’s aid programme one of the fastest growing in the world. The quality of Ireland’s aid programme is just as important as its size. These increases have been managed while preserving the quality for which Ireland’s aid programme has become known. Ireland is regarded by other donors, multilateral organisations and by non-governmental agencies as having one of the most effective and poverty focused aid programmes in the world. • As part of its overall decentralisation programme, the Government is advancing with the transfer of the Headquarters of Irish Aid to Limerick. This decentralisation will commence with an advance party in May and should be completed by the end of 2007. The aid programme will continue to be developed along the lines of the Ireland Aid Review Report with the principal aim being to contribute to the reduction of global poverty, inequality and exclusion. • Building on the Ireland Aid Review Report, the Taoiseach launched Ireland’s first ever White Paper of Irish Aid in September 2006. • The White Paper formally sets out the blueprint for Ireland’s official development assistance programme for the next decade. It was preceded by a broad countrywide consultative process carried out during 2005 and 2006 • The White Paper draws on over 30 years of experience and reaffirms the basic principles which guide Irish Aid strategies and programmes: —Poverty Reduction: the focus will be on assisting the poorest people in the world’s poorest countries, particularly in Africa. —Partnership: this includes partnership with developing country governments, international organisations, non-governmental organisations and missionaries. —Sustainability: To ensure our efforts have lasting effect, we help build systems to address the causes of poverty rather than simply ameliorating its symptoms. —Untied: Ireland’s aid will remain untied to the use of Irish goods and services. • The White Paper places the social sectors, including health, education and the fight against HIV/AIDS firmly at the centre of the aid programme. • Other key decisions in the White Paper include: —The number of priority countries will increase from 8 to 10, in the medium term. Malawi is to be Ireland’s ninth programme country.

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—To further strengthen the fight against corruption a new Governance Unit is to be established within Irish Aid. —To improve coherence across all government departments a new InterDepartmental Committee on Development is to be established. —Building on our own experience of conflict a new Conflict Resolution Unit has been established within the Department of Foreign Affairs to support and assist the resolution of long standing conflicts in developing countries. —To respond more effectively to global humanitarian emergencies, Irish Aid has launched the Rapid Response Initiative—which will include a roster of highlyskilled Irish people and the pre-positioning of vital supplies for rapid deployment to disasters as they occur —The opening of an Irish Aid Information & Volunteering Centre on O’Connell Street in Dublin (second half of 2007). —Irish Aid is to launch a new Schools Linking and Immersion Scheme to assist Irish schools in linking projects with their counterparts in the developing world to help increase understanding between children in Ireland and developing countries Particular initiatives will be taken both in the aid programme and at the highest political level to fight the HIV/AIDS crisis which is ravaging many poorer countries, especially in Africa. • Building on previous commitments, the Taoiseach, speaking at the United Nations Summit in September 2005, announced that Ireland will spend €100 million a year tackling the major diseases affecting the world’s poorest countries—HIV/AIDS, Malaria and TB, and other preventable childhood diseases, including polio. It will build on Ireland’s existing support at international, regional and country level. • These increased funds are being channelled through different partners including; multilateral organisations, governments in programme countries and NGOs. • In March 2006 Minister of State Lenihan set up a new Technical Advisory Group on HIV/AIDS and other global communicable diseases. The Technical Advisory Group, comprising primarily of public health specialists based in Ireland, provides advice and technical input into Irish Aid’s work in this area, as the volume of resources available is increasing rapidly. It is also charged with providing technical guidance on the effectiveness and quality of programmes supported. • Ireland is one of only a small number of countries to have fully honoured its pledge to the Global Fund to Fight AIDS, TB and Malaria and has released €40 million to date and another €30 million is pledged. Ireland has also instigated a study to track the effectiveness of the Global Fund in beneficiary countries. • We are continuing to work with the Clinton Foundation, a partnership which provides financial and technical support to assist in the preparation of integrated HIV and AIDS treatment, care and prevention programmes. Much progress has been made over the past three years in Mozambique where, in partnership with the Government and the Foundation, 83 HIV counselling and testing centres have been built, providing services to over 250,000 people. Close to 30,000 people are now accessing anti-retroviral care. • In October 2006, the Taoiseach signed a new five year agreement worth €70 million with the Clinton Foundation to further scale up operations in Mozambique and begin the role out of similar services in Lesotho.

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• In recognition of the need to maintain a balanced approach in supporting prevention, treatment and care, Ireland is investing resources into the research and development of both HIV vaccines and microbicides through the International AIDS Vaccine Initiative and the International Partnership on Microbicides.

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Minister for Foreign Affairs, Dermot Ahern TD, Responds to Seanad Private Member’s Motion on Irish Foreign Policy 28 march 2007 Motion: ‘That Seanad Eireann [Senate of Ireland] recognises the success of the Government in maintaining and developing a foreign policy based on the values of the Irish people which also protects and promotes Irish national interests.’ I welcome the opportunity to set out the principles that underlie our foreign policy. I believe that any objective judge of that policy would affirm that in its conception and execution it is indeed an ethical one, based firmly on the values of the Irish people and serving their interests. Ethics is a system of moral principles. It deals with judgements as to what constitutes good conduct and bad conduct. But one also has to distinguish between intentions and outcomes. I make this point because having good intentions is not enough. We live in the real world and we must, to the best of our ability, try to anticipate the outcome of our actions. . . ./ Are we likely to make things better or worse? How do we maximise the chances of our good intentions having the desired effect? Posing such questions does not mean surrendering to what is called the ‘realist’ school of foreign policy, where simple, narrow self-interest dictates a state’s actions—far from it. But it is to say that an ethical foreign policy is best advanced by an awareness of the environment in which we operate. I believe that Ireland has been successful in utilising its knowledge of the international system and its ability to operate in the multilateral context to advance our principles and values. What are those principles and values? Foreign policy, like all our national policies, is based on the foundation laid out in Bunreacht na Éireann. . . ./ Article 5 defines what Ireland is: ‘a sovereign, independent, democratic state’. Article 29 on Ireland’s International Relations sets out the principles guiding our relations with other states. There we affirm our devotion to the ideal of peace and friendly cooperation among nations founded on international justice and morality. We affirm our adherence to the pacific resolution of disputes by international arbitration or judicial determination. We accept the principles of international law in the conduct of relations between states.

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Aside from its articulation of the principles underlying relations between states, Bunreacht na Éireann affirms in Article 40 a series of rights that pertain to the individual which it terms personal rights. We would today call them human rights. . . ./ Since 1937 of course a body of international law on human rights has developed and Ireland has striven to ensure their universal application. Alongside support for the United Nations and international law, successive governments have pursued a policy of military neutrality. The State has chosen not to enter into military alliances or a mutual defence pact with other countries. Indeed, the amendment of the Constitution in 2002 to allow for the ratification of the Nice Treaty precludes Ireland joining any EU common defence unless the people decide otherwise. Every dispatch of a contingent of the Defence Forces abroad—whether UN, EU or NATO led—is a sovereign decision of the Irish Government, and is subject to the requirements of the so-called ‘triple-lock’ of Government decision, Dáil approval and UN authorisation. . . ./ If the origins of our policy of military neutrality lie in our history as a state and in the particular circumstances of partition, it has evolved as a key feature of our foreign relations. It has acquired particular value for the Irish people as an expression of our ethical views on the use of military forces—that the deployment of military forces should be undertaken only within the framework of the UN Charter and with the approval of the United Nations itself. That Ireland should articulate these principles and rights in our Constitution and legislation is no surprise given our history. As a small nation that fought against a larger one for its freedom, we value the principles of democracy, the rule of international law, collective security and the universal application of human rights. And we recognise that a world which as far as possible is organised on these lines is in the interests of small countries in particular. . . ./ The expression of these principles and values—ethics if you will—can only take place within a multilateral framework. That framework is provided by the United Nations. Ireland fully, indeed profoundly supports the principles and values set out in the Charter of the United Nations. Indeed while I was personally honoured to act as one of the Secretary General’s envoys in support of the UN reform process, I fully appreciated that being asked to undertake this role reflected the high standing of Ireland at the UN over many years and under many Governments. Acting within the parameters set out in the Charter assures us of the ethical intent of the military actions undertaken on behalf of the international community by the United Nations. Ireland’s long standing support for UN peacekeeping is one of the most tangible expression of our principles and values in foreign relations. . . ./

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Since our first UN peacekeeping mission in 1958, our troops have performed over 55,000 tours of duty on some 60 UN peace support operations worldwide. Defence Forces personnel have served throughout the world, notably in the Middle East, Africa, the Former Yugoslavia and East Timor. Irish lives have been lost in this service: to date 85 members of the Defence Forces have given their lives in the cause of world peace. The United Nations of course is not the only multilateral framework available as means for Ireland to give expression to its principles and ideals. As a founder member of the Council of Europe, Ireland has consistently supported and encouraged its activities to promote democracy, human rights and the rule of law. We attached particular importance to its promotion of human rights. . . ./ The European Convention for the Protection of Human Rights and Fundamental Freedoms remains the essential reference point for the protection of human rights in Ireland and indeed in Europe as a whole. Ireland was also a founder member of the Organisation for Security and Cooperation in Europe and is a keen supporter of its programmes on arms control, preventive diplomacy, human rights and election monitoring. The European Union itself has also provided us with a platform to shape the international environment through the Common Foreign and Security Policy. The essential objectives of the CFSP very much reflect Ireland’s own values. Europe has learned in its own history the bitter lessons of conflict and mutual aggression and in its approach to the wider world seeks to use its weight in a constructive and peaceful way. . . ./ While naturally decision-making in the CFSP involves compromise, I am absolutely satisfied that we have a much greater capacity to influence events within the Union than outside—and that our influence serves to mould an honourable and essentially ethical policy. One key example of how we have utilised the multilateral framework in pursuit of the common good is our engagement with the issue of nuclear weapons. Ireland has sought to address this global challenge since we first joined the United Nations in the 1950s. Frank Aiken, the then Minister for Foreign Affairs, introduced a resolution in the UN General Assembly that eventually led to the Nuclear Non-Proliferation Treaty (NPT) a decade later. It has become the most universal of all international instruments in the disarmament and non proliferation area and remains the framework for further progress on this issue. . . ./ Its Article 6 contains the only multilateral legally binding commitment from the Nuclear weapon-States to nuclear disarmament. Today Ireland is in the vanguard of efforts to reinvigorate the NPT. I was gratified that the new Secretary General of the United Nations, Ban Ki-Moon, has also highlighted the importance of addressing the issue weapons of mass destruction as a continuing threat to world peace and security. We have taken a similarly vigorous approach to the codification and implementation of human rights norms. We believe profoundly in their universality. They are

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central to our foreign policy. Ireland has ratified the six core United Nations human rights Conventions and regularly submits reports to the United Nations human rights mechanisms, on the measures undertaken to implement these Conventions. . . ./ Later this week, in New York, Ireland will sign up to the two most recently adopted United Nations instruments, the UN Convention on the Protection of all Persons from Enforced Disappearances and the Convention on the Rights of Persons with Disabilities. Ireland played an active role in the negotiations leading to these conventions and fully supported their adoption, which represents a further strengthening of the international human rights framework. Active participation in multilateral organisations such as the EU, UN and the Council of Europe provides an opportunity for Ireland to voice its concerns regarding human rights abuses. Through these organisations, international pressure can be brought to bear on those responsible for human rights violations. Some have suggested that the Government has not met its own standards of human rights in relation to allegations of extraordinary rendition through Ireland. . . ./ These allegations have no basis in fact. There is no question of prisoners having been transferred through Irish airports as part of an extraordinary rendition operation. The Government has received explicit assurances in this regard from the US authorities, which they have declined to provide to other European governments. Even the recent European Parliament report on extraordinary rendition is clear on this fact: nowhere does it allege that prisoners might have transited through Ireland. Besides, the Government and I personally, have taken a lead in actively raising the issue of extraordinary rendition with the US authorities and at EU level and we are continuing to do so. Moreover, as friends, we have never been in any way unwilling or hesitant to convey very clear views to the US on, for instance, the treatment of prisoners, be it at Guantanamo, Abu Ghraib, or elsewhere. . . ./ There can be no clearer example of our belief in the essential value and necessity of human rights, and in our willingness to advocate them, than in our support for action on the crisis in Darfur. The UN Human Rights Council held a Special Session in December 2006 to consider the urgent human rights situation there. Ireland, along with our EU partners, was instrumental in calling for this Special Session. Sudan subsequently refused admission to the Council’s High Level Mission and this refusal is being considered at the current session of the Council. Most recently, Minister Lenihan highlighted the situation in Darfur in his speech to the 4th session of the Council. Ireland has also been to the fore in responding to the deeply worrying events in Zimbabwe. The arrest again today of Opposition Leader Morgan Tsvangirai is a cause for alarm. . . ./

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Given his treatment at the hands of the authorities earlier this month, we must be concerned about his human rights and his physical safety. I join my EU colleagues in holding the Government of Zimbabwe responsible for his safety. On behalf of the Irish Government I call for his immediate and unconditional release and that of his colleagues. However our concerns about his arrest do not stop there. His arrest and the actions of the authorities raise fundamental questions about President Mugabe’s respect for basic democratic norms, fundamental freedoms and the rule of law. A policy of suppression and intimidation of lawful opposition can only make the situation there more unstable. . . ./ The deteriorating economic, social, and political situation needs to be urgently addressed through dialogue, between government and society, not presidential dictate. I call on the Zimbabwean Government to change course, respect the rule of law and respond to the clear suffering of its people. The meeting of the Southern African Development Community this week is a timely opportunity to address the situation. I urge the regional leaders to use their influence to halt the descent toward a political and humanitarian disaster. Our approach to Darfur—or to Zimbabwe, or to Burma—is not motivated by any strategic economic or political interests. It is driven by our belief that the international community must respond to humanitarian crises and political oppression and that in doing so we must invoke the universal standards of human rights. . . ./ We must point to their grievous absence and measure progress by their application and enforcement. Aside from peacekeeping, perhaps the most tangible example of the ethical basis of our approach to foreign relations is our commitment to overseas aid. Irish Aid, with its focus on Africa and poverty reduction, is an expression of the values and interest of the Irish people in helping the world’s poor. By 2009, our aid is likely to reach €1 billion. In 2012 Ireland will reach the UN ODA target of 0.7% of Gross National Income. This year spending will exceed 0.5% of GNI, putting us in the vanguard of donors. We spend this money because, as the Taoiseach writes in the foreword to the White Paper on Irish Aid, ‘. . . Ireland can rightly claim to empathise with those who are suffering from disease, poverty and hunger every day around the globe. But empathy is not enough. [. . .]Our actions must speak louder than our words . . . Our aid programme is a practical expression of the values that help define what it means to be Irish at the beginning of the 21st Century.’ As our aid programme illustrates, the values that inform and motivate our foreign policy are not static. Though based on firm foundations, they are dynamic and evolving, responding to the changing circumstances of the world we find ourselves in. The establishment of the Rapid Response Initiative is another example of this dynamism. The Initiative aims to improve and enhance Ireland’s ability to respond to humanitarian disasters.

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Similarly, the creation of the Conflict Resolution Unit will allow Ireland to play a more active role in international conflict prevention and resolution, building on and utilising the very substantial success of the Northern Ireland peace process. . . ./ In the context of our expanding aid programme, both initiatives will improve our capacity to become a model United Nations member. In conception and operation then, as I have outlined here, I believe that Ireland’s foreign policy is ethical by the high standards and ideals we have set ourselves and by the engagements and actions we have undertaken within the multilateral framework of the United Nations and Europe. Through our commitments and actions we have sought, I believe successfully to give expression to the values and interests of the Irish people. This Government has built on the endeavours of previous governments and earlier generations to ensure that Ireland can not only maintain its place with pride among the nations of the world but shape that world in the name of universal values and the common good.

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Address by the Minister for Foreign Affairs, Mr Dermot Ahern, TD, at the 62nd Session of United Nations General Assembly 2 october 2007 Mr President, Upon its formation earlier this year, the Irish Government set itself the goal of becoming a model Member State of this great organisation. We have set out an ambitious programme to be a world leader in development assistance, rapid response to humanitarian disasters, and conflict resolution. Because our own history shows that there is a path from famine to plenty and from conflict to peace. And from that history has grown a determination, in ordinary Irish men and women, that we should stand in the vanguard of the fight against conflict, and hunger, and the denial of human rights: A fight best fought by a strong and equally determined United Nations. A fight, Mr President, fellow delegates and distinguished guests, we cannot afford to lose. Conflict Resolution Because after six decades, the core goal of the United Nations—universal peace and security—still eludes us. Today, despite all our efforts, violent conflict remains all too common. The causes of conflict are many. But very often it is in the persistence of poverty and in the denial of human rights that we find —the causes of conflict —the enduring results of conflict —and the seeds of future conflict. In making peace, we must be as creative and determined as those who wage war. The range of instruments now available strengthens our collective capacity to resolve conflict. We must use that full array with determination now. We must ensure that the United Nations Peace Building Commission and Peace Building Fund are organised and resourced to fulfil their important mandate. We must maintain our support for United Nations-mandated peacekeeping operations which, today, are at an all time high in terms of their size, scope and complexity. And we must also support strengthened UN efforts in the fields of conflict prevention and resolution. We in Ireland will play our part. My Government has decided significantly to increase its commitment to conflict resolution, including through

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—the establishment of a designated Unit in the Foreign Ministry; —the creation of an academic Centre for Conflict Resolution —a system of roving Ambassadors to affected regions. —and an annual €25 million fund to assist conflict resolution in the developing world. In the years ahead, we will also work to strengthen the capacity of the African Union and sub-regional organisations to make and build peace for themselves. We will focus our efforts on peace-making during conflict and peace-building after conflict. We will also work on identifying, distilling and sharing the lessons of conflict resolution. We will be particularly active in Africa, including through working with our partner Governments under our Irish Aid programme. We will explore the links between climate change and conflict because climate change directly threatens not only the most vulnerable but all of our shared goals of progress, peace and development. The focus of our foreign policy on rights, development and now conflict resolution underlines once again Ireland’s commitment to the UN’s global agenda. Northern Ireland and Conflict But this convergence is also underscored by our own national experience of peacemaking. Speaking here in New York in April 1969, before the appalling escalation of violence in Northern Ireland, one of my distinguished predecessors, Frank Aiken, said ‘I think there is sufficient wisdom if it can only be energised in our section of the world, in these islands off the North West of Europe, to settle the problem’. For far too long that sufficient wisdom eluded us. For almost forty years, it has been my duty, and that of my predecessors as Minister for Foreign Affairs, to brief this Assembly on the search for peace on the island of Ireland. I am delighted to report that, perhaps save for general updates on progress, this will no longer be necessary. The conflict in Northern Ireland lasted for more than three decades, and was made apparently insoluble by issues of national, cultural and religious identity, contested historical narratives and claims of sovereignty, all hardened by the direct experiences of division, inequality and violence. Since the ceasefires of the mid-1990s and the negotiation of the Good Friday Agreement in 1998, there has been better news to report. But the final steps to the full implementation of that Agreement were not completed until earlier this year. With the formation of the power-sharing Northern Ireland Executive, bringing together historic opponents from across the political divide, we have opened an extraordinary new chapter in the history of the island of Ireland. Legacies of separation and distrust remain and the inevitable challenges and difficulties of normal politics will need wise and sensitive management. But there is an overwhelming consensus that this new beginning can be nurtured and sustained. The task is no longer to find peace, but to maintain and build on the peace we have found.

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I do not believe our success offers a universally transferable formula. But I do believe that our experience of failure and then success over forty years provides insights and lessons worth sharing. One of the specific tasks of our Conflict Resolution initiative is to codify those insights and lessons. But today I would offer just a few. First, in the end, those who are part of the problem must be part of the solution— not because we approve of their actions or beliefs, but because without them it is all too easy for an agreement among others to be destroyed. Secondly, inclusive dialogue has, however, to take place on the basis of clear and guaranteed principles—in Ireland, these were consent, non-violence, and parity of esteem. Thirdly, partnerships between Governments and involving sympathetic third parties—the United States and the European Union, in our case—can develop comprehensive frameworks within which enduring settlements can be reached. Fourthly, it is often necessary to take risks for peace—but these risks must be carefully calibrated. Timing is of the essence. So is patience. And there are times when contacts must be private or at arm’s-length. Fifthly, our experience demonstrates the need to address all issues, all of the causes of conflict, comprehensively, no matter how difficult or intractable they may be, and even if they have to be resolved in different timeframes. Sixthly, popular endorsement of an agreement through the ballot box makes it immensely more legitimate and durable. Finally, without effective and faithful implementation, again often with external assistance, an agreement’s vitality and credibility can quickly ebb away. On a more practical and operational level, we have devised and implemented innovative arrangements for dealing with many of the issues which dominate peacemaking and peace-building: constitutional change, power-sharing, cross-border cooperation, transitional justice, policing and security reform, equality and human rights, conflict over symbols, arms decommissioning and prisoner release. In our own process, we have learned much from others—for instance, South Africa. Together, I hope we can, in Frank Aiken’s term, develop both ‘sufficient wisdom’ and sufficient will to resolve enduring and complex conflicts. Working with a strengthened UN and sharing lessons with one another, I passionately hope we can advance the day when political leaders from other regions of the world blighted by conflict can announce in this forum that peace has come to them too. Northern Ireland has been added to the list of conflicts resolved. But the road to universal peace is still blocked by conflicts old, new and threatened. Burma/Myanmar Today, across the world we stand with the people of Burma. The courage of the Buddhist monks and nuns and their supporters has won universal admiration. The efforts of its regime to conceal its brutality behind a wall of silence have failed. It has been rightly condemned for its violent response. I call on its leaders at long last to respond constructively to the wishes of the people, to stop their violence, and to release Aung San Suu Kyi and all other political prisoners.

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The process of national reconciliation and democratisation must begin in earnest and we hope that the Secretary General’s Special Envoy will be able to report progress on his return here. We look to the Security Council to respond effectively to the compelling calls of the international community. It is neither acceptable nor true to argue, as some of its members have, that the situation in Burma is not a question of international peace and security. The potential regional consequences of the crisis are evident. This places a particular onus on the governments of China, India, and of the ASEAN countries. I welcome encouraging recent signs of positive and concerned engagement and urge them to redouble their efforts. Within the European Union, Ireland has long taken a strong and principled position on Burma. We are looking urgently at how to increase the pressure on the regime, including through further EU restrictive measures, without harming the ordinary people whose suffering is already so great. Darfur As it is for people across the world, Darfur is a matter of grave concern in Ireland. We have made it a priority for our diplomacy and our Irish Aid programme. We must solve the humanitarian and security crisis while simultaneously establishing the foundations for longer-term peace and development. We urge the full, effective and speedy deployment of UNAMID. Khartoum must actively co-operate and at last desist from all obstruction. Rebel groups must also play their part. The recent attack on peacekeepers in Darfur was an outrage and rightly condemned here. I would like to express my sympathies to the families of those killed. In keeping with our proud tradition of peace-keeping, Ireland expects to make a substantial contribution to the UN-mandated mission to Chad and the Central African Republic to help aid refugees and address the regional dimension of the Darfur crisis. All those who are party to the conflict must commit to the political talks in Libya next month. I welcome the Secretary General’s establishment of a Trust Fund to support this talks process and here pledge Ireland’s support. If commitments are not fulfilled and progress does not materialise, Ireland will support further sanctions against non-cooperating parties. Zimbabwe I am gravely concerned at the increasingly serious humanitarian situation in Zimbabwe. The current SADC initiative led by President Mbeki offers the best hope of progress and I would encourage all those involved to re-double their efforts to agree a new political dispensation offering real political reform and economic recovery for all Zimbabweans.

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Middle East The situation in the Middle East is always high on our agenda. There has been a collective international failure to establish a credible political process leading to the two-State solution. But today there are possibilities for change. The outlines of a viable settlement are clear to everyone, even if it will require difficult and painful compromises. Ireland strongly supports the dialogue between Prime Minister Olmert and President Abbas. We are also encouraged by the determination of the Arab States to pursue their historic Peace Initiative. We share the hope that the international meeting now in preparation under Secretary Rice’s leadership will indeed be serious and substantive and set in train a transformation of the political landscape and the lives of its people. Disarmament Mr President, Ireland’s historic commitment to nuclear disarmament and non-proliferation continues. But we are active too in seeking a comprehensive response to the curse of cluster munitions, the appalling effects of which are all too evident in Lebanon and elsewhere. As a contribution to the collaborative effort launched in Oslo last February, Ireland will host a Diplomatic Conference in May 2008 which we hope may finalise the firstever international agreement on cluster munitions. Development Mr President, The establishment of the Millennium Development Goals has spurred our efforts to tackle poverty and its consequences. I greatly welcome the Secretary General’s establishment of the MDG Africa Steering Group to lead a determined push to achieve our targets for 2015. Ireland is doing its part. We are spending more than 0.5% of our GNP on overseas aid and will reach 0.7% by 2012. We have substantially increased our support to humanitarian relief operations and to tackling HIV/AIDS. But we know that more needs to be done. The donor community is failing the test set by the MDGs. Overseas aid has fallen by 5% in real terms. It is not acceptable in today’s world that there are still 980 million living in abject poverty, that half of the developing world has no access to basic sanitation or that half a million women will die in pregnancy or childbirth each year. Perhaps the most damning fact is that one in seven people on this earth today do not get enough food to eat to have a healthy and productive life. That figure jumps to one in four in sub-Saharan Africa. To help meet this most basic of challenges, Ireland has established a Hunger Task Force to examine the root causes of this enduring source of misery, disease and death. It will help us contribute to the MDG goal of halving hunger and poverty.

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I am delighted that the experts on the Hunger Task Force include Jeffrey Sachs, the Secretary General’s Special Adviser on the MDGs. Conclusion Mr President, Ireland will maintain and increase its commitment to the work of the United Nations in the fields of peace and security, development and human rights. There is no mystery to the challenges facing us, even if they are formidable. Our generation is uniquely equipped to know what it will take to deal with them. We have the scientific knowledge, the experience, the resources and, through this organisation, the mechanism for cooperation to rise to these challenges. We must summon the sufficient wisdom and will to do so. Thank you.

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Ms Patricia O’Brien Legal Adviser (Ireland) Department of Foreign Affairs 1 November 2007

Sixth Committee United Nations General Assembly 62nd session 1 November 2007 Agenda Item 82 Report of the International Law Commission on the work of its 59th session Chapter IX The Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare)

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The obligation to extradite or prosecute (aut dedere aut judicare)

Mr Chairman, 1. On behalf of Ireland, I would like to express appreciation for the efforts of the Commission in addressing the topic of the obligation to extradite or prosecute in international law. We especially wish to commend the work of the Special Rapporteur in formulating a second report. 2. Ireland is of the view that the obligation of a State to extradite or prosecute is a very deserving topic for consideration by the Commission and the international community. In an era of globalisation, the increasing transborder dimension of many crimes demands co-operation among States to ensure “no safe haven” for offenders. 3. The second report of the Special Rapporteur usefully identifies several aspects of the obligation to extradite or prosecute which require careful analysis. Ireland welcomes the general consensus among Commission members that this topic should be addressed in a precise fashion, with its scope limited to the main issues and the principal elements of the obligation, aut dedere autjudicare. 4. We further welcome the Special Rapporteur’s acknowledgment of the need for a very careful treatment of the relationship between the obligation to prosecute or extradite and the principle of universal jurisdiction. While there is much common ground between the two principles, both in terms of their material scope and their shared objective of ending impunity, they serve different functions in the international legal order. We agree with the Special Rapporteur’s call for a careful debate on the definitions of “universal jurisdiction” and “aut dedere autjudicare”, and we welcome his intention to formulate a second draft article containing a definition of terms used. 5. A related issue acknowledged by the Special Rapporteur as requiring careful treatment is the impact of surrender to an international criminal tribunal on the obligation to extradite or prosecute. With the welcome establishment of a permanent International Criminal Court, traditional understandings of aut dedere autjudicare may be affected. The relationship between this obligation and the possibility of surrender to an international tribunal is not yet entirely clear. This issue is complicated by the fact that not all States are parties to the Rome Statute, and by the complementary nature of the Court’s jurisdiction, meaning that primary responsibility for bringing offenders to justice rests in the hands of States. Mr Chairman, 6. Ireland is convinced that the nature of the obligation aut dedere aut judicare is such that State practice and the implementation of the duty in domestic legal systems are of critical importance to a thorough understanding of this obligation. We greatly welcome the intention of the Special Rapporteur to conduct a systematic review of State

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practice, including national legislation and the decisions of national courts. We call on participating States to offer the Special Rapporteur the utmost assistance in this task in responding to his written request. 7. Ireland looks forward to discussions on the first draft article on the scope of application of any draft articles on this topic.1 It is particularly important that the relationship between the two elements of the obligation, extradition and prosecution, and the circumstances in which one or the other is the most appropriate, is clearly delineated. 8. Finally, we agree with the need for caution in determining the appropriate result of the Commission’s work on this topic. Ireland is of the view that a thorough analysis of relevant international treaties and State practice is necessary before a detailed understanding of the aut dedere aut judicare obligation in international law will emerge. Once achieved, it will be possible to determine whether the adoption of draft articles, guidelines or recommendations is more appropriate to the current topic. 9. In closing, Mr Chairman, Ireland reiterates its appreciation for the important work of the Commission and the Special Rapporteur on this challenging topic and looks forward to future discussions on the matter.

1

1 Draft article 1: Scope of application: The present draft articles shall apply to the establishment, content, operation and effects of the alternative obligation of States to extradite or prosecute persons under their jurisdiction.

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Ms Patricia O’Brien Legal Adviser (Ireland) Department of Foreign Affairs

Sixth Committee United Nations General Assembly 62nd session 29 October 2007

Agenda Item 82 Report of the International Law Commission on the work of its 59th session Chapter VIII Responsibility of International Organisations

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The International Law Commission’s Draft Articles on the Responsibility of International Organizations

Statement by the Legal Adviser to the Department of Foreign Affairs, Ireland Mr Chairman (Madam Chair), 1. On behalf of Ireland, I would firstly like to congratulate the members of the Commission on their election last November, and to welcome the newly elected members to the Commission. We thank the Commission for its efforts in formulating a regime of responsibility of international organizations and commend the Special Rapporteur for all his work to date on this important topic. 2. Having considered draft articles 31 to 45, together with the Commission’s commentary and the reports of the Special Rapporteur, we would like to comment on four aspects of the draft articles, namely: the recognition of the separate legal personality of an international organization; the provision by member States of the means for an international organization to make reparations; the consequences entailed by serious breaches of peremptory norms; and lastly, the question of the diversity of international organizations. Mr Chairman (Madam Chair), Recognition of international legal personality of an international organization 3. Ireland notes that while no draft article on this issue has yet been formulated, it has been suggested that recognition of the legal personality of an international organization by the injured State should be necessary before that organization has an obligation to make reparation for the injury caused.1 This question of recognition raises important legal and practical considerations. 4. The international legal personality of an organization, a prerequisite to it having international responsibility under the draft articles,2 may arise even in the absence of express provisions in its constituent instrument conferring separate personality. In its 1949 Advisory Opinion on Reparations, the International Court of Justice held that the separate legal personality of an international organization may be inferred in

1 International Law Commission, Fifth Report of the Special Rapporteur on responsibility of international organizations A/CN.4/583, para. 9. 2 Draft article 2: Use of terms For the purposes of the present draft articles, the term “international organization” refers to an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.

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certain circumstances from the competences, powers and purposes which the member States have given to the organization.3 5. Requiring recognition by an injured State of the legal personality of an international organization before that organization is obliged to make reparation may be at odds with this Opinion of the Court. It also raises the practical consideration of how to determine if such recognition has taken place. Ireland would welcome further discussion of this question by the Commission. Mr Chairman (Madam Chair), Draft articles on reparation 6. We welcome draft article 34 and draft articles 37 to 40, which outline the duty of an international organization to make reparation and the various forms which reparation may take. A difficult question arises as to whether member States are under an obligation, in any circumstances, to provide an international organization with the necessary resources (financial or otherwise) to make reparation. 7. The Special Rapporteur is correct in pointing to the lack of practice evidencing any obligation of member States to make extraordinary payments to finance reparations.4 However, we believe that some, at least limited, obligation of member States should be included in the draft articles as a rule of progressive development, having regard to the importance of reparations to an effective regime of responsibility. To do otherwise may suggest that States could somehow escape liability by acting collectively through an international organization. Draft article 43 8. We welcome the introduction of draft article 43 concerning effective performance of the obligation of reparation.5 However, we express some reservation with its present wording, which provides that members are required to take all appropriate measures “in accordance with the rules of the organization”. We agree that primacy should be given to any internal rules of an organization, which may be decisive in determining the means by which the constituent member States are to ensure reparations can be made. However, our concern is that a member State could seek to rely on these internal rules to escape responsibility, for example where the rules expressly prohibit extraordinary financial contributions from members to finance reparations. For this reason, we would urge the Commission to re-examine the formulation of draft article 43. Draft article 35 9. Regarding draft article 35, we agree that a distinction must be made between obligations owed by international organizations towards their members, and those which 3 Reparations for Injuries Suffered in the Service of the United Nations, International Court of Justice, Advisory Opinion of 11 April 1949, ICJ Rep (1949) 174, at 179. 4 International Law Commission, Fifth Report of the Special Rapporteur on responsibility of international organizations A/CN.4/583, para. 28. 5 Draft article 43: Ensuring the effective performance of the obligation of reparation The members of a responsible international organization are required to take, in accordance with the rules of the organization, all appropriate measures in order to provide the organization with the means for effectively fulfilling its obligations under this chapter.

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are owed to non-members.6 As the Special Rapporteur points out, in relations with non-member States the rules of an organization are similar to the internal law of a State and cannot be relied upon as justification for failure to comply. The situation differs, however, with regard to member States. Here we agree that the rules of the organization may be relevant. Although we would imagine that there is little practice to support this principle, we believe it to be sound as a matter of progressive development, given that it is fully consistent with the structural principle of consent which underlies international law. Mr Chairman (Madam Chair), Draft articles 44 and 45 10. Draft articles 44 and 45 concern the serious breach of obligations under peremptory norms of general international law. If one examines these two draft articles alongside their State responsibility equivalent, it becomes clear that a gap exists. Draft article 44 is engaged only when there has been a serious breach committed by an international organization. Draft article 45 addresses the consequences for other international organizations and for States of such. a serious breach. Similarly, Article 40 of the Articles on State Responsibility7 is engaged where a serious breach is committed by a State. However, Article 41 of the State responsibility regime only addresses the consequences for other States, with no reference to international organizations. 11. This lacuna could cast doubt upon the obligations of an international organization in the event of a serious breach of a peremptory norm by a State. We acknowledge that the draft articles, as currently formulated, are not intended to exclude such obligations arising under customary international law. However, in the interests of comprehensive codification, we would propose that the scope of draft articles 44 and 45 should be re-visited to address the consequences for an international organization of serious breaches of peremptory norms by both a State and by another international organization. 12. In addressing the duty of States and international organizations to co-operate in bringing a serious breach to an end, it is important to recognise that international organizations and States differ greatly in their capacity as international legal persons. The Advisory Opinion of the International Court of Justice on Reparations distinguished between States, who “possess the totality of international rights and duties recognised by international law”, and organizations whose rights and duties depend on their purpose and functions.8 Consequently, an international organization may be unable to respond to a jus cogens breach in an identical manner to a State. We 6

6 Draft article 35: Irrelevance of the rules of the organization 1. The responsible international organization may not rely on its rules as justification for failure to comply with its obligations under this Part. 2. Paragraph 1 is without prejudice to the applicability of the rules of an international organization in respect of the responsibility of the organization towards its member States and organizations.

7 Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 and corrigendum (A/56/ 10 and Corr. 1) 8 Reparations for Injuries Suffered in the Service of the United Nations, International Court of Justice, Advisory Opinion of 11 April 1949,ICJ Rep (1949), 174, at 180.

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therefore welcome the statement of the Commission that draft article 45 is not intended to confer duties upon an international organization which exceed its mandate.9 Mr Chairman (Madam Chair), Diversity of international organizations 13. This acknowledged difference in the capacity of international organizations and States highlights the need for consideration of the diversity of international organizations in formulating the draft articles. Nevertheless, as illustrated by the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations,10 there are identifiable common principles of international law applicable to all international organizations, though their execution may vary according to the substantive rules of the organization. 14. We accept the Special Rapporteur’s view that the draft articles are formulated in general terms, and that the implementation of the principles therein may differ according to the international organization at issue, having regard to special rules of international law.11 We welcome the Special Rapporteur’s suggestion of including a text in the final draft, along the lines of Article 55 on State responsibility, to address this. Conclusion 15. In closing, Mr Chairman (Madam Chair), Ireland expresses its appreciation for the important work of the Commission and the Special Rapporteur on this challenging topic and looks forward to its next report.

9

International Law Commission, Report of the Fifty-Ninth Session (2007) A162110, p. 219, para. 4 Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Vienna, 18 February–21 March 1986, vol. II, document A/CONF.129/15. 11 International Law Commission, Fifth Report of the Special Rapporteur on responsibility of international organizations A/CN.4/583, para. 7. 10

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Report on Irish Prisoners Abroad 22 may 2007 forward I am deeply grateful to Dermot Ahern, Minister for Foreign Affairs, for affording me the opportunity to undertake this important task. It was an exercise which I greatly valued. Over the course of the last year, I gained many worthwhile insights into the circumstances of Irish prisoners overseas. It is an experience I will always retain. I regard it as personally enriching and rewarding. As a people, we have a reputation for compassion and humanity which extends to those outside our country. This is clearly evidenced in Ireland’s commitment to development in the Third World and in our responses to the Tsunami disaster in Asia and the evacuation of Irish citizens in Lebanon. I believe that this commitment to assist those less fortunate is also to be found in our attitude to our citizens who have, rightly or wrongly, been incarcerated abroad. This does not mean that we, as a people, are prepared to stand over wrong doings and criminality. However, we want to see Irish nationals receive accepted international standards of treatment, if imprisoned abroad. I also would like to pay tribute to those working abroad for the welfare of our imprisoned citizens. Many freely give of their own time and incur expenses to ensure their welfare is safeguarded. I also want to thank those prisoners who spoke to me or took the time and effort to write to me, as well as those in the penal systems abroad who place the welfare of those entrusted to them at the top of their agenda. I also want to thank those relatives and friends of prisoners who wrote to me. I would also like to express my gratitude to the following who were helpful to me during the course of the study: Ray Bassett, John Neville and Breda Lee of the Department of Foreign Affairs, Dublin. Father Gerry McFlynn, Father Alan Hilliard and Gráinne Prior of the Irish Commission for Prisoners’ Overseas. Mr Liam O’Dwyer, formerly Department of Social Services, London. Mr Paddy Hill, member of the Birmingham Six and founder of the Miscarriages of Justice Organisation (MOJO). Ms Gareth Pierce, Solicitor. I would especially like to place on record my own personal thanks and appreciation to Mr James O’Connell, formerly of the Department of Foreign Affairs and now in the Department of the Environment. James was seconded to me during the study and was of great assistance to me throughout my research.

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In conclusion, I now put forward this report in a constructive and practical spirit and believe that, if the recommendations are accepted and implemented, we will have an extremely effective and responsive system in place to help ensure the welfare of Irish prisoners overseas. I believe that this is what the people of Ireland would expect. Chris Flood 22 May 2007

key recommendations Minister for Foreign Affairs —Recognise there is a need to ensure best international practice is employed by the Department of Foreign Affairs in relation to the support it gives to Irish prisoners abroad. —Establish a new unit within the Department of Foreign Affairs, dedicated to the consular needs of prisoners, with its own separate complement of staff. This new unit to be headed by a senior officer with the objective of overseeing prisoner welfare matters and keeping up to date with international developments in this area. The Unit to ensure that the Department’s approach corresponds with the best in the world. —Establish a register of Irish prisoners abroad. Such a database should include personal details of the prisoner, sentence, health status, last visit by a consular official etc. It should also provide a breakdown of Irish prisoners abroad on a gender basis. The data base could also include information on family visits and in particular if the prisoner is receiving financial support from their family. —Establish that every prisoner overseas has a right to a consular visit a least once a year and twice in more difficult/distant countries. Ensure that prisoners should be visited as soon as possible after arrest. —Embassies to pursue automatic notification of consular staff particularly on conviction and arrival in a prison facility. —In view of the large number of Irish prisoners in Britain, agree with NGOs to establish special arrangements for visiting prisoners in Britain. The Irish Embassy in London should be properly resourced to ensure that it is in a position to undertake its responsibility in relation to prisoners. —The Department of Foreign Affairs should endeavour to ensure that Irish prisoners are not falsely registered as British, as sometimes occurs. —Establish a hardship fund, administered by the new unit in the Department of Foreign Affairs, to assist prisoners and/or their families in particularly difficult cases. Every effort should be made to ensure full transparency in entitlement to support from the hardship fund. The extent of the fund should be reviewed on an annual basis. —Provide details of English-speaking lawyers and advice on local legal systems to prisoners and their families. —In view of the disproportionate number of deaths and self-harm incidents among Irish in custody, Embassies should assist bereaved families and advise on legal representation.

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—Department and Embassies to act as an intermediary between families/prisoners and the prison authorities abroad. The Department should be in a position to advise families if extended visiting hours are permitted for families travelling a long distance to a prison. —Give priority to issues relating to prisoners’ health. —Engage in ongoing consultation with interested NGOs and relevant Government Departments in the form of regular six monthly meetings Irish consular staff should be trained in addressing prisoner needs and bodies such as the Irish Commission for Prisoners Overseas (ICPO) could play a very useful role in this area. —Provide funding to NGOs, such as the ICPO, in support of policy dimension, particularly in the promotion of prison reform. —Prisoners to receive. an information pack including full details of ICPO and a permission form. —Consider a financial contribution towards organisations working to overcome miscarriages of Justice. —Recognising the particular difficulties faced by Irish Elders in Prison, funding to be provided to organisations like Aisling and to the FIS Pensioners Group. —In the event of a transfer request from a convicting State, the Irish Government should arrange a Consular visit to inform the Prisoner of their rights and discuss arrangements for their re-settlements, should they choose to return to Ireland. The Irish Government should not participate in any transfer arrangement that does not have the consent of the Prisoner concerned. —Consideration should be given to appointing additional Honorary Consuls in areas of the World where there is no Irish diplomatic or consular representation at present. —Raise the issue of prison conditions at EU level, so that European countries can work together to improve conditions in third countries. —The Department of Foreign Affairs should consider the provision of financial and diplomatic support for the European Group for Prisoners Abroad in resisting further pressures to normalise the practice of compulsory transfer of Prisoners. Recommendations which cover a number of Departmental Responsibilities —The Irish Government must continue to support the extension of humanitarian arrangements for the transfer of convicted Prisoners to serve out their custodial sentences at a location in the country of imprisonment or back home in Ireland best suited to protect the prisoner, their entitlement to the care and support of family and friends and creation of the best possible circumstances for post-custody resettlement and rehabilitation. It should be noted this will include establishing new arrangements outside of the EEA. —Noting that when an Irish Prisoner completes their sentence in a prison overseas, they are free to decide to return or not to return to Ireland. In some circumstances the State may still have duties, such as: —Public safety may require monitoring or registration of sex offenders. —Former prisoners posing a risk to security. —Address welfare needs of prisoners and help in re-settlement. —Establish a sex offenders’ register. —Provide funding for an appropriate resettlement agency.

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—The Irish Government should seek to block repatriation without agreement with particular reference to Britain. —Eliminate delays surrounding the transfer of convicted prisoners by putting in place effective administration procedures taking advantage of New Technology. The principal considerations should be welfare, family and re-settlement. The process should be open and transparent and notification of progress in key stages should be shared with the requesting prisoner, with consular staff, with NGOs and prisoners’ family. —The Irish Government should reject the use of transfer arrangements to address prison overcrowding in origin and destination states and therefore reject the case for compulsory transfer of Prisoners against their will. executive summary Background The Minister for Foreign Affairs, Dermot Ahern, asked me to prepare this report. This request arose out of a commitment in the Programme for Prosperity and Fairness (PPF) to undertake to ‘identify the numbers of Irish prisoners abroad and their needs for services in prison’. This in turn reflected a concern within the country that the welfare of Irish prisoners abroad should be afforded a high priority. The issue of prisoners in Ireland has always been an emotive and complex one in Ireland. Many of the founders of this State spent time behind bars, much of it overseas. Kilmainham Prison is now a shrine to the establishment of a separate State on this island. Tens of thousands of Irish men and women were shipped as convicts to Australia on the basis of an often unfair justice system where they subsequently made a huge contribution to the establishment of the new country of Australia. In more recent times, there have been very high profile cases of miscarriages of Justice in Britain including the Birmingham Six, the Maguire family, the Guildford Four, Giuseppe Conlon etc. There was also widespread concern in Ireland at the harsh regime inflicted on certain Irish prisoners in Britain during the recent Troubles. There are also countervailing impulses, as the whole issue of victims’ rights has quite correctly come to the fore. There is a strong recognition throughout society that just punishment should be proportionate to the crime committed. This is especially true for crimes of violence or for activities such as drug dealing. I have tried to reflect both tendencies in my report. I believe that if Irish people commit crimes abroad, it is only right and proper that they are made fully amenable to local justice. However, there is a moral and legal obligation on the Irish State to ensure that our people are treated correctly and have access to proper care. Objectives I have endeavoured to quantify the number of Irish prisoners abroad and the countries in which they are incarcerated. In reality the issue is dominated by the Irish prisoners in Britain who account for about 7/8s of the total. I have adopted the approach of matching Ireland’s performance against that of other countries. I believe that we are reasonably comparable in our approach to that

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of other European countries. However, I have identified a number of areas where I believe that we need, as a country, to upgrade our efforts. This is reflected in my key recommendations. I was conscious of the outstanding role that the ICPO plays in regard to overseas prisoners. This country has a long and honourable tradition of NGOs and the ICPO are very much in that tradition. It is my view that while the State has primarily responsibility for looking after the welfare of our citizens imprisoned abroad, this should be carried out in partnership with NGOs, especially the ICPO. Prisoner’s Unit While the Department of Foreign Affairs has in general operated a good support system for Irish prisoners, I believe that a dedicated unit should be established, within the Department, to oversee prisoner’s welfare issues. The establishment of such a unit, headed by a senior officer (Principal Officer) and with adequate staff resources would ensure that there would be a systematic approach to this area. It could direct the activities of our diplomatic missions abroad and ensure that all prisoners, who so desire, are visited on a regular basis. It would also ensure that the recommendations contained in this report are fully implemented. This unit should work in close cooperation with the ICPO and other NGOs as well as providing the Minister with advice on the latest international developments. Hardship Fund While the bulk of Irish prisoners are in British jails, increasing affluence and a young population means that Irish people are travelling to more ‘exotic’ places.1 The Irish Honorary Consulate in Quito has witnessed increasing numbers of young Irish coming to the Andes. Growing numbers of Irish are backpacking through Indochina. While the vast majority of such travellers have trouble free experiences, the Consular Division of the Department are reporting that small numbers of Irish are falling victim to local crime and some others are being arrested for offences. When an arrest is made and if a custodial sentence is given, this can place pressure on missions. Some countries provide very little for prisoners and there is a need for supplementary food and toiletries. Against that background, I believe that there is a need for funds which the local mission (Embassy or Consulate) can draw on to maintain prisoners’ health in such circumstances. The Department of Foreign Affairs should also assist in providing modest grants for the translation of official documents. In addition, there is occasionally a need in exceptional circumstances to assist Irish prisoners closer to home who have no means of keeping in contact with their families. In the circumstances I have recommended that a Hardship fund be established which can be used in the above cases. I would point out that this is not an automatic stipend for prisoners but a fund to overcome genuine hardships. 1 According to a recent Gallup poll on EU citizens’ views towards consular protection, Irish people are the most likely to travel outside the EU. 71% of Irish citizens intend to travel outside the EU in the next three years. The European average is 51%. http://ec.europa.eu/justice_home/news/intro/doc/CP_analytical_ report_en.pdf. December 2006.

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I would propose €200,000 be allocated to the Hardship fund for the first year of operation. Further allocations would depend on the demand for services. €200,000 is a relatively modest amount when compared to the overall expenditure by the State on prisoners in Ireland. Prisoner Database It is clear that there is a greater need for more systematic tracking of Irish prisoners overseas, within the Department of Foreign Affairs. In this context, a register should be established which would include personal details of the prisoner, sentence, health status, last visit by a consular official etc. The right of a prisoner not to have his/her personal details on the database would of course be respected. This database should be maintained and monitored by the new Prisoner’s Unit. Miscarriages of Justice Miscarriages of justice, which involved several high profile Irish cases in Britain in the 1970s, is an area where there have been heightened concerns in Ireland for some time. I applaud the work done by many committed humanitarian organisations and individuals to achieve justice in those cases. I believe that there is a case for the Irish Government to consider providing funding for organisations such as The Miscarriages of Justice Organisation (MOJO), which already receives funding from the Scottish Executive. 1. introduction 1.1 The Government’s Programme for Prosperity and Fairness (PPF) identified an objective ‘to address the special needs of those Irish emigrants abroad who are particularly marginalised or at greatest risk of exclusion’.2 To meet this objective, the PPF called for the establishment of a Task Force on Emigrants, to develop a coherent, long-term approach to Irish emigrants and their needs, and for a research project to be undertaken to ‘identify the numbers of Irish prisoners abroad and their needs for services in prison’. 1.2 The Task Force on Emigrants was established in December 2001 and submitted its report, Ireland and the Irish Abroad, to the Minister of Foreign Affairs on 28 August 2002. With the Irish Abroad Unit now up and running, it was deemed timely to move on the second part of the commitment in the PPF and to establish a research study on Irish prisoners abroad. 1.3 Based on the commitment in the PPF, the Terms of Reference for this study are as follows: To identify the numbers of Irish people in prison overseas and the countries in which they are being held; To examine the needs of Irish overseas prisoners; and Based on this identification and estimate, to make recommendations for the 2 Programme for Prosperity and Fairness—Section 4.6: Commitment to the Wider World; Stationery Office, Dublin, 2000.

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future provision of services to overseas prisoners, taking into account the services available in comparable countries. 1.4 The study presents a brief overview of existing international protection mechanisms and norms in relation to the minimum acceptable prison standards and the human rights of prisoners. In particular, the principal international agreements which have a bearing on the treatment of prisoners are identified. 1.5 Various authorities were consulted in the process of this study, primarily relevant Government Departments, the prison authorities and non-governmental organisations such as the Irish Commission for Prisoners Overseas.3 Initial consultations assisted in establishing the numbers and locations of Irish prisoners abroad, nature of their offences and the duration of their sentences. 1.6 Cognisant of the fact that the majority of Irish prisoners overseas are located in Britain, meetings were also held with the Foreign and Commonwealth Office, the Home Office and Prison Service. NGOs such as Prisoners Abroad, Advice on Individual Rights in Europe (AIRE), Brent Irish Advisory Service, the London Office of the ICPO and numerous individuals expert in the area were also consulted. Irish prisoners and prison officials were also interviewed in Brixton Prison in London. In addition, relevant published reports from various interested parties were scrutinized. 1.7 This study considers a person’s consular rights when arrested and imprisoned abroad and delineates the services provided by Irish Embassies and Consulates to Irish prisoners overseas, as well as corresponding services of other EU and comparable countries to their nationals imprisoned abroad. It also outlines the limitations imposed by operating in a different jurisdiction and judicial system. 1.8 Existing sources of support in Ireland for prisoners abroad, as well as support structures after repatriation, are also considered. 1.9 The report discusses the desirability and possibility of transferring prisoners to complete their sentences in Ireland. 1.10 Recommendations are made for improvements in service to Irish prisoners abroad both during their imprisonment and on their release. I acknowledged that many Irish missions already carry out some of these recommendations but I believe that there is a need for consistency in this area. Acknowledgements —Irish Commission for Prisoners’ Overseas (Maynooth & London offices) —Prisoners Abroad —Advice on Individual Rights in Europe (AIRE) —Brent Irish Advisory Service —Miscarriages of Justice Organisation (MOJO) —Gareth Pierce, Solicitor —Staff of the Department of Foreign Affairs —Staff of the Irish Embassy, London 3

Subsection of the Irish Catholic Church’s Episcopal Commission for Emigrants.

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—Staff of the Department of Justice, Equality and Law Reform —The Probation Service —Staff of the Department of Social & Family Affairs —H M Prison Service, London —Foreign and Commonwealth Office —The Home Office —The Governor of Brixton, Brixton 2. international protection mechanisms 2.1 The Mission of the Irish Prison Service is ‘to provide safe, secure and humane custody for people who are sent to prison’.4 This should be the guiding principle under which the Department of Foreign Affairs seeks to support and safeguard the welfare of Irish prisoners in foreign jurisdictions. However, I recognise that the penal system in many countries has a different objective to this Country, and by our standards would not necessarily be considered to be safe, secure or humane. 2.2 Likewise, the criminal justice system in many countries is different to the Irish system. However, this does not mean that those systems are automatically inferior. It does mean that Irish prisoners may be at a disadvantage because of differences in standards, culture, language and familiarity with the local penal and judicial systems. 2.3 If an Irish citizen breaks the laws of another country, he/she is subject to the judicial system of that country. If a foreigner breaks the law in Ireland, he/she is tried under Irish law, in an Irish court and if convicted, sentenced accordingly. Irish citizens have an obligation to make themselves aware of local practice, as not knowing the local laws is not a justifiable defence. In the same way that the Irish Government would not accept a foreign government interfering with the Irish judicial process, the Irish Government cannot directly interfere in the judicial process of another country. Therefore, the Irish Government cannot exempt a citizen from the due process of another country. There should be no expectation among citizens that the Government can assist them in escaping justice in foreign jurisdictions. 2.4 However, the Government has a duty to ensure that an Irish prisoner is not discriminated against because of nationality and that he/she receives equitable treatment under the local judicial system. To provide safeguards in this area, there has been a proliferation of international human rights instruments which have a bearing on the treatment of persons detained and on prisoners’ rights. These include United Nations conventions on human, economic, social, cultural and civil rights and on prevention of discrimination, as well as various instruments on rules for the treatment of prisoners.5 2.5 Under these various instruments, a prisoner has the right to the following: —Consular assistance from the embassy or consulate. —Legal representation. 4 5

Mission Statement from the Irish Prison Service Annual Report 2005. This includes, United Nations Standard Minimum Rules for the Treatment of Prisoners (1957).

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—Periodic means of communication with family and with their consular authorities as they desire. —Visits from family members. —Detention in conditions which meet a minimum standard in terms of their health, privacy, hygiene, nutrition and human dignity. —Medical attention as required. —Reasonable recreation and educational materials, eg suitable reading materials in the English language. —Request a trans-national transfer. 2.6 Consular rights of foreign prisoners flow from the Vienna Convention on Consular Relations (1963). Individuals arrested in a state other than their own are entitled to access to their consular representative. Article 36 of the Convention obliges the competent authorities of the state in which the arrest takes place, provided the arrested person does not object, to inform his/her consular authorities. It also requires the competent authorities of the state in which the person is detained to inform arrested persons without delay of their rights in this respect. It provides for visits by consular officers and guarantees the right to conversation with arrested persons and correspondence with them. Furthermore, it obliges the state in which the person is detained to forward any communication addressed to the consular post by the person arrested. 2.7 The United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) is the original paradigm for all prisoner protection and treatment.6 It set a series of principles which, whilst not binding in international law, served to interpret other international instruments, such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights. However, the UN Rules acknowledge that prisoner protection and the management of penal institutions is an area which is evolving and accepts that not all of these standards are capable of application in every country. ‘They should, however serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application.’ The UN Rules make specific reference to prisoners who are foreign nationals, emphasising their right to communicate with their families and diplomatic and consular representatives of the State to which they belong, or the state which takes charge of their interests in that country. Several subsequent international instruments dealt with new developments and strategies in penal policy. A selective list of these is contained in Appendix A. 2.8 A European version of these rules was advanced by the Council of Europe in 1987 to more accurately reflect the contemporary situation of prisoners and provide a more comprehensive and coherent approach to the management and treatment of prisoners. The European Prison Rules were revised in 2006 to take account of developments in penal policy following the implementation of the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, as well as the accession of new member states in the Council of Europe. 6 Approved by the First United Nations Congress on the Prevention of Crime in 1955 and subsequently endorsed by the United Nations Economic and Social Council in 1957.

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2.9 These Rules constitute the recognised benchmark for prison standards and for the observance of the human rights of prisoners covering issues such as admission, hygiene, nutrition, exercise, health care, communication with the outside world, security, legal advice, work (as a positive rather than a punitive measure), education, release and transfer. The rules are applied and interpreted differently by the member states of the Council of Europe and by a significant number of non-European countries, including the United States, Canada and Australia, as well as a number of countries in Latin America where Irish prisoners are detained. While they may not be legally enforceable, they place certain obligations on States concerning the rights of prisoners, prohibit arbitrary imprisonment and set out standards to be achieved in the aforementioned categories. 2.10 There is specific provision for prisoners who are foreign nationals, including the following rules: —Prisoners who are foreign nationals shall be informed without delay of their consular rights, including the right to communicate with the diplomatic or consular representatives of their state. —Foreign nationals shall be informed of the possibility of requesting that the sentences be served in another country. Also a separate provision is made for prisoners to have contact ‘as often as possible’ by letter, telephone, or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. However, the frequency of such communications and visits may be restricted because of criminal investigation. Significantly, prison authorities are enjoined ‘to assist prisoners to maintain and develop family relationships in as normal a manner as possible’. Furthermore, ‘prison authorities shall assist with the appropriate welfare support to do so’ (Article 24.5). 2.11 Article 17.1 provides for prisoners to be allocated, as far as possible, to prisons close to their homes or places of social rehabilitation. While this does not specifically refer to the repatriation of foreign prisoners to complete their sentence in their own country, it can be interpreted as recognising that allocation of all prisoners to prisons close to their homes is beneficial. 2.12 One of the experts appointed to redraft the European Prison Rules, Professor Dirk van Zyl Smit of the University of Nottingham,7 has described the need to accommodate conflicting positions on untried and sentenced prisoners, namely: —Except for the loss of liberty, prisoners retained their rights after detention, and therefore there was no distinction; —Untried prisoners are innocent until proven guilty and therefore deserving of special recognition; —Implementation of a sentence could place additional obligations on prisoners, e.g. a sentenced prisoner may be compelled to work. 7 Dr van Zyl Smit was one of three experts appointed to undertake the drafting of the 2006 European Prison Rules by the Council of Penological Cooperation in 2002. Please see van Zyl Smit, Dirk, The 2006 European Prison Rules, http://www.gencat.net/justicia/doc/foc_169 233 0_1.pdf.

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To that end, there are separate provisions regarding unsentenced (Part VII) and sentenced prisoners (Part VIII); the basic distinction being that untried prisoners should be given the opportunity to work and follow the regime of a sentenced prisoner, but should not be compelled to do so. The primary aim in the regime of a sentenced prisoner should be facilitating ‘their reformation and social rehabilitation’ (Article 10(3)). The Rules also stress the need to cooperate closely with social services and support agencies to assist released prisoners, as well as provision for independent monitoring and inspection. 2.13 Even though the European Prison Rules are comprehensive in addressing concerns in relation to penal policy, there is growing support to advance a European Prison Charter which would be legally binding on governments. A primary reason for this is the introduction of the European arrest warrant within the European Union. This would not only complement the 2006 European Prison Rules, but would also be a very significant development in the humanisation of the prison services. 2.14 The Minister for Justice, Equality and Law Reform published Irish Prison Rules in June 2005, affecting prisoners in Ireland and taking into consideration the contemporary needs of Irish prisoners.8 The Irish Rules took account of developments at the Council of Europe, in particular the then emerging European Prison Rules. For example, the rules for the first time gave a statutory basis for the inspection of prisons. 2.15 It is of vital importance that new developments in penal policies worldwide, as well as the Vienna Convention on Consular Relations, the UN Standard Minimum Rules for the Treatment of Prisoners9 and the European Prison Rules are the template under which the Department of Foreign Affairs operates in addressing the welfare of Irish prisoners abroad. 3. Present Position of Irish Prisoners Abroad 3.1 It has been noted elsewhere that an unexpected consequence of affluence and more overseas travel has been an increase in the number of countries which have Irish prisoners. At the same time, the number of prisoners abroad is constantly changing, as some are released and others newly detained. For this reason, it is not possible to be fully precise about how many Irish citizens are imprisoned abroad, or to give a completely comprehensive breakdown by crime and country at any particular time. 3.2 The following figures compiled by the Department of Foreign Affairs are intended to give an indication of the numbers of Irish citizens imprisoned abroad and of the range of countries in which they are located. The table is intended to be a snap shot of the situation at a particular time.

8 It should be noted that the published document referred to was new Draft Prison Rules which have not been signed into law as yet. Furthermore following legal advice it was decided that the most prudent approach for the provision of the Inspector of Prisons and Places of Detention on a statutory basis was by way of primary legislation. This provision has been included in the Prisons Bill, 2006, which is expected to become law very shortly. New Prison Rules, which have been amended since 2005, will be signed into law following the enactment of the Prison Bill. 9 Appendices C, D & E respectively.

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Irish Prisoners in EU Countries10 Austria 0 Belgium 1 Cyprus 0 Czech Republic 0 Denmark 1 Estonia 0 Finland 0 France 6 Germany 8 Greece 1 Hungary 0 Ireland Italy 1 Irish Prisoners in Non-EU Countries Australia 3 Bolivia 1 Brazil 2 Canada 1 Cuba 1 Ecuador 2 Guatemala 1

2007

Latvia 1 Lithuania 0 Luxembourg 0 Malta 0 Poland 0 Portugal 5 Slovakia 0 Slovenia 0 Spain 14 Sweden 1 The Netherlands 12 United Kingdom 708

Japan 1 Middle East 1 Panama 2 Peru 2 Thailand 1 United States 28 Venezuela 1

Total Estimate: 800. This should be regarded as a minimum figure since it is probable that there are other non recorded prisoners throughout the world. Not all Irish citizens request consular assistance when detained and therefore, may not come to the attention of the nearest Irish Embassy or Consulate. In order to provide a more sophisticated means of tracking Irish prisoners abroad and ensure timely consular assistance, it is recommended that the Department of Foreign Affairs establish a database which would maintain an up to date register of Irish prisoners abroad. This would include detailed information on case history, consular assistance, healthcare etc. 3.3 Little detailed information is available on the profile of Irish prisoners abroad. Some are vulnerable persons who emigrate in an attempt to escape their problems, but they find that they cannot cope with life abroad and end up in prison. Others are imprisoned after being charged with crimes or misdemeanours committed while on holiday. The crimes are of varying seriousness. Some have engaged in serious transgressions, including drug trafficking, manslaughter and murder. A small number, not eligible for release under the Good Friday Agreement, are imprisoned for dissident paramilitary activities. 3.4 Wherever they are, prisoners incarcerated outside their home countries can be disadvantaged, marginalised and vulnerable. Their plight sometimes evokes little 10

Figures compiled from Irish Embassies and Consulates, 19 October 2006.

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sympathy among some sections of the wider community in Ireland. Some in society may consider their uncomfortable circumstances as self inflicted, or even as just punishment for their crimes. However, it is important to bear in mind that, wherever they are, international law places obligations on the Irish Government to ensure their consular rights. 3.5 Prisoners abroad often suffer unintended, adverse consequences of detention in a penal institution. They are not part of the local community and hence may endure discomfort due to overcrowding, to cultural differences, an inability to satisfy normal material and hygienic needs, isolation from friends and family and inability to communicate with them at will. 3.6 In its report Conditions of Detention for European Prisoners Around the World, the European Group for Prisoners Abroad (EGPA) describes the typical difficulties of imprisonment abroad. In many countries, foreign national prisoners suffer violations of their human rights through poor treatment and conditions. Conditions vary from country to country and are generally determined by the economic, social and political situation. 3.7 In developing countries, local prisoners can often have to rely on their families to supplement their diet by bringing in food for them to the prisons, but that is not an option, e.g. for an Irish prisoner incarcerated in Latin America or Thailand. The problem is not so severe for those whose families can afford to provide funds for the purchase of alternative food. However, this is not always possible. 3.8 Although international conventions and rules guarantee the rights of prisoners to articles of hygiene, in practice even basic necessities such as toilet paper, soap and toothbrushes are not always provided, may be difficult to obtain or may be expensive. Indeed, even funds sent by the family for a prisoner’s benefit may not be immune from corrupt officials. One prisoner in a Latin American country is quoted by the EGPA as saying that everything must be bought from the money sent by families, nothing is free, not even drinking water, ‘and when the police do our shopping, nine times out of ten they steal from the money’.11 4. prisoner needs analysis 4.1 The EGPA has categorised the main obstacles facing Irish prisoners abroad as problems of isolation, communication, cultural appreciation, lack of information with regard to legal procedures and fundamental rights. Family support and access to communications are of vital importance in alleviating these difficulties. A sentence of imprisonment is not intended to have the necessary consequence of termination or curtailment of contact with family, subject to normal requirements of prison routine and discipline. Nor is it intended to punish the families of prisoners, nor lead to hardship for them, even if this is the inevitable consequence of imprisonment. 4.2 Geographical isolation from family has adverse consequences not only for the prisoner, but for society at large, since it is generally accepted that continuing contact 11 EGPA, Conditions of Detention for European Prisoners Around the World, http://www.egpa.org/pdf/ conditions&20of %20detention.pdf August 2002.

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and support from family can be a positive factor in determining whether or not a prisoner reoffends or can be successfully re-integrated into society. I have been informed that a British Home Office official, quoted in an ICPO sponsored survey, indicated that good family ties can reduce a prisoner’s risk of offending by a factor of six. It is usually difficult for prisoners abroad to maintain regular contact with family. Families are usually unable to visit except on rare occasions. 4.3 The EGPA has stated that research carried out in Britain found that 40% of families had been unable to visit their relative at all since detention. When they did attempt to visit, the cost was often prohibitive. Families face financial demands to pay for the legal defence of their relative, as well as sending money to their relative in prison abroad for basics such as food, water and clothing. 4.4 In Ireland, the ICPO survey also found that cost was an obstacle for families of Irish prisoners overseas who would wish to visit their relatives in prison. The survey acknowledged that families entitled to social welfare allowances can apply for exceptional needs payments under the supplementary welfare allowance scheme in Ireland. However, such payments are at the discretion of the individual community welfare officers. A report by the National Social and Economic Forum, ‘Reintegration of Prisoners’ in 2002 recommended that low-income families travelling long distances (within Ireland) to visit prisoners should be given additional supports, including ‘adequate financial supports to make regular visits’. This recommendation is even more pertinent to family members who have to travel overseas to visit the imprisoned relative. 4.5 Therefore, this report recommends that a hardship fund to assist families and prisoners in such difficulty be established and administered by the new prisoner unit in the Department of Foreign Affairs. This would not be an automatic stipend for prisoners, but a fund to overcome genuine hardships and would be granted in the first instance to alleviate difficulties experienced by Irish prisoners abroad in obtaining basic necessities. 4.6 Telephone calls provide an essential means of regular and immediate communication between prisoners and their families. Usually prison authorities will allow prisoners to make occasional telephone calls to family or friends. However, the cost of these calls can be very high for the prisoner and much higher than public telephone calls outside the prison. For example, it has been reported that the cost of making a telephone call from Brixton Prison to an Irish number is in the region of 66p (€1) per minute, or 6 times the rate which applies outside the prison. As a result, telecom companies have been accused of making undue profits from calls made from prisons. In response to complaints, they have pointed out that the cost of providing the telephone line infrastructure within prisons is much higher than outside and they have to recoup their outlay by increased call charges. 4.7 According to a survey carried out in 1999 by the EGPA, almost 50% of those incarcerated in non-English-speaking countries stated that they could not communicate with the prison doctor, and a further 10% stated that communication was limited. Over two-thirds revealed that there was no interpreter or translator available to assist them when they saw a doctor. 4.8 According to the ICPO, the health of Irish prisoners abroad is a cause for concern and there is a high incidence of some diseases, eg of AIDS, amongst them, as well as

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alcoholism and drug addiction. They have emphasised that systems should be in place to allow the referral of Irish prisoners abroad to addiction centres in Ireland on release, to be paid for by the appropriate local authority. 4.9 There are reports, eg from Prisoners Abroad,12 that in some countries there is a high incidence of dental problems amongst foreign prisoners, in most cases probably linked to poor dental hygiene, lack of regular access to toothpastes and brushes and indeed infrequent or non-existent dental checks. In addition some countries, prisoners have to pay to see a doctor or to receive medication. Irish prisoners in Britain 4.10 The British prison population has reached the maximum capacity of 80,000 and, in the absence of new prisons, measures are being examined to reduce numbers. As the great majority of Irish prisoners abroad are in Britain, securing an agreement with the British Government to exclude Irish citizens from any EU compulsory deportation on completion of their sentence on grounds of the historic, cultural and political links between our two countries is clearly an issue of the highest importance. In February 2007, British Home Secretary, John Reid, announced a change of approach which will ensure that Irish prisoners will no longer be considered for deportation from Britain, except in exceptional circumstances. This is a very welcome development and will come as a great relief to individual prisoners and their families.13 Details regarding the number of foreign prisoners in Great Britain are contained in Appendix B. According to the Home Office, 698 Irish prisoners were detained in England and Wales at the end of September 2006.14 4.11 Internationally, the practice among most countries is to ensure that every prisoner overseas has a right to a consular visit at least once a year and twice in more difficult/distant countries. However, given the large number of Irish prisoners in Britain it is not possible for consular officials to achieve this. Therefore, the Department of Foreign Affairs should seek the assistance of and agreement of NGOs, in particular the ICPO, for special arrangements for visiting prisoners in Britain to safeguard Irish prisoner rights and ensure any pertinent issues are being addressed. The Department should conclude a service agreement with the ICPO, with measurable outcomes in this regard. It should also ensure that NGOs which are carrying out work for the Government in this area have the capacity to do so. 4.12 There have been a number of allegations of racial prejudice against Irish prisoners on the part of prison staff in Britain. This was discussed with senior management in the Home Office, the Prison Service and with the Governor of Brixton Prison. The 12

British overseas prisoners’ welfare organisation. Following controversy in Britain in 2006 about the nondeportation of over 1000 foreign national prisoners at the end of their sentences, the British Government introduced a strict new policy under which all foreign national prisoners sentenced to two or more years were automatically considered for deportation. This included for the first time Irish prisoners. The Minister for Foreign Affairs, Dermot Ahern, wrote to the Home Secretary, John Reid, requesting a reconsideration of this new policy, bearing in mind the close ties between the two countries and the Common Travel Area. 14 The British Home Office figure differs from that supplied by the Department of Foreign Affairs. This is not surprising as many ‘Irish’ prisoners have dual Irish/British nationality and may be classified differently in different counts. 13

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Director of the British Prison Service gave assurances that all prison officers receive racism awareness training. He also denied other allegations, namely that there was a significant problem in relation to the attitude of former British soldiers who had served in Northern Ireland and who were now prison officers, although he was aware of allegations that such ex-soldiers often displayed anti-Irish bias. However, such allegations of anti-Irish racism are difficult to prove or disprove. 4.13 The Governor in Brixton Prison said that he encourages prisoners to demonstrate their cultural identity and had arranged special St. Patrick’s Day celebrations in the prison for Irish prisoners. He himself celebrates St Patrick’s Day with Irish prisoners. In relation to allegations of anti-Irish bias on the part of ex-British Army prison officers, he was not aware of any particular problem. In any case, he stated that there are very few ex-military personnel serving as prison officers. The modern Prison Service looks for recruits from diverse backgrounds. Where any abuse of prisoners is established, there are severe punishments and he had dismissed several officers for verbal abuse of prisoners. 4.14 The authorities in Brixton Prison facilitated meetings with some 20 or so Irish prisoners detained there, both as a group and individually. One of the prisoners’ story was particular poignant. A homeless drug addict (by his own account) who had participated in a detoxification programme in prison, told of his experience of being released, with no support on the outside and no accommodation, with only £40. Due to lack of outside support, he immediately re-offended and was now facing a new sentence. He believed that, without adequate rehabilitation and sufficient short-term financial support, he had no choice but to turn again to crime to support himself in the short term. 4.15 A grievance often expressed by Irish prisoners in Britain is the lack of provision to allow prisoners, whose homes are in Ireland, to avail of temporary release to visit seriously ill relatives in Ireland or for other serious family emergencies. European Prison Rules provide that, whenever circumstances allow, a prisoner should be authorised to leave prison, either under escort or alone, in order to visit a sick relative, attend a funeral or for other humanitarian reasons. 4.16 Concerns have been raised by the ICPO that remand prisoners, or others liable to transfer, may be transferred between prisons without notice to their families. This was raised with the Governor of Brixton Prison who stated that it was not practicable to inform families whenever prisoners are being moved. For example, there are fifty movements of prisoners, twice daily from Brixton. Prisoners must be sent wherever there are vacancies, and it is not possible to choose individual prisons for each prisoner. Prisoners are allowed to phone home when they are transferred. 4.17 ICPO has suggested that additional funds should be provided to ICPO to enable the engagement of expertise to assess the competence of defence lawyers abroad. This is an area where no consular service has ventured. However, it might be possible for Embassies and Irish organisations abroad to establish a panel of experienced lawyers who would be prepared to offer advice to Irish prisoners on a pro-bono basis. This is something the British FCO does on a regular basis.

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Travellers 4.18 The Report of the NESF on the Re-integration of Prisoners stated that figures on the number of people from the travelling community in prison were not available. In discussion with the Brent Irish Advisory Service, the particular problems of imprisoned travellers were emphasised. Adult travellers are often illiterate and this increases their isolation and alienation because they cannot read prison notices or read or write letters. Imprisonment is often chosen as a first option for travellers convicted of offences, partly because of the difficulty of enforcing non-custodial sentences. They are also discriminated against when bail is considered, because some have no fixed home and often no regular employment. Illiteracy rates among some groups of male Irish travellers are reputed to be as high as 97%. The new prisoner register should also seek to address the absence of authoritative information on those Prisoners claiming Irish Traveller background. The Department of Foreign Affairs should press for ‘Irish Nationals’ and ‘Irish Travellers’, to be used by the Prison service and related agencies as categories for the monitoring of their experience in the criminal justice system. Irish Prisoners in Developing Countries 4.19 While the vast majority of Irish prisoners overseas are located in Britain and where prison conditions are, in many respects, comparable to those in Ireland, there is particular concern about conditions in certain other countries where some Irish prisoners are incarcerated. It is understood that the Department of Foreign Affairs has been in touch with a number of foreign authorities, including those in Ecuador, which recently acceded to the Strasbourg Convention. A draft bilateral transfer agreement with Cuba was forwarded to the Cuban authorities for consideration in April, 2005. However, despite a number of reminders, no response to this document has been received from the Cuban authorities. In the meantime, efforts are currently underway to secure the voluntary transfer of a number of Irish prisoners detained abroad to Irish prisons. 4.20 In Venezuela, according to Human Rights Watch, ‘conditions in prisons are notoriously abusive. Overcrowding is chronic and armed gangs maintain effective control within the prison walls. Prison riots and inmate violence claim hundreds of lives every year.’ Concerns have been expressed by the Irish Embassy about the safety and welfare of an Irish citizen imprisoned there. Conditions in Panama, Cuba and Guatemala, where other Irish prisoners have been held recently have also been the source of concern, including problems in accessing basic necessities. As all four countries are Spanish-speaking, Irish prisoners have the added burden of communication difficulties. 4.21 Given the distance from Ireland, and from the nearest Irish Embassy, visits from family and from Irish consular representatives to such countries are often difficult to arrange. In the cases of two of the countries in Central America, Guatemala and Panama, in which there are currently Irish prisoners, the nearest Embassy does not have formal accreditation. This can cause difficulties for consular representatives in dealing with the appropriate authorities. Phone calls to prisoners are also difficult to arrange.

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4.22 In many cases the local Irish representation is through the Honorary Consul system. These unpaid representatives of Ireland have played a very important and valuable role in looking after the welfare of prisoners in places distant from Ireland. This is particularly true in the cases of Panama and Ecuador. However, in some areas such as Cuba, the lack of a local Honorary Consul can adversely affect the ability of the Government to assist prisoners. It is clear from this study, that a review of countries where there is no current Irish Honorary Consul should be conducted by the Department of Foreign Affairs, with a view to strengthening this aspect of consular network to ensure it can adequately meet the demands of prisoner welfare. 4.23 An additional problem which has been brought to my attention is that when a family member is in a position to send funds to a prisoner, the family may become subject to extortion by other inmates. A family member of at least one Irish prisoner has been the subject of serious threats and intimidation. 4.24 An Irish prisoner in Panama was the subject of a successful application for transfer to Ireland. However, due to the very considerable delay in arranging this repatriation, the prisoner ultimately decided to complete the sentence in Panama. Another prisoner in Panama is expected to apply for transfer to Ireland once her sentence has been finalised. An Irish citizen imprisoned in Venezuela decided to withdraw a request for repatriation due to the significant waiting period, and as he felt that a pending repatriation request might prejudice a separate application for conditional liberty in Venezuela. I understand that authorities in the Latin American and Caribbean region are very willing to facilitate the speedy repatriation of foreign prisoners, due to chronic overcrowding in their prison systems and in the interests of the welfare of foreign prisoners. However, the Department of Justice, Equality and Law Reform has experienced significant problems in obtaining the required information, as specified under the Strasbourg Convention, in respect of applications from countries in these regions.15 4.25 The Government should continue to raise the issue of prisoners’ conditions at European level, so that EU countries can together put pressure on certain countries to improve conditions for prisoners. Discussions are currently being held at EU level on prison conditions in Latin America where targeted acts of violence against foreign prisoners in the general prison population are giving raise to concern. Sharing information and coordinating dialogue through the EU Presidency with relevant national prison authorities is essential to guarantee a minimum standard of security for European prisoners. 5. consular assistance & international best practice 5.1 It is the right of every Irish citizen who is arrested or imprisoned abroad to seek consular assistance from the Department of Foreign Affairs. However, not all Irish citizens who are so arrested or imprisoned avail of this right.

15 For example, in regard to the case of the prisoner in Venezuela, this Department did not receive any paperwork from the authorities in that country to allow Ireland to commence processing his application.

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5.2 As outlined in Chapter 2, the consular rights of Irish prisoners abroad are established by the Vienna Convention on Consular Relations (1963). Beyond the obligations provided for in prison regulations, international conventions and legal instruments, consular assistance given by Irish diplomatic and consular representatives is broadly similar to that provided by other EU states, and in some instances goes beyond it. A primary task of all consuls is to render necessary assistance to their citizens abroad and, in cases of arrest, to see that they receive fair, equal and humane treatment while in custody. 5.3 A survey carried out by the Council for Research and Development (which, like the ICPO, is an agency of the Irish Bishop’s Conference) entitled Separated Families, identified a lack of clear information in relation to the legal systems in countries where relatives are imprisoned. Prompt contact, directly or by telephone can be crucial in ensuring observance of an arrested person’s rights. For example, they may not know whether they have the right to silence, the right to legal representation, whether legal aid is available, or whether they are entitled to contact their families. 5.4 Consular assistance is necessary even when lawyers are provided by the arresting state, especially in non English-speaking countries, as the appointed lawyer may not speak English adequately and may not be able to properly inform and advise the client. Consular officers should ensure that, in non-English speaking countries, the arrested person has timely access to an English speaking lawyer and/or another English speaking advisor. 5.5 The practice of some police forces, however well-intentioned, of using one of their own English-speaking colleagues to provide interpretation during interrogation is unsatisfactory, since the interpreter cannot be regarded as impartial or even on the side of ensuring the arrested person’s rights. In many countries, interpreters for accused persons are provided only at the court stage, and sometimes not even then. Often, such court-appointed interpreters will only summarise proceedings for the defendant, who therefore may have no adequate idea of what is going on. It can be the case that English-speaking lawyers hired privately, even on the recommendation of consular officials, may charge fees. While the mission has a responsibility to ensure that the detained citizen has rights to legal representation, consular representatives cannot provide funds for legal representation where the state concerned does not have a system of legal aid. As far as the Department of Foreign Affairs is aware this is the position of all other consular services also. 5.6 In addition to ensuring rights which are legal entitlements of the arrested person, Irish Embassies and Consular offices usually provide additional practical assistance to persons detained overseas. They can: —Provide a list of English-speaking lawyers —Give general information about the legal and criminal prosecution system —Visit prisoners from time to time where this is possible, depending on distance and remoteness — Give information about the services of the ICPO and any other NGOs involved in prisoner support services — Act as a channel of communication between the prisoner and family

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— Where possible, the mission may arrange the occasional provision of newspapers or other reading material in English —Where allowed by the prison authorities, they may convey small sums of money from prisoners’ families for lodging in the prisoner’s account in the prison. This is usually done upon request and a deposit from the prisoner or from the family. 5.7 The outreach of the Department of Foreign Affairs in providing information and advice to prisoners abroad is generally regarded as satisfactory and is up to international standards. The Department of Foreign Affairs is ready to respond to any requests for information about prison and legal systems overseas and to consider any requests for practical assistance from families sympathetically. Missions are ready to make arrangements for prison visits for families and to help them on arrival with advice and guidance on local conditions or the welfare of the prisoner, including providing ICPO information leaflets as available. 5.8 However, there is a need to put in place a standardised set of procedures in dealing with prisoners abroad which would be overseen by a unit within the Consular Division in the Department of Foreign Affairs. As indicated in Chapter 3, such a unit would maintain a database of all Irish prisoners abroad and provide Irish Embassies and Consulates with guidance on how to look after the interests of prisoners. It should also publish material on the internet and in booklet form setting out in clear language what citizens can and cannot expect from their Government. Service Provided by Mission of other EU Countries 5.9 Amongst the organisations with which discussions were held in Britain as part of this study, was the British overseas prisoners’ welfare organisation, Prisoners Abroad. They provided an account of the services available from them and from the British Government to British prisoners overseas. Prisoners Abroad works closely with the British Foreign and Commonwealth Office (FCO) and its missions abroad. The Foreign Office provides the organisation with information about prisoners. Prisoners can then choose whether they wish to ‘sign up’ for contact and assistance. 5.10 The FCO, as well as other donors, provides limited funds through Prisoners Abroad to certain prisoners and their families in need. Small cash grants can be provided for prisoners outside western countries, for food supplements etc. There is an emergency fund available for once-off medical treatment. Practical Relief up to £50 once a year will be considered on application. According to Prisoners Abroad, any subventions are very modest in size and are always means tested bearing in mind which families are in receipt of benefits and which have other sources of income. 5.11 In Britain FCO funds can be used for example to pay for translations of documents for prisoners or for magazine subscriptions. Small grants of up to £40 to subsidise travel to visit relatives imprisoned abroad are available for families which are in receipt of welfare benefits. There is close cooperation with the Foreign Office and all funds expended abroad are used through the agency of the local British mission, since Prisoners Abroad has no overseas staff (they have 16 staff based in Britain). The British Government, through the Foreign Office, provides 10% of BPO funding, while the National Offender Management Service (NOMS) provides another 10–15%.

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Apart from these small grants, there is no regular financial provision for British prisoners from the British authorities. 5.12 The authorities in Spain can provide up to €3100 per month to their citizens detained abroad, but only in exceptional cases. 5.13 Norwegian citizens, if in financial difficulty, can apply for Norwegian free legal aid to the relevant legal aid authorities in Oslo. An arrested citizen may also be granted an allowance of up to €364 if local conditions necessitate it. 5.14 The USA has a system of loans which can be made available to their detained citizens overseas. 5.15 Canada has provisions for regular financial assistance to prisoners, but exceptional cases are examined with a view to possible, additional exceptional assistance. 5.16 Ireland, as well as Denmark, Germany, Luxembourg, Austria, Italy and Portugal currently provides no direct financial assistance from state resources to their citizens arrested abroad, though the Irish Government provided €212,171 to the ICPO in 2006. 6. other sources of support at home and abroad 6.1 Prisoners generally come from disadvantaged backgrounds. When combined with a criminal conviction, released prisoners often find themselves in a uniquely disadvantaged position in terms of their financial situation and rehabilitation. Prisoners being released from prisons abroad face the immediate risk of extreme poverty which without support can result in them quickly re-offending. 6.2 As early as 1984, the National Economic and Social Forum (NESF) recognised the crucial need for supports for prisoners being released into the community to assist rehabilitation and prevent re-offending. It recommended that ‘improved post-release facilities be provided for prisoners including: improved coordination with social welfare officers so that the released person is not rendered destitute on release’. In 1985, the Whitaker Report on the Penal System recommended financial and other assistance for prisoners on release. 6.3 In its report ‘Re-integration of Prisoners’ (January 2002), the NESF found that support structures were being developed, but too slowly. It stated that post release services and support structures were ‘patchy’ and lacked a national framework. It observed that financial assistance was often not readily available to prisoners on release. The NESF recommended the development of more structured and integrated post release services for prisoners. It also recommended the establishment by the Irish Prison Service of a reintegration group of key interests to devise, monitor and evaluate a prisoner reintegration strategy. It recommended that consideration be given to dedicating a percentage of the overall prison budget to reintegration support services. NESF’s focus was on reintegration of persons leaving Irish prisons, but its findings may be considered relevant to prisoners returning from abroad also. 6.4 In 2003, the Report of the Inspector of Prisons, the Kinlen Report highlighted the fact that offenders may leave prison with little or no money and be forced to wait for

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the dole for two weeks. During this time, homeless prisoners may not have money to pay for basic accommodation. Poverty and other social deprivations are often linked to crime. The Combat Poverty Agency has pointed out that that poverty is one of the largest factors leading to incarceration. According to Combat Poverty figures, 88% of Dublin’s Mountjoy prisoners were unemployed before arrest, 94% were school drop-outs, 70% have an addiction of some sort and 25% have psychiatric disorders. However, prisoners who leave prison in Ireland or who return to Ireland following time spent in prison abroad can apply for the jobseeker’s allowance. While their application for the jobseeker’s allowance is being processed, they can apply for a supplementary welfare allowance payment from the community welfare officer. 6.5 The EGPA and ICPO have highlighted that prisoners returning to Ireland from imprisonment abroad often fall outside the scope of statutory agencies and do not receive the support provided to prisoners who are released in their home country. They may have a critical need for adequate funds to maintain themselves as well as for accommodation. The survey of prisoners’ families, commissioned by the ICPO and carried out by the Centre for Research and Development, found that families of overseas prisoners were concerned about a perceived lack of any post-release support services for their relative on release from prison. In addition, the EGPA has pointed out that, in most European countries, there is little or no statutory support for prisoners returning from abroad. This means that these prisoners being released find themselves excluded from any provision for accommodation, training or employment for exoffenders. The process of rehabilitation is therefore substantially more difficult for them and, as a consequence, even those ex-prisoners who want to find a settled way of life may drift back into a life of crime because they feel they have no other option. 6.6 Finding accommodation on their return to Ireland upon release is a major problem for many Irish prisoners who have served sentences abroad, as Irish authorities are not made aware as a matter of routine, of their arrival. European Prison Rules require that, on release, prisoners are assisted in finding suitable accommodation and work (33.7). There is considerable research evidence to suggest that securing accommodation is the most challenging difficulty for returning prisoners. The 2002 NESF Report recommended that statutory agencies should treat prisoners in need of accommodation as high priority cases. NESF also recommended that prisoners should be provided with immediate means of subsistence and have sufficient means to reach their destination. Whilst the Health Service Executive and the Department of Social and Family Affairs have a role to play in alleviating this problem, the establishment of a hardship fund, administered by the new prisoner unit in the Department of Foreign Affairs, could provide a resettlement grant for prisoners in this regard. 6.7 There are also a range of existing supports, linked to general social services, which are available to Irish prisoners returning home. The National Development Plan 1999 committed nearly 390 million to services for offenders in Ireland, including provision of work and training for prisoners. 6.8 The Department of Social and Family Affairs has produced a very useful and easy-to-understand booklet for prisoners being released, ‘What Now?’ This booklet explains in simple, direct terms what financial and other supports are available at time of release. This includes details of how to apply for unemployment assistance and

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other welfare payments, as well as crucial information such as how to find emergency accommodation. It points out that there are more than 70 community-based projects that can help the released prisoner with accommodation, training, employment, addiction treatment and specialised services for ex-offenders. There are also contact numbers for the Probation Service to ensure that advice and assistance are available during working hours. Amongst the useful information provided, the booklet highlights the fact that prisoners can make application to put their names on waiting lists for local authority housing up to nine months before the expected date of release. 6.9 County Laois Citizens’ Information Centre has also produced a very useful booklet for prisoners being released—’The Road Back’. As well as listing sources of financial and other supports, it gives contact numbers and addresses for use in securing emergency accommodation. 6.10 Aside from the question of providing supports to returning prisoners, there is also the issue of supervision of certain ex-offenders. Some may pose a continuing risk to the public and are likely to re-offend. Supervision and monitoring of persons released from prison in Ireland only occurs in certain instances. These include persons sentenced to life imprisonment who have been granted early release and sex offenders who have been made subject by the courts to post release supervision orders. There is no legal framework for the supervision in Ireland of those on licence from prison sentences in the United Kingdom or elsewhere. In a very small number of cases agreement was reached between the Irish and the United Kingdom authorities to voluntarily supervise life sentenced prisoners who have been granted parole. However, serious difficulties have arisen in some of these cases and the Department of Justice, Equality and Law Reform would have strong reservations about extending this any further without a proper legislative basis. 6.11 In the case of prisoners being released in overseas jurisdictions who return to Ireland, the Probation Service is likely to have no knowledge of them, their material, medical and psychiatric or counselling needs or their potential for reoffending. Both the welfare of the prisoner and the public are at stake when a prisoner returns from abroad. There is often a crucial lack of knowledge with regard to basic services such as the following: —Accommodation other than homeless hostels available —Information support and advice —Advice to families on how to access support services 6.12 The welfare of ex-prisoners who return to Ireland does not come within the Departmental responsibility of Foreign Affairs. The ICPO and other NGOs should initiate a discussion with the Departments of Social and Family Affairs and the Health Service Executive about facilitating re-entry into Irish society for this group. The support systems which are available to prisoners on release from prisons in this State should also be available to those returning to Ireland having served sentences abroad.

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7. transfer and deportation of prisoners to ireland Transfers 7.1 The Council of Europe Convention on the Transfer of Sentenced Persons, otherwise known as the Strasbourg Convention (please see Appendices F, G & H), was ratified by Ireland following the passing of the Transfer of Sentenced Person Act, 1995. This Act provides the legislative basis for the operation of the Convention between Ireland and other parties to the Convention. It is open to States outside of Europe and there are over fifty states operating the Convention at present.16 The Department of Justice, Equality and Law Reform has responsibility for the operation of the Convention in Ireland. 7.2 The Strasbourg Convention’s main purpose is humanitarian in nature. It endeavours to overcome the difficulties posed for prisoners serving sentences in foreign jurisdictions, such as cultural and language difficulties and absence of contact with relatives. It is established Government policy that, wherever possible, prisoners should be permitted to serve their sentences close to their families. 7.3 To this end, the Strasbourg Convention provides a procedural framework for the repatriation of prisoners to serve the rest of their sentences. It sets out six conditions which must be satisfied if the transfer is to proceed. These are as follows: —The offender seeking a transfer is regarded as a national of the State to which the transfer is sought (the administering State); —The order or judgement under which the sentenced person was sentenced is final; —There is at the time of the receipt of the request for transfer, at least six months of sentence remaining to be served; —The act or omission constituting the offence would also constitute an offence in the administering State; —The sentenced person consents to the transfer; and —Both States consent to the transfer. 7.4 Under the terms of the Convention, a prisoner may express interest in being transferred either to the local prison authorities or to the authorities in the country to which he/she wishes to be transferred. The authorities in the sentencing State can request the Minister for Justice, Equality and Law Reform in writing to consent to the transfer into Ireland of an Irish citizen on whom a sentence has been imposed in that State so that he/she may serve the sentence, or remainder thereof, in Ireland. Irish prisoners, who wish to apply to the Irish authorities for a transfer to Ireland, can write to the Minister for Justice, Equality and Law Reform, 94 St Stephen’s Green, Dublin 2. Enquiries about the status of applications should be directed to the Prisons Policy Section of the Department of Justice, Equality and Law Reform. 7.5 Due to the detailed process of information exchange and the large volume of documentation involved in ensuring the above conditions are met, the transfer of a 16 Report by the Minister for Justice, Equality & Law Reform, Mr Michael McDowell, TD, to the Houses of the Oireachtas on the Operation of The Transfer of Sentenced Persons Acts, 1995 and 1997 for the period 1 January, 2005–31 December, 2005 (Appendix I)

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prisoner back to Ireland can be extremely time-consuming. This process is necessary to ensure all parties concerned (offender, sentencing State and administering State) are fully aware of the legal consequences of a transfer. 7.6 In total, one hundred and twenty eight have now transferred to Ireland from abroad since the Transfer of Sentenced Persons Act came into operation on 1st November, 1995.17 This is from a total of two hundred and ninety one applications received in the same period. Table A—Prisoner Transfers to Ireland, Applications Received 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Total UK USA Canada Hong Kong Greece Isle of Man Spain Italy Panama Holland Japan Australia Trinidad & Tobago

8

Total

8

44 2 1

41 2

33

21

31

3

1 1

26

20

14 1

11 1

17

13

1 1 1

1 2 1 1

1 1

1 1 1

1 48

45

36

21

33

26

23

16

279 6 1 1 1 3 6 1 2 2 1 1

1 15

20

14

305

Table A above shows a breakdown of these applications by jurisdiction and year of application. Table B—Completed Prisoner Transfers to Ireland 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 Total UK USA Canada Hong Kong Isle of Man Panama Spain

8

Total

8

11 2 1 1

34 1

11

10

4

8

1

15

35

12

8

1 1 10

4

8

10

5 1

5

13

1

117 4 1 1 2 2 1

14

128

1 7

5

7.7 Table B above illustrates the breakdown for the number of transfers successfully completed since the Act came into force. 17 Ibid, page 4—Department of Justice, Equality & Law Reform figures. (Sixty-three prisoners have transferred out of Ireland since the Act came into operation.)

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7.8 The discrepancy between the figures is due to several reasons, such as: applications at various stage of consideration (27), prisoners withdrawing their applications, prisoners being released by the sentencing State in the course of having their applications processed, applications being refused (primarily due to applicants having insufficient ties in Ireland to justify a transfer under the Convention) or sentencing state was not a party to the Strasbourg Convention. 7.9 The repatriation of prisoners carries benefits for all parties concerned. The prisoner is allowed to serve the sentence close to family members and in a familiar environment thereby aiding the prisoner’s social rehabilitation and reintegration into the community; the financial burden on both the prisoner and his/her family is lessened; outward transfer may relieve pressure on overcrowding in its prison system. It is generally recognised also that the average cost of incarcerating foreign national prisoners is usually far higher than that of imprisoning a citizen national within his/her own state. 7.10 Not all prisoners are eligible for transfer under the Strasbourg Convention. Examples include: —Applicants having insufficient ties in Ireland to justify a transfer under the Convention —If the sentencing state is not a party to the Strasbourg Convention. —The nature of the offence —Transfer is usually not possible if the equivalent sentence in the home country is shorter than in the country of original detention18 —Prisoners with psychiatric problems detained under mental health legislation are often excluded from the arrangements —Prisoners serving indeterminate sentences are often also excluded. This has been an obstacle in USA —Prisoners serving life sentences, eg Britain, may be excluded if they are obliged to serve the full term of their ‘licence’ in the country of conviction. 7.11 There are however, disadvantages to the transfer system which prisoner should be made aware of: —In some territories, heavy customs fines are imposed on some prisoners and no transfers are allowed until these are paid. This is particularly an issue for prisoners in France, where prisoners convicted of trafficking drugs face customs fines in addition to their custodial sentences. Many prisoners do not even submit applications to transfer as they know there is no prospect of being able to pay the fines. —In the US, differing sentencing practices may add to the complications. Some States habitually impose heavy sentences with mandatory minimum terms and this makes it difficult to reach agreement with the authorities in Ireland on the future prison regime of the applicant. —Even where prisoners can qualify for transfer, it is not always clear to them whether transferring would be to their advantage. Others who do decide to apply for transfer may end up being disappointed and frustrated by delays and difficulties encountered. 18 This does not arise in respect of applications to transfer to Ireland. The Transfer of Sentenced Persons (Amendment) Act, 1997 provided for the transfer into the State of persons who have been sentenced to periods of imprisonment greater than the maximum penalties allowed under Irish law for similar offences.

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—The amount of time to be spent in prison may be increased by transfer to Ireland. For example, remission of sentence is more generous in England than in Ireland. The English system allows remission of 1/2 of sentences, whereas in Ireland the statutory rate of remission is 1/4 of sentence. 7.12 It is important to ensure that the prisoner has accurate information about all of the implications of transferring. Therefore, prisoners are fully informed, in writing, of the consequences on the enforcement of their sentence before their consent is given. In each case, the information provided to the prisoner is exhibited to the sworn affidavit made to the High Court for the necessary warrant of transfer. In relation to transfers from the United Kingdom, applicants are informed that given the different rates of remission in Ireland and the United Kingdom, their final release date in Ireland will extend beyond their date in the United Kingdom. A detailed estimate of a release date in Ireland based on a ‘notional’ date of transfer is also provided before the prisoner consents (unlike other countries). Information in respect of temporary release is also provided and prisoners are clearly advised that there can be no guarantee that the Minister would see fit to authorise any form of temporary release in their case. Copies of the Transfer of Sentenced Persons Acts, 1995 and 1997 and an explanatory leaflet on its operation are provided to the prisoner, as well as an information booklet on the Parole Board for those prisoners serving longer sentences. If the prisoner has outstanding charges in Ireland, he or she is advised of these matters before consent is given. Compulsory Transfers 7.13 The Strasbourg Convention has an additional, optional protocol, which includes provision for the transfer of prisoners to their home countries without their consent. Some parties to the convention have ratified this protocol. This additional protocol contains two substantive provisions, ie Articles 2 and 3. Article 2 of the protocol provides that where a person has fled from a sentencing State, without either serving or completing a sentence, and has returned to his/her State of nationality, the sentencing State may request the State of nationality to enforce the sentence, or the remainder thereof. Article 3 deals with people who are subject to an expulsion or deportation order at the end of their sentence. The Article provides that such persons may be transferred earlier without their consent, from the sentencing State to their State of nationality for the purpose of completing their sentence. 7.14 Whilst Ireland has ratified the additional protocol, the Government has decided not to give effect to Article 3. It considers the transfer of a prisoner without his/her consent does not create the best circumstances for successful rehabilitation. There have been examples of Irish citizens who have lived most, if not all of their lives in another country and are then subject to deportation to Ireland from that country at the end of their sentence. They are then exiled in Ireland with little or no family or friends and without their familiar support network. Therefore, at the time of ratification.19 Ireland declared that it would not take over the execution of sentence in the circumstances described in Article 3. This was a specific concern of prisoner support 19

13 December 2006.

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groups, such as AIRE and the European Group for Prisoners Abroad. However, there is an EU Framework Agreement on prisoner transfers under consideration under which Ireland would be expected to comply with compulsory transfers. Detention of Prisoners Beyond their Sentences 7.15 The recent controversy in Britain concerning the non-deportation of over a thousand foreign prisoners at the end of their sentences resulted in a much stricter policy being introduced by the British Government. European Prison Rules provide that ‘all prisoners shall be released without delay when their commitment orders expire, or when a court or other authority orders their release’ (33.1). The British Government’s new approach allowed for prisoners sentenced to two or more years to be automatically considered for deportation. However, as described in 4.10, separate provisions are being made by the British authorities for Irish prisoners, given the close ties between our two countries. This Agreement ensures that Irish prisoners will not be subject to automatic deportation during or after their sentence. Detention of Prisoners beyond their ‘Tariff’ 7.16 It is understood that some Irish prisoners are detained in prison in Britain beyond the dates of the ‘tariff’ set by the courts or other authorities. However, I have been informed by the British Home Office that such continued detention is usually because they deny the crime and consequently refuse rehabilitation training and other measures. The question of the release of these prisoners is an issue which is also relevant for the British prison system in general and is not confined to Irish prisoners. The safety of the public is also a key consideration with regard to detention over the tariff. In addition, as indicated above, transfers of foreign prisoners to their home countries are usually only available in the case of fixed sentences of more than two years remaining to be served. Supervision of Prisoners on Licence 7.17 The ICPO has pointed out that prisoners released on licence are obliged to remain in Britain until their licence order expires. Those on life licences may not ever return to live in Ireland. This can be gravely disruptive for released prisoners and their families. ICPO recommended that the Department of Foreign Affairs, Department of Justice, Equality and Law Reform and the Irish Embassy in London should engage with the Probation Service authorities in Britain to highlight this and to look at ways of advancing this issue. 7.18 Despite its limitations, the Strasbourg Convention has benefited many families of Irish prisoners overseas and I believe it is a very valuable instrument which can greatly alleviate the burden, both financial and emotional, on prisoners and their families during the period of detention. There has been criticism of the long delays which frequently occur in such transfers. The Minister for Justice, Equality and Law Reform must, for inward transfers, obtain a warrant from the High Court authorising a prisoner’s continued detention in this country under the Irish Constitution. Such a procedure is not required in some of the other countries which are signatories to the Convention and this necessity unfortunately, does cause delays in processing

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applications for transfers into this country. The Department Justice, Equality and Law Reform has engaged in an ongoing basis with the State’s Legal Officers and others in an effort to minimise delays in operating the Convention. However, a legal framework is in place in Ireland based on the Convention and it must be adhered to in processing all applications. 8. Conclusion 8.1 The Government should ensure that Ireland follow best international practice in relation to its support for Irish prisoners overseas. 8.2 There is a need for the Department of Foreign Affairs to improve its records of prisoners abroad. It needs to devote the necessary resources to establish a comprehensive database of Irish prisoners. It also needs to adopt a policy whereby every Irish prisoner is entitled, on request, to a consular visit at least once a year and more often in more difficult environments. 8.3 Whilst it is evident from this study that prison standards and the approach to prisoner welfare has evolved considerably since the UN Standard Minimum Rules for the Treatment of Prisoners, there is still a great need to address the situation of Irish prisoners abroad and to ensure that this vulnerable section of the Irish Nation are protected. Under the UN Rules, Irish prisoners abroad are Irish citizens who are deprived of their liberty. Otherwise their rights remain intact and it is the responsibility of the State to ensure these rights are protected. 8.4 It is also evident from this study that the detention pattern of Irish citizens abroad is changing. With the proliferation of travel links and growing economic wealth, Irish citizens are travelling to and being detained in more distant regions of the world, where the UN Rules may not be fully adhered to, or where the distance is a monumental burden on families. Special attention needs to be paid to prisoners incarcerated in developing countries, where conditions are greatly affected by the current political, economic and social situation in that country. 8.5 Ireland should take a lead in promoting greater and more effective international cooperation, especially at EU level, in protecting prisoners’ welfare throughout the world. 8.6 The establishment of a dedicated prisoner unit within the Department of Foreign Affairs would allow for a more coherent approach to the welfare of Irish prisoners abroad. It would work in close partnership with concerned NGOs, especially the ICPO, in order to coordinate activities, ensure the best use of available resources and keep up to date on the latest international developments. This would provide Irish prisoners abroad with the best chance for rehabilitation into society and help lessen stress on their families.

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APPENDICES A: International Agreements Relating to Penal Policy and/or Prisoner Protection B: Population in prison by nationality and sex in England and Wales, September 2006, H M Prison Service London [Omitted] C: Vienna Convention on Consular Relations (1963) see http://untreaty.un.org/ilc/ texts/instruments/english/conventions/9_2_1963.pdf D: UN Standard Minimum Rules for the Treatment of Prisoners Office of the High Commissioner for Human Rights see http://www.unhchr.ch/html/menu3/b/h_comp34.htm E: European Prison Rules see http://www.coe.int/t/e/legal_affairs/legal_co-operation/ fight_against_sexual_exploitation_of_children/1_pc-es/Rec_2006_2E%20on%20the% 20European%20Prison%20Rules.pdf F: Council of Europe Convention on Transfer of Sentenced Persons (Strasbourg Convention) see http://conventions.coe.int/Treaty/en/Treaties/Html/112.htm. G: Countries party to the Strasbourg Convention [Omitted] H: Additional Protocol to the European Convention on the Transfer of Sentenced Persons, 2006 European Treaty Series—No 167 [Omitted] I: Report by the Minister for Justice, Equality & Law Reform, Mr Michael McDowell, TD, to the Houses of the Oireachtas on the Operation of The Transfer of Sentenced Persons Acts, 1995 and 1997 for the period 1 January, 2005–31 December, 2005 see http://www.justice.ie/80256E010039C5AF/vWeb/flJUSQ6PEFSGen/$File/TSPAnnlRpt2005.pdf J: Submission from the Irish Commission for Prisoners Overseas A: INTERNATIONAL AGREEMENTS RELATING TO PENAL POLICY AND/OR PRISONER PROTECTION —Standard Minimum Rules for the Treatment of Prisoners —Basic Principles for the Treatment of Prisoners —Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment —United Nations Rules for the Protection of Juveniles Deprived of the Liberty —Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment —Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment —Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment —Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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—Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment —Safeguards guaranteeing protection of the rights of those facing the death penalty —Code of Conduct for Law Enforcement Officials —Basic Principles on the Use of Force and Firearms by Law Enforcement Officials —Basic Principles on the Role of Lawyers —Guidelines on the Role of Prosecutors —United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) —United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) —United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) —Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power —Basic Principles on the Independence of the Judiciary —Model Treaty on the Transfer of Proceedings in Criminal Matters —Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released —Declaration on the Protection of All Persons from Enforced Disappearances —Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions Links to these international instruments can be found on the following webpage: http://www.unhchr.ch/html/intlinst.htm J: SUBMISSION FROM THE IRISH COMMISSION FOR PRISONERS OVERSEAS Introduction The ICPO is now in its twenty-first year of service to Irish prisoners and their families. Over that time it has acquired a considerable amount of experience in dealing with the problems faced by prisoners and their families. We welcome this Government research into the plight of Irish prisoners abroad and hope that it will result in the most comprehensive overview of this neglected and needy constituency. We hope too, that in addition to facts and figures, the research will offer an insight into what life is like for those who find themselves in custody far from home. The strength of any such research lies in its findings and recommendations. We would hope that this piece of research would result in specific recommendations for improving the plight of prisoners and their families. To that end we have outlined below those areas of greatest concern to us with suggestions for improvement. Consular Services Speedy initial contact from the Irish Consular Services is vital for Irish citizens arrested and held in custody overseas. As well as making them aware of their rights at

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the time of arrest, Irish citizens in prison overseas report that contact with embassies and consulates greatly adds to their sense of security and well being. Conversely, prisoners report feelings of confusion and isolation when their letters and /or requests for a visit from consular officials are not responded to. ICPO believes that the needs of Irish prisoners overseas and their families should be given greater attention within the Department of Foreign Affairs so that policy from the department facilitates best international practice and standards and concomitantly the outreach from the diplomatic staff will be committed to the needs of both these groups. The needs of foreign nationals in the European Prison System have recently been officially recognised in the EU. On January 11th 2006, the Council of Ministers formally adopted Rule 37 on Foreign Nationals. This is an addition to the European Prison Rules, which form the guidelines for the prison systems in the EU. Recommendation: —Clear guidelines be set down which govern the outreach from the Dept of Foreign Affairs through its embassies and consulates overseas. As far as possible, all requests for visits from Irish nationals in prison overseas are acceded to, particularly for those who are newly imprisoned, those who are in countries with very different systems and those who are vulnerable for whatever reason. A policy is put in place with regard to how often a prisoner can expect a visit from embassy staff. Irish people in overseas prisons to be informed of this policy when they first make contact with the embassy. —Irish people in custody need to be made aware of their rights and receive guidelines re same as soon as possible after they are arrested. —Information on legal and prison systems be readily available. Particular attention given to problematic areas for families, such as booking visits, visiting orders, accumulated visits. —Requests for assistance to embassy staff are acknowledged and replied to within a reasonable time frame. —Taking into account the prisoner’s wishes and issues of confidentiality, every assistance is given to families who wish to know where a family member is imprisoned or who wish to be updated on their wellbeing. —An ICPO information leaflet is given to prisoners and their families when they make initial contact. —Finding a visitor for prisoners far from home and those with special needs is made a priority. Communication Maintaining family relationships during a period of imprisonment is vital for the well being of offenders and their families. In addition, all the evidence suggests that the chances of successful reintegration into society and cessation of crime will depend to a large degree on the quality and frequency of the family contact. However, both prisoners overseas and their families have difficulty in maintaining contact due to distance and expense. Prisoners are not allowed to receive a phone call into prison. Phone charges from a prison in England and Wales to Ireland at 66c/minute are six times what they would cost from a public phone box. Phone calls from other countries

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are generally strictly controlled, with some having little or no access to the phone. For example, in France people can spend up to two years in a remand prison and those prisons do not have phone facilities for prisoners. Prisoners need an income for living expenses such as phone cards, stamps, toiletries, clothes, renting a television, supplementing their diet to a greater or less degree, buying tobacco and in rare cases paying for their cell. The average wage in the UK prisons is around £2.50 per week. In other countries, prisoners may not be allowed to work while they are on remand, or even when they are sentenced because there is no prison work available or because they do not speak the language. In the majority of cases, the cost of providing for the prisoner is borne by the family. In some countries, supplementary food is required to augment inadequate prison food. In most cases, the imprisonment overseas of a family member is a financial burden for families. In addition, travelling overseas to visit a family member can be extremely costly as well as being emotionally demanding and time consuming. Due to these and other factors eg poor health, commitments because of young children, many prisoners receive few, if any, visits from families. Recommendation: —Consideration is given to removing the discretionary element of the Supplementary —Welfare Allowance to the families of prisoners and the extension of this allowance to those on small incomes. —A phone allowance is available to prisoners which would allow them to phone a relative a number of times in the month. —An allowance is made available to families to visit a vulnerable relative in prison overseas more than twice a year. —An allowance is made to Irish citizens in overseas prisons to ensure they can afford the basics, eg food supplements, toiletries, stamps, phone cards, clothes. This is in line with other European countries. (Spanish Government gives an allowance of €3100 a month). —Special provision is made for those with no family support whatsoever. Culturally sensitive practices Many Irish citizens in prison overseas feel they are in an alien environment where they are not understood. This is particularly the case in the UK where, at the very least, Irish prisoners often complain about the lack of awareness of their identity by prison staff. Also, some prisoners, especially travellers, claim to be badly treated by staff. Irish travellers now constitute a distinct ethnic group for the purpose of census-taking in the UK. Recommendation: —That the Department of Foreign Affairs use its influence with the British Home Office and the Prison Service to ensure that Irish nationals in custody are treated as a distinct ethnic group and accorded the same treatment and privileges as others in this category. —That a special effort is made to examine the problems faced by travellers, eg literacy, refusal of bail, non allocation of jobs in the prison and discrimination within the prison system.

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—That the relevant authority liaises with prison regimes and authorities overseas to ensure that Irish people are assisted in maintaining their cultural identity and family ties as per the recommendations in the European Prison Rules (38.2). Supervised release at time of serious illness On occasion, Irish citizens in prison in the UK have been refused permission to visit a seriously ill family member in Ireland. There appears to be no provision to allow this. Our information is that in similar circumstances, English prisoners in the Irish prison system have been facilitated. The European Arrest Warrant gives backup for this provision. Recommendation: — That the Department of Foreign Affairs would engage with the Department of Justice and the UK prison service on this matter to see if guidelines could be drawn up that would facilitate supervised release at time of serious illness or death of a family member. — That such an arrangement is considered for prisoners in other countries. Going to trial Free legal aid is not available or is of a very poor quality in some countries. Families often run up considerable debts because of this. Prisoners are not always well served by their legal teams. Recommendation: —There is a need for the Department of Foreign Affairs to make sure that countries live up to their obligations to provide adequate resources for free legal aid. —Irish citizens held in custody and their families have available clear and concise information around the legal system, difficulties and entitlements. —Good quality translation services are available. Supervision of prisoners on licence Prisoners released on licence in the UK must remain in the UK until their licence order expires. Those on life licences may not ever return to live in Ireland. This can be gravely disruptive for released prisoners and their families. Recommendation: —The Department of Foreign Affairs would engage with Probation Service authorities in the UK and here to highlight this and to look at ways of advancing this issue at Council of Europe or bilateral level. Deportation Irish citizens in prison in the UK are increasingly being issued with threatening letters of deportation. They have always been deported from the US and are generally deported from other countries in Europe. In the case of the UK, many are afraid to fight these orders in case they will not be released at the due date. Many who are

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deported to Ireland have lived virtually all of their lives in the country of imprisonment and consequently are homeless when they arrive in Ireland. They are also deported without any prison money which means that they may arrive in Ireland without even the price of a phone call! Deportation also needs to be examined in the light of EU legislation and in view of the fact that more Irish people are travelling overseas for work and leisure. Recommendation: —The Irish authorities note and take appropriate action to ensure that Irish nationals are not deported without just cause and are given every reasonable chance to appeal. —The Irish authorities look at EU legislation with a view to ascertaining the legality of deporting Irish citizens from other EU countries. —That Irish citizens being deported are given the opportunity to make plans with the appropriate authorities so as to assist them with resettlement in Ireland. Post release Services All newly released prisoners face problems associated with reintegration into society. Those who are homeless face the most difficulties. While the Homeless Person’s Unit in Dublin has made great strides in ensuring that people will not have to sleep on the streets, people returning from prison overseas report that the homeless hostels are not suitable for those who wish to leave the drink and drug culture behind, or those who wish to have some personal space. Certain categories of prisoner are excluded from the Probation funded hostels such as Priorswood House. Irish prisoners who choose to remain in the UK have many of the same concerns around rehabilitation. Recommendation: —Other forms of accommodation besides the homeless hostels are made available to returning homeless Irish citizens returning from prison overseas until they can get established. —Of the above group, appropriate accommodation is sourced for sex offenders, arsonists and those with special needs. —Information, support and advice are made readily available for newly returned Irish citizens returning from prison overseas. —Likewise, their families know where to access support services. —Integrated support services are in place for those who are known to be vulnerable prior to their release. Repatriation Under the terms of the Council of Europe Transfer of Sentenced Prisoners Act 95/97, Irish prisoners overseas, once they have been sentenced and have no appeal outstanding, are entitled to apply for repatriation so that they may be permitted to serve the remainder of their prison sentence in this country. This has a dual humanitarian and rehabilitative goal. Repatriation has been of great assistance to many Irish nationals and their families and even to know that they can apply for repatriation is a morale booster for many prisoners. Problems we have noted are: lengthy procedural

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processes, which mean that some prisoners spend over three years waiting for the process to be completed. In addition, prisoners in countries which are not signatories to the Convention are not eligible for repatriation. This can mean that prisoners have to serve out their sentence in very distant and sometimes difficult circumstances. Recommendation: —The department of Foreign Affairs would establish bilateral treaties with countries in South and Central America and other countries as deemed necessary, to facilitate repatriation of Irish nationals. —With regard to procedural delays, systems are reviewed to ensure speedy processing of applications. —As per Rule 37 of the European Prison Rules, enacted by the EU on January 11th 2006, Irish prisoners are made aware of their right to apply for repatriation when they are imprisoned overseas. —Systems are put in place which will enable speedy processing of special cases, eg where very young or vulnerable people are in prison overseas. Education While the European Prison Rules recommend that allocation to education should be of comparable status as allocation to work, in practice, many prisoners complain of not having access to educational courses, or of only having access to courses of limited or no formal educational value, such as those which address offending behaviour. In addition, prisoners receive no payment for educational courses. This is a serious deterrent to undertaking an educational course. Prisoners in non-English speaking countries often report that language barriers prevent them from taking part in education. Recommendation: —Access and provision of educational courses to Irish prisoners overseas be monitored and addressed. —Particular attention is paid to those who are illiterate and/or those who are young and have very low educational levels. —Distance learning courses are made available to prisoners who would not otherwise be able to partake in educational courses. —Prisoners are not penalised for taking part in an educational course by not being paid. Health In the UK a disturbingly high number of Irish prisoners as well as having learning difficulties, have health problems around AIDS, alcohol and drug addiction. Pilot research schemes in recent years have shown that there is a high incidence of mental health problems with Irish prisoners. The treatment they receive for these conditions varies considerably from prison to prison, and may be non-existent in other countries. Many prisoners with serious mental health problems are in custody mainly because there is nowhere else for them to be incarcerated. People with chronic or acute illnesses or those who suffer an injury are especially vulnerable in prison overseas. A minority of prisoners have complained of serious

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shortfalls in the care extended to them. In some cases neglect of an existing condition or injury has been alleged. In other cases, it takes the form of not having adequate medication or dental treatment available and the prisoner having to make arrangements independently where it is possible. In parts of Central and South America and in parts of the Far East, prisoners have reported that the food is unpalatable or of poor quality and in order to stay healthy, they need to supplement their diet. Reports of food quality and quantity differ in other parts of the world. Finally, some prisoners have reported 23 hour lock-up because of staff shortages or other reasons within the prison. This is not specific to any particular country. Recommendation: —Attention is paid to the food and the general prison regime, to include time out of cell, exercise facilities etc., to ensure that it is at least adequate to maintain good health. —Good quality medical and dental treatment and aftercare is afforded to Irish citizens in overseas prisons Particular attention is paid to those with mental health problems to ensure that they are getting the care they need. —Irish citizens in overseas prisons or their families have a forum where they can bring their concerns. —Systems are put in place so that referral to addiction centres can take place from an overseas prison and the cost of this to be paid for by the appropriate local authority. Prisoners serving past their tariff dates/elderly prisoners ICPO is concerned at the number of people serving very lengthy sentences in England and Wales who appear to make little or no progress in the prison system. A number of these are quite elderly and have served between ten and twenty years beyond their tariff. These people are virtually ‘lost’ in the system and have become so institutionalised as to be beyond rehabilitation. Some have been turned down for repatriation because they would not normally be resident in Ireland, or have little support in Ireland. We believe that this interpretation of the legislation around repatriation unfairly discriminates against those who have little or no family support either in England or Ireland, but who would prefer to spend their declining years in prison in their own country. Recommendation: —Prisoners serving past their tariff are monitored and the reason(s) found why there has been no progress to release on licence. Appropriate responses can then be made. —In the case of those ‘lifers’ who have served well beyond their tariff, that pressure is put on the Parole Board in the UK and the relevant bodies abroad to examine the special problems faced by elderly people in prison with a view to rehabilitation. —Supported accommodation, taking account of these prisoners, is put in place both in the UK and in Ireland. —The possibility of repatriation or return to Ireland is investigated.

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Miscarriage of justice cases/Human rights A number of people in the prison system in the UK and overseas allege that they are the victims of a miscarriage of justice and that they should not be in prison. In some cases they make little progress within the prison system because they do not engage with the system. In other cases, people allege that their human rights are being breached, either because of the prison conditions or because they are being held against their will in a mental institution. Recommendation: —These cases are monitored by the Irish authorities. In the UK, their status with reference to the Criminal Cases Review Commission is ascertained. —Those Irish citizens in overseas prisons in other parts of the world have access to an independent body which can give legal assistance in problematic cases. —Since the sentence that has been handed down forms the basis of the sentence that is to be served back in Ireland, that Irish citizens who wish to apply for repatriation have recourse to the above body to ensure before they proceed that the sentence they have been handed down is fair and equitable. —That the Irish authorities have a person/unit in their headquarters in Dublin where expert advice can be sought on a range of human rights issues. —In the case of Irish citizens detained against their will in mental health institutions, that their cases are examined and appropriate steps taken to monitor their situation. Conclusion These are the issues of greatest concern to us at present and which we would like to see addressed by the Government Research Project. This project offers a unique opportunity to open a window into the world of Irish prisoners abroad, their problems and anxieties, as well as the difficulties faced by their families. Research on this scale does not happen very often, so it is imperative that maximum use be made of this opportunity. This research could be very important in providing Consular bodies, the ICPO as well as other agencies and individuals, with a template of action for the future. At very least, it must result in increased efforts to improve the plight of Irish prisoners and their families, a constituency which the ICPO has been privileged to serve for over two decades.

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Irish Treaty Series—2007

The Legal Division of the Department of Foreign Affairs publishes international agreements to which the Republic of Ireland becomes a party in the Irish Treaty Series. The Irish Treaty Series is available at: www.dfa.ie; and has a searchable database. Treaties in the Series, dating back to 1930, are also available through the Government Publications Sales Office. The following are the titles of those instruments which make up 2007 Treaty Series. Irish Treaty Title of Agreement Series Number No. 1 of 2007

No. 2 of 2007

No. 3 of 2007

No. 4 of 2007

No. 5 of 2007

No. 6 of 2007

Agreement on Social Security between the Government of Ireland and the Government of Australia, done at Dublin on 9 June 2005, notification of completion of requirements for entry into force exchanged on 29 November 2005 and 22 December 2005, entry into force on 1 January 2006. Agreement on Privileges and Immunities of the International Criminal Court, done at New York on 9 September 2002, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 20 November 2006, entered into force with respect to Ireland on 20 December 2006. UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, done at Paris on 20 October 2005, Ireland’s instrument of ratification deposited with the Director General of UNESCO on 22 December 2006, entered into force with respect to Ireland on 18 March 2007. Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Strasbourg on 31 January 1995, signed by Ireland without reservation as to ratification on 21 May 2007, entered into force with respect to Ireland on 1 September 2007. Protocol amending the Convention on the Establishment of a European Police Office (Europol Convention) and the protocol on the privileges and immunities of Europol the members of its organs the deputy directors and the employees of Europol (2002 Protocol), done at Brussels on 28 November 2002, notification of completion of requirements for entry into force on 29 December 2006, entered into force with respect to Ireland on 29 March 2007. Protocol drawn up on the basis of Article 43 (1) of the Convention on the establishment of a European Police Office (Europol Convention) amending that Convention (2003 Protocol), done at Brussels on 27 November 2003, notification of completion of requirements for entry into force on 29 December 2006, entered into force with respect to Ireland on 18 April 2007.

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Irish Treaty Title of Agreement Series Number No. 7 of 2007

No. 8 of 2007

No. 9 of 2007

No. 10 of 2007

No. 11 of 2007

No 12 of 2007

No 13 of 2007

No 14 of 2007

No 15 of 2007

Additional Protocol to the Convention on the Transfer of Sentenced Persons excluding Article 3, done at Strasbourg on 18 December 1997, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 13 December 2006, entered into force with respect to Ireland on 1 April 2007. European Agreement Concerning the International Carriage of Dangerous Goods by Road, done at Geneva on 30 September 1957, Ireland’s instrument of accession deposited with the Secretary General of the United Nations on 12 October 2006, entered into force with respect to Ireland on 12 November 2006. Mutual Recognition of Higher Education Qualifications between the Government of Ireland and the Government of the Peoples Republic of China, done at Beijing on 23 February 2006, entered into force on 23 May 2006. Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland constituted by the Exchange of Letters dated 25 July 2006 and 25 July 2006, entered into force on 25 July 2006. Agreement Establishing the Asian Development Bank, done at Manila on 4 December 1965, Ireland’s instrument of accession deposited with the Director of the Asian Development Bank on 26 June 2006, entered into force with respect to Ireland on 24 July 2006. Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Aircraft Equipment, done at Capetown on 16 November 2001, acceded to by Ireland on 23 August 2005, entered into force with respect to Ireland on 1 March 2006. Convention concerning the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the Convention on the Elimination of Double Taxation in Connection with the Adjustment of Profits of Associated Enterprises, done at Brussels on 21 December 1995, notification of completion of requirements for entry into force on 11 February 2004, entered into force with respect to Ireland on 1 May 2004. Agreement on Mutual Cooperation concerning Adoption between the Socialist Republic of Vietnam and Ireland, done at Hanoi on 23 September 2003, notification of completion of requirements for entry into force on 14 January 2004 and 2 April 2004, entered into force on 2 May 2004. WHO Framework Convention on Tobacco Control, done at Geneva on 21 May 2003, Ireland’s instrument of ratification deposited with the Secretary-General of the United Nations on 7 November 2005, entry into force with respect to Ireland 5 February 2006.

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Irish Treaty Title of Agreement Series Number No 16 of 2007

No 17 of 2007

No 18 of 2007

No 19 of 2007

No 20 of 2007

No 21 of 2007

Euro-Mediterranean Agreement Establishing an Association between the European Community and its Member States of the one part, and the Republic of Lebanon, of the other part, done at Luxembourg on 17 June 2002, notification of completion of requirements for entry into force on 27 January 2003, entry into force on 1 April 2006. Convention on the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, and the Slovak Republic to the Convention on the Elimination of Double Taxation in Connection with the Adjustment of Profits of Associated Enterprises, done at Brussels on 8 December 2004, notification of completion of requirements for entry into force on 24 May 2006, entry into force with respect to Ireland on 1 August 2006. Convention for the Unification of Certain Rules for International Carriage by Air, done at Montréal on 28 May 1999, Ireland’s instrument of ratification deposited with the International Civil Aviation Organisation on 29 April 2004, entered into force with respect to Ireland on 28 June 2004. Agreement between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland relating to the transmission of natural Gas by a Second Pipeline between Ireland and the United Kingdom of Great Britain and Northern Ireland and through a connection to the Isle of Man, done at Gormanstown, Co Meath on 24 September 2004, exchange of letters of notification of requirements for entry into force on 30 May 2005 and 22 January 2007, entry into force on 22 January 2007. Agreement Between the Government of Ireland and the Government of the Republic of Bulgaria on Co-operation in Combating Illicit Trafficking in Drugs and Precursors, Money Laundering, Organised Crime, Trafficking in Persons, Terrorism and Other Serious Crime, done at Dublin on 31 January 2002, notification of completion of requirements for entry into force on 5 June 2003 and 13 January 2006, entry into force 12 February 2006. Convention Between the Government of Ireland and the Government of Canada for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains, done at Ottawa on 8 October 2003, notification of completion of requirements for entry into force on 9 December 2004 and 12 April 2005, entry into force on 12 April 2005.

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Irish Treaty Title of Agreement Series Number No 22 of 2007

No. 23 of 2007

No. 24 of 2007

No. 25 of 2007

No. 26 of 2007

No. 27 of 2007

No. 28 of 2007

No. 29 of 2007

Agreement between the Government of Ireland and the Government of the Republic of Cyprus on Co-operation in Combating Illicit Drug Trafficking, Money Laundering, Organised Crime, Trafficking in Persons, Terrorism and Other Serious Crime, done at Dublin on 8 March 2002, notification of completion of requirements for entry into force exchanged on 10 January 2003 and 24 February 2006, entry into force on 23 March 2006. European Social Charter (revised), done at Strasbourg 3 May 1996, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 4 November 2000, entered into force on 1 January 2001. Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, done at Strasbourg on 9 November 1995, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 4 November 2000, entered into force on 1 January 2001. Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part and the Hashemite Kingdom of Jordan of the other part, done at Brussels on 24 November 1997, notification for the completion of requirements for entry into force on 8 November 2000, entered into force on 1 May 2002. Agreement with the Government of the Republic of Bulgaria regarding the Readmission of their own Citizens and Third Country Citizens Illegally Residing in the Territories of their Respective States, done at Dublin on 31 January 2002, notification of the completion of requirements for entry into force exchanged on 8 July 2002 and 7 July 2003, entered into force on 5 October 2003. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, done at Vienna 5 September 1997, Ireland’s instrument of ratification deposited with the International Atomic Energy Agency on 20 March 2001, entered into force on 18 June 2001. Agreement on Provisional Application between certain Member States of the Convention drawn up on the basis of Article K.3 of the Treaty on the European Union, on the Use of Information Technology for Customs Purposes, done at Brussels on 26 July 1995, notification of completion of requirements for entry into force on 27 March 2002, entered into force 1 June 2002. Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Washington on 3 March 1973, as amended by an extraordinary meeting of the Conference of the Parties in Bonn on 22 June 1979, Ireland’s instrument of ratification deposited with the Swiss Government on 8 January 2002, entered into force with respect to Ireland on 8 April 2002.

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Irish Treaty Title of Agreement Series Number No. 30 of 2007

No. 31 of 2007

No. 32 of 2007

No. 33 of 2007

No. 34 of 2007

No. 35 of 2007

No. 36 of 2007 No. 37 of 2007

Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, done at Luxembourg on 21 June 1999, notification of completion of requirements for entry into force on 3 December 2001, entry into force on 1 June 2002. Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and Certain Related Acts, done at Nice on 26 February 2001, notification of completion of requirements for entry into force on 18 December 2002, entered into force on 1 February 2003. Convention between the Government of Ireland and The Government of the Republic of India for the avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains, done at New Delhi on 6 November 2000, notification of the completion of the requirements for entry into force exchanged on 9 November 2000 and 27 November 2001, entered into force on 1 January 2002. Convention between Ireland and the Kingdom of Norway for the avoidance of Double Taxation and the prevention of Fiscal Evasion with respect to Taxes on Income and Capital, done at Dublin on 22 November 2000, notification of completion of requirements for entry into force exchanged on 22 December 2000 and 27 November 2001, entered into force on 28 November 2001. Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, done at Luxembourg on 4 April 2001, notification of completion of requirements for entry into force on 6 May 2002, entered into force on 1 April 2004. Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part and the Arab Republic of Egypt, of the other part, done at Luxembourg on 25 June 2001, notification of completion of requirements for entry into force on 27 January 2003, entered into force on 1 June 2004. Agreement establishing the International organisation of Vine and Wine, done at Paris on 3 April 2001, acceded to by Ireland on 3 June 2003, entry into force with respect to Ireland 2 June 2004. Agreement between the Government of Ireland and the Government of the Republic of Croatia for the avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Incomes and on Capital Gains, done at Zagreb on 21 June 2002, notification of completion of requirements for entry into force exchanged on 9 December 2002 and 25 October 2003, entered into force on 26 October 2003.

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Irish Treaty Title of Agreement Series Number No. 38 of 2007

No. 39 of 2007

No. 40 of 2007

No. 41 of 2007

No. 42 of 2007

No. 43 of 2007

No. 44 of 2007

No. 45 of 2007 No. 46 of 2007

Agreement between the Government of Ireland and the Government of the Republic of Slovenia for the avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Incomes and Capital Gains, done at Ljubljana on 12 March 2002, notification of completion of requirements for entry into force exchanged on 18 November 2002 and 9 December 2002, entered into force on 11 December 2002. Protocol of Amendment to the International Convention on the Simplification and Harmonisation of Customs Procedures, done at Brussels on 26 June 1999, acceded to by Ireland on 30 April 2004, entered into force with respect to Ireland on 30 April 2004. Agreement Establishing the Agency for International Trade Information and Co-operation as an Intergovernmental Organisation Agreement, done at Geneva on 9 December 2002, acceded to by Ireland on 13 February 2004, entered into force with respect to Ireland on 30 April 2004. Exchange of Notes Constituting an International Agreement between Ireland and Spain in Relation to the Extradition of Own Nationals, Letters exchanged on 13 February 2003 and 21 February 2003, entered into force on 20 November 2003. Agreement between the Government of Ireland and the Government of the United Kingdom Concerning Mutual Assistance in Relation to Criminal Matters, done at Dublin on 26 November 1998, notification of completion of requirements of entry into force exchanged on 13 March 2003 and 14 April 2004, entered into force on 1 June 2004. Agreement between the Government of Sweden and the Government of Ireland on the Reciprocal Holding of Stocks of Crude Oil and/or Petroleum Products, done at Stockholm on 23 June 2003, entered into force upon signature on 23 June 2003. Treaty concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, done at Athens on 16 April 2003, notification of completion of requirements for entry into force on 18 December 2003, entered into force on 1 May 2004. Agreement Establishing the European Molecular Biology Laboratory, done at Geneva on 10 May 1973, acceded to by Ireland on 12 November 2003, entered into force with respect to Ireland on 1 January 2004. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, done at Montréal on 29 January 2000, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 14 November 2003, entered into force with respect to Ireland on 12 February 2004.

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Irish Treaty Title of Agreement Series Number No. 47 of 2007

No. 48 of 2007

No. 49 of 2007

No. 50 of 2007

No. 51 of 2007

No. 52 of 2007

No. 53 of 2007

No. 54 of 2007

No. 55 of 2007

Convention on Recognition of Qualifications concerning Higher Education in the European Region, done at Lisbon on 11 April 1997, signed by Ireland without reservation as to ratification on 8 March 2004, entered into force with respect to Ireland on 1 May 2004. Protocol amending the Convention of 23 July 1990 on the Elimination of Double Taxation in connection with the Adjustment of Profits of Associated Enterprises, done at Brussels on 25 May 1999, notification of completion of requirements for entry into force on 11 February 2004, entered into force on 1 November 2004. Protocol No.3 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending Articles 29, 30 and 34 of the Convention, done at Strasbourg on 6 May 1963, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 12 September 1963, entered into force with respect to Ireland on 21 September 1970. Convention on the Elaboration of a European Pharmacopoeia, done at Strasbourg on 22 July 1964, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 16 May 1979, entered into force with respect to Ireland on 17 August 1979. European Agreement on the Exchange of Tissue-Typing Reagents, done at Strasbourg on 17 September 1974, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 18 January 1984, entered into force with respect to Ireland on 19 February 1984. Additional Protocol to the European Agreement on the Exchange of Tissue-Typing Reagents, done at Strasbourg on 24 June 1976, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 18 January 1984, entered into force with respect to Ireland on 19 February 1984. Convention on the Transfer of Sentenced Persons, done at Strasbourg on 21 March 1983, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 31 July 1995, entered into force with respect to Ireland on 1 November 1995. European Convention on Cinematographic Co-Production, done at Strasbourg on 2 October 1992, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 28 April 2000, entered into force with respect to Ireland on 1 August 2000. Protocol No 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, done at Strasbourg on 4 November 1993, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 10 April 1996, entered into force with respect to Ireland on 1 March 2002.

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Irish Treaty Title of Agreement Series Number No. 56 of 2007

No. 57 of 2007

No. 58 of 2007

No. 59 of 2007

No. 60 of 2007

No. 61 of 2007

No. 62 of 2007

No. 63 of 2007

Protocol No 2 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, done at Strasbourg on 4 November 1993, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 10 April 1996, entered into force with respect to Ireland on 1 March 2002. Convention on the Unification of Certain Points of Substantive Law on Patents for Invention, done at Strasbourg on 27 November 1963, Ireland’s instrument of ratification deposited with the Secretary General of the Council of Europe on 25 January 1968, entered into force with respect to Ireland on 1 August 1980. Locarno Agreement Establishing an International Classification for Industrial Designs, done at Locarno on 8 October 1968, Ireland’s instrument of accession deposited with the Director of the United International Bureaux for the Protection of Intellectual Property on 21 June 1970, entered into force with respect to Ireland on 27 April 1971. Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks, done at Stockholm on 14 July 1967, Ireland’s instrument of ratification deposited with the Director of the United International Bureaux for the Protection of Intellectual Property on 27 March 1968, entered into force with respect to Ireland on 12 November 1969. Patent Cooperation Treaty, done at Washington on 19 June 1970, Ireland’s instrument of ratification deposited with the Director of the United International Bureaux for the Protection of Intellectual Property on 4 May 1992, entered into force on 1 April 2002. Strasbourg Agreement concerning the International Patent Classification, done at Strasbourg on 24 March 1971, Ireland’s instrument of ratification deposited with the Director of the United International Bureaux for the Protection of Intellectual Property on 19 April 1972, entered into force with respect to Ireland on 7 October 1975. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), done at Geneva on 8 June 1977, Ireland’s instrument of ratification deposited with the Swiss Government on 19 May 1999, entered into force with respect to Ireland on 19 November 1999. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), done at Geneva on 8 June 1977, Ireland’s instrument of ratification deposited with the Swiss Government on 19 May 1999, entered into force with respect to Ireland on 19 November 1999.

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Irish Treaty Title of Agreement Series Number No. 64 of 2007

No. 65 of 2007

No. 66 of 2007

No. 67 of 2007

No. 68 of 2007

No. 69 of 2007

No. 70 of 2007 No. 71 of 2007

No. 72 of 2007 No 73 of 2007

Exchange of Notes between Argentina and Ireland Constituting an Agreement Concerning the Abolition of Tourist Visas, done at Buenos Aires on 25 June 1965, notifications for the completion of requirements for entry into force exchanged on 24 May 1965 and 25 June 1965, entered into force on 25 June 1965 Agreement between the United Kingdom Government and the Eire Government amending the Agreement of 1926 (as amended by the Agreement of 1928) in respect of Double Income Tax, notifications for the completion of requirements for entry into force exchanged on 21 July 1947, entered into force on 30 July 1948 Agreement on Privileges and Immunities for Liaison Officers and other Members of Staff at the Europol Drugs Unit in the Hague between the Kingdom of the Netherlands and Ireland, notifications of the completion of the requirements for entry into force exchanged on 30 November 1994 and 14 June 1995, entered into force on 29 June 1995 Memorandum of Understanding for a Framework of Co-operation between the Government of the State of Israel and the Government of Ireland in the field of Industrial Scientific Research and Technological Development, done at Dublin on 27 October 1999, entered into force on 23 July 1999 Films Co-production Agreement between the Government of Australia and the Government of Ireland, done at Dublin on 4 February 1998, notifications of the completion of the requirements for entry into force exchanged on 26 August 1998 and 7 September 1998, entered into force on 7 September 1998 Exchange of Notes between Ireland and the United States of America Constituting an Agreement Relating to Air Charter Services, notifications for the completion of requirements for entry into force exchanged 7 June 1973 and 8 June 1973, entered into force on 8 June 1973 Agreement between the Government of Ireland and the Government of Canada relating to the Canada Pension Plan, done at Ottawa on 21 November 1972, entered into force on 1 January 1973 Exchange of Letters between Belgium and Ireland Constituting an Agreement Concerning the Mutual Recognition of the Validity of Driving Licences, done at Dublin on 29 December 1972, entered into force on 1 January 1973 Parcel Post Agreement between the Union of South Africa and the Republic of Ireland, done at Cape Town on 13 April 1960 and Dublin on 9 June 1960, entered into force on 1 July 1960 Agreement between the Government of the Republic of Singapore and the Government of Ireland for Air Services between and beyond their Respective Territories, done at Singapore on 20 February 1981, entered into force on 8 March 1983

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Irish Treaty Title of Agreement Series Number No. 74 of 2007

No. 75 of 2007

No. 76 of 2007

No. 77 of 2007 No. 78 of 2007 No. 79 of 2007 No. 80 of 2007

No. 81 of 2007

No. 82 of 2007

No. 83 of 2007 No. 84 of 2007

International Cocoa Agreement, done at Geneva 21 October 1972, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 28 June 1973, entered into force with respect to Ireland on 30 June 1973, terminated in accordance with its provisions on 30 September 1976 International Cocoa Agreement, done at Geneva on 19 November 1980, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 27 May 1981, entered into force with respect to Ireland on 1 August 1981, terminated in accordance with its provisions on 30 September 1986. International Cocoa Agreement, done at Geneva on 25 July 1986, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 16 January 1987, entered into force with respect to Ireland on 20 January 1987, terminated in accordance with its provisions on 30 September 1993. Convention Establishing the European Telecommunications Satellite Organization, done at Paris 5 July 1982, entered into force with respect to Ireland 1 September 1985. International Wheat Agreement, done at London on 14 March 1986, entered into force with respect to Ireland on 1 July 1986, terminated in accordance with its provisions on 30 June 1995. International Tropical Timber Agreement, done at 18 November 1983, entered into force with respect to Ireland on 1 April 1985, terminated in accordance with its provisions on 31 March 1994. International Tropical Timber Agreement, done at Geneva 26 January 1994, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 18 August 2000, entered into force with respect to Ireland on 1 January 1997. International Agreement on Jute and Jute products, done at Geneva 1 October 1982, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 29 June 1983, entered into force with respect to Ireland 9 January 1984, terminated in accordance with its provisions on 8 January 1991. International Coffee Agreement, done at New York on 16 September 1982, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 28 July 1983, entered into force with respect to Ireland on 11 September 1985. International Coffee Agreement, done at London on 30 March 1994, entered into force with respect to Ireland on 19 May 1995. International Natural Rubber Agreement, done Geneva on 6 October 1979, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 29 September 1980, entered into force with respect to Ireland on 15 April 1982, terminated in accordance with its provisions on 22 October 1987.

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Irish Treaty Title of Agreement Series Number No. 85 of 2007

No. 86 of 2007

No. 87 of 2007

No. 88 of 2007

No. 89 of 2007

No. 90 of 2007

No. 91 of 2007

No. 92 of 2007

No. 93 of 2007

No. 94 of 2007

International Natural Rubber Agreement, done at Geneva on 20 March 1987, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 22 December 1988, entered into force on 3 April 1989, terminated on 28 December 1995. Agreement Establishing the International Fund for Agricultural Development, done at Rome on 13 June 1976, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 14 October 1977, entered into force on 11 March 1987. Fifth International Tin Agreement, done at Geneva 21 June 1975, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 29 June 1976, entered into force on 14 June 1977, terminated in accordance with its provisions on 30 June 1982. Sixth International Tin Agreement, done at Geneva on 26 June 1981, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 2 June 1982, entered into force on 1 July 1982, terminated in accordance with its provisions on 31 June 1989. Constitution of the United Nations Industrial Development Organization, done at Vienna on 8 April 1979, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 17 July 1984, entered into force with respect to Ireland on 21 June 1985. Convention on the International Maritime Organization, done at Geneva on 6 March, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 26 February 1951, entered into force with respect to Ireland on 17 March 1958. Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials, done at Nairobi on 26 November 1976, Ireland’s instrument of ratification deposited with the Secretary General of UNESCO on 17 July 1984, entered into force with respect to Ireland on 21 June 1985. Convention on the Prohibition of Military or any other Hostile use of Environmental Modification Techniques, done at New York on 10 December 1976, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 16 December 1982, entered into force with respect to Ireland on 16 December 1982. Instrument for the amendment of the Constitution of the International Labour Organisation, done at Geneva on 22 June 1972, Ireland’s instrument of ratification deposited with the with the Secretary General of the United Nations on 28 February 1974, entered into force with respect to Ireland on 1 November 1974. Constitution of the Universal Postal Union, done at Vienna on 10 July 1964, Ireland’s instrument of ratification deposited with the Swiss Government on 4 March 1966, entered into force upon ratification.

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Irish Treaty Title of Agreement Series Number No. 95 of 2007

No. 96 of 2007

No. 97 of 2007 No. 98 of 2007

No. 99 of 2007

No. 100 of 2007

No. 101 of 2007

No. 102 of 2007 No. 103 of 2007

No. 104 of 2007

International Wheat Agreement, done at Washington on 3 May 1971, Ireland’s instrument of accession deposited with the Government of the United States on 14 June 1971, entered into force with respect to Ireland on 18 June 1971. International Grains Arrangement, done at Washington on 15 November 1967, Ireland’s instrument of ratification deposited with the Government of the United States on 8 May 1968, entered into force with respect to Ireland on 1 July 1968. Agreement concerning Postal Parcels, done at Vienna on 10 July 1964, Ireland’s instrument of ratification deposited with the Swiss Government on 4 March 1966, entered into force upon ratification. Agreement Concerning Insured Letters and Boxes, done at Vienna on 10 July 1964, Ireland’s instrument of ratification deposited with the Swiss Government on 4 March 1966, entered into force upon ratification. Convention on the Settlement of Investment Disputes between States and Nationals of other States, done at Washington on 18 March 1965, Ireland’s instrument of ratification deposited with the President of the International Centre for Settlement of Investment Disputes on 7 April 1981, entered into force with respect to Ireland on 7 May 1981. Acts of the International Telecommunication and Radio Conferences, done at Atlantic City on 2 October 1947, ratified by Ireland on 31 December 1948, entered into force with respect to Ireland on 1 January 1949 (forthcoming) Convention on Wetlands of International Importance Especially as Waterfowl Habitat, done at Ramsar on 2 February 1971, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 15 November 1984, entered into force with respect to Ireland on 15 March 1985. International Convention on the Harmonized Commodity Description and Coding System, done at Brussels on 14 June 1983, ratified by Ireland on 22 December 1987, entered into force on 1 January 1988. Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, done at Vienna on 26 September 1986, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 13 September 1991, entered into force with respect to Ireland on 14 October 1991. Convention for the Establishment of a European Organisation for the Exploitation of Meteorological Satellites, done at Geneva on 24 May 1983, Ireland’s instrument of ratification deposited with the Swiss Government on 27 June 1985, entered into force with respect to Ireland on 19 June 1986.

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Irish Treaty Title of Agreement Series Number No. 105 of 2007 No. 106 of 2007

No. 107 of 2007

No. 108 of 2007

No. 109 of 2007 No. 110 of 2007 No. 111 of 2007 No. 112 of 2007

No. 113 of 2007

No. 114 of 2007

Multilateral Agreement relating to Route Charges, done at Brussels on 12 February 1981, ratified by Ireland on 23 July 1985, entered into force with respect to Ireland on 1 January 1986. International Convention on the Harmonization of Frontier Control of Goods, done at Geneva on 21 October 1982, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 22 November 1985, entered into force with respect to Ireland on 22 February 1986. Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, done at Geneva on 10 October 1980, Ireland’s instrument of ratification deposited with the Secretary General of the United Nations on 13 March 1995, entered into force with respect to Ireland on 13 September 1995. Agreement relating to the International Telecommunications Satellite Organization, done at Washington on 20 August 1972, signed without reservation to ratification on 18 February 1972, entered into force with respect to Ireland on 12 February 1973. Agreement for Joint Financing of North Atlantic Ocean Stations, done at Geneva on 15 November 1974, entered into force with respect to Ireland on 1 December 1976. International Convention for the Protection of New Varieties of Plants, done at Geneva on 10 November 1972, ratified by Ireland on 19 May 1981, entered into force with respect to Ireland on 8 November 1981. Amendment of 1993 to the Convention on the International Maritime Organisation, entered into force on 7 November 2002. Agreement Concerning Specific Stability Requirements for Ro-Ro Passenger Ships Undertaking Regular Scheduled International Voyages between or to or from Designated Ports in North West Europe and the Baltic Sea, done at Stockholm on 28 February 1996, signed without reservation to ratification on 1 July 1996, entered into force with respect to Ireland on 1 April 1997. International Convention on Standards of Training Certification and Watch keeping for Seafarers, done at London on 7 July 1978, Ireland’s instrument of ratification deposited with the International Maritime Organisation on 11 September 1984, entered into force with respect to Ireland on 11 December 1984. Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, done at London, Mexico City, Moscow and Washington on 29 December 1972, Ireland’s instrument of ratification deposited with the International Maritime Organisation on 17 February 1982, entered into force with respect to Ireland on 19 March 1982.

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Irish Treaty Title of Agreement Series Number No. 115 of 2007

No. 116 of 2007

No. 117 of 2007

No. 118 of 2007

No. 119 of 2007

No. 120 of 2007

No. 121 of 2007 No. 122 of 2007

No. 123 of 2007

Protocol of 1996 to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, done at London on 7 November 1996, Ireland’s instrument of accession deposited with the International Maritime Organisation on 26 April 2001, entered into force with respect to Ireland on 24 March 2006. Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, done at Athens on 13 December 1974, Ireland’s instrument of accession deposited with the International Maritime Organisation on 24 February 1998, entered into force with respect to Ireland on 25 May 1998. Protocol to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, done at London on 19 November 1976, Ireland’s instrument of accession deposited with the International Maritime Organisation on 24 February 1998, entered into force with respect to Ireland on 25 May 1998. Convention on the Limitation of Liability for Maritime Claims, done at London on 19 November 1976, Ireland’s instrument of ratification deposited with the International Maritime Organisation on 24 February 1998, entered into force with respect to Ireland on 1 June 1998. Agreement Establishing the European Bank for Reconstruction and Development, done at Paris on 29 May 1990, Ireland’s instrument of ratification deposited with the French Government on 25 March 1991, entered into force on 28 March 1991. Protocol on the Privileges and Immunities of the European Organisation for the Exploitation of Meteorological Satellites, as amended by the 48th Meeting of the EUMETSAT Council on 25–26 June 2001, entered into force with respect to Ireland on 1 January 2004 Communiqué Constituting an Agreement Relating to International Co-operation in the Field of Energy, done on 13 February 1974, entered into force upon signature. Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters, done at Lugano on 16 September 1988, Ireland’s instrument of ratification deposited with the Swiss Confederation on 27 September 1993, entered into force with respect to Ireland on 1 December 1993. Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the

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Irish Treaty Title of Agreement Series Number No. 123 of Republic of Latvia, the Republic of Lithuania, the Republic of 2007 (cont.) Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, done at Athens on 16 April 2003, notification of the completion of requirements for entry into force on 18 December 2003, entered into force on 1 May 2004. No. 124 of Economic Partnership, Political Coordination and Cooperation 2007 Agreement between the European Community and its Member States of the one part, and the United Mexican States, of the other part, done at Brussels on 8 December 1997, notification of the completion of requirements for entry into force on 30 June 1999, entered into force 1 October 2000. No. 125 of Internal Agreement between the Representatives of the Governments of 2007 the Member States, meeting within the Council, on measures to be taken and procedures to be followed for the implementation of the ACP-EC Partnership Agreement, done at Brussels, 18 September 2000, notification of completion of requirements for entry into force on 29 May 2002, entered into force on 1 April 2003. No. 126 of Internal Agreement between Representatives of the Governments of the 2007 Member States, meeting within the Council, on the financing and administration of Community Aid under the Financial Protocol to the Partnership Agreement between the African, Caribbean and Pacific States and the European Community and its Member States signed in Cotonou (Benin) on 23 June 2000 and the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty applies, done at Brussels on 18 September 2000, completion of requirements for entry into force on 29 May 2002, entered into force on 1 April 2003. No. 127 of Protocol to the Agreement on Cooperation and Customs Union 2007 between the European Economic Community and the Republic of San Marino consequent upon the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union, done at Brussels on 30 October 1997, notification of completion of requirements for entry into force on 10 July 1998, entered into force on 1 April 2002.

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Index Agriculture animal health, 167 Common Agricultural Policy (CAP), 168 free movement of animals, 167 plant health, 167, 168 rural development, 168 Amnesty International investigative role, 22 Anglo-Irish relations cooperation, 250–2 fundamental change, 123 Good Friday Agreement, 120–2, 243, 250, 277, 298 improved security, 251 legacy of conflict, 252 Northern Ireland Assembly, 243, 245, 250 North-South Ministerial Council (NSMC), 250–2, 277 see also North-South Ministerial Council (NSMC) reconciliation, 252 St Andrews Agreement, 159, 160, 173, 250, 277 Anti-social behaviour orders (ASBOs) behaviour orders, 177–9 behaviour warnings, 177, 178 civil orders, 177, 178 good behaviour contracts, 178, 179 human rights concerns, 175, 177 introduction, of, 177 reporting requirements, 179 school attendance obligation, 179 Aquaculture and marine fishery protection, 164 marine tourism, 164 salmon fishing, 164 Area of Freedom, Security and Justice (AFSJ) see also Lisbon Treaty constitutional challenges, 137–41 deprivation of liberty, 137, 138 European Arrest Warrant, 135, 137–41, 157 extradition, 138, 139 human rights considerations, 139 Irish opt-out, 135, 137, 157 police and judicial cooperation, 135, 137 Armed conflict children, involvement of, 186, 187 emergency powers, 218 see also Emergency powers internal armed conflict see Internal armed conflict international armed conflicts, 92, 94–6 Arms control cluster munitions, 114, 115, 126, 127, 243, 256 international standards, 125, 126

Iran’s nuclear enrichment programme, 113 Irish position, 108, 113, 114, 243, 256 North Korean nuclear tests, 113 Nuclear Non-Proliferation Treaty, 113, 114, 124, 125 US missile defence systems, 114 Association of Legal Justice function, 14 Cambodia democratic governance, 54 human rights, 54 rule of law, 54 UN involvement, 54 Caste-based discrimination equal protection, 221 human rights international human rights law, 221, 224, 225 treaty bodies, 225 Indian experience caste system, 221, 222, 223, 225 constitutional law, 222, 223 Dalits, 221, 222, 224, 225 endogamy, 222 equality measures, 225 evangelical approach, 222 Hindu society, 221 non-discrimination measures, 225 outcastes, 221, 222 secular approach, 222 International Convention on Elimination of Racial Discrimination, 222–4 international law, 221, 223–5 legal responses, 223 non-discrimination, 221 racial issues monogenism, 222 polygenism, 222 racial discrimination, 221–5 racial superiority/inferiority, 223 racism, 222, 223 UN initiatives, 223 Children armed conflicts, involving, 186, 187 children’s rights, 116, 188, 208 Civil wars conventional civil wars, 96–9, 101 irregular civil wars, 97, 98, 101 symmetric irregular civil wars, 97–101 Cluster munitions control, of, 114, 115, 126, 127, 243, 256 Common Foreign and Security Policy see also Lisbon Treaty common defence provisions, 135

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368

Page 368

INDEX

Common Foreign and Security Policy (cont.): cooperation, 157 EU Battlegroup, 135, 136 Irish position, 135 permanent structured cooperation 135 Competition law (EC) business divestiture, 156 mergers, 156 Ryanair/Aer Lingus, 156, 157 Compulsory insurance (EC) civil liability, 155, 156 motor vehicles, 155, 156 personal injuries, 155 Corporate manslaughter deaths in custody, 200 directing mind, 199 legislation, 199 police liability, 200 prosecutions, 199 Criminal justice (Ireland) bail applications, 176 Balance in the Criminal Law Review Group, 175, 176 electronic tagging, 176 European Arrest Warrant, 181 evidence character evidence, 175, 176 illegally obtained, 180 unconstitutionally obtained, 176 fair trial, 180 human rights obligations, 180 organised crime, 176 post-release orders, 176 right to life, 181 right to silence, 175 sentencing, 176 victim/perpetrator balance, 175, 180, 181 Criminal justice (Northern Ireland) human rights standards, 202 juryless trials, 200, 201 miscarriages of justice, 202 police powers, 200, 201 procedural irregularities, 202 secretly recorded conversations, 204, 205 special immigration status, 202 Darfur African Union Force, 110 AU-UN mission, 110 ceasefire violations, 110 human rights protection, 110 humanitarian assistance, 94, 99, 100, 110, 121 humanitarian crisis, 100 internal armed conflict, 91, 94, 95, 98, 99 Irish position, 108–10, 121, 127, 128, 253–5 peace agreements, 100 special agreements, 91, 94, 99, 100, 101 symmetric irregular civil war, 98, 99, 101 Department of Foreign Affairs (Agreed Programme for Government Progress Report) Anglo-Irish relations, 278, 280 diplomatic relations, 287, 288 EU commitment, 282–6

free travel schemes, 279 human rights protection, 286 independent inquiries, 279 infrastructure projects, 281, 282 North-South Parliamentary Body, 279 North-South relations, 277, 278, 281 see also North-South relations overseas aid/development, 288–90 sectarian harassment, 280, 281 UN commitment, 286, 87 Department of Foreign Affairs (Annual Report 2007) arms control, 243, 256 Balkans, 255 cluster munitions, 243, 256 conflict resolution, 245, 256 consular/passport services, 244, 247, 249, 265–7 Darfur, 253–5 developments/achievements (2007), 247–9 diaspora, support for, 267 diplomatic relations, 243, 245, 247, 248, 253–5 economic/cultural interests, 248, 259–61 environmental issues, 258, 259 EU commitment, 257–9 external environment, 246 foreword, 243–4 Good Friday Agreement, 243 high level goals (2005-2007), 247, 250, 253, 257, 259, 261, 265 human rights protection, 255 Hunger Task Force, 244, 261, 262, 301, 302 international security, 256, 257 Lisbon Treaty, 243, 245, 248, 257 see also Lisbon Treaty Middle East Peace Process, 253, 254 mission statement, 243 Northern Ireland Assembly, 243, 245, 250 North-South Ministerial Council 243, 247 see also North-South Ministerial Council North-South relations, 247, 248, 250–2 see also North-South relations overseas aid/development, 244, 245, 247, 249, 254, 261–4, 301, 302 reorganisation/decentralisation, 245 strategy, 246 support services, 268–71 UN commitment, 256 Detainees detention without charge, 201 detention without trial, 191, 192 extraordinary rendition see Extraordinary rendition ill-treatment, 3, 11, 16, 18–21, 23, 26, 28, 29 incommunicado detention, 81 internment, 7, 18 interrogation methods, 7, 15, 20, 23, 27, 81 preventative detention, 7 terrorist suspects, 202, 203 Diplomatic assurances adequacy of promises, 85, 86, 89, 90 circumstances in control of promisor, 86, 87 credibility of promisor, 87 effects, 79, 80

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Page 369

INDEX

fair trial, 87 human rights obligations, 84–8, 105, 106 practical protection, 88–90 security issues, 90 sufficiency, 85, 88, 89, 90, 105, 106 unreliability, 84 Diplomatic relations Anglo-Irish relations, 123 see also Anglo-Irish relations Department of Foreign Affairs (2007), 243, 245, 247, 248, 253–5 see also Department of Foreign Affairs (Annual Report 2007) diplomatic credentials, acceptance of, 116, 117 Taiwan, 117, 118 Western Sahara, 117 East Timor crimes against humanity, 69, 70 Defence Lawyers Unit (DLU), 71, 72, 73 defence rights, 70 East Timorese Serious Crimes Process (SCP), 67–71, 73–8 equality of arms, 72 fair trials, 70–2, 78 infrastructure, 54 legal competence, 73–8 legal representation, 70–3 legal system, 53, 54 material resources, 54 mentoring, 73–6 presumption of innocence, 72 pre-transition crimes, 62 procedural irregularities, 71 prosecution strategy, 69, 70, 74 rule of law, 54 Serious Crimes Unit (SCU), 68–70, 72–5 Special Panels, 68, 69, 72–4 transitional accountability, 68, 69 trial competence, 73, 74 UN involvement territorial administration, 53 UNTAET, 53, 70, 72, 78 EC Treaty competition law business divestiture, 156 mergers, 156 Ryanair/Aer Lingus, 156, 157 compulsory insurance civil liability, 155, 156 motor vehicles, 155, 156 personal injuries, 155 environmental law Birds Directive, 150 environmental impact assessments, 147 Groundwater Directive, 149, 150 Habitats Directive, 146, 150–2 Shellfish Waters Directive, 147–9 species action plans, 146, 147 EU citizenship asylum applications, 145 family matters, 145, 146 free movement provisions, 145, 146

369

residence rights, 145, 146, 157 free movement provisions cross-border interests, 153 provision of services, 152–4 public procurement, 152 social welfare benefits, 152 implementation constitutional rights, 144 indictable offences, 143, 144 secondary legislation, 143, 144 provision of services emergency ambulance services, 153, 154 non-discrimination, 153, 154 prior advertising, 152, 153 public contracts, 152 public procurement, 152 social welfare benefits, 152 tendering, 152 transparency, 153, 154 State aid excise duty exemptions, 154 procedural requirements, 155 statement of reasons, 155 Education autism, 169, 184 dyslexia, 169 educational exchanges, 168 educational underachievement, 168 human rights protection, 184–6 Irish language proficiency, 169 literacy/numeracy, 168 special needs, 168 teacher achievement, 168 Travelling Community, 185, 186 Emergency powers anti-terrorism measures, 219 authoritarian regimes, 218 classification, 215, 217 comparative legal analysis, 215 constitutional structures, 215, 216 discriminatory measures, 217 extra-legal measures, 216, 217 international human rights law armed conflicts, 218 derogation mechanisms, 218 humanitarian law, 218, 219 public emergencies, 218 international law, 217–9 legislation, 215 liberal constitutional democracies, 215, 217–9 models of accommodation, 215–7 normative constraints, 218 political authority, 215 post 9/11 responses, 215, 218 public safety, 215 rule of law, 216, 218 terrorist attack, 215, 218 theoretical models, 215 violent emergencies, 215, 218 Environment climate change issues, 135, 258 environmental research, 170 recycling, 169, 170

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370 Environment (cont.): waste management, 170 water management, 169 Environmental law (EC) Birds Directive, 150 environmental impact assessments, 147 Groundwater Directive, 149, 150 Habitats Directive, 146, 150–2 Shellfish Waters Directive, 147–9 species action plans, 146, 147 Equality of arms requirement, 60, 72 Equality rights adoption rights, 208, 209 children’s rights, 208 cohabiting couples, 208 discrimination age discrimination, 206 disability, 206, 207 religious discrimination, 206 sexual orientation, 206 equal pay claims, 205 family rights, 208 forced marriages, 209 hunting ban, 205 international agreements human trafficking, 207 persons with disabilities, 207 minority protection, 205, 206 racial equality, 205, 206 EU Battlegroup command/control, 112 deployment, 111 establishment, of, 111, 135 financing, 112 Irish position, 108, 111, 112, 136 membership, 111 State sovereignty, 111 EU citizenship asylum applications, 145 family matters, 145, 146 free movement provisions, 145, 146 residence rights, 145, 146, 157 European Arrest Warrant Irish position, 181 Lisbon Treaty, 135, 137–41, 157 European Commission of Human Rights establishment, of, 4 jurisdiction, 4 jurisprudence, 10 referrals, 5, 10–13, 16, 20, 23, 25, 27 reports, 4 submissions, 3, 4 European Convention on Human Rights (ECHR) adjudication/enforcement processes, 229–31 administrative practice, 16, 23, 26 anti-discrimination provisions, 26, 27 compliance, 183, 229, 230 declarations of incompatibility, 183, 184 derogation, from, 8–10, 19, 27 domesticisation, 234 education/housing issues, 184–6 exhaustion of local remedies, 11

Page 370

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fair trial, 180, 186, 192, 230 Fair Trial Commission, 230, 232 gender issues, 183 implementation mechanisms, 4 individual justice, 229 inhuman and degrading treatment deportation, 86, 106 diplomatic assurances, 86–8 disproportionate punishment, 85 extradition, 85 extraordinary rendition, 79–84, 86–90, 105, 106 Ireland v United Kingdom, 3, 11, 16, 18, 19, 23, 26, 27 practical protection, 88–90 real risk of violation, 85–9, 106 refoulement, 86, 106 interpretation, 231–3 inter-State applications Austria/Italy, 5 exhaustion of local remedies, 11, 16, 17, 23, 26 Greece/UK, 5 Ireland/UK, 3, 5 jurisdiction, 4 inter-State petitions exhaustion of local remedies, 11, 16, 17, 23, 26 jurisdiction, 4 submissions, 4 Irish withdrawal, 9 judicial enforcement, 234 jurisdictional obligations, 80, 82, 83 jurisprudence, development of, 229 legislative compatibility, 16 military law, 186 national human rights institutions (NHRIs), 230, 231 ombudsmen, use of, 230, 231 respect for private and family life, 182–6 right to liberty, 191, 202, 203 right to life, 11, 19, 25–7, 106, 181, 196, 200 Saadi v Italy, 85 scope of protection, 229, 230 torture extraordinary rendition, 79–84, 86–90, 105, 106 Ireland v United Kingdom, 3, 11, 16, 18, 19, 23, 26, 27 violations, 3, 11 European Court of Human Rights (ECtHR) admissibility of cases, 229–31 applications, to, 229, 230, 233 backlog of cases, 229 constitutional principles, 231, 232 decisions, 192, 221 establishment, of, 4 evidential rules, 233 interpretative method, 231–3 inter-State petitions, 4 reforms, 229, 233 European Union see also EC Treaty constitutionalisation, 133 enlargement, 120

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Page 371

INDEX

European Arrest Warrant, 133, 135, 137–41 Irish commitment, 120, 257–9, 282–6, 293 Irish referenda, 157 Lisbon Treaty, 133–5, 157 see also Lisbon Treaty Qualification Directive, 133, 141, 142 see also Qualification Directive TFEU, 133–5 Exhaustion of local remedies requirement, for, 11, 16, 17, 23, 26 Extradition/prosecution aut dedere aut judicare, 305, 306 internal law obligation, 305, 306 International Criminal Court, 305 shared objective, 305 State practice, 306 trans-border crime, 305 universal jurisdiction, 305 Extraordinary rendition Chicago Convention, 106, 107 diplomatic assurances adequacy of promises, 85, 86, 89, 90 circumstances in control of promisor, 86, 87 credibility of promisor, 87 effects, 79, 80 fair trial, 87 human rights obligations, 84, 85, 105, 106 practical protection, 88–90 security issues, 90 sufficiency, 85, 88, 89, 90, 105, 106 unreliability, 84 human rights protection incommunicado detention, 81 inhuman and degrading treatment, 79–84, 86–90, 105, 106 Irish Human Rights Commission, 8, 89, 105, 107 torture, 79–84, 86–90, 105, 106 unlawful interrogation, 81 illegality, 79 international law, 79, 81, 84, 85, 89 Irish position, 79, 82, 89, 90, 105–8, 294 legal implications, 81, 82 non-refoulement obligation, 84, 87, 105 refoulement, 81 Saadi v Italy, 85, 88, 89 transit States jurisdiction, 81–3 liability, 79–84 unlawful nature, 105, 106 US practice, 79, 81, 84 Foreign policy (Ireland) Anglo- Irish relations, 123 see also Anglo-Irish relations Balkans, 255 climate change, 258 conflict resolution, 245, 256, 296–9 Constitutional basis, 119, 120 consular/passport services, 120, 132, 244, 247, 249, 265–7 Darfur, 108–10, 121, 127, 128, 253–5, 294, 295, 300

371

see also Darfur development, of, 291 diaspora, support for, 120, 131, 267 diplomatic relations, 116–18, 294, 295, 299, 300 economic/cultural interests, 120, 131, 248, 259–61 environmental issues, 258, 259 ethical foreign policy, 119, 291 EU-related issues, 120, 133–5, 137–42, 157, 257–9, 293 see also European Union extraordinary rendition, 79, 82, 89, 90, 105–8, 294 see also Extraordinary rendition human rights protection, 255, 292–4 multilateral relations arms control, 243, 256 Darfur, 108–10, 121, 127, 128, 253–5, 294, 295, 300 disarmament, 124, 293, 301 international cooperation, 291 international security, 256, 257 Middle East Peace Process, 108, 109, 128–30, 253, 254, 301 non-nuclear proliferation, 113, 114, 124–6 peacekeeping, 127, 159, 292, 293 UN commitment, 123, 124, 292, 302 multilateralism, 119, 157, 291, 292 neutrality, 105, 119, 120, 157, 292 North-South relations see North-South relations objectives, 120 overseas aid/development humanitarian aid/assistance, 108, 115, 130, 131, 244, 245, 247, 249, 254, 261–4, 261, 262, 295, 301, 302 Hunger Task Force, 130, 131, 244, 261, 262, 301, 302 Millennium Development Goals (MDGs), 120, 130, 131, 301 Rapid Response Corps, 131, 262, 295 UN Agencies and NGOs, 263, 264 Volunteering and Information Centre, 264 overseas prisoners, 131, 132 see also Irish prisoners abroad peace and security arms control, 108, 113, 114 Darfur, 108–10, 121, 127, 128 EU Battlegroup, 108, 111, 112, 136 humanitarian aid, 108, 115 international peacekeeping missions, 108 Middle East Peace Process, 108, 109, 128–30 Nordic Battlegroup, 110, 111, 133, 136, 157 UN commitment, 256 rule of law, 119 support services corporate services, 270, 271 inspection unit, 270 legal services, 269 overseas visits, 268 press office, 269 protocol services, 268 trade development, 120

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372 Free movement provisions (EC) cross-border interests, 153 provision of services, 152–4 public procurement, 152 social welfare benefits, 152 Gender issues discrimination, 183 domestic violence, 183 ECHR compliance, 183, 184 social rights, 183 stereotyping, 183 transsexuals, 184 Geneva Conventions Common Articles material application (art 2), 91 respect/ensuring respect (art 1), 91 standards of humanity (art 3), 91–4 domestic law enforcement, 92 humanitarian assistance, 94, 95, 99, 100 humanitarian law, 91, 95, 100, 101 humanitarian relief, 94, 95 international armed conflicts, 92, 94–6 protection, 91, 92, 93, 96, 101 special agreements, 91, 93, 94, 96 State sovereignty, 95 Health and food safety consumer interests, 164 emergency planning, 163 food safety, 164 health promotion, 163 mental health, 164 suicide prevention, 164 Human rights (Ireland) anti-social behaviour orders (ASBOs) behaviour orders, 177–9 behaviour warnings, 177, 178 civil orders, 177, 178 good behaviour contracts, 178, 179 human rights concerns, 175, 177 introduction, of, 177 reporting requirements, 179 school attendance obligation, 179 children in armed conflicts, 186, 187 criminal justice see Criminal justice education and housing, 184–6 gender issues discrimination, 183 domestic violence, 183 ECHR compliance, 183, 184 social rights, 183 stereotyping, 183 transsexuals, 184 human rights treaty bodies, 186, 187 human trafficking, 176, 177 Ireland v United Kingdom see Ireland v United Kingdom migration law see Migration law military law see Military law

Page 372

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pensioners’ rights, 187 persons with disabilities, 187 police powers, 175 prisons administration, 179 convicted prisoners, 17 educational/vocational activities, 179 ill-treatment, 179 legislation, 179 prison conditions, 179 Prison Rules, 179 remand prisoners, 17 slopping-out, 179 respect for private and family life, 182–6 Human Rights (Northern Ireland) corporate manslaughter deaths in custody, 200 directing mind, 199 legislation, 199 police liability, 200 prosecutions, 199 criminal justice human rights standards, 202 juryless trials, 200, 201 miscarriages of justice, 202 police powers, 200, 201 procedural irregularities, 202 secretly recorded conversations, 204, 205 special immigration status, 202 equality rights see Equality rights Human Rights Act (1998) see Human Rights Act (1998) Northern Ireland Human Rights Commission Bill of Rights debate, 194, 195 judicial review, 194 police powers, 201 powers, 192–4 production of information, 193 standing, 194 women prisoners, 204 overview, 189 policing see Policing (Northern Ireland) right to liberty control orders, 203 deprivation of liberty, 203 judicial decisions, 203, 204 women prisoners, 204 right to life corporate manslaughter, 199, 200 deaths in custody, 197, 200 human rights compliance, 196 Omagh Bomb Inquiry, 197, 198 police witnesses, 198 public interest considerations, 199 Saville Inquiry, 199 suspicious deaths, 196 truth recovery mechanisms, 196 unlawful killings, 196–9 terrorism anti-terrorism measures, 202, 203 control orders, 203

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Page 373

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detention, 202, 203 emergency powers, 200 jury selection, 201 juryless trials, 200, 201 police powers, 201, 202 right to liberty, 202 Human Rights Act (1998) application, 189 detention without charge, 191, 192 ECtHR decisions, 192 effect, 189 failure to act, 192 fair trial, 192 free speech, 191 military activity overseas, 191 Muslim dress, 190 privacy, 192 private care homes, 189 public authorities, 190, 191 right to liberty, 191 school uniform policies, 190 scope, 189–91 Human Rights Commissions Charter of Rights sub-group, 172 European Commission of Human Rights establishment, of, 4 jurisdiction, 4 jurisprudence, 10 referrals, 5, 10–13, 16, 20, 23, 25, 27 reports, 4 submissions, 3, 4 human rights protection, 172 Irish Human Rights Commission extraordinary rendition, 82, 89, 105, 107 interventions, 188 submissions, 188 joint committee, 171, 172 migration, 172 Northern Ireland Human Rights Commission Bill of Rights debate, 194, 195 judicial review, 194 police powers, 201 powers, 192–4 production of information, 193 standing, 194 women prisoners, 204 Omagh Bomb Inquiry, 172 racism, 172 Human trafficking criminalization, 176 international agreements, 115, 176, 207 legislation, 176 punishment, 176 victims, 177 Hybrid courts accountability, 48–50, 64, 78 academic analysis, 47, 48 capacity-building, 61, 62, 63, 65, 66 crimes against humanity, 64 cultural penetration, 61, 62, 65 definition, 47 development, of, 50, 61, 66 domestic location, 62, 63

373

East Timor see East Timor fair trials, 48, 50, 64, 65, 67, 78 human rights protection, 61, 65 international criminal law norms, 48 international transitional justice, 47, 48 justification, 50 legitimacy, 64–7 local case coverage, 65 local connections, 62–5, 67 local publicity, 65 mentoring, 73 nature, of, 47–9 norm penetration, 61, 62 post-conflict situations, 48–50 professional competencies, 66, 67 protection of rights, 50 quality of justice, 67 rule of law reconstruction, 49–51, 64–6, 75, 78 successor justice, 50, 51, 62 theoretical analysis, 51 transitional justice, 77, 78 truth and reconciliation, 48–50 war crimes, 48, 64 Inhuman and degrading treatment deportation, 86, 106 diplomatic assurances, 86–8 disproportionate punishment, 85 extradition, 85 extraordinary rendition, 79–84, 86–90 see also Extraordinary rendition Ireland v United Kingdom, 3, 11, 16, 18, 19, 23, 26, 27 practical protection, 88–90 real risk of violation, 85–9, 106 refoulement, 86, 106 Internal armed conflict civil wars conventional civil wars, 96–9, 101 irregular civil wars, 97, 98, 101 symmetric irregular civil wars, 97–101 Darfur, 91, 94, 95 see also Darfur domestic law enforcement, 92 Geneva Conventions see Geneva Conventions humanitarian law, 91, 95, 100, 101 legal regulation, 91 special agreements, 91. 93, 94, 96, 101 standards of humanity, 91–4 International agreements child protection, 115, 116 children’s rights, 116 corruption, 116 human trafficking, 115, 176, 207 Irish Treaty Series (2007), 351–65 migrant workers, 116 persons with disabilities, 115, 187, 207 International Court of Justice (ICJ) inter-State complaints, 28 State responsibility, 238

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International Criminal Court (ICC) establishment, of, 305 inter-State applications, 28 role, of, 47, 48 International criminal tribunals capacity-building, 62 failure, of, 61, 62, 66 fair trial, 66 International Criminal Court, 47, 48 International Criminal Tribunal (Rwanda), 47, 61, 62, 63, 66 International Criminal Tribunal (Yugoslavia), 47, 61–4, 66, 69 lack of local contact, 62–4 procedural irregularities, 66 retroactivity, 66 International human rights treaties inter-State applications, 28 International law diplomatic relations, 116–18 extraordinary rendition, 105–8 see also Extraordinary rendition Irish neutrality, 105, 119, 120, 157, 292 peacekeeping, 105, 108–15, 127 War on Terror, 105–8 International organizations breaches of peremptory norms, 309, 311 diversity, of, 309, 312 obligations, 310, 311 reparations, 309, 310 responsibility, of, 309 separate legal personality, 309, 310 Internment border issues, 8 civil disobedience campaign, 7, 13 complaints mechanism, 14 Compton Inquiry, 18, 19, 21, 23, 26 detainees, 7, 18 human rights concerns, 8–10, 16 ill-treatment, 3, 11, 16, 18–21, 23, 26, 28, 29 independent inquiry requests, 17, 18 inhuman and degrading treatment, 16 interrogation methods, 7, 15, 20, 23, 27 introduction, of, 3, 7, 8 justification, 8 Operation Demetrius, 7 passive resistance, 13 preventative detention, 7 responses, to, 7 scope, of, 27 secret investigations (Irish Government), 13–16 Sunday Times investigations, 15, 16, 20 torture, 16 violence, following, 7, 8, 12 Ireland v United Kingdom anti-discrimination provisions, 26, 27 appointment of agent, 27 detainees ill-treatment, 3, 11, 16, 18–21, 23, 26, 28, 29 inhuman and degrading treatment, 3, 11, 16, 18, 19, 23, 26, 27 interrogation methods, 20, 23, 27

right to life, 11, 19, 25–7 torture, 3, 11, 16, 18, 19, 23, 26, 27 evidence-gathering, 11–16, 19, 21–3, 27 exhaustion of local remedies, 11, 16, 17, 23, 26 international relations, 24–7, 29 legal preparations, 25, 26 requests for action, 9–12, 18, 19 secret investigations (Irish Government). 13–16 sustainable case, 19, 20, 29 Irish Foreign policy see Foreign policy (Ireland) Irish Human Rights Commission extraordinary rendition, 82, 89, 105, 107 interventions, 188 submissions, 188 Irish prisoners abroad best international practice, 341 culturally sensitive practices, 345 current position, 323–5 European Group for Prisoners Abroad (EGPA), 325, 334 European Prison Rules, 321, 322, 323, 328, 334 Hardship Fund, 317, 318 human rights, 350 international agreements, 342, 343 international cooperation, 341 international protection mechanisms, 319–25 international standards of treatment, 313, 319 Irish Commission for Prisoners Overseas (ICPO), 315, 317, 319, 326–8, 332, 334. 335, 340, 341, 343–50 miscarriage of justice, 318, 350 post-release services, 347 prisoners communication rights, 321, 326, 344 compulsory transfers, 339, 340 consular rights/services, 319, 312, 330–3, 343 deportation, 346 detention beyond sentence, 340, 349 educational needs, 321, 348 elderly prisoners, 349 family visits, 321, 326 financial position, 333 geographical isolation, 325 health needs, 321, 326, 327, 348, 349 legal representation, 320 mental problems, 334, 348 prisoner database, 318, 341 prisoner needs, 325–30 prisoners on licence, 340, 341, 346 Prisoner’s Unit, 313 recreational needs, 321 rehabilitation, 333 reintegration, 333 repatriation, 347–9 supervised release, 346 travellers, 329 UK-based prisoners, 319, 327, 328 welfare, 313, 320 prisons developing countries, 329, 330, 341 prison conditions, 321

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Report (2007) executive summary, 316–8 key recommendations, 314–6 terms of reference, 318 support mechanisms, 333–5 Task Force on Immigrants, 318 trans-national transfers, 321, 322, 336–9 UN Standard Minimum Rules for Treatment of Prisoners, 321, 323, 341, Irish Society of International Law aims, 211 discussion groups, 211, 212 lectures, 211, 212 website, 212 Irish Treaty Series (2007) list of agreements, 351–65 Kosovo ethnic cleansing, 45 gender-based violence, 235 human rights protection, 40, 234, 235 human security, 235 humanitarian intervention, 235 humanitarian law, 234, 236 Kosovo Liberation Army (KLA), 40 Kosovo Police Service (KPS), 40 Kosovo Protection Corps (KPC), 40 local complaints mechanism, 236 Multi-National Brigade (MNB) areas, 40, 41 NATO Force (KFOR) area of operations, 41 command/control, 41 composition, 41 mandate, 40 responsibility, 40 political consensus, 234 political/diplomatic background, 234 population displacements, 40 refugees, 45 security environment, 40 UN involvement/peacekeeping abuse of local people, 235, 236 achievement, 40, 234 command and control, 234 credibility, 235 fundamental mistakes, 234 legal framework, 234 mission personnel, 234, 235, 236 power relationship, 235 protection of women/children, 235 restrictions, 237 Security Council, 237 security threats, 234 UN Mission (UNMIK), 40, 45 US influence, 234 use of force, 234 Lebanon see Peacekeeping in Lebanon Lisbon Treaty Area of Freedom, Security and Justice (AFSJ) constitutional challenges, 137–41 deprivation of liberty, 137, 138

375

European Arrest Warrant, 135, 137–41, 157 extradition, 138, 139 human rights considerations, 139 Irish opt-out, 135, 137, 157 police and judicial cooperation, 135, 137 Charter of Fundamental Rights, 134 climate change issues, 135 Common Foreign and Security Policy common defence provisions, 135 cooperation, 157 EU Battlegroup, 135, 136 Irish position, 135 permanent structured cooperation 135 EU Commissioners, 134 institutional scheme, 134 Irish support, 243, 245, 248, 257 qualified majority voting, 134 subsidiarity principle, 134 TFEU, 133–5 Middle East Peace Process humanitarian assistance, 109, 129, 130 Irish position, 108, 109, 128–30, 253, 254, 301 Israeli Separation Barrier, 109 Israeli settlements, 109 two-State solution, 109 Migration law asylum seekers, 181 deportation, 182 Executive prerogative, 181 international human rights law, 181 Irish Born Child 05 Scheme (IBC05), 182, 183 legislation, 181 respect for private and family life, 182, 183 Military interventions see also UN intervention/peacekeeping post-conflict societies, 226, 227 Military law breaches of discipline, 186 human rights protection, 186 natural justice, 186 Millennium Development Goals (MDGs) Irish commitment, 120, 130, 131, 301 Nordic Battlegroup deployment, 110, 111 Irish position, 110, 111, 133, 136, 157 management, 110 purpose, 111 Northern Ireland Human Rights Commission Bill of Rights debate, 194, 195 judicial review, 194 police powers, 201 powers, 192–4 production of information, 193 standing, 194 women prisoners, 204 North-South Ministerial Council (NSMC) cooperation/communication, 172, 173 cross-border cooperation road infrastructure, 161 Ulster Canal, 160, 161 cross-border mobility website, 171

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North-South Ministerial Council (NSMC) (cont.): institutional format, 171 Plenary Session (2007) North-South Consultative Forum, 160 North-South Parliamentary Forum, 160 St Andrews Agreement, 159, 160, 173 work in progress, 159 Sectoral Meetings agriculture, 167, 168 aquaculture/marine, 164 education, 168, 169 environment, 169, 170 EU programmes 166, 167 generally, 161 health and food safety, 163, 164 inland waterways, 165 language sector, 165, 166 tourism, 170 transport, 161–3 North-South relations Anglo-Irish relations, 123, 250–2 see also Anglo-Irish relations anti-partitionist policy, 5, 7 border issues, 8 civil rights, 6, 12 cooperation, 250–2, 278 criminal justice, 277, 281 devolved government , 121, 122 Good Friday Agreement, 120–2, 243, 250, 277, 298 human rights issues, 10–12 improved security, 251 infrastructure investment, 122 lack of information, 6 legacy of conflict, 252 nationalist support, 12 Northern Ireland Assembly, 243, 245, 250 policing, 277, 281 power-sharing, 13, 121, 122, 159, 277, 298 reconciliation, 252, 278 re-unification, 5. 12 secret investigations, 13–16 St Andrews Agreement, 159, 160, 173, 250, 277 UN involvement, 6 unity by consent, 6 Omagh Bomb Inquiry human rights issues, 172, 197, 198 right to life, 197, 198 Ombudsman for Children children’s rights, 188 Overseas aid/development humanitarian aid/assistance, 108, 115, 130, 131, 244, 245, 247, 249, 254, 261–4, 261, 262, 295, 301, 302 Hunger Task Force, 130, 131, 244, 261, 262, 301, 302 Millennium Development Goals (MDGs), 120, 130, 131 Rapid Response Corps, 131, 262, 295 UN Agencies and NGOs, 263, 264 Volunteering and Information Centre, 264

Peacekeeping see Peacekeeping in Lebanon; UN intervention/peacekeeping; UN peacekeeping force (UNIFIL) Peacekeeping in Lebanon border surveillance, 31 cessation of hostilities, 41, 42 civil war, 33 disarmament provisions, 42, 43 financial assistance, 41 gender-based violence, 235 human rights, 234, 235 human security, 235 humanitarian assistance, 41, 42, 235 humanitarian law, 234, 236 inter-party cooperation, 41 Israeli withdrawal, 34, 35, 41, 44 Lebanese control, 34 local complaints mechanism, 236 permanent ceasefire, 41, 42 political consensus, 234 political/diplomatic background, 234 religious/political tensions, 33 security threats, 234 stabilisation force, 31 Syrian involvement, 33, 46 UN involvement/peacekeeping see also UN peacekeeping force (UNIFIL) abuse of local people, 235, 236 achievement, 234 command and control, 234 credibility, 235 dispute settlement, 31, 32 enforcement operations, 31, 32 fundamental mistakes, 234 intervention, 31, 32 legal framework, 234 mandate, 31, 35, 45 mission personnel, 234, 235, 236 power relationship, 235 protection of women/children, 235 restrictions, 237 Security Council, 237 UN Resolution (425), 33, 34, 36, 41 UN Resolution (426), 33, 36, 42 UN Resolution (1701), 41–3 US influence, 234 use of force, 234 Policing (Northern Ireland) detention without charge, 201 devolved powers, 200 examination of documents, 201 examination of electronic records, 201 human rights standards, 202 police powers entry, 201 fingerprints, 201 intimate searches, 201 samples, 201 seizure, 201 stop/search/arrest, 201 public order, 201 serious offences, 201

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Post-conflict societies accountability, 228 Brahimi Report, 226 governance, 228 Haiti, 226 human rights protection, 226 institutional structures, 226 Iraq, 226 judicial institutions, 228 Kosovo, 226 see also Kosovo limited timeframes, 227 local conditions/culture, 228 police courts, 228 post-conflict terrain, 227 resource constraints, 227 rule of law culture, 228 reconstruction, 226–9 security, 228 social reconstruction, 226 transitional justice, 226 Prisoners see also Irish prisoners abroad communication rights, 321, 326, 344 convicted prisoners, 17 detention beyond sentence, 340, 349 educational/vocational activities, 179, 321, 348 elderly prisoners, 349 family visits, 321, 326 financial position, 333 health needs, 321, 326, 327, 348 human rights, 350 ill-treatment, 179 international standard of treatment, 313, 319 legal representation, 320 mental problems, 334, 348 miscarriage of justice, 318, 350 rehabilitation, 333 reintegration, 333 remand prisoners, 17 rights, 204 slopping-out, 179 UK-based prisoners, 319, 327, 328 UN Standard Minimum Rules for Treatment of Prisoners, 321, 323, 341 welfare, 313, 320 women prisoners, 204 Prisons administration, 179 European Prison Rules, 321, 322, 323, 328, 334 legislation, 179 prison conditions, 179, 321 Prison Rules, 179 Provision of services emergency ambulance services, 153, 154 non-discrimination, 153, 154 prior advertising, 152, 153 public contracts, 152 public procurement, 152 social welfare benefits, 152 tendering, 152 transparency, 153, 154

377

Qualification Directive deportation orders, 141, 142 humanitarian issues, 141, 142 non-refoulement, 142 refuge status, 141 subsidiary protection, 141, 142 Refoulement extraordinary rendition, 81, 86, 106 see also Extraordinary rendition non-refoulement, 84, 87, 105, 142 Right to life corporate manslaughter, 199, 200 deaths in custody, 197, 200 European Convention on Human Rights, 11, 19, 25–7, 106, 181, 196, 200 see also European Convention on Human Rights (ECHR) human rights compliance, 196 Omagh Bomb Inquiry, 197, 198 police witnesses, 198 public interest considerations, 199 Saville Inquiry, 199 suspicious deaths, 196 truth recovery mechanisms, 196 unlawful killings, 196–9 Rule of law acceptance of law, 60 culture, 228 democratic freedoms, 58 due process, 58, 60 equality before the law, 58–60 equality of arms, 60 fair trial, 60 fundamental rights, 58 human rights protection, 58–60 judicial reconstruction, 58–60 judicial role, 58, 59 judicial training, 59 lawyers’ role, 58, 59 legal representation, 59 meaning, 57, 58 presumption of innocence, 59 public legitimacy, 58 reconstruction, 49–55, 57, 64–6, 75, 78, 226–9 socio-economic rights, 58 Saville Inquiry delay, 199 right to life, 199 Somalia human rights, 234, 235 humanitarian law, 234, 236 humanitarian needs, 36 legal framework, 234 political consensus, 234 political/diplomatic background, 234 rule of law, 55 secure environment, 36, 37, 44, 55 UN involvement/peacekeeping abuse of local people, 235, 236 achievement, 234

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378 Somalia (cont.): UN involvement/peacekeeping (cont.): command/control, 38, 39, 234 consent/confrontation, 37 credibility, 235 enforcement operations, 36, 37 fundamental mistakes, 234 gender-based violence, 235 human security, 235 humanitarian intervention, 235 local complaints mechanism, 236 mandate, 36, 37, 55 mission personnel, 234, 235, 236 operational difficulties, 39 peacekeeping operation, 36, 37, 44 power relationship, 235 protection of women/children, 235 restrictions, 237 rules of engagement, 38, 45 Security Council, 237 security threats, 234 UNITAF, 36–8 UNOSOM II mission, 37–9, 45, 55 US influence, 234 use of force, 234 warlord’ strategy, 37 Special Criminal Court background material, 219, 220 comparative issues, 220 ECtHR jurisprudence, 221 effectiveness, 219 fair trial, 220, 221 international standards, 220 intimidation, 220 judicial independence, 220 judicial review, 220 juryless courts, 219, 221 legal issues, 219 legislative detail, 219 political context, 219 referrals, 220 terrorist activity, 220 State aid excise duty exemptions, 154 procedural requirements, 155 statement of reasons, 155 State responsibility diplomatic protection cases, 238 due diligence, 237–40 failure to act, 238 genocide, 238 ICJ decisions, 238 international environmental law, 238 international legal obligations, 237–9 international treaties, 238, 239 terrorist activity, 237–40 UNSC Resolutions, 239 Sudan see Darfur Terrorism emergency powers, 219 see also Emergency powers

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extraordinary rendition see Extraordinary rendition freedom fighters, 240 international law, 237 international legal obligations, 238, 239 non-State actors, 237–40 Northern Ireland anti-terrorism measures, 202, 203 control orders, 203 detention, 202, 203 emergency powers, 200 jury selection, 201 juryless trials, 200, 201 police powers, 201, 202 right to liberty, 202 State responsibility, 237, 238 War on Terror, 90, 105–8, 237, 240 Torture deportation, 86, 106 diplomatic assurances, 86–8 disproportionate punishment, 85 extradition, 85 extraordinary rendition, 79–84, 86–90, 105, 106 see also Extraordinary rendition internment, 16 see also Internment interrogation methods, 81 Ireland v United Kingdom, 3, 11, 16, 18, 19, 23, 26, 27 practical protection, 88–90 real risk of violation, 85–9, 106 refoulement, 86, 106 UN Convention against Torture, 81 War on Terror, 90 Tourism tourist revenues, 170 visitor numbers, 170 Trafficking see Human trafficking Transport bridges, 162 inland waterways, 165 rail links, 162 road development, 161 road safety, 162, 163 strategic planning, 162 Ulster Canal, 160, 161 UN Charter dispute settlement, 31, 32 enforcement operations, 31, 32, 36, 37 UN intervention/peacekeeping administration of justice, 52, 53 Cambodia see Cambodia command/control, 38, 39, 43 Darfur, 110 see also Darfur dispute settlement, 31, 32 East Timor see East Timor enforcement operations, 31, 32, 36, 37

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governance, 52 human rights protection, 57 inter-State conflicts, 51, 52 intra-State conflicts, 52 judicial reconstruction, 56, 57 Kosovo see Kosovo Lebanon see Peacekeeping in Lebanon peacekeeping missions abuse of local people, 235, 236 command and control, 234 cooperative projects, 55 credibility, 235 evolution, 50, 55 fundamental mistakes, 234 gender-based violence, 235 humanitarian intervention, 235 limited missions, 51 local complaints mechanisms, 236 local consent, 52 mission personnel, 234, 235, 236 peace operations, 52 power relationships, 235 protection of women/children, 235 reform, 50, 77 restoration of order, 56 restrictions, 237 security threats, 234 State-building missions, 50 traditional peacekeeping, 51 use of force, 234 post-conflict societies, 52, 55, 57

root cause prevention, 55 rule of law reconstruction, 52–5, 57, 64, 65 rules of engagement, 38, 43, 45 societal reconstruction, 77 Somalia see Somalia sustainable peace, 52 transitional administration, 56 UN Resolution (1701), 41–3 UN Peacekeeping Force (UNIFIL) see also Peacekeeping in Lebanon; UN intervention/peacekeeping area of operations, 32, 35 command/control, 38, 43 composition/structure, 32, 41 establishment, of, 33, 34, 44 inter-party cooperation, 32, 34, 36 mandate, 31, 32, 34 peacekeeping role, 35, 36 political issues, 32 resistance, to, 35 rules of engagement, 43 Security Council support, 32 security issues, 32 strength, of, 42 threats, against, 45, 46 UN Resolution (1701), 41–3 Universal Declaration of Human Rights human rights norms, 4 War on Terror international law, 105–8, 237, 240 torture, 90

379