The Irish Yearbook of International Law Volume 3, 2008 9781472565389, 9781849460729

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Table of Cases

australia Al–Kateb v Godwin [2004] HCA 37............................................................................36 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, (1995) 128 ALR 353...............................................................................................36

canada John Burrows Ltd v Subsurface Surveys Ltd [1968] SCR 607.......................................80 Sohio Petroleum Co v Weyburn Security Co Ltd [1971] SCR 81..................................80

czech republic Brno Constitutional Court, 26 November 2008...........................................................3

european committee on locial rights IFHR v Ireland (Complaint No 42/2007), Decision on Merits, 3 June 2008..............174

european court of human rights A, B and C v Ireland (App no 25579/05).....................................................................35 Airey (1979–80) 1 EHRR 1........................................................................................43 Albert and Le Compte v Belgium (1983) 5 EHRR 533...............................................170 Barry v Ireland (App no 18273/04), judgment of 15 December 2005, unreported.................................................................................................... 160–61 Blecic v Croatia (2004) 41 EHRR 185................................................................ 170–71 Bosphorus Hava Yollari Turizm v Ireland (2006) 42 EHRR 1.....................................28 Bryan v UK (1995) 21 EHRR 342............................................................................170 Connors v UK (2005) 40 EHRR 189................................................................... 170–71 DH v Czech Republic (App no 57325/00), Decision of 13 November 2007..................34 Dudgeon (1982) 4 EHRR 149.............................................................................. 34, 43 Goodwin v UK (2002) 35 EHRR 447..........................................................................32 Heaney & McGuinness v Ireland (2001) 33 EHRR 264...............................................43 Hutten–Czapski v Poland (App no 35014/97), Decision [GC] of 19 June 2006............34 Ireland v UK, Series A, No 25, judgment of 18 January 1978......................................47 Ireland v UK (1978) 2 EHRR 25................................................................................43

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Johnson v UK (1999) 27 EHRR 296.........................................................................176 Liberty et v UK (2009) 48 EHRR 1..........................................................................194 M v Netherlands (App no 16911/90), 8 February 1993.............................................168 McMullen v Ireland [2004] ECHR 404..............................................................160, 175 Murphy v Ireland (2003) 38 EHRR 212....................................................................195 Norris v Ireland (1988) 13 EHRR 186.............................................................25, 34, 43 Open Door Counselling Ltd v Ireland (1993) 15 EHRR 244.................................. 26, 28 Osman v UK (2000) 29 EHRR 245.............................................................................34 S and Marper v UK (2009) 48 EHRR 50...................................................................194 Smith & Grady v UK (2000) 29 EHRR 493.................................................................43 Stubbings v UK RJD 1996–IV..................................................................................190 Tysiac v Poland (App no 5410/03), Decision of 20 March 2007............................ 34–35 Von Hannover (2005) 40 EHRR 1..............................................................................25 Winterwerp v The Netherlands (1979–80) 2 EHRR 387............................................176 X, Y and Z v UK (1997) 24 EHRR 143.....................................................................168 Z v UK (2001) 34 EHRR 97.......................................................................................30 european court of justice and court of first instance Alphabetical Advocaten voor de Wereld VZW v Leden van de Ministerraad (Case C–303/05) [2007] ECR I–3633..............................................................................................119 Altmark Trans GmbH & Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH and Oberbundesanwalt beim Bundesverwaltungsgericht (Case C–280/00) [2003] ECR I–7747...................... 138–39 BUPA v Commission (Case T–289/03) [2008] ECR II–81................................... 137–38 Carpenter v Secretary of State for the Home Department (Case C–60/00) [2002] ECR I–6279........................................................................................................131 CARTESIO Oktato es Szolgaltato bt. Reference for a preliminary ruling: Szegedi Iteltabla – Hungary (Case C–210/06) [2008] ECR I–9641.....................................141 Commission v Ireland (Water Treatment Case) (Case C–66/06) [2008] ECR I–158.................................................................................................... 133–35 Commission v Ireland (Case C–215/06) [2008] ECR I–4911......................................133 Commission v Ireland (Case C–316/06) [2008] ECR I–124........................................132 Farrell v Whitty (Case C–356/05) [2007] ECR I–3067......................................... 129–30 Foster v British Gas (Case C–188/89) [1990] ECR I–3313................................... 129–30 Francovich...............................................................................................................126 Halifax v Commissioners of Customs and Excise (Case C–255/02) [2006] ECR I–1609........................................................................................................128 Impact v Minister for Agriculture and Food (Case C–268/06) [2008] ECR I–2483.................................................................................................................125 International Transport Workers’ Federation & Finnish Seamen’s Union v Viking Line ABP (Case C–438/05) [2007] ECR I–10779..................................12, 24, 27, 206 Jia v Migrationsverket (Case C–1/05) [2007] 1 CMLR 41.........................................131 Kadi v Council of the European Union & the Commission of the European Communities (Case T–315/01) [2008] 3 CMLR 41............................................ 21, 25



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Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet (Case C–341/05) [2007] ECR I–11767; [2008] Industrial Relations Law Reports 160........12, 24, 27, 206 Metock v Minister for Justice, Equality and Law Reform (Case C–127/08) [2008] 3 CMLR 39........................................................................................131, 140 Nold (J) v Commission (Case 4/73) [1975] ECR 985; [1974] ECR 491; [1974] 2 CMLR 338.........................................................................................................23 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) (Case C–213/89) [1990] ECR I–2433, [1990] 3 CMLR 1.............................................................. 22–23 R (Wells) v Secretary of State for Transport, Local Government and the Regions (Case C–201/02) [2004] ECR I–723......................................................................133 Rüffert v Land Niedersachsen (Case C–346/06) [2008] ECR I–1989............................12 Secretary of State for the Home Department v Akrich (Case C–109/01) [2003] ECR I–9607........................................................................................................131 SPUC v Grogan (Case C–159/90) [1991] ECR I–4685; [1991] 3 CMLR 849......26, 28, 205 Stauder v City of Ulm (Case 29/69) [1969] ECR 419; [1970] CMLR 112......................23 Water Treatment Case. See Commission v Ireland (Case C–66/06) Chronological 29/69 Stauder v City of Ulm [1969] ECR 419; [1970] CMLR 112................................23 4/73 Nold (J) v Commission [1975] ECR 985; [1974] ECR 491; [1974] 2 CMLR 338........................................................................................................................23 C–188/89 Foster v British Gas [1990] ECR I–3313.............................................. 129–30 C–213/89 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1990] ECR I–2433, [1990] 3 CMLR 1.............................................................. 22–23 C–159/90 SPUC v Grogan [1991] ECR I–4685; [1991] 3 CMLR 849.............. 26, 28, 205 C–60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I–6279........................................................................................................131 C–280/00 Altmark Trans GmbH & Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH and Oberbundesanwalt beim Bundesverwaltungsgericht [2003] ECR I–7747................................................ 138–39 C–109/01 Secretary of State for the Home Department v Akrich [2003] ECR I–9607........................................................................................................131 T–315/01 Kadi v Council of the European Union & the Commission of the European Communities [2008] 3 CMLR 41...................................................................... 21, 25 C–201/02 R (Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I–723..............................................................................133 C–255/02 Halifax v Commissioners of Customs and Excise [2006] ECR I–1609.........128 T–289/03 BUPA v Commission [2008] ECR II–81.............................................. 137–38 C–1/05 Jia v Migrationsverket [2007] 1 CMLR 41....................................................131 C–303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I–3633........................................................................................................119 C–341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet [2007] ECR I–11767; [2008] Industrial Relations Law Reports 160..................12, 24, 27, 206 C-356/05 Farrell v Whitty [2007] ECR I–3067.................................................... 129–30 C–438/05 International Transport Workers’ Federation & Finnish Seamen’s Union v Viking Line ABP [2007] ECR I–10779.....................................12, 24, 27, 206 C–66/06 Commission v Ireland (Water Treatment case) [2008] ECR I–158......... 133–35

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C–210/06 CARTESIO Oktato es Szolgaltato bt. Reference for a preliminary ruling: Szegedi Iteltabla – Hungary [2008] ECR I–9641........................................141 C–215/06 Commission v Ireland [2008] ECR I–4911.................................................133 C–268/06 Impact v Minister for Agriculture and Food [2008] ECR I–2483................125 C–316/06 Commission v Ireland [2008] ECR I–124...................................................132 C–346/06 Rüffert v Land Niedersachsen [2008] ECR I–1989.......................................12 C–127/08 Metock v Minister for Justice, Equality and Law Reform [2008] 3 CMLR 39..................................................................................................131, 140 germany BGH RzW 1963, 370................................................................................................73 BVerfG, 2 BvE 2/08 of 30.6.2009, Absatz Nr I–421......................................................3 Görgülü, BVerfG, 2 BvR 1481/04, [2004] 111 BVerfGE 307........................................28 Highjacked Airplanes, BVerfG, 2005..........................................................................40 Solange I [1974] 37 BVerfGE 271....................................................................23, 26, 44

international court of justice Anglo–Norwegian Fisheries Case (UK v Norway) ICJ 18 Dec 1951..................... 71, 84 Case Concerning Armed Activities on the Territory of the Congo (New Application , 2000) (Democratic Republic of the Congo v Rwanda), Judgment of 3 February 2006......................................................................................................................83 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14....................................................74 Conditions of Admission of a State to Membership of the UN (Advisory Opinion) [1948] ICJ 80..........................................................................................................74 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v US) ICJ 12 Oct 1984.....................................................................................................85 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) ICJ 26 Nov 1986....................................................................................................71 Minquiers and Ecrehos (France v UK) ICJ 17 Nov 1953............................................89 North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark/ The Netherlands) ICJ 20 Feb 1969........................................................ 73, 83–84, 88 Nottebohm (Liechtenstein v Guatemala), ICJ Rep 6 Apr 1955....... 48, 50, 53, 61–67, 71 Nuclear Tests Case (Australia v France) ICJ 20 Dec 1974...............................81–83, 87 Temple of Preah Vihear (Cambodia v Thailand) ICJ 15 June 1962.............................................................................. 71, 74–76, 85–87, 89 Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, ICJ 7 June 1955.....................................................74 international criminal tribunal for rwanda Prosecutor v Nahimana et al (Media trial) (Case No ICTR–99–52–T), Judgment and Sentence, 3 December 2003...........................................................................218



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ireland AN v Minister for Justice, Equality and Law Reform................................................165 B v Mental Health (Criminal Law) Review Board and Others [2008] IEHC 303...................................................................................................... 175–76 Bingham & Another v Crowley & Others [2008] IEHC 453........................................175 BJN v MJELR [2008] IEHC 8.................................................................................164 Bode and Others v MJELR [2008] 3 IR 663..............................................................165 Bucumi v Refugee Appeals Tribunal and Others (unreported, High Court)................164 Byrne v Ireland [1972] IR 241.....................................................................................33 C (a minor) v DPP [2008] IEHC 39................................................................... 159–60 Carmody v MJELR, Ireland and the Attorney General [2005] IEHC 10.....................177 Crotty v An Taoiseach [1987] IR 713................................................................ix, 8, 203 Curtin v Dáil Eireann [2006] 2 IR 556.......................................................................121 Cussens v Brosnan [2008] IEHC 169.........................................................................127 D v Residential Institutions Redress Review Committee & Others [2008] IEHC 350............................................................................................................172 Digital Rights Ireland Ltd v The Minister for Communications, Marine and Natural Resources, the MJELR, The Commissioner of An Garda Siochána, Ireland and the Attorney General..........................................................................177 Dimbo v MJELR [2008] IEHC 26............................................................................165 Donegan v Dublin City Council [2008] IEHC 288......................................................170 Dooley & Others v Killarney Town Council and Another [2008] IEHC 242.................169 Dublin City Council v Gallagher [2008] IEHC 354....................................................171 F v Refugee Appeals Tribunal [2008] IEHC 135........................................................164 Farrell v Whitty [2008] IEHC 124............................................................................129 Flynn v AIB PLC [2008] IEHC 199..........................................................................175 Foy v An t-Ard Chláraitheoir & Ors [2007] IEHC 470...............................................167 Fr N and Others v MJELR (unreported, High Court, 24 April 2008)........................164 Gavrylyuk v MJELR [2008] IEHC 321............................................................... 121–22 Grogan [1989] IR 753........................................................................................... 27–28 H v MJELR [2007] 1 IEHC 277; [2008] 4 IR 452......................................... 121–22, 124 I v Refugee Appeals Tribunal [2008] IEHC 345..................................................164, 177 J v Criminal Assets Bureau [2008] IEHC 168...................................................... 175–76 Jackson v DPP [2004] IEHC 380..............................................................................160 K and Another v Ireland [2008] IEHC 25............................................................ 175–76 Kamil v Refugee Appeals Tribunal (unreported, High Court, 27 August 2008)...................................................................................................................164 Kelly v Director of the Equality Tribunal [2008] IEHC 112........................................175 Kongue v Refugee Appeals Tribunal and Others (unreported, High Court, 29 October 2008).................................................................................................164 Lawrence & Others v Ballina Town Council Others (unreported judgment, 31 July 2008).................................................................................................169, 177 Leonard v Dublin City Council and Others [2008] IEHC 79................................169, 171 McD v L & Another [2008] IEHC 96........................................................................167 McFarlane v DPP [2008] IESC 7..............................................................................160 McKenna v An Taoseach (No 2) [1995] 2 IR 10............................................................8

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MJELR v Breen [2008] IEHC 54..............................................................................119 MJELR v Ferenca [2007] IEHC 199; [2008] IESC 52................................................119 MJELR v Iqbal [2007] IEHC 133; [2008] 4 IR 362....................................................120 MJELR v Puta [2008] IESC 29................................................................................120 MJELR v Sulej [2007] IEHC 132.............................................................................120 Montemuino v Minister for Communications [2008] IEHC 157; [2009] 1 ILRM 218.........................................................................................................128 Mwiza v Refugee Appeals Tribunal and Another (unreported, High Court, 22 October 2008).................................................................................................164 N v D [2008] IEHC 51..............................................................................................172 N v MJELR [2008] IEHC 107; [2009] 1 IR 88..................................................... 122–23 N v N [Hearing a Child] [2008] IEHC 382................................................................172 O & Others v Minister for Justice, Equality and Law Reform and Others [2008] IEHC 4045................................................................................................164 O’Donnell v South Dublin County Council [2007] IEHC 204............................... 168–69 O’Donnell & Others v South Dublin County Council & Other [2008] IEHC 454..........168 O’Keeffe v An Bord Pleanála [1993] 1 IR 39.............................................................164 Oguekwe v MJELR [2008] IEHC 25........................................................................165 POT v MJELR [2008] IEHC 361.............................................................................165 Pullen and Others v Dublin City Council [2008] IEHC 379.................................171, 177 R v R [2008] IEHC 162............................................................................................172 Rafferty v Minister for Agriculture [2008] IEHC 344................................................175 Ringaskiddy & District Residents Association v EPA [2008] IESC 55........................139 Ryanair Ltd v Commission for Aviation Regulation [2008] IEHC 278........................126 S v Office of the Refugee Applications Commissioner [2008] IEHC 399.....................164 T v L [2008] IESC 48.......................................................................................... 135–36 TD v Minister for Education [2001] 4 IR 259............................................................121 Truck and Machinery Sales Ltd v Marubeni Komatsu Ltd [1996] 1 IR 12....................80 Walsh v DPP [2004] IEHC 380................................................................................160 Weston v An Bord Pleanála [2008] IEHC 71.............................................................175 X [1992] 1 IR 17.........................................................................................................28

italian-united states conciliation commission Flegenheimer Claim (1958) 25 ILR 91.................................................................. 62–63 Mergé (1955) 14 RIAA 236.......................................................................................61

permanent court of arbitration Award of Her Majesty Queen Elizabeth II for the Arbitration of a Controversy between the Argentine Republic and the Republic of Chile Concerning Certain Parts of the Boundary between their Territories (1967) 61 AJIL 1071......................71 Canevaro case: Renault, Fusinato, Calderon (1922) 11 RIAA 397....................... 53, 61 Clipperton Island Arbitration (France v Mexico) (1932) 26 AJIL 390.........................86 Costa Rica Packet Arbitration, 15 August 1984: Netherlands....................................77



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Grisbadarna Arbitration. See Maritime Boundary Dispute between Norway and Sweden, In the matter of Maritime Boundary Dispute between Norway and Sweden, In the matter of (Grisbadarna Arbitration) (1910) 4 AJIL 226............... 71, 79, 85, 88 Salvador Commercial Company Case (1902)..............................................................86 Tinoco Arbitration (Costa Rica v UK) (1924) 18 AJIL 145..............................71, 74, 77

permanent court of international justice Acquisition of Polish Nationality, 1923 PCIJ Rep, Series B, 7............................... 48, 51 Case Concerning the Factory at Chorzów (Germany v Poland) 1933 PCIJ, Series A, No 17................................................................................................ 72, 75 Case Concerning Serbian Loans Issued in France (France v Kingdom of Serbs, Croats and Slovenes) 1929 PCIJ, Series A/B, No 20/21.....................71, 75, 78–79, 85 European Commission of the Danube, Advisory Opinion on the 1927 PCIJ, Series B, No 14......................................................................................................86 Legal Status of Eastern Greenland (Denmark v Norway) 1933 PCIJ, Series A/B, No 53................................................................................................... 71, 77, 81, 87 Lotus case, 1927 PCIJ Rep, Series A..........................................................................55 Mavrommatis Palestine Concessions case, 1924 PCIJ, Series A, No 2.........................45 Nationality Decrees in Tunis and Morocco, 1923 PCIJ, Series B............................ 48, 51 Phosphates in Morocco, Preliminary Objections, 1938 PCIJ, Series A/B, No 74.........89

south africa S v Makwanyane [1995] (3) SA 391 (CC)....................................................................36

un human rights committee Toonen v Australia (1994) UN Doc CCPR/C/50/D/488/1992 (4 April 1994)...............34

united kingdom A v Hoare [2008] UKHL 6, [2008] 1 AC 844.............................................................190 A v Secretary of State for the Home Department (No 1) (Belmarsh case) [2004] UKHL 56; [2005] 2 WLR 87............................................................................ 35, 40 A v Secretary of State for the Home Department (No 2) (Torture evidence case) [2005] UKHL 71; [2005] 3 WLR 1249....................................................................35 AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434..............................................................................................195 Attorney General for Northern Ireland’s Reference (No 1 of 1975) [1977] AC 105.....188 Begum v London Borough of Tower Hamlets [2003] UKHL 5...................................170 Belmarsh case. See A v Secretary of State for the Home Department (No 1) Beoku–Betts v Secretary of State for the Home Department [2008] UKHL 39, [2009] 1 AC 115...................................................................................................192 Birdi v Secretary of State for Home Affairs [1975] SJ 322............................................36

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Boyle’s Application, In re [2008] NICA 35................................................................192 Byrne v Motor Insurance Bureau [2007] 3 All ER 499...............................................129 Cairncross v Lorimer (1860) 3 Macq 827....................................................................72 Canada and Dominion Sugar Company v Canadian National (West Indies) Ltd [1947] AC 46..........................................................................................................71 Central London Property Trust Ltd v High Trees House Ltd [1947] 1 LRQB 130........81 Chagos Islands case. See R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs Chikwamba v Secretary of State for the Home Department [2008] UKHL 40, [2008] 1 WLR 1420..............................................................................................192 Common Services Agency v Scottish Information Commissioner [2008] UKHL 47, [2008] 1 WLR 1550..............................................................................................194 Currie v Misa (1875) LR 10 Ex 162............................................................................88 Derbyshire v Times [1993] AC 534..............................................................................34 Doherty v Birmingham City Council [2008] UKHL 57, [2008] 3 WLR 636................194 Doherty’s Application, In re [2007] NICA 33; [2008] UKHL 33, [2008] 1 WLR 1499....................................................................................................................191 Duffy, In re [2009] UKHL 4, [2008] NI 152..............................................................182 E (A Child), In re [2008] UKHL 66, [2008] 3 WLR 1208..........................................187 EB (Kosovo) v Secretary of State for the Home Department....................................192 EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2008] 3 WLR 931................................................................................................193 G (Adoption: Unmarried couple) In re, [2008] UKHL 38..........................................194 Halifax Union v Wheelwright (1865–1875) 10 LR Ex 183..........................................72 Harrow London Borough Council v Qazi [2003] 3 WLR 792......................................170 Kay and Others v Lambeth London Borough Council [2006] 2 AC 465.......................170 Leeds City Council v Price and Others [2006] 2 AC 465.............................................170 Lewisham London Borough Council v Malcolm [2008] UKHL 43, [2008] 1 AC 1399............................................................................................................196 McElhone case 188 National Union of Teachers v Governing Body of St Mary’s Church of England (Aided) Junior School [1997] 3 CMLR 630..........................................................130 Phelps v Hillingdon London Borough Council [2001] 2 AC 619....................................30 Pickard v Sears (1837) 6 Ad & El 469................................................................... 70–71 R v Asfaw [2008] UKHL 31, [2008] 1 AC 1061.........................................................193 R v Bentley [2001] 1 Cr App R 21.............................................................................192 R v Chief Immigration Officer, Heathrow Airport, ex p Salamat Bibi [1976] 1 WLR 979............................................................................................................36 R v Davis [2008] UKHL 36, [2008] 1 AC 1128..........................................................191 R v Davison, McCormick and Fitzpatrick [2008] NICC 28........................................181 R v G [2008] UKHL 37, [2009] 1 AC 93....................................................................192 R v Gordon [2002] NIJB 50......................................................................................192 R v Secretary of State for Home Department, ex p Bhajan Singh [1976] QB 198..........36 R v Secretary of State for Home Department, ex p Brind [1991] 1 AC 696...................36 R (Al–Jedda) v Secretary of State for Defence [2007] UKHL 58................................21 R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15.................................................................................. 35, 195



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R (Baiai) v Secretary of State for the Home Department (Nos 1 and 2) [2008] UKHL 53, [2008] 3 WLR 549..............................................................................193 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (Chagos Islands case) [2008] UKHL 61, [2008] 3 WLR 955.........................................183, 185 R (BAPIO Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27, [2008] 1 AC 1003................................................................................182 R (Corner House Research) v Director of Serious Fraud Office [2008] UKHL 60, [2008] 3 WLR 568................................................................................................182 R (Gentle) v PM [2008] UKHL 20, [2008] 1 AC 1356..............................................189 R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2008] 3 WLR 1023.................................................................................................. 195–96 R (L) (A Patient) v Secretary of State for Justice [2008] UKHL 68, [2008] 3 WLR 1325........................................................................................................189 R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396..........166 R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535................................................................................................194 R (M) v Slough Borough Council [2008] UKHL 52, [2008] 1 WLR 1808..................194 R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72, [2009] 2 WLR 48..................................................................................................190 Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] 2 WLR 115................................................................................................189 Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153.............................................................................................................191 Stovin v Wise [1996] AC 923......................................................................................30 Stubbings v Webb [1993] AC 498..............................................................................190 Torture evidence case. See A v Secretary of State for the Home Department (No 2) Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50, [2008] 3 WLR 593..........................................................................................................189 YL v Birmingham City Council [2008] 1 AC 95.........................................................197 Zalewska v Department for Social Development [2008] UKHL 67, [2008] 1 WLR 2602........................................................................................................193

united states Lawrence v Texas 539 US 558 (2003).........................................................................36 Roper v Simmons 161 L Ed 2d (2005).........................................................................36

Table of Legislation brazil Constitution 1891.....................................................................................................57 Decree of 15 December 1889.....................................................................................57

european union Single European Act 1986.............................................................................ix, 14, 206 Decisions Council Framework Decision 2002/584/HJA of 13 June 2002 on the European Arrest Warrant and Surrender Procedures between Member States [2002] OJ L190/01.................................................................................................... 119–20 Art 2....................................................................................................................119 (2)......................................................................................................... 119–20 Directives Sixth Council Directive 77/388/EEC on the harmonisation of laws of the Member States relating to turnover taxes [1977] OJ L145/1............................ 127–28 Second Council Directive 84/5/EEC on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles (Second Directive on insurance).........................................130 Art 1(4)...............................................................................................................130 Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (EIA Directive) [1985] OJ L175/40.................................................................................................. 133–35, 139 Annex II..............................................................................................................135 para 1(a)–(c)...........................................................................................134 Annex III............................................................................................................134 Council Directive (EEC) 91/271 concerning urban waste–water treatment [1991] OJ L135/40................................................................................................132 Art 3....................................................................................................................132 Art 4(1)...............................................................................................................132 Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora (Habitats Directive) [1992] OJ L206/7.........................................425 Council Directive 96/67/EC on access to the groundhandling market at Community airports [1996] OJ L272/36...................................................................................126 Art 21..................................................................................................................127 Council Directive 1999/70/EC concerning the framework agreement on fixed–term work concluded by ETUC, UNICE and CEEP (Fixed Term Work Directive) [1999] L175/43..................................................................... 125–26

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Fixed–Term Work Framework Agreement.............................................................125 Cl 4(1).................................................................................................................126 Cl 5......................................................................................................................126 (1).................................................................................................................126 Dir 2003/4/EC.........................................................................................................104 Dir 2003/35/EC.......................................................................................................104 Framework Equality Directive 2000..........................................................................25 Framework Race Equality Directive 2000.................................................................25 Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (Temporary Protection Directive) [2001] OJ L212/12......................................................................... 161–62 Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States [2004] OJ L158/77............................................................131, 140 Art 2(2)...............................................................................................................131 Ch VI..................................................................................................................132 Council Directive 2004/83/EC Qualification Directive................................ 117, 121–24 Recital 9..............................................................................................................123 Recital 26............................................................................................................123 Art 2(e)................................................................................................................121 Art 8....................................................................................................................123 Art 15..................................................................................................................122 Art 18..................................................................................................................121 Posting of Workers Directive..................................................................................403 Services Directive....................................................................................................403 Water Framework Directive...................................................................................152 Working Time Directive.........................................................................................393 Regulations Brussels I Regulation. See Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Brussels II Regulation. See Council Regulation (EC) 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses Brussels II bis Regulation. See Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000 Council Regulation (EEC) 1612/68 on freedom of movement of workers within the Community [1968] OJ L257/2........................................................................131 Art 10..................................................................................................................131 Council Regulation (EEC) 2847/93 establishing a control system applicable to the common fisheries policy [1993] OJ L261/1 Recitals...............................................................................................................128 Art 6....................................................................................................................128



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Art 31(2)–(3).......................................................................................................128 Council Regulation (EC) 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (Brussels II Regulation) [2000] OJ L160/19..........................................................................................................135 Art 2....................................................................................................................136 Art 42..................................................................................................................136 Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation) [2001] OJ L12/1.......................................................................... 135–36 Recital 19............................................................................................................136 Art 66..................................................................................................................136 Art 68..................................................................................................................136 Art 76..................................................................................................................136 Regulation (EC) No 1049/2001 on public access to European Parliament, Council and Commission documents.....................................................................15 Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000 (Brussels II bis Regulation).............................................................................................. 135–36 Art 1(3)(e)...........................................................................................................136 Art 11..................................................................................................................172 Resolutions European Parliament Resolution on public access to European Parliament, Council and Commissions documents 2009...........................................................15 france Civil Code.................................................................................................................81 Art 1134................................................................................................................72 germany Basic Law (Constitution)...............................................................................25, 28, 33 Art 1......................................................................................................................40 Art 25....................................................................................................................73 Civil Code (BGB) § 145......................................................................................................................81 § 242......................................................................................................................72 ireland Act revising the Convention on the Grant of European Patents 2007.......................433 Child Abduction and Enforcement of Custody Orders Act 1991.............................172 Cluster Munitions and Anti–Personnel Mines Act 2008..............................93, 99–100, 166, 199–200, 260

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Pt 4......................................................................................................................100 s 1........................................................................................................................100 s 2..........................................................................................................................99 (a).....................................................................................................................99 (b)...................................................................................................................100 (c)....................................................................................................................100 (i)–(v)..........................................................................................................100 s 7........................................................................................................................100 ss 9–10.................................................................................................................100 s 12(2)..................................................................................................................100 s 13(1)–(2)............................................................................................................100 s 14(1)..................................................................................................................100 (2)..................................................................................................................100 (a)..............................................................................................................100 (i)–(ii)....................................................................................................100 (b).............................................................................................................100 Constitution 1922.....................................................................................................33 Constitution 1937 (Bunreacht na hÉireann) (amended 2002)............ ix–x, 12, 14, 33, 46, 160, 165, 176, 242, 254, 261, 389–90, 405, 411, 429, 431–32 Art 2......................................................................................................................46 Art 29.4.3..............................................................................................................27 Art 29.4.6º..................................................................................................... 120–21 Art 40.............................................................................................................. 20, 32 Art 40.1–40.2.......................................................................................................173 Art 40.3.3..............................................................................................................27 Arts 41–44....................................................................................................... 20, 32 Constitution Act 1992 13th and 14th Amendment.....................................................................................28 Criminal Law (Human Trafficking) Act 2008...............................................103–4, 159 Criminal Law (Insanity) Act 2006...........................................................................176 ss 13–14...............................................................................................................176 Disability Act 2005..................................................................................................104 Pt 5......................................................................................................................255 Equal Status Act 2000.............................................................................................103 EU (Scrutiny) Act 2002...........................................................................................424 European Arrest Warrant Act 2003................................................................... 119–21 s 38......................................................................................................................119 European Communities Act 1972.....................................................................423, 428 European Communities Act 2007............................................................................428 European Convention on Human Rights Act 2003................... 20, 38, 168, 170, 175–76 s 3(2)....................................................................................................................175 Fisheries (Consolidation) Act 1959 s 224B..................................................................................................................128 Geneva Conventions Act 1962................................................................................199 Geneva Conventions Act 1998................................................................................199 Health Insurance Act 1994......................................................................................138 Health Insurance (Amendment) Act 2001...............................................................138



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Housing Acts 1966–98 s 62................................................................................................................ 170–71 Illegal Immigrants (Trafficking) Act 2000...............................................................162 Immigration Act 1999.............................................................................................162 s 3........................................................................................................................165 (2)(f)................................................................................................................121 Immigration Act 2003.............................................................................................162 International Criminal Court Act 2006...................................................................199 Irish Nationality and Citizenship Act 1956..........................................45–46, 51, 66–68 s 2..........................................................................................................................46 s 6(1)...........................................................................................................46, 67–68 (2)............................................................................................................... 46, 68 s 7..........................................................................................................................46 (1).....................................................................................................................46 Irish Nationality and Citizenship Act 2001.....................................................46, 66–67 s 3..........................................................................................................................46 Irish Nationality and Citizenship Act 2004 s 3..........................................................................................................................67 Mental Health Act 2001..........................................................................................167 Non–Fatal Offences against the Person Act 1997....................................................104 Nuclear Test Ban Act..............................................................................................166 Ombudsman for Children’s Act 2002 ss 8–16.................................................................................................................178 Passports Act 2008............................................................... 234, 250–51, 255, 260, 284 s 14(8)–(9)............................................................................................................260 s 20......................................................................................................................251 Planning and Development Act 2000...............................................................133, 135 Proceeds of Crime Act 1996....................................................................................176 Prompt Payment of Accounts Act 1997...................................................................259 Protection of Employees (Fixed–Term Work) Act 2003.................................... 125–26 ss 14–15...............................................................................................................125 Public Service Management Act 1997...............................................................225, 255 Red Cross Acts 1938–98..........................................................................................199 Refugee Act 1996....................................................................................................162 s 2........................................................................................................................124 s 5........................................................................................................................123 s 6........................................................................................................................162 s 8........................................................................................................................162 s 13(5)–(6)............................................................................................................165 s 15......................................................................................................................162 Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995...........................................................................................28 Residential Institutions Redress Act 2002......................................................... 172–73 Value Added Tax Act 1972......................................................................................127

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Statutory Instruments Child Abduction and Enforcement of Custody Orders Act 1991 (Section 4) (Hague Convention) Order 2008 (SI 22/2008)......................................................261 Commencement Order relating to the 2007 Foyle and Carlingford Fisheries legislation............................................................................................................148 European Communities (Access to the Ground Handling Market at Community Airports) Regulations 1998 (SI 1998/505)...................................................... 126–27 European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006)................................................................................................. 121–23 reg 2(1)................................................................................................................122 reg 4(2).......................................................................................................... 121–22 European Communities (Late Payment in Commercial Transactions) Regulations 2002....................................................................................................................259 Extradition Act 1965 (Application of Part II) (Amendment) Order 2009.................254 Health Insurance Regulations 1996.........................................................................138 Passports Act 2008 (Commencement) Order 2008 (SI 2008/412)..............................261 Passports (Appeals) Regulations 2008 (SI 2008/413)...............................................261 Passports (Periods of Validity) Regulations 2008 (SI 2008/414)...............................261 Planning and Development Regulations 2001..................................................133, 135 Rules of the Superior Courts Ord 3, r 21...........................................................................................................127 Sea Fisheries (Control of Catches) Regulations 2003 reg 4....................................................................................................................128 mexico Constitution 1857.....................................................................................................56 Title I, Art 30, Sec 2...............................................................................................56 Law of 28 May 1886 Ch 1, Art 1, sec 10..................................................................................................56 Nationality Law 1934.......................................................................................... 56–57 Nationality Law 1939................................................................................................57 peru Constitution 1839.....................................................................................................56 south africa Bill of Rights.............................................................................................................36 Constitution s 39(1)(c)................................................................................................................36



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united kingdom Asylum and Immigration (Treatment of Claimants, etc) Act 2004 s 19......................................................................................................................193 Children Act 1989 s 22(1)..................................................................................................................194 Civil Partnership Act...............................................................................................168 Climate Change Act 2008........................................................................................197 s 1........................................................................................................................197 s 77......................................................................................................................197 s 79......................................................................................................................197 Colonial Laws Validity Act 1865.............................................................................183 Commission for Victims and Survivors Act (NI) 2008.............................................189 Communications Act 2003......................................................................................195 s 319....................................................................................................................195 s 321....................................................................................................................195 Counter–Terrorism Act 2008..................................................................................187 Criminal Evidence (Witness Anonymity) Act 2008..................................................191 Criminal Justice and Immigration Act 2008.....................................................188, 195 s 76......................................................................................................................188 (3)..................................................................................................................188 (4)(a).............................................................................................................188 (6)..................................................................................................................188 (7)(b).............................................................................................................188 s 79......................................................................................................................195 Disability Discrimination Act 1995.........................................................................196 Health and Social Care Act 2001 s 6........................................................................................................................195 Health and Social Care Act 2008.............................................................................197 s 134....................................................................................................................197 s 145....................................................................................................................197 Housing and Regeneration Act 2008.......................................................................194 Human Fertilisation and Embryology Act 2008......................................................193 Human Rights Act 1998....................................................23, 36, 39, 181, 184, 186, 197 Immigration and Asylum Act 1999.........................................................................192 s 65......................................................................................................................192 Inquiries Act 2005...................................................................................................185 Mental Health Act 1983..........................................................................................189 Mesothelioma, etc Act (NI) 2008.............................................................................197 Mobile Homes Act 1983 s 5(1)....................................................................................................................194 National Assistance Act 1948 s 21(1)(a).............................................................................................................194 National Health Service Act 2006 s 251....................................................................................................................195 Northern Ireland Act 1998......................................................................................189 s 76......................................................................................................................189

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Police (NI) Act 2000................................................................................................186 Road Traffic Act 1961 s 56......................................................................................................................130 Sexual Offences Act 2003 s 5........................................................................................................................192 Terrorism Act 2000.................................................................................................181 Tribunal of Inquiry (Evidence) Act 1921.................................................................185 Statutory Instruments Accession (Immigration and Worker Registration) Regulation 2004.......................193 British Indian Ocean Territory (Constitution) Order 2004.......................................183 s 9(1)....................................................................................................................183 Immigration (Procedure for Marriage) Regulations 2005........................................193 Police Authorities (Particular Function and Transitional Provisions) Order 2008 (SI 2008/82).........................................................................................................186 Police and Criminal Evidence (NI) Order 1989........................................................186 Sexual Offences (NI) Order 2008.............................................................................193 Victims and Survivors (NI) Order 2006...................................................................189

united states Constitution..............................................................................................................37

Table of Conventions, Treaties, etc Aarhus Convention on Access to Information, Public Participation in Decision– Making and Access to Justice in Environmental Matters.....................................104 Agreement establishing the Common Fund for Commodities 1980.........................433 Agreement between the Government of Ireland and the Government of Canada on Air Services between the Two Countries 1947.................................................437 Agreement between the Government of Ireland and the Government of the UK 2007....................................................................................................................433 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland 1998...................................47 Art 1......................................................................................................................68 (5)..................................................................................................................47 (6)..................................................................................................................46 Agreement on Social Security between the Government of Ireland and the Government of the UK 2007...............................................................................433 Agreement on Trade, Development and Cooperation between the EC and its Member States, of the One Part, and the Republic of South Africa, of the Other Part 1999...................................................................................................435 Antarctic Treaty......................................................................................................103 Beijing Declaration and Platform for Action 1995...................................................300 Belfast Agreement. See Good Friday Agreement 1998 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters 1968 (Judgments Convention)................................. 135–36 Art 27(4)........................................................................................................ 135–36 1971 Protocol......................................................................................................136 Chicago Convention. See Convention on International Civil Aviation 1944 Comprehensive Nuclear–Test–Ban Treaty..............................................................166 Constitution of the Universal Postal Union 1964 Additional Protocol 1969....................................................................................436 2nd Additional Protocol 1974..............................................................................436 3rd Additional Protocol 1984..............................................................................436 4th Additional Protocol 1989..............................................................................436 5th Additional Protocol 1994..............................................................................436 Constitutive Act of the African Union.....................................................................306 Consular Convention between Ireland and the USA 1950 Protocol 1998......................................................................................................435 Contribution Agreement (Green Carbon Fund) between Ireland and the EBRD in respect of Ireland’s participation in the Multilateral Carbon Credit Fund (Green Carbon Fund) 2006.................................................................................435 Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income 1993........................................................ Protocol .............................................................................................................433

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Protocol between Ireland and the Portuguese Republic 2005...............................433 Convention on the Elaboration of a European Pharmacopoeia 1964 Convention on the Elimination of All Forms of Discrimination Against Women........................................................................................................184, 300 Optional Protocol.................................................................................. 184–85, 300 Convention establishing the European Telecommunications Satellite Organization 1982 Amendments 1999...............................................................................................433 Convention on the Future of Europe..................................................................... 9–10 Convention Against Genocide and Torture.............................................................305 Convention on International Civil Aviation 1944 (Chicago Convention)..................95 Convention on the International Hydrographic Organisation 1967.........................433 Convention on Long–Range Transboundary Air Pollution on Further Reduction of Sulphur Emissions 1979 Protocol 1994......................................................................................................436 Convention on Nomenclature for the Classification of Goods in Customs Tariffs 1950.........................................................................................................435 Protocol of Amendment 1955..............................................................................436 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 Amendment 2001................................................................................................434 Protocol 2003......................................................................................................435 Protocol on Explosive Remnants of War.............................................................332 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti–Personnel Mines and on their Destruction 1997.......................................................................................100, 109, 166, 260, 332 Convention on the Rights of Persons with Disabilities.............................................332 Convention between the United States and Mexico 1868...........................................56 Convention Concerning the Use of Broadcasting in the Cause of Peace 1936.... 215–16 Art 2....................................................................................................................215 Convention banning the use, development, production, acquisition, stockpiling, retention and transfer of Cluster Munitions 2008................. x, 93, 98–99, 107–9, 166, 226–27, 231, 238, 260, 264, 271–72, 293, 314, 331 Art 1................................................................................. 99, 108, 166, 333, 336, 347 (1).......................................................................................................... 333–34 (a)............................................................................................................333 (b)............................................................................................................334 (c)...................................................................................................... 99, 334 (2)–(3)..........................................................................................................334 Art 2.............................................................................................................108, 334 (1)................................................................................................................334 (2)................................................................................................................334 (a)–(b).....................................................................................................334 (c).....................................................................................................108, 334 (i)–(v)..................................................................................................334 (3)–(5).........................................................................................................334















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(6)......................................................................................................... 334–35 (7)–(15).......................................................................................................335 Art 3..............................................................................99, 108, 335, 341–42, 344–45 (1).................................................................................................. 335–36, 341 (2)–(3)................................................................................................... 335–36 (4)...............................................................................................................335 (a)–(f)......................................................................................................335 (5)–(8).........................................................................................................335 Art 4............................................................................99, 108, 337, 340, 342, 344–45 (1)....................................................................................................... 337–339 (a)–(c).....................................................................................................337 (2)......................................................................................................... 337–38 (a)–(e).....................................................................................................337 (3)...............................................................................................................338 (4)........................................................................................................338, 340 (a)–(b).....................................................................................................338 (5)......................................................................................................... 338–39 (6)......................................................................................................... 338–39 (a)–(f).....................................................................................................338 (g)–(i)......................................................................................................339 (7)...............................................................................................................339 Art 5................................................................................................108, 339–40, 342 (1)...............................................................................................................338 (2)...............................................................................................................339 (a)–(h).....................................................................................................339 Art 6........................................................................................ 108, 337, 340, 342–44 (1)–(9).........................................................................................................340 (10)........................................................................................................ 340–41 (11)..............................................................................................................341 (a)–(f)......................................................................................................341 (12)..............................................................................................................341 Art 7..................................................................................................... 108, 341, 346 (1)......................................................................................................... 341–42 (a)–(d).....................................................................................................341 (e)...................................................................................................... 341–42 (f)–(n)......................................................................................................342 (2)–(3).........................................................................................................342 Art 8.............................................................................................. 108, 342, 344, 346 (1)......................................................................................................... 342–43 (2)–(6).........................................................................................................343 Art 9.............................................................................................................341, 343 Art 10..................................................................................................................344 (1)–(2).......................................................................................................344 Art 11................................................................................................................ 3344 (1).............................................................................................................344 (a)–(f)...................................................................................................344 (2)........................................................................................................ 344–45

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(3)..............................................................................................................344 Art 12...........................................................................................................108, 344 (1)........................................................................................................ 344–35 (2)..............................................................................................................345 (a)–(c)....................................................................................................345 (3)..............................................................................................................345 Art 13..................................................................................................................345 (1)–(5)........................................................................................................345 Art 14..................................................................................................................346 (1)–(3)........................................................................................................346 Art 15..................................................................................................................346 Art 16..................................................................................................................346 (1)–(3)........................................................................................................346 Art 17..................................................................................................................346 (1)–(2)........................................................................................................346 Arts 18–19...........................................................................................................347 Art 20..................................................................................................................347 (1)–(3)........................................................................................................347 Art 21.......................................................................................................108–9, 347 (1)–(3)........................................................................................................347 (4)..............................................................................................................347 (a)–(c)....................................................................................................347 (d).........................................................................................................348 Arts 22–23...........................................................................................................348 Council of Europe Convention on Action against Trafficking in Human Beings 2005.........................................................................................................184 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse............................................................................185 Council of Europe Framework Convention for the Protection of National Minorities 1995.................................................................................. 60–61, 185–86 Cultural Cooperation Agreement between the Government of Ireland and the Government of the Republic of India 2006..........................................................433 Declaration of Principles of International Law concerning Friendly Relations and Co–operation among States 1970..................................................................216 EC Treaty............................................................................ 4, 8, 125, 131–33, 203, 206 Preamble......................................................................................................... 203–4 Title on social policy............................................................................................206 Art 3(1)(c)...........................................................................................................131 Art 10...........................................................................................................126, 133 Art 39..................................................................................................................135 Art 88(3)..............................................................................................................137 Art 226............................................................................................117, 133–34, 139 Art 234................................................................................................................140 Art 249................................................................................................................126 Art 288................................................................................................................128 EU Charter of Fundamental Rights................................x, 23, 27, 207, 390, 403–6, 431 Art 24..................................................................................................................172



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Art 28..................................................................................................................403 Art 52(3)..............................................................................................................403 Art 53..................................................................................................................403 EU Convention on Driving Disqualifications..........................................................145 Euro–Mediterranean Association Agreement with Israel..........................................97 European Convention on Nationality 1997......................................................... 60, 66 Art 3..................................................................................................... 49, 59–60, 62 Arts 5–6.................................................................................................................60 Arts 10–13.............................................................................................................60 Arts 18–20.............................................................................................................60 European Convention for the Protection of Human Rights and Fundamental Freedoms 1955............................................ 9, 20–21, 23–24, 27–38, 40–44, 115, 123, 159, 164–65, 168–69, 172–76, 183–84, 188, 190, 207, 403 Art 2.............................................................................................................. 189–90 Art 3........................................................................................ 166, 169, 187–88, 190 Art 5....................................................................................................................176 Art 6............................................................................160–61, 170, 175–76, 188, 191 (1)...............................................................................................................161 (2)...............................................................................................................192 Art 8.......................................................................................... 140, 165–73, 192–94 (1)...............................................................................................................165 Art 10............................................................................................................ 34, 195 Art 12..................................................................................................................193 Art 13...........................................................................................................161, 170 Art 14..............................................................................................169, 170, 195–96 Art 15..................................................................................................................123 Art 23..................................................................................................................174 Protocol 1 Art 1...................................................................................... 175–76, 196 European Court of Justice’s Rules of Procedure......................................................140 Art 61..................................................................................................................141 Art 104(3)............................................................................................................140 Art 104a..............................................................................................................140 Art 104b..............................................................................................................140 European Social Charter................................................................................... 31, 403 European Social Charter (Revised) 1996.................................................................174 Art 12(4)..............................................................................................................174 Art E...................................................................................................................174 Appendix............................................................................................................174 Geneva Convention on the Continental Shelf 1958....................................................84 Art 6......................................................................................................................84 Geneva Conventions 1949................................................................................199, 221 Good Friday Agreement 1998 (Belfast Agreement).............. x–xi, 21, 68, 105, 107, 115, 143–44, 156, 181, 183, 230, 234–35, 254, 264–66, 277–78 Hague Convention 1907...................................................................................199, 209 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws 1930...............................................................................49, 58–59

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Art 1.......................................................................................... 48–52, 59–60, 62, 65 Art 2......................................................................................................................48 Art 18....................................................................................................................52 Hague Convention on the Civil Aspects of International Child Abduction 1980............................................................................................172, 261 Art 3....................................................................................................................172 Art 13..................................................................................................................172 Guiding Principle 4................................................................................................83 Guiding Principle 7................................................................................................83 ILC Articles on the Responsibility of States for Internationally Wrongful Acts............................................................................................... 89, 221 Art 1......................................................................................................................89 Art 13....................................................................................................................89 Art 31....................................................................................................................90 Art 34 et seq...........................................................................................................90 Art 41..................................................................................................................221 (3)..............................................................................................................221 Art 48..................................................................................................................221 Art 49 et seq................................................................................................... 90, 221 International Covenant on Civil and Political Rights 1966...................... 113, 173, 177, 185, 214, 216–17, 240 Art 19..................................................................................................................215 Art 20(1).......................................................................................................214, 217 Optional Protocol...............................................................................................185 International Covenant on Economic, Social and Cultural Rights 1966..................214 Judgments Convention. See Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters 1968 Laeken Declaration 2001........................................................................................390 Lisbon Declaration...................................................................................................56 Lisbon Treaty 2007 (Reform Treaty 2007)............... ix–x, 3–16, 27, 117–18, 141, 203–8, 226–27, 232, 241–42, 244, 254, 258, 261, 264, 275–77, 381, 383–87, 389–92, 394–414, 416, 419, 421, 423, 431–32 Art 1......................................................................................................................11 (27)(a)(1).....................................................................................................207 Art 2(223)(240a)..................................................................................................207 Art 16..................................................................................................................404 Protocol relating to Art 6(2) of the TEU on the accession of the Union to the ECHR.............................................................................................................29 Protocol on Art 40.3.3 of the Irish Constitution...................................................405 Maastricht Treaty. See Treaty on European Union Memorandum of Understanding between the Ministry of Defence of the Republic of Estonia and the Ministry of Defence of the Republic of Finland and the Ministry of Defence of the Kingdom of Norway and the Government of Sweden and the Ministry of Defence of the UK concerning the principles for the cooperation regarding the operation of the OHQ–function for the Nordic Battlegroup 2006....................................................................................................................434 Nuclear Non-Proliferation Treaty 1968............................................................ 93, 226



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OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997.....................................................103, 182 Oslo Declaration 2007.........................................................................108, 311–12, 333 Participation Agreement for the First Tranche of the World Bank/EIB Carbon Fund for Europe between Ireland and the IBRD as trustee for the first Tranche of the World Bank/EIB Carbon Fund for Europe 2007........................................435 Participation Agreement between Ireland and the IBRD as trustee for the Second Tranche of the Biocarbon Fund 2007..................................................................435 Reform Treaty 2007. See Lisbon Treaty 2007 Rome Statute of the International Criminal Court.....................218, 294, 299–300, 305 Rome Statute of the International Institute for the Unification of Private Law 1940....................................................................................................................435 St Andrews Agreement 2006........................................................21, 115, 229, 235, 254 Seville National Declaration by Ireland 2002..........................................................407 Statute of the International Court of Justice............................................................344 Art 38.........................................................................................................72, 81–82 Art 59....................................................................................................................63 Tampere Convention on the provision of Telecommunication resources for Disaster Mitigation and relief Operations 1998....................................................434 Treaty of Amsterdam 1999...............................................................................394, 411 Art 1.11...............................................................................................................120 Treaty establishing a Constitution for Europe 2004................ 3–11, 14–15, 21, 203, 207 Preamble......................................................................................................... 203–4 Treaty establishing the European Community. See EC Treaty Treaty on European Union (Maastricht Treaty)........................... 4–5, 7–8, 13–17, 120, 203, 205, 207, 410–11 Title V.................................................................................................................258 Title on democratic principles of the Union.............................................................205 Art 3a(2)..............................................................................................................204 Art 6(2)...............................................................................................................128 Art 9D...................................................................................................................11 (5)..............................................................................................................11 Art 34..................................................................................................................120 (2)(b)........................................................................................................120 Art 48.............................................................................................................. 4, 402 Treaty of Lisbon amending the TEU and the EC Treaty. See Lisbon Treaty 2007 (Reform Treaty 2007) Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and Certain Related Acts 2001.......................................................................... 5–7, 14, 395, 400, 408–410, 424 Treaty of Rome 1957................................................................................ 206, 208, 389 Treaty of Westphalia 1648.......................................................................................306 UN Charter...........................................................110, 214, 216–17, 254, 300, 305, 307 Ch VII.................................................................................................................307 Art 1....................................................................................................................101 Art 2(3).................................................................................................................73 UN Convention against Corruption 2003...............................................................103

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UN Convention on the Protection of All Persons from Enforced Disappearances...185 UN Convention on the Protection of the Rights of All Migrant Workers................185 UN Convention on the Rights of the Child 1989...................................36, 171–72, 300 Art 9(3)...............................................................................................................168 Art 12..................................................................................................................172 Optional Protocols..............................................................................................300 UN Convention on the Rights of Persons with Disabilities 2006...................103–4, 185 UN Convention Relating to the Status of Refugees 1951.......................... 123, 165, 193 Art 31(1)..............................................................................................................193 UN Convention Against Torture and All Forms of Cruel, Inhuman or Degrading Treatment or Punishment Optional Protocol........................................................................................... 102–3 UN Convention on Transnational Organised Crime...............................................103 Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children..........................................................................................104 UN Framework Convention on Climate Change Kyoto Protocol...................................................................................................220 UN–Sponsored Principles for Responsible Investment.............................................98 UNESCO Convention Against Discrimination in Education 1960..........................103 Universal Declaration of Human Rights 1948................................... 214, 216, 293, 354 Art 16..................................................................................................................165 UNSC Resolution 1244 approving the establishment of a UN mission in Kosovo (UNMIK) (10 June 1999)....................................................................................105 UNSC Resolution 1325 on Women, Peace and Security (13 October 2000)............................................................................................. 226, 241, 297, 300 UNSC Resolution 1612 on children in armed conflict (2005)............................300, 333 UNSC Resolution 1674 (2006)................................................................................300 UNSC Resolution 1820 on Women, Peace and Security (2008)........................... x, 300 US–India Agreement on Nuclear Material 2006.............................................93, 95–96 Vienna Convention on Consular Relations 1963.......................................................87 Vienna Convention on the Law of Treaties Art 7......................................................................................................................87 (2).................................................................................................................87 Wellington Declaration 2008...................................................................................315 WHO Framework Convention on Tobacco Control 2003 Working Holiday Agreement with Argentina 2008..................................................114 Working Holiday Agreement with the US 2008........................... 113–14, 227, 234, 252

Editorial – Irish Yearbook of International Law 2008 Jean Allain and Siobhán Mullally As we go to press, we received the sad news that Dr Gernot Biehler passed away 13 September 2009 after a prolonged illness. More can be read of what Gernot meant to the Irish Yearbook of International Law and to issues of international law in Ireland, in the pages that follow. The overriding legal issue in Ireland in 2008 was the Irish referendum rejection of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community. That reality is reflected throughout the pages of Volume 3 of the Irish Yearbook of International Law, which sees Gráinne de Búrca consider the Irish no-vote in the context of previous such outcomes to plebiscites by EU States; Suzanne Kingston’s review of two books on the Treaty of Lisbon; the reproduction of both the Report by the Houses of the Oireachtas Sub-Committee on Ireland’s Future in the European Union, and the agreed concessions made to Ireland in December 2008 by the European Council. Further consideration is given to the Treaty of Lisbon in the various Correspondents’ Reports of Volume 3, most notably that of Catherine Donnelly on Ireland and the European Union. We are quite comfortable in seeing European Union Law as a sub-species of public international law. The dualist character of the Irish legal order is brought to the fore in the manifestation of the public will, through a referendum, against the ratification of an international instrument, which could potentially alter the constitutional landscape of Ireland. The potential changes to the Constitution of Ireland requires the holding of a referendum, a requirement that dates back to the Supreme Court judgment in Crotty v An Taoiseach [1987] IR 713, on the implications of ratification of the Single European Act. Thus the popular vote against the Treaty of Lisbon of 12 June 2008. The concerns of the Irish people was brought to the European Council in December, wherein the Taoiseach sought concessions for Ireland with regard to its traditional policy of neutrality; its constitutional protections of the right to life, education and the family; the ability to maintain Ireland’s privileged corporate taxation regime; and assurances regarding social policies, including workers’ rights. To that end the European Council committed itself to addressing these issue to the mutual satisfaction of Ireland and other Member States of the European Union and providing the ‘necessary legal guarantees’ . . . on the following three points: •  nothing in the Treaty of Lisbon makes any change of any kind, for any Member State, to the extent or operation of the Union’s competences in relation to taxation; •  the Treaty of Lisbon does not prejudice the security and defence policy of Member States, including Ireland’s traditional policy of neutrality, and the obligations of most other Member States;

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•  a guarantee that the provisions of the Irish Constitution in relation to the right to life, education and the family are not in any way affected by the fact that the Treaty of Lisbon attributes legal status to the EU Charter of Fundamental Rights or by the justice and home affairs provisions of the said Treaty. A significant compromise made in Brussels, was the agreement that Member States would retain one Commissioner per State. This compromise represented a significant change in direction by the Council members and was heralded by supporters of the Lisbon Treaty in Ireland as a major compromise. These and other commitments are reproduced as the Presidency Conclusions of the Brussels European Council in the Document Section of this volume of the Irish Yearbook. Beyond the Treaty of Lisbon, this volume of the Irish Yearbook, once again reflects those issues which are given prominence in Irish foreign relations. This is manifest in the articles dealing with human rights and good governance, and the extent to which individuals from Northern Ireland, benefiting from Irish citizenship as a result of the Good Friday Agreement, can seek effective diplomatic protection from the Republic of Ireland. Killian O’Brien, for his part provides the Yearbook with a doctrinal study of estoppel as manifest in international law. This Volume of the Irish Yearbook sees the promotion of Fiona de Londras to the Editorial Board as our permanent Book Review Editor and with that a very interesting selection of book reviews. Of note is the review of the sixth volume of Documents on Irish Foreign Policy covering the years 1939–41. Keith Jeffery’s takes up this task, having reviewed the previous five volumes in Volume 1 of the Irish Yearbook. A highlight of the Document Section of this Volume is the Final Document of the Diplomatic Conference for the Adoption of a Convention on Cluster Munitions. One hundred and seven States attended the negotiations, which took place between 19 and 30 May at the Croke Park Convention Centre — Croke Park being the home of the traditional Irish sports of Gaelic football and hurling. Those negotiations lead to the adoption of the Convention on Cluster Munitions which was opened for signature in December 2008 in Oslo, Norway. Worth also bringing to our readers’ attention via the Document Section is the role that Ireland played in the lead up to the adoption of United Nations Security Council Resolution 1820 on Women, Peace and Security (co-sponsored by Ireland). The Report of the Hunger Task Force was presented in September by the new Taoiseach Brian Cowen to United Nations Secretary-General Ban Ki Moon, with the aim of supporting and contributing to the work of the United Nations’ High-Level Task Force on the Global Food Crisis. In 2008, the face of Department of Foreign Affairs changed significantly, with the appointment of Micheál Martin TD to the position of Minister of Foreign Affairs in May, taking over from Dermot Ahern TD, who moved to the Ministry of Justice, Equality and Law Reform. Micheál Martin was first elected a TD (Teachta Dála), (member of the lower house of the Irish Parliament, the Dáil), more than 20 years ago. His appointment as Minister of Foreign Affairs comes after more than 10 years experience in Cabinet where he previously held the portfolios of Minister for Education and Science, Minister for Health and Minister for Enterprise, Trade and Employment. A fluent Irish speaker, Micheál Martin TD is a member of the Fianna Fáil political party. Born in Cork, a graduate of University College Cork, he was Lord Mayor of Cork from 1992 to 1993.



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It was announced in October that Dermot Gallagher, the Secretary-General of the Department of Foreign Affairs, would retire at year’s end. Gallagher joined the diplomatic service in 1969, having previously held postings in New York with the Permanent Mission of Ireland to the United Nations, in London at the Irish Embassy, and in Brussels, where he was seconded as Chef de Cabinet with the European Commission. He was appointed ambassador to Nigeria and later Ireland’s envoy to Washington for most of the 1990s. Most notably, Gallagher returned to Dublin to head up the AngloIrish Division at Department of Foreign Affairs during the lead up to the Good Friday Agreement and was involved thereafter with seeking to ensure a stable transition to peace in Northern Ireland through the power-sharing administration of Stormont. Previous to taking up this final position in the Department of Foreign Affairs in 2001, Gallagher had served as Secretary-General of the Department of An Taoiseach. On 16 December 2008, the Government approved the appointment of Ambassador David Cooney as the new Secretary-General of the Department of Foreign Affairs. Ambassador Cooney joined the Department of Foreign Affairs in 1979. He was a part of the team which supported the Government in negotiating the Good Friday Agreement. He has served as Political Director during Ireland’s Presidency of the European Union in 2004 and as Ambassador to the United Nations in New York before taking up his post as Ambassador of Ireland in London in 2007. He takes up his post in January 2009. On 6 August the United Nations Secretary-General announced the appointment of Patricia O’Brien as the new Under-Secretary-General for Legal Affairs and the UN Legal Counsel. Many will know that Patricia as the former Legal Adviser to the Department of Foreign Affairs in Ireland, a position she held since 2003, having previously been Legal Counsellor at Ireland’s Permanent Representation to the European Union in Brussels. Patricia was and remains a true supporter of the Irish Yearbook of International Law, strongly committed to promoting greater awareness of Irish practice in international law. We are delighted to announce that Patricia has accepted our invitation to join the Advisory Board of the Yearbook and we hope that you will hear further from her in the pages of the Yearbook in forthcoming editions. With Patricia’s departure from Dublin, James Kingston has been promoted to the position of Legal Adviser of Department of Foreign Affairs in Ireland. James previously served as Deputy Legal Advisor in the Department. He lectured in public international law at Trinity College Dublin and at the University of London. He also worked as a researcher at the British Institute of International and Comparative Law and at the Law Reform Commission.

IN MEMORIAM:

DR GERNOT BIEHLER (22 March 1961–13 September 2009) Dr Gernot Biehler, MA, LLM (Cantab), PhD (Speyer), Priv-Doz (Hamburg), Lecturerin-Law at the University of Dublin, Trinity College, a Member of the Editorial Board of Irish Yearbook of the International Law passed away on 13 September 2009. Gernot was fundamental to the establishment and the development of the Irish Yearbook of International Law and throughout remained an ardent and interested supporter. When the Yearbook was but an idea Gernot was involved in the process of garnering support and thinking through the process of moving the concept to reality. Active on the Editorial Board and with the Irish Society of International Law, Gernot was at the centre of issues related to international law in Ireland. Born in Berlin, Gernot Beiehler read law in Bonn and Berlin and at the University of Cambridge, under the supervision of Sir Elihu Lautherpacht. He received his Doctor iuris at the German University of Administrative Science Speyer (Deutsche Hochschule für Verwaltungswissenschaften Speyer) writing on German reunification and issues of restitution. In 2003, Gernot was awarded Habilitation by the University of Hamburg, his Privatdozent having been recognised for his thesis on the influence international relations on law. Despite a short tenure in academia, Gernot was well published (in English, German and Russian), demonstrating a keen intellect and commitment to reflection and analysis, that saw him writing and publishing throughout his former professional life as a diplomat. His internationalist career started as an intern for the United Nations Legal Adviser in the mid-1980s. From there he moved to diplomatic service with the German Federal Foreign Office (where he rose to the post of First Secretary). His postings included Bonn, Berlin, Kiev, New York and finally Dublin. In was this final posting which moved him to shift career paths and to take up academic work on a full-time basis. Prior to taking up his post at Trinity College, Dublin in 2003, Gernot had taught at the University of Heidelberg, University of Cologne and National Academy of Science Law School (Kiev). His continuous engagement with teaching international law throughout his diplomatic career reflected his commitment to promoting greater awareness of and interest in the practice of inte­national law. Gernot’s engaging academic research and teaching styles were reflected in his dedication to fostering student interest in all aspects of international law, but most particularly, in recent times, in Irish policy and practice on international law. Gernot Biehler’s imprint on the legal landscape of Ireland was formidable, and persists through his textbook International Law in Practice: an Irish Perspective, 2005, which is a core text for students of international law in Ireland. As Tim Murphy wrote in Volume 1 of the Irish Yearbook, Gernot’s work ‘integrates discussions of theory and realpolitik’ and speaks to ‘Biehler’s experience as a practitioner of international law’. This was a

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recurring theme of Gernot’s body of work, the link of his professional life as jurist-diplomat, to his writings and was second only to his devotions to all things Irish. As Heiko Meiertoens noted in the Netherlands International Law Review, Biehler’s International Law in Practice: an Irish Perspective demonstrates that the Republic of Ireland is, ‘a state which has contributed and continues to contribute considerably to the development of international law and the promotion and fostering of its principles’. Gernot’s contribution, both in a professional and personal capacity to the Irish Yearbook of International Law will be greatly missed. Gernot’s Biehler’s funeral service was held at Evangelisch Friedhof Nikolassee, Berlin on 22 September 2009. A memorial service was held at Trinity College Chapel on 8 October 2009. Gernot is survived by his mother, three brothers, and his wife, Professor Hilary Delany. The following was a public notice which appear at Trinity College Dublin School of Law: dr gernot biehler – an appreciation The Law School is very sad to announce the passing of our beloved friend and colleague, Dr Gernot Biehler, husband of Professor Hilary Delany, on Sunday 13th September. Dr Biehler lectured in International and Conflicts of law and was the author of several well reviewed books and articles. He was a graduate of Hamburg and Cambridge Universities and had two doctorates in law. He first came to Ireland as a diplomat with the German Diplomatic Service. He left to join the Law School which was fortunate to have recruited a person with his excellent qualifications and experience, interpersonal skills and talents. He was an inspiring and devoted teacher, a truly professional supervisor of postgraduate students and a supportive and collaborative colleague who embodied all the qualities of a great academic lawyer. His contacts and reputation were very helpful to students who wanted to work internationally. He was elected a Fellow within a short time of arriving in Trinity and he participated fully and generously in College life. He loved the Law School, compared it favourably to other Law Schools he had experienced and was committed to maintaining and enhancing its reputation for excellence. His talents and charm quickly ensured his election to Council and as secretary of the Fellows. He was a gifted musician who played professionally in the Kiev Opera Symphony Orchestra when he was a diplomat in the Ukraine. He sang in College Choir and supported the Boat Club. Those who experienced his erratic driving will be amazed to know that he had a pilot’s licence. He refurbished his office himself and was frequently found there pursuing scholarly matters late in the evenings and at weekends.  He had firm views on the role of the academic lawyer in society and was vigilant against encroachments on the academic functions. Anybody who met Gernot was uplifted by his cheerfulness, optimism and joy at being an academic lawyer. Although he arrived here by circuitous means, Gernot very quickly became ‘one of us’ and we have lost part of ourselves. We will always remember him with the greatest affection and respect.

The Lisbon Treaty No-Vote: An Irish Problem or a European Problem? Gráinne de Búrca* In June 2008, the Irish people voted in a referendum to reject Ireland’s possible ratification of the Treaty of Lisbon, an instrument adopted by the European Union on 13 December 2007. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was born in the aftermath of the failed 2004 European Union Constitutional Treaty,1 and contained many, if not most, of the substantive provisions of the Constitutional Treaty, although stripped of the constitutional trappings and symbols which were thought to have doomed the latter.2 While ratification of the Lisbon Treaty initially faced a range of hurdles in other Member States, including challenges before the constitutional courts of the Czech Republic3 and of Germany,4 its approval by virtually all of the other Member States was relatively smooth, but for Ireland which was the only Member State to hold a referendum on the matter. Yet despite the clear support of the Irish Government and of the main opposition parties, the tide of popular opinion – as well as the influence of novel actors such as Libertas5 – moved a decisive vote in opposition to the Lisbon Treaty. This study focuses on the striking contrast between the response of Europe’s political leadership to the Irish ‘No’ vote on the Lisbon Treaty, and its previous response to the French and Dutch ‘No’ votes in their respective referenda on the 2004 Treaty establishing a Constitution for Europe in 2005. The aim is to examine and elucidate the reasons for this difference in treatment, particularly on the part of the European Council, and to raise some questions about the wisdom and justifiability of this strategy. The study suggests that while the sharp differentiation between the two sets of ‘No’ votes may be understandable for a range of strategic and other reasons as outlined below, the decision of the European Council to treat the Lisbon ‘No’ vote as representing a specifically Irish problem rather than as a wider and deeper problem for the European integration process is unwise and counter-productive. More specifically, the failure *  Professor of Law, Fordham Law School. An earlier version of this paper was presented at the Irish European Law Forum 12th Annual Conference on the Lisbon Treaty Referendum in Dublin in January 2009. Thanks are due to Deirdre Curtin and to the participants at the conference for their comments. 1  For an insightful analysis of the failure of the Treaty Establishing a Constitution for Europe, see R Dehousse ‘The Unmaking of a Constitution: Lessons from the European Referenda’ (2006) 13 Constellations, 151–64. 2   For an account see G de Búrca, ‘Reflections on the Path from the Constitutional Treaty to the Lisbon Treaty’, Jean Monnet Working Paper No 03/08. 3   Judgment of the Czech Constitutional Court, Brno, 26 November 2008. 4   BVerfG, 2 BvE 2/08 of 30.6.2009, Absatz Nr I-421. 5   Initially formed as a private institute and lobby group in Ireland, Libertas subsequently established itself as a political party and ran candidates in various EU member states for the European Parliament elections in June 2009. See www.libertas.eu.

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on the part of the European Council to acknowledge the Irish ‘No’ vote as part of a broader and more general Europe-wide crisis of popular legitimacy, and the decision to treat it as a problem specific to Ireland which is best dealt with in more limited terms, was a short-sighted strategy which may well prove damaging in the longer term.

the eu resp onse to the irish no-vote The early reaction of the European Union (EU) leadership to the Irish ‘No’ vote in June 2008 differed quite clearly from the initial reaction to the Dutch and French votes rejecting the Constitutional Treaty three years previously.6 At the time the results of the French and Dutch votes in 2005 became known, there was a rapid recognition of the existence a Europe-wide crisis which pertained to the EU as a whole, for which the EU collectively would have to take responsibility, and to which it would have to respond.7 While a number of commentators and political actors in the immediate aftermath expressed the view that the Constitutional Treaty could not simply be abandoned,8 a ‘period of reflection’ was officially called for within two weeks of the results.9 The idea of a period of reflection implied a period of time during which everyone – meaning all Member States, including those which had already ratified the Treaty on European Union and the Treaty establishing the European Community (TECE) as well as those which had not – would have to consider the best way forward out of the impasse. More generally, although there was dismay in many quarters at the outcome of the French and Dutch referenda with a number of prominent political commentators lamenting the outcome as a ‘mistake’,10 there was not so much finger-pointing or recrimination against the French and the Dutch for having derailed the constitutional project, and rather more of a sense that the EU as a whole was in crisis and that a solution would have to be collectively devised.11 The response was rather different following the Lisbon Treaty referendum. Despite the rhetoric of common solutions and of working together, it is clear from an analysis of events subsequent to the ‘No’ vote in June 2008 that the problem was presented essentially as an Irish problem, and one in respect of which it was Ireland’s responsibility to propose a solution. It became quickly evident that the result of the referendum – or at least its potential effect of preventing the Lisbon Treaty from coming into force-was considered by Europe’s leadership to be politically unacceptable. Even though the existing Treaty amendment rules in Article 48 of the Treaty on European Union require unanimous ratification by the Member States, and even though each 6   Instead, the approach adopted to the Irish ‘No’ vote to Lisbon was more like that which was adopted in relation to Denmark’s ‘No’ vote to the Treaty on European Union in 1992. See below p 10. 7   See the Joint Statement of 1 June 2005 of the President of the European Parliament, the President of the European Council, and the President of the European Commission on the results of the referendum in the Netherlands on the Treaty establishing a Constitution for Europe. 8   See for example the comment of then Chancellor Gerhard Schroeder of Germany who argued that ratification must continue, www.eubusiness.com/Germany/050601200919.l7iwlg6k/. A number of other Member States also continued with the ratification processes which they had already begun, but it became quickly clear that the overall process of ratification and the general political will to ratify was in disarray. 9   European Council Conclusions of 16–17 June 2005, Declaration on the ratification of the Treaty establishing a Constitution for Europe. 10   See the comments of Valery Giscard d’Estaing to this effect: http://euobserver.com/? aid=19331&sid=9. 11   See, eg ‘France’s Non, Holland’s Nee, Europe’s Crisis’ www.opendemocracy.net/democracy-europe_ constitution/crisis_2560.jsp.



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state is entitled to define its own domestic constitutional ratification procedure, it was apparent that the logical implications of the result of Ireland’s domestic ratification process (ie that a referendum against meant that the Lisbon treaty could not come into force) was simply not accepted. Unlike in the aftermath of the French and Dutch ‘No’ votes when many leading political voices proclaimed the death of the Constitutional Treaty, the essence of the official EU response to the Irish ‘No’ vote on Lisbon – just as with the very first such ‘No’ vote, which was that of the Danish people of 2002, and with the later Irish ‘No’ vote to the Nice Treaty in 2001 – was that it could not be allowed to mean the death of the Treaty. Couched in more positive terms, the EU response on this occasion was to ask the Irish Government to analyse and identify the nature of the dissatisfactions with the Lisbon Treaty which lay behind the ‘No’ vote, in order that the EU could prepare and propose an appropriate response which would overcome those objections. The message clearly conveyed by the European Council was that ratification of the Lisbon Treaty was a priority for the EU, and that there was no question of an open-ended collective ‘reflection’ of the kind which followed the French and Dutch Non- and Nee, and no question of placing the fate of Lisbon Treaty in doubt. On the contrary, there was an evident and widespread assumption, other than on the part of certain political actors, such as the maverick Czech President Vaclav Klaus, or the British Conservative Party at the time, that ratification of the Lisbon Treaty should proceed. It was made clear that it was up to Ireland, albeit with the assistance of the EU leadership and of other Member States, to provide a diagnosis of the problem which would allow the objections expressed in the referendum vote to be met and the opposition to the Treaty to be overcome, or else to find another route by which ratification of the Treaty could proceed.12 Consideration now turns to some possible reasons for the EU’s apparently instinctive differentiation between the two situations as to the wisdom and appropriateness of the reaction to the Lisbon Treaty referendum, and the possible risks inherent in that strategy are questioned.

why was the lisbon treaty no-vote treated differently? First Reason – Ireland’s Size: an Insignificant ‘No’ The first and most obvious explanation is the brute fact of size. While Ireland – like Denmark in the case of the Maastricht Treaty, and Ireland in its initial rejection of the Nice Treaty – is a small State with limited geo-political clout, France in particular, and 12   The Slovenian Presidency of the European Council in June stated that the European Council ‘wanted to hear [the Irish Taoiseach (re: Prime Minister)] Brian Cowen’s analysis, as well as his ideas on how to address the concerns expressed by those who chose to vote No.’ Slovenian Prime Minister Janez Jansa declared that: ‘The Slovenian presidency of the EU deeply regrets this outcome’ and ‘invite(s) the Irish prime minister to explain the reasons for the rejection of the treaty by the Irish people’.German Chancellor Angela Merkel and French President Nicolas Sarkozy issued a joint statement saying they respectfully noted the Irish vote, but ‘very much regret the outcome’ and continued by emphasising that ratification would nonetheless proceed: ‘The heads of state and government of all 27 member states have signed the Treaty of Lisbon, and in 18 member states the ratification has already been completed. We therefore expect that the other member states will continue with their domestic ratification processes’. See http://edition.cnn. com/2008/WORLD/europe/06/13/ireland.eu/index.html.

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even to some extent the Netherlands, are perceived to be more central to the European integration project. Both are founding Member States, and the Netherlands has long been seen as one of the more enthusiastically pro-European States, while France from the outset has been one crucial half of the ‘Franco-German motor’ of European integration. In all likelihood, a ‘No’ vote from the Netherlands alone would not have generated the same outcome, but the double ‘no’ within days, with the French ‘No’ vote coming first, had the effect of stopping the rest of the EU in its tracks. Even though, as indicated above, a number of political actors initially called for continuation of the ratification process, it became rapidly clear that the future of the Constitutional Treaty was seriously in doubt. For this reason a collective decision was taken to do nothing for a period of time and allow for some political breathing space, described as a period of reflection, until a way forward was devised. The opposite impulse was evident in the case of the Lisbon Treaty. Even though no overt threats were made that the other 26 Member States would find a way to proceed if Ireland failed ultimately to ratify the Treaty, many of the commentaries, including those within Ireland, explicitly considered the possible mechanisms by which the EU could proceed with the kinds of reforms agreed in the Treaty even without Ireland’s ratification.13 Second Reason – Ireland as Beneficiary of EU Integration: an Ungrateful ‘No’ A second possible explanatory factor behind the official reaction to Ireland’s ‘No’ vote to Lisbon may be the fact that Ireland was generally considered to be one of the success-stories of European integration. There seemed, in some of the reaction to the ‘No’ vote, to be a sense of shock and perhaps even a measure of resentment at the fact that Ireland, which is widely perceived to have benefited significantly from its membership of the EU, should have ‘bitten the hand that fed it’.14 In other words, there may have been an expectation in some quarters that the Irish people would show loyalty and commitment to the EU by affirming the latest round of Treaty-negotiations and reform-proposals in the shape of the Lisbon Treaty, rather than casting a spanner in the works of further integration. While the assumption that the population of a country which has benefited from European integration should always vote in favour of any Treaty which furthers the integration project is obviously a deeply problematic one, it is perhaps not an entirely surprising reaction. The first Irish ‘No’ vote to the Nice Treaty has met with a similar reaction, in part because the Nice Treaty was associated with facilitating Eastern Enlargement,15 and Ireland’s rejection of the Treaty was seen by some as a case of the Irish electorate ‘pulling up the ladder behind them’. Elements of this sentiment may have been present in some of the shock expressed at the Irish ‘No’ vote to Lisbon, and in the conclusion that it would be unacceptable to let this particular vote derail the Treaty.

13   Two impressive Irish reports of this kind are those of the Irish Institute for International and European Affairs, ‘Post-Lisbon, Ireland’s Future: Issues, Options and Implications’ (Dublin, October 2008), and the UCD Dublin European Institute ‘Ireland’s Future in Europe: Scenarios and Implications’ by Gavin Barrett, Brigid Laffan, Rodney Thom, Daniel C Thomas, Ben Tonra (November 2008). 14   See the Economist magazine column, Charlemagne, on the eve of the re-run of the Nice treaty referendum in Ireland: ‘Those Ungrateful Irish’ 19 October 2002. 15  See ‘EU Applicants Urge Ireland not to Reject the Nice Treaty’ The Independent Newspaper, 27 September 2002.



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Third Reason – the Pro-Treaty Campaign Was Inadequate: an Ill-Informed No A less controversial explanation for the dismay at the ‘No’ vote and the determination not to let it derail the Lisbon Treaty arises from the view of some observers that the Irish Government had not conducted the campaign on behalf of the Treaty well enough, and that the resulting lack of comprehension on the part of many voters about the content and implications of the Lisbon Treaty was a significant factor explaining the negative outcome of the vote. It seems at least likely, to judge from the post-referendum studies which were carried out,16 that the advice of the anti-Treaty campaign that ‘if you don’t know, vote no’ played an important part in the decisionmaking process of those who voted against the Treaty, as well as those who chose not to vote. A similar lack of information and lack of comprehension was perceived to have been a factor in the initial Irish No-vote in the first Nice Treaty referendum, and also to have been part of the justification for holding a second referendum at the time.17 Given the precedent of the Nice Treaty – and even though the low turnout in that case (35 per cent), which was considerably lower than the turnout for the Lisbon Treaty referendum (53 per cent) – was an additional reason given for holding a second referendum in that case – the EU’s tacit encouragement to Ireland to ‘try again’ with the Lisbon ratification process may seem more understandable. It is true that there were significant differences between the Nice Treaty, the Constitutional Treaty and the Lisbon Treaty, as far as the complexity and comprehensibility of each package is concerned. Further, the existence of a lively public debate preceding a referendum does not necessarily imply a well-informed debate, as some of the commentaries on the French and Dutch no-votes on the Constitutional Treaty have suggested. One of the lessons learned from the various national referenda seems to be that the role played by public and governmental bodies in providing clear, accurate and comprehensible information to help shape the public debate and to avoid distortion and misinformation is crucial. In terms of sheer complexity, however, the Nice Treaty was probably the least complex of the three Treaties, although even Nice – as with almost every EU Treaty revision since the mid-1980s – contained an array of different legal, institutional and policy changes which were not easy to convey as a succinct and coherent package to a general audience. Thus the sense in which the ‘No’ vote to Nice was considered to be ill-informed was not quite the same as the sense in which the Lisbon vote is considered to have been based on confusion and lack of comprehension. While an insufficiently robust campaign to explain and promote each Treaty was undoubtedly part of the picture in both cases, the main lines of the Nice Treaty should have been capable of being conveyed relatively clearly to the electorate by means of a focused public campaign, and to that extent it seems that governmental neglect was likely to have played a role in the negative outcome of the 2001 referendum. With the Lisbon Treaty, however, at least part of the responsibility for an ill-informed and confused electorate may lie with the EU itself. It was suggested by a number of 16   See the post-referendum analysis carried out for the Dept of Foreign Affairs by Millward Brown, www.dfa. ie/uploads/documents/Publications/Post%20Lisbon%20Treaty%20Referendum%20Research%20Findings/ post%20lisbon%20treaty%20referendum%20research%20findings_sept08.pdf Also the analysis presented by Richard Sinnott to Ireland’s Forum on Europe, at www.forumoneurope.ie/index.asp?locID=113&docID=1917. 17   See Richard Sinnott, ‘Attitudes and Behaviour of the Irish Electorate in the Referendum on the Treaty of Nice’ www.euireland.ie, 2001, and Brigid Laffan and Adrian Langan ‘Securing a Yes: From Nice I to Nice II’ Notre Europe Policy Paper Series, Paper No 13, www.notre-europe.asso.fr.

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senior political figures that the Lisbon Treaty was deliberately drafted in a technical, legalistic and relatively inaccessible manner, as part of an effort to distinguish it from the Constitutional Treaty on which it was based, and even more strategically, in order to avoid the likelihood of popular referenda being deemed necessary as part of the ratification process.18 However, the uncertain scope of the Irish Supreme Court’s Crotty judgment19 and the political and constitutional expectations which that case had gradually generated of the need for a popular referendum to ratify any major EU Treaty, meant that it was extremely difficult for the Irish Government to avoid holding a referendum, and further, that it was required to hold one under the informational and funding constraints imposed by the Supreme Court’s McKenna20 and Coughlan judgments21 the Government was therefore in the paradoxical position of having to present and explain, for the purposes of a popular vote on ratification, an EU Treaty which had perhaps deliberately been drafted in such a way as to render it opaque and highly technical, and largely inaccessible to all but the inside experts.22 The reality is that, apart from the difficulty and dullness of the task involved, to read the Lisbon Treaty itself would give little idea of its content or significance because it consists of a series of amendments to the existing EU and EC treaties and does not contain or explain the content of those existing texts. In that sense, the Lisbon Treaty was more like some of the earlier amending EC treaties which consisted primarily in a list of amendments to existing documents, and which could only be made popularly comprehensible by a very good explanatory guide or White Paper. And while the Irish Government did eventually produce a useful white paper on the treaty, this was not published until April, and was considered by some to be too little, too late.23 The campaign on behalf of the Lisbon Treaty in Ireland was therefore an uphill battle, with the battlefield having been rendered particularly uneven by the design of the Treaty. These European elements of responsibility were exacerbated by Ireland’s domestic difficulties, notably by the fact that the Government was distracted by allegations of corruption against the then Taoiseach, who resigned shortly before the 18   See, eg the comments by Giuliano Amato, speaking at the Center for European Reform, 12 July 2007, suggesting that the political leaders decided that the text should be unreadable so as to avoid calls for a referendum ‘if it is unreadable, then it is not constitutional. That was the sort of perception.’ Valéry Giscard d’Estaing was also quoted in the Irish Times as saying that the brainwave of the Lisbon Treaty drafters had been to break up the text of the Constitutional Treaty and to hide it, so that the public would be led to adopt provisions without knowing it: Irish Times, 20 June 2007. See also a later interview with Giscard d’Estaing on the subject in the Irish Times, 26 June 2008, criticising media and political use of his earlier comments. 19   Crotty v An Taoiseach [1987] IR 713. For a discussion of this dimension of the case see Laurent Pech, ‘National Report for Ireland: Preparing the EU for the Future? Necessary Revisions of Primary Law after the Non-Ratification of the Treaty Establishing a Constitution for Europe’ (May 2008). Available at SSRN: ssrn.com/abstract=1123935. 20   McKenna v An Taoiseach (No 2) [1995] 2 IR 10. 21   Coughlan v Broadcasting Complaints Commission [2000] IESC 44. 22  This suggests that the infamous statement of Charlie McCreevey, the EU’s internal market Commissioner, that he had no intention of reading the Lisbon Treaty should be criticised more for its truthfulness (and perhaps even for its reasonableness, were he not a Commissioner) and for its lack of tact, than for revealing arrogance or laziness. 23   See www.reformtreaty.ie/eutreaty/pDF08-White-paper_6.pdf. See also the information provided by the independent Referendum Commission: www.lisbontreaty2008.ie/Compare however the view of the NGO Democracy International, which has argued that although the government’s campaign was initially of low intensity, this changed as the vote drew nearer and ‘bullying’ tactics and unfair pressure were used to induce people to vote yes: they argue also that the media was biased in favour of a yes-vote. See www.democracy-international.org/fileadmin/pdfarchiv/papiere/di-monitor-report-en.pdf.



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referendum took place.24 Thus while the ‘No’ vote on the Lisbon Treaty may well have been ill-informed, the task of assigning official blame for the inadequacy of the Irish campaign on its behalf is not a straightforward one. Indeed the nature and design of the Treaty suggests that an exceptionally strong and vigorous campaign in its favour would have been required to overcome the legitimate public scepticism and irritation at the fact that the actual text on which citizens were being asked to vote had been drafted in a way which was incomprehensible to them.25 Nevertheless, the fact that a significant reason explaining the failure to cross one of the final hurdles to the ratification of the Lisbon Treaty – whose content would bring about many important substantive changes, despite the fact that they were worded in complicated and publicly inaccessible legalese – was the difficulty in communicating the substance and importance of its contents, helps to understand why the EU reaction was to encourage Ireland to try again at overcoming the hurdle rather than opting for a change of direction for the entire EU. Fourth Reason – the Long Negotiation History of the Lisbon Treaty: a Costly No Apart from the misplaced expectation of popular Irish support for any EU Treaty promoting further integration, or the suspicion that the negative vote could be explained by an inadequate campaign in favour of the Lisbon Treaty rather than by informed opposition to its contents, a fourth possible factor explaining the EU’s reaction to the Irish ‘No’ vote was the degree to which Europe’s political leaders had become invested in the Treaty by the time of the Irish referendum. The ultimate text of the Lisbon Treaty contained reforms which were first discussed and drafted during the early stages of the Convention on the Future of Europe, which then led to the Treaty establishing a Constitution for Europe. As others have pointed out, the achievements of the Convention and of the 2004 Intergovernmental Conference which followed it were very significant, resulting in many of the past ‘taboos’ of the EU integration process being spoken during the novel Convention procedures.26 Thus issues which had long eluded agreement such as the accession of the EU to the European Convention on Human Rights, or the conferral of express legal personality on the EU and the merger of the pillar-structure were finally agreed during the negotiation of the Constitutional Treaty, and these survived into the text of the Lisbon Treaty.27 A substantial degree of political consensus at the highest level had eventually been won on many of these reforms, and by the time of the Irish No-vote these reforms had been officially discussed and negotiated at least three times, in the Convention on the Future of Europe, in the subsequent Intergovernmental Conference, as well as in the shorter and more secretive Lisbon Intergovernmental Conference of July 2007. Indeed, the reference to the taboos of the past points to the fact that some of the Lisbon Treaty reforms have their roots in longstanding debates and proposals whose origins can be 24   See Michael Holmes, ‘The Referendum on the Treaty of Lisbon in the Republic of Ireland, 12 June 2008’ Referendum Briefing Paper No 16, 2008, for a comment on the possible effect of Bertie Ahern’s resignation on the conduct of the referendum campaign: www.sussex.ac.uk/sei/documents/epern_no_16_ireland_08.pdf. 25   See for example the newspaper article by Vincent Browne ‘Gobbledegook and the Lisbon Treaty’ Irish Times, 5 March 2008. 26   B de Witte, ‘Treaty Revision in the European Union: Constitutional Change through International Law’ Netherlands Yearbook of International Law XXV (2004) 51–84, at 69. 27  Ibid.

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traced back many decades before the Convention on the Future of Europe. Perhaps understandably, given the lengthy path to eventual agreement and the expenditure of so much political capital, the EU’s political leadership was reluctant to contemplate that the phoenix of the Lisbon Treaty which – even if not exactly arisen – had been saved from the ashes of the Constitutional Treaty after protracted negotiation and compromise between 27 States, would have to be abandoned because of a half-hearted referendum campaign in the only member State to hold a referendum. Fifth Reason – Objections Specific to Ireland’s Situation: a Localised No The fifth factor which may explain the difference between the EU response to the Irish referendum result and the EU’s consideration of the votes of France and the Netherlands on the Constitutional Treaty is the interpretation which was placed on the respective. Heated and engaged public debates had been held in France and the Netherlands over the Constitutional Treaty, and although it appeared that the reasons underlying the negative outcome were complex and varied in each state,28 a generally held view emerged that a significant dimension of the opposition to the Constitutional Treaty centred precisely on the idea of enacting a Constitution for the European Union. If this assumption were indeed correct (although it is an assumption which is difficult to verify with any empirical precision), then – unlike the Danish no to Maastricht or the Irish no to Nice or Lisbon – there could obviously be no question of returning to the people of France or the Netherlands with offers of a suitable opt-out from the ‘constitutional character’ of the document. At least a part of the ‘shared-EU-crisis’ reaction to the French and Dutch votes is likely to have been the assumption that there was no real possibility of coming up with a suitable package to satisfy the main concerns of many of the French and Dutch no-voters, and therefore that the solution to the ratification dilemma had to be a collective European one involving a move away from the ambition of the Constitutional Treaty itself. This collective response, as we know, manifested itself eventually in the symbolic de-constitutionalisation of the Treaty and its reformulation as the Lisbon Reform Treaty. Contrariwise, in the case of Ireland’s vote on the Lisbon Treaty, the chosen EU diagnosis seems to have been quite different. A generous interpretation of the decision to shift responsibility for a solution to the ‘No’ vote onto the Irish Government may therefore be this: there may have been a genuine belief that the better-informed aspects of the ‘No’ vote reflected concerns specific to the Irish population which could be singled out and separately addressed, rather than deeper and more complex issues of policy and principle concerning the nature and content of the Lisbon Treaty and the direction of the European integration process more broadly. Certainly this seems to have been the spirit in which the Irish Government responded to the European Council’s request to it in June 2008 to analyse the reasons for the ‘No’ vote and to suggest a way forward. The Government chose to accept the European Council’s framing of the situation in this way, and to accept responsibility for the outcome of the referendum as a problem for Ireland to resolve (albeit with the help of the EU), rather than as a wider problem demanding a collective European policy response. 28   See, eg R Dehousse ‘The Unmaking of a Constitution: Lessons from the European Referenda’ (2006) 13(2) Constellations 151–64; P Hainsworth ‘France Says No: The 25 May 2005 Referendum on the European Constitution’ (2006) 59(1) Parliamentary Affairs 98–117, and ‘Understanding The Dutch No: The Euro, the Elite and the East’ (2006) 39(2) Political Science & Politics 243–46.



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The eventual focus of the Government’s proposal to the European Council, following the Oireachtas [re: Parliament of Ireland] Sub-Committee Report on Ireland’s Future in the EU, was on five sets of issues.29 The first was the retention of one Commissioner per Member State, the second was the State’s policy of military neutrality, the third was the fear of future EU harmonisation of corporate taxation, the fourth was the impact of EU law on matters, such as the protection of family life, education, and the prohibition on abortion, and the fifth was a cluster of issues concerning workers rights, public services, such as education and health, and economic and social cohesion. Probably the most prominent issue of concern among these was the retention of one Commissioner for each Member State. This issue has traditionally been of greatest interest and concern to the smaller Member States, given that their nomination of a Commissioner provides them with a kind of institutional equivalence with larger Member States, despite the fact that Commissioners do not represent the State that nominates them, and even though the number of Commissioners is unquestionably a subject which affects all EU Member States. The European Council’s concession to Ireland on this point was therefore the most significant response, in legal and political terms, to Ireland’s post-referendum position. An important and difficult political agreement on reducing the size of the Commission had been reached both in the Constitutional Treaty and in the negotiations on the Lisbon Treaty, and the decision to renege on that agreement carries general costs for the efficiency and working methods of the EU as a whole. On the other hand, it was a decision which was at least arguably (despite the curious Treaty interpretation it requires) possible for the EU to concede without necessitating any further Treaty amendment, given that the changes to be made by the Lisbon Treaty provide for the possibility that the European Council, acting unanimously, may take a different decision on the number of members of the Commission than the figure of two-thirds of the Member States otherwise agreed.30 Of the remaining four sets of issues identified by the Government, however, the first three – taxation, neutrality and the right to life/family/education, etc – were clearly of more specific concern to Ireland than of general concern to all Member States. Ireland’s low rates of corporate taxation were widely considered to have been an important element in its economic success during the ‘Celtic Tiger’ years. Further, Ireland has maintained a neutral stance in military terms since independence, and Ireland’s socially conservative laws and practices on matters such as abortion and family life reflect its identity as a State with an overwhelmingly Catholic population. The Government requested, and the European Council declared, that it would provide ‘necessary legal guarantees’31 to satisfy Ireland’s concerns on these three sets of issues, although without at that stage specifying further what kinds of guarantees those would be. However, the treatment of the fourth and more general concern identified by the Government, namely the concern about the impact of EU law on social policy matters such as workers’ rights and public services was different. This fourth concern was less 29   Report of the Oireachtas Sub-Committee on Ireland’s Future in the European Union: Challenges, Issues and Options (November 2008). 30   Article 1 of the Lisbon Treaty would insert a new Article 9(D) into the Treaty on European Union, paragraph 5 of which will provide: ‘As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.’ 31   See the European Council Conclusions of December 2008.

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obviously a distinctively Irish matter than the other three, but rather one of concern to the EU as a whole, and affecting all EU Member States in various ways. In contrast to the promise to provide legal guarantees regarding the first three, the response to this fourth set of concerns was simply an affirmation that ‘the Union attaches high priority’ to these concerns. In other words, both the Government’s presentation of, and the European Council’s response to Irish voter anxiety on these issues, is framed as though it was based on a misapprehension of the current state of the law, rather than on well-founded apprehension over the impact of developments, such as the trend of European Court jurisprudence in cases such as Laval,32 Viking33 and Ruffert34 and related social policy developments. In other words, both the political leadership of Ireland and Europe treated the specifically Irish concerns about taxation, neutrality and issues of family life as matters which somehow required additional legal guarantees, while they treated the broader and deeper general apprehension over the direction of European social and economic policy as requiring mere ‘confirmation’ of the status quo rather than as raising any question about the need for future reform. Indeed, this is what the eventual ‘legal guarantees’ obtained from the European Council indicate.35 The Heads of State and Government purport to ‘guarantee’, by means of a binding decision which will eventually be contained in a protocol to the Treaties, that nothing in the Lisbon Treaty affects in any way the scope and applicability of the protection of the right to life, of the family and of the rights of education in the Irish Constitution, that nothing in the Lisbon Treaty affects the ECs existing competence in relation to taxation, and that nothing in the Lisbon Treaty affects or prejudices Ireland’s policy of military neutrality. On social policy concerns, on the other hand, the European Council attached a second annex to its conclusions which simply ‘confirms’ the high importance attached by the EU to workers rights and social progress, etc, and ‘recalls’ the relevant provisions of the EC and EU treaties as amended by the Lisbon Treaty. This seems a somewhat paradoxical outcome, since, of all the issues identified by the Irish Government as being of concern to No-voters, those which seem most genuinely likely to be affected by the current direction of European integration (even if not specifically by the Lisbon Treaty) are not State neutrality, corporate taxation or abortion. These three areas are reasonably firmly protected under current legal, political and institutional arrangements, and to the extent that they are not – ie to the extent that future ECJ36 rulings in other related areas might indirectly encroach upon them – it is difficult to see how the new European Council guarantees would prevent that, if the Court was so minded. Neither is it obvious that the Lisbon Treaty is likely to have much or any effect on national-level social protection, public services and labour laws and policies,37 although the concerns which were expressed in the run-up to the Lisbon Treaty referendum about existing EU developments in these fields are certainly  C-341/05 Laval un PartneriLtdv Svenska Byggnadsarbetareförbundet, judgment of 18 December 2007.  C-438/05 International Transport Workers’ Federation & Finnish Seamen’s Union v Viking Line ABP, judgment of 11 December 2007. 34  C-346/06 Rüffert v Land Niedersachsen, judgment of 3 April 2008. 35   Annex 1, paras 1–5 to the Conclusions of the European Council of 19 June 2009. 36   European Court of Justice 37   For a comment on the likely impact, or non-impact, of the Lisbon Treaty on social policy and labour law concerns, see Phil Syrpis ‘The Treaty of Lisbon: Much Ado . . . But about What?’ (2008) 37 Industrial Law Journal 219. 32 33



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real. In that sense, public reaction to recent EU and ECJ developments in the field of labour and social law may well have contributed to opposition to the Lisbon Treaty in Ireland, although the Lisbon Treaty itself is unlikely to have much effect on them. Yet the response of the European Council to these EU-wide concerns was not to offer ‘legal guarantees’ as it did in relation to the Ireland-specific concerns about taxation, neutrality and family life/abortion/education, but rather merely to confirm existing EU law arrangements. In sum, Europe’s political leadership – including the Irish Government at the European Council’s request – chose to interpret the Irish ‘No’ vote to Lisbon as essentially an Irish problem rather than a European problem, and to proffer (apparent) legal solutions to the specifically Irish dimensions. The only acknowledgement of a wider European dimension to the problem seems to have been the view that it was for the EU leadership to come up with such guarantees for Ireland’s particular concerns, including most prominently its concern about retaining an Irish Commissioner.

understanding the irish no as a collective european problem While none of the reasons suggested above for differentiating between to Lisbon ‘No’ vote and the French and Dutch ‘No’ votes to the Constitutional treaty are to be discounted, it seems nonetheless arguable the difference between the respective sets of no-votes has been exaggerated; and that the relationship between the various referendum results has been deliberately overlooked.38 Leaving aside a micro-analysis of the specific issues which mobilised many people to vote against the various Treaties, it is undeniable that the overall trend reflected in the outcome of popular referenda on EU Treaty change (and indeed also in the outcome of European Parliament elections) at least since the time of the Maastricht Treaty, reflects a growing level of disconnection from and unhappiness either with certain European policies in particular or with the pace of scope of European integration more generally.39 This discomfort and opposition – whether or not it is labelled as Eurosceptisism40 – is almost certainly at least in part a reaction to the complexity and opacity of the European integration process, the absence of satisfactory public engagement in that process, the lack of any apparent connection between voting in European or national elections and actual policy outcomes at EU level, and the ensuing sense of a weakening in the democratic quality of government across the EU. Considered from this somewhat longer-term 38   For an argument that the issues underlying the No vote in the French referendum were actually very similar to those in the Irish referendum on the Lisbon Treaty, see Chris J Bickerton ‘Ireland Votes No’ EUSA Review (Fall 2008). 39   For a recent illustration of such disconnection, Honor O Mahoney in the EUobserver reported on 19 January 2009 that ‘the vast majority of EU citizens remain unaware that European elections will take place later this year despite a concerted effort by politicians in Brussels to raise the profile of the European Parliament . . . A survey from autumn 2008 of some 27,000 people across the bloc’s 27 member states found that 67 percent did not know when the next European poll would be held and 54 percent said they would not be interested in the election, due to take place in June’. 40   There is a large political science literature examining and assessing the rise of Euroscepticism among political parties and otherwise across the EU. See for a recent collection of essays on the subject: P Taggart and A Szczerbiak (eds) Opposing Europe: the Comparative Party Politics of Euroscepticism (Oxford University Press). See also the special journal issue of European Integration (2000) Vol 22, no 1, guest-edited by Susan Milner.

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perspective, it is undeniably the case that the Irish ‘No’ vote to Lisbon was not an isolated instance or a shock event, but must be understood in context as part of a general and widespread although poorly-understood pattern of diffuse public discontent with the state of affairs in the EU. There are at least two different sorts of reasons why there may be reluctance, at the highest EU levels, to acknowledge that the Irish ‘No’ vote is part of this broader picture of popular disillusionment with the EU, and to calibrate the response accordingly. The first kind of reason relates to the crudeness of the referendum as a political bellwether, even as an instrument for measuring public support for the EU.41 The risk is that negative referendum results on treaties like the Maastricht, Nice, Constitutional or Lisbon Treaties will be equated with undifferentiated rejection of the process of European integration, rather than being understood as attempts to express opposition to certain aspects of the process or even to specific policies.42 It is notoriously difficult to interpret the results of these Treaty-amending referenda on complex sets of issues, and it has often been remarked that voting in EU referenda regularly reflects national dissatisfactions rather than concerns which relate primarily to the EU.43 Had the Irish electorate been asked to vote on a single and more straightforward question such as ‘Should Ireland leave the EU?’, just as the electorate was asked in the 1972 referendum whether Ireland should join the EEC, there would be less difficulty in interpreting the outcome. However, this cannot be said of any of the six referenda which have been held in Ireland since the Single European Act in the mid-1980s. Further, referendum campaigns more recently have turned into occasions on which the State is effectively put in the position of having to justify the project of European integration as a whole, rather than the specific reforms contained in the Treaty in question.44 The second and perhaps more fundamental reason however, lies in the undeniable difficulty of identifying and proposing effective ways to address the causes of popular discontent and opposition to EU treaty changes. This is one of the crucial dilemmas of the European integration project today, and the reaction of the European Council to the Irish ‘No’ vote to Lisbon at one level represents merely one more, perhaps understandable, attempt to sidestep the daunting and intractable nature of that dilemma, and to isolate the problem by dealing with discrete issues of concern to Ireland rather than acknowledging the wider underlying malaise reflected in the results of the vote. Indeed, to the extent that the Irish no-vote has prompted the EU to consider more fundamental reform, it is likely that the reform which has sprung most readily to the minds of Europe’s leaders is the proposal – one which has been on the table several times previously – to go beyond the ‘simplified revision procedure’ which the Lisbon 41   For a threefold analysis of different kinds of EU referendum see Min Chu ‘Referendums and the Political Constitutionalisation of the EU’ (2008) 14(23) European Law Journal 423–45. 42   See Peter Mair ‘Political Opposition and the EU’ (2007) 42 Government and Opposition 1, who argues that the absence of any channel or opportunity for organising opposition within the EU means that people are forced to organise opposition to the EU. He suggests that ‘to be critical of the policies promulgated by Brussels is therefore to be critical of the polity; to object to the process is therefore to object to the product. . . . [either]. We accept the elimination of opposition, or we mobilize an opposition of principle and become intrinsically Eurosceptic’. 43   See, eg Boyka Stefanova ‘The No Vote in the French and Dutch Referenda on the EU Constitution: A Spillover of Consequences for the Wider Europe’ (2006) PS: Political Science and Politics, XXXIX 251–55. 44  See Andrew Glencross ‘The Travails of Justifying Integration in Referendum Campaigns’ EUSA Review (Fall 2008) http://www.eustudies.org/files/eusa_review/fall08final.pdfwww.eustudies.org/files/eusa_ review/fall08final.pdf.



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Treaty would introduce and to abandon unanimity as a requirement for future Treaty amendment, thereby avoiding the continued confrontation of popular discontent.45 Nonetheless, the question remains whether avoidance of confrontation of the EU’s broader legitimacy problems was the best strategy for the European Council to adopt vis-à-vis the Irish ‘No’ vote. One possible answer to this question is to suggest that the EU, through the reaction of the European Council, did not entirely side-step the problem, but continues in the attempt to address it in many other less prominent ways, even while attempting to fashion a manageable -albeit deliberately circumscribed – solution to the Irish ratification problem. The Lisbon Treaty itself, for example, contains an array of reforms which move somewhat in the direction of greater openness and transparency of key EU institutions, which make some gestures in the direction of the importance of participatory democracy, and which arguably does so more extensively and consistently than any of the previous EU Treaty reform packages.46 Further, there are many ongoing and less prominent attempts at democratic or quasi-democratic reform, such as the Commission’s Plan D and Debate-Europe initiatives,47 its Transparency initiative,48 other civil society consultation measures;49 and the European Parliament’s pressure on the Commission and other EU institutions to widen public access to EU documents,50 to name but just a few. Even if their scope and ambition is limited and their success at best uncertain, it would not be true to say that the EU institutions and the EU’s political leadership remain entirely inactive in relation to the legitimacy problems of the EU, and its democratic legitimacy problems in particular. A second possible answer to the question about the wisdom of the strategy of cabining the Irish No-vote as an Irish problem rather than tackling it head-on as only the most recent manifestation of the popular legitimacy crisis facing the EU, is that opinion is divided on the fundamental underlying question which is raised by this crisis. The fundamental underlying question is whether the right path forward for the EU lies in its greater politicisation, or in a chastening and reining in of its ambitions together with a recognition of its necessarily technocratic and depoliticised nature. Writers such as Andrew Moravcsik51 and Giandomenico Majone52 in the past have 45   This view was articulated by Valéry Giscard d’Estaing, amongst others, in various media interviews after the Irish No-Vote: see, eg ‘Giscard Rules out Keeping of Irish Commissioner’ The Irish Times, 26 June 2008. The French Think-Tank, Notre Europe, has previously published a study on the question in relation to the Constitutional Treaty: Henri Oberdorff ‘La ratification et la révision du traité établissant une Constitution pour l’Europe’ (www.notre-europe.eu/uploads/tx_publication/Etud38-fr_02.pdf) and is currently doing so again in the wake of the Irish Lisbon vote. For earlier commentaries on the rigidity of the EU treaty revision process see B de Witte ‘Revision’ (2005) 1 European Constitutional Law Review 136–40 and ‘The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty Revision Process’ in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (2002) 39–57. 46   For an outline of the treaty’s democracy-related reforms, see europa.eu/lisbon_treaty/glance/democracy/index_en.htm. 47  See http://europa.eu/debateeurope/index_en.htm and http://ec.europa.eu/commission_barroso/wallstrom/communicating/conference/dialogue/index_en.htm. 48  http://ec.europa.eu/commission_barroso/kallas/transparency_en.htm. 49  http://ec.europa.eu/civil_society/apgen_en.htm. 50   See the European Parliament resolution of 14 January 2009 on public access to European Parliament, Council and Commission documents (implementation of Regulation (EC) No 1049/2001), A6-0459/2008. 51  Andrew Moravcsik ‘In Defence of the “Democratic Deficit”: Reassessing the Legitimacy of the European Union’ (2002) 40 Journal of Common Market Studies 603–34 and ‘Is there a “Democratic Deficit” in World Politics? A Framework for Analysis’ (2004) 39 Government and Opposition 336–63. 52   See, eg Giandomenico Majone. Regulating Europe (Routledge, 1996) and ‘Europe’s “Democratic Deficit”: the Question of Standards’ (1998) 4 European Law Journal 5–28.

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argued in favour of a conception of the EU as a regulatory system based on independence and expertise, with Moravcsik in particular arguing that its political legitimacy can be sufficiently grounded in its output and in the democratic credentials of its component states. Others, such as Simon Hix and Andreas Follesdal,53 and Peter Mair,54 have argued on the contrary that the EU does suffer from a democratic deficit and that stronger democratic contestation and a genuine European political public sphere are needed. Others however, such as Stefano Bartolini, have cautioned against the assumption that greater politicisation across an EU public sphere will counter the growth of Euroscepticism or generate support for the EU and its policies, and have argued that such politicisation is unlikely to be benign and that contestation would probably not ‘spare the constitutive issues’, thus opening the EU project to even more extensive critique and challenge.55 These questions are immensely important for the future of the European Union, and they are immensely challenging. It has been argued elsewhere that the only legitimate future path for the EU – and indeed the only feasible one – is for a continuation down the road of gradual politicisation and democratisation.56 It is, as Bartolini’s argument suggests, undoubtedly a rocky and even a risky path, whose difficulties should not be underestimated. The genie of European economic, political and social integration, however, cannot easily, and should not, be put back into the bottle. The EU currently does not and will never again fit any traditional model of inter-state foreign relations, nor does it fit the less traditional model of an independent expert agency writ large. For better or for worse, the European Union has long outgrown its origins as a relatively limited common market project, and the EU Member States are bound together in a dense and complex but original and in many ways successful political organisation. For all its complexity and strangeness, the European Union remains a unique and remarkable model of regional integration which has seen a sustained period of peace and relative economic prosperity across a large part of the European continent for over 50 years. It may suffer from continuous internal challenges and crises but it remains a model which, on a broader geopolitical level, is studied and partly emulated by other regions and entities seeking to replicate its successes.

conclusion The latest crisis brought on by Ireland’s ‘No’ vote to the Treaty of Lisbon should not be understood as purely or even primarily an Irish problem. It is merely the latest manifestation of an ongoing and profoundly challenging popular legitimacy crisis experienced by the EU since the time of the Maastricht Treaty. The European Council’s short-term response to Ireland’s ‘No’ vote and its decision to treat the referendum outcome as primarily an Irish problem may be an understandable one in strategic terms, but it fails 53  Simon Hix and Andreas Follesdal ‘Why there is a Democratic Deficit in the EU: A Response to Moravcsik and Majone’ 44 Journal of Common Market Studies (2006) 533–62. 54   See n 41 above. 55   Stefano Bartolini, ‘Should the Union be Politicized? Problems and Risks’, in response to a paper by Simon Hix, ‘Why the EU needs (left–right) Politics: Policy Reform and Accountability are Impossible without it’, Notre Europe Policy Paper No. 19 www.notre-europe.eu/uploads/tx_publication/Policypaper19-en. pdf. 56   G de Búrca, n 2 above.



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to acknowledge and to confront the deeper and unavoidable challenges facing the EU. While the fear that politicisation of the EU will lead to greater opposition and contestation, threatening to undermine even the original common-market bargain on which European integration rests may be a genuine one, the risk that depoliticisation will fuel popular alienation from the EU has arguably already materialised and has been evident in each negative referendum result since the signing of the Maastricht Treaty.57 The first Irish ‘No’ vote to Lisbon can only fully be understood as a part of that longerterm trajectory. More importantly, its implications can only really be addressed if there is a willingness to recognise the link between the deliberately depoliticised nature of the EU and the growing problems of public disaffection and Euroscepticism, and by acknowledging the urgent need for a robust European politics.

57   To quote Peter Mair at n 41 above: ‘the EU is largely depoliticized; and . . . this is part of a more or less deliberate policy by mainstream political elites who are reluctant to have their hands tied by the constraints of popular democracy.’

Human Rights within Multi-Layered Systems of Constitutional Governance: Rights Cosmopolitanism and Domestic Particularism in Tension Colm O’Cinneide* European states are embedded in multiple and overlapping layers of constitutional governance. The various layers of European governance co-exist with national legal systems in an often shifting and variable relationship of mutual accommodation. The same is true for the international and transnational systems of governance, such as the World Trade Organization (WTO), within which both the EU and its constituent member states are firmly embedded. It is inevitable that these different layers of governance will at times rub against each other, producing inter-layer ‘irritation’.1 This ‘irritation’ can take different forms, but it is the inter-layer irritation that often lurks beneath the apparently placid surface of national/transnational relationships that often generates significant change, development and evolution within both national and transnational systems. Inter-layer irritation can have particular significance where the protection of fundamental rights is at issue. Within a multi-layered constitution, the various layers of constitutional governance are often firmly wedded to specific accounts of how fundamental rights are to be understood, interpreted and applied. Often there may be agreement in the abstract as to what constitute the core fundamental rights. However, substantial differences can exist as to how rights are interpreted and applied within the different layers of governance. It appears increasingly clear that inter-layer tensions that emerge in the human rights context often fall into a general pattern, whereby tensions are generated between ‘cosmopolitan’ and ‘particularist’ approaches to rights. ‘Cosmopolitan’ rights standards can be defined as legal norms generated by international or transnational processes of deliberation and embedded in transnational layers of governance. ‘Particularist’ standards, in contrast, are generated within the specific constitutional order of each state and often interpreted by national courts in a manner that reflects how these rights have emerged and evolved within the particular national context in question. Sometimes, ‘particularist’ approaches to defining fundamental rights will more or less exactly match cosmopolitan norms: both sets of rights standards may march in step and mutually *  Reader in Law, University College London, United Kingdom. 1   This concept of ‘irritation’ is borrowed from Gordon Anthony: see G Anthony ‘Clustered Convergence? European Fundamental Rights Standards in Irish and UK Public Law’ (2004) Public Law 283–304, 296–97. Anthony in turn refers to JWF Allison, ‘Transplantation and Cross-fertilisation’ in J Beatson & T Tridimas (eds), New Directions in European Public Law (Oxford, Hart Publishing, 1998) 169–82; G Teubner ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’ (1998) 61 Modern Law Review 11.

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reinforce one another. At other times, however, the situation is different. Cosmopolitan standards as developed and interpreted by international courts and other adjudicatory mechanisms may rub up against the contents of particularist rights frameworks. The ‘open architecture’ of the European human rights system often allows such tensions to be resolved through a process of pluralistic and political interaction. However, there are times when sharp fault lines are uncovered, where the interaction of cosmopolitan and domestic systems generates conflict, and tangible ‘irritation’ is generated. When this happens, the cosmopolitan standard may often be perceived from the perspective of the domestic system as an alien imposition, elaborated by transnational elites that lack the democratic/populist legitimacy of domestic political or judicial authorities. However, particularist standards may be also open to critique, especially as they may become stagnant, unresponsive or excessively accommodating of entrenched assumptions. Interesting legal questions arise out of the tension that can be generated in this area. What do cosmopolitan standards contribute to national legal traditions? What legitimacy can cosmopolitan standards claim when contrasted with national approaches? How should we expect cosmopolitan standards to interact with and influence domestic approaches? When Irish courts apply the European Convention on Human Rights Act 2003, or UK politicians debate the need for a Bill of Rights for the UK, these questions become immediately relevant. This study aims to explore them in some depth and to arrive at some tentative conclusions.

the embedding of states within multiple layers of constitutional governance If individuals makes a human rights claim in Ireland today, or indeed in any other European State, then several different legal instruments can be relied upon in making this claim. Irish litigants could make a constitutional argument, relying upon the fundamental rights provisions set out in Articles 40–44 of Bunreacht na hÉireann. They could also perhaps use Irish administrative law, or possibly Irish tort law, or another non-constitutional element of Irish law. In addition, they are now able to reach beyond Irish law and pray in aid European standards. The European Convention on Human Rights (ECHR) could be called upon under the provisions of the European Convention on Human Rights Act 2003. If the claim in question can slip under the wing of EU law, then the uncertain and relatively inchoate human rights standards contained within the case-law of the European Court of Justice (ECJ) and in the EU Treaties could be used. Roving even further afield, other Council of Europe human rights instruments or even the United Nation (UN) human rights treaties could be used to push for the desired result, albeit in an indirect and limited manner. Litigants, therefore, can rely upon different ‘layers’ of rights protection. To a considerable extent, they can even pick and choose the legal standards they wish to use, selecting the human rights instruments which can be used to best support and articulate their case. This means that the policy-making and administrative apparatus of the Irish State needs to be aware and cognisant of the norms generated by these different rights standards. It also means that Irish law by itself is no longer the sole governing authority for adjudicating questions of fundamental rights. This reflects a



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broader truth: from a constitutional perspective, Ireland is no longer a sovereign, selfcontained autonomous entity, but instead is embedded in multiple and overlapping layers of constitutional governance.2 It would be a mistake to neglect the global dimension to these multiple layers of governance: UN, International Labour Organisation (ILO), WTO and other trans-continental norm-setting and regulatory frameworks are of considerable importance.3 The complex British-Irish dimension should also not be neglected: the provisions of the Belfast/Good Friday and St Andrews Agreements deserve closer attention as norm-imposing international agreements than they usually receive within Irish legal and constitutional debates.4 However, the supranational layers of governance with the greatest impact upon Irish law are of course the various European politico-legal frameworks, and in particular those established by virtue of the EU and Council of Europe treaty systems.5 sources of ‘irritation’: the tensions between constitutional layers of governance The complex relationship that can exist between these various layers of constitutional governance has been extensively discussed in recent years by academic commentators. As highlighted by Neil Walker, Gordon Anthony and others, the various layers of European governance co-exist with national legal systems in an often shifting and variable relationship of mutual accommodation. The same is true for the international and transnational systems of governance, such as the WTO, within which both the EU 2  For discussion of this concept of ‘multilayered’ constitutional governance, see Gordon Anthony ‘Clustered Convergence? European Fundamental Rights Standards in Irish and UK Public Law’ (2004) Public Law 283–304 296–97; N Bamforth, ‘Courts in a Multi-Layered Constitution’ in P Leyland & N Bamforth (eds), Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003), ch 11; N Walker ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317–59. The ECHR is often not thought of as a ‘constitutional’ system, and does not allocate powers to different organs of governance in a systematic manner. However, within the field of civil and political rights, the ECHR may function in some respects as a de facto constitutional system. See S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006); also by the same author, ‘Constitutionalising Adjudication under the European Convention on Human Rights’ (2003) 23 OJLS 405. However, for a contrary view, see B Çali ‘The Purposes of the European Human Rights System: One or Many?’ (2008) European Human Rights Law Review 299–306. There is a considerable literature on whether the EU can be considered to have a ‘constitution’ even without ratification of the failed Constitutional Treaty. However, there is no doubt that the EU has a constitutional system of governance within a broad interpretation of that term, even if it consists of a ‘truncated constitutionalism’: see N Walker ‘EU Constitutionalism in the State Constitutional Tradition’ (2006) 59 Current Legal Problems 51–90. 3   For an indication of the complexity of the interaction between European and international governance, see the House of Lords decision in R(Al-Jeddah) v Secretary of State for Defence [2007] UKHL 58 and the judgment of the ECJ in Case T-315/01 Kadi v Council of the European Union & the Commission of the European Communities [2008] 3 CMLR 41. For analysis of the WTO as a form of constitutional governance, see D Cass, The Constitutionalization of the World Trade Organization (Oxford, Oxford University Press, 2005). For an analysis of the relationship between the WTO and sovereign states, see J Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (Cambridge, Cambridge University Press, 2006). 4  For more on the north–south dimension, see C O’Cinneide Equivalence of Rights and the Belfast Agreement (Equality Authority, 2005); G Anthony, ‘Public Law Litigation and the Belfast Agreement’ (2002) 8 European Public Law 401; S Egan and R Murray, ‘A Charter of Rights for Ireland: An Unknown Quantity in the Belfast Agreement’ (2007) 56(3) International and Comparative Law Quarterly 797–835. 5   Neil Walker has analysed this development as representing the emergence of a ‘cosmopolitan public law’: see N Walker, ‘Flexibility within a Metaconstitutional Frame: Reflections on the Future of Legal Authority in Europe’ in G De Búrca and J Scott (eds), Constitutional Change in the EU: From Uniformity to Flexibility? (Oxford, Hart Publications, 2000) 9–30.

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and its constituent Member States are firmly embedded, and which both influence and are influenced by the national systems which gave them birth. At times, the legal norms generated by particular layers of governance may constitute the dominant or ‘controlling’ norms in a particular context: for example, the rules of European competition law can trump national laws if they come into conflict, as is the case across the range of EC law. However, it is too simple to depict the relationship between national and supranational layers of governance as a straightforward manner of command and control. In a masterly recent analysis of the complex interaction of national, European and transnational legal orders, Walker describes the complex and dense relationships that now exist between various layers of governance as constituting a ‘disorder of normative orders’.6 The different layers interact in a multiplicity of ways, and it can be difficult to identify a clear hierarchy of norms, or clear boundaries between the contexts where particular layers of governance are dominant and those were they are not.7 Amid this disorder, political disputes about the desired depth and nature of European integration, legal tensions as to which layer of governance should prevail where the hierarchy of norm is contested, and politico-economic uncertainties about the appropriate shape and style of regulation in a globalised world all reflect the lack of substantive agreement on how the intertwined layers of governance should interrelate. Given this lack of political consensus, it is inevitable that the different layers of governance will at times rub against each other, producing inter-layer ‘irritation’.8 This ‘irritation’ can take different forms. It can occur when a potential conflict of norms emerges between the different layers of governance. Take for example the Factortame case,9 where the doctrine of untrammelled parliamentary sovereignty embedded in the unwritten UK constitution came into conflict with the superiority of EC law, a fundamental norm of the EU legal order. A resolution was required, which took the form of the UK unwritten constitution adjusting itself to fit the dictates of EU law. However, inter-layer irritation can also be generated in more subtle ways. For example, the different layers of constitutional governance can chafe against each other where the norms and values prioritised within one layer of constitutional governance differ from the norms and values prioritised in a different layer.10 Often, constitutional systems of governance may share many common values, in particular within the European context. However, how particular norms are articulated in one system may differ from how they are articulated in another system, often generating very differing 6   N Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’ (2008) 6(3&4) International Journal of Constitutional Law 373–96. 7   For example, EC discrimination law is confined in scope to areas such as employment and occupation or ‘social advantages’ in respect of which the Community institutions have clearly established competence: however, the influence of the standards set out in the EC discrimination directives often seep into national law that governs areas such as education, where Community competence is very limited or even non-existent. However, in its turn, European discrimination law is heavily influenced in some respects by national legislation, in particular that of the UK and Ireland, as well as by the case-law of the European Court of Human Rights and the UN anti-discrimination treaties. See N Bamforth, M Malik and C O’Cinneide Discrimination Law: Theory and Context (London, Sweet & Maxwell, 2008). 8   See n 1 above for the source of the concept of ‘irritation’. 9  C-213/89 R v Secretary of State for Transport, ex p FactortameLtd (No 2) [1990] ECR I-2433, [1990] 3 CMLR 1. 10   Tensions between layers of constitutional governance may of course also be generated by the mixture of different legal cultures that characterise transnational systems of governance coming into conflict with the specific legal cultures of particular states.



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approaches to common issues. Shared values may be more articulated in the case-law of one system than the other, or one or the other system may have fleshed out shared norms in a more thorough manner than the other in a particular area or context.11 This can generate inter-layer tension over time, which can range from the full-blown conflict of norms exemplified by the Factortame case as mentioned above, to more subtle questions of where emphasis should be placed in legislation or the development of case-law. Not all inter-layer tension may be negative, or trigger a fundamental conflict of norms: very often, the ‘irritation’ induced by different normative orientations rubbing up against one another may trigger a gradual re-think of how norms are applied at one level, often for the better. For example, the traditional values of the UK ‘political constitution’, which emphasised judicial deference to the decisions of elected decisionmakers and the prerogative-wielding executive, came increasingly throughout the 1980s and 1990s into sharp conflict with the emphasis on individual rights in the ECHR’s scheme of normative values. This eventually led to a major shift in UK public law and the introduction of the Human Rights Act 1998. Nor does interlayer ‘irritation’ only result in ‘dominant’ transnational systems generating change in subordinate national systems. As Walker has noted, the norms generated by European and transnational layers of governance often evolve and develop in response to national legal norms, notwithstanding their formally superior status.12 For example, in the Solange I case,13 the German Constitutional Court took the view that the development of protection for fundamental rights within EEC law (as it was termed then) was insufficient to satisfy the level of rights protection required under the German constitutional order. As a consequence, it suggested that this deficiency could limit the extent to which the doctrine of supremacy of Community law could be applied in German law. The ECJ rapidly responded by recognising that respect for fundamental rights norms constituted a key element of the underlying general principles of Community law.14 The ongoing attempt to give legally binding status to the Charter of Fundamental Rights15 also partially stems from a desire to cure this perceived aliment in the EU legal order.16 In other words, the norms of the German 11   For further analysis, see C O’Cinneide, ‘The European Convention on Human Rights and the Irish Constitutional System of Rights Protection: Complementary Or Divergent?’, in E Carolan and O Doyle (eds) The Irish Constitution: Governance and Values (Dublin: Thomson Round Hall, 2008) 507–30. 12   See Walker, ‘Beyond Boundary Disputes’, at n 6 above. 13   [1974] 37 BverfGE 271. 14   See, eg Case 29/69 Stauder v City of Ulm [1969] ECR 419, [1970] CMLR 112; Case 4/73 J Nold v Commission [1975] ECR 985, [1974] ECR 491, [1974] 2 CMLR 338. For academic commentary, see J Coppel, A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 Common Market Law Review 669; J Weiler and N Lockhart, ‘“Taking Rights Seriously?”: The ECJ and its fundamental rights jurisprudence’ (1995) 32 Common Market Law Review 51. For the development of the ‘general principles’ of EC law through reference to the ‘common constitutional traditions’ of the member states, see the excellent analysis by A Arnull, The European Union and its Court of Justice (Oxford, Oxford University Press, 1999) 190–91. 15  For analysis of whether the Charter is effective in plugging this perceived ‘rights gap’ in the EU legal system, see K Lenaerts and E De Smijter, ‘A Bill of Rights for the EU’ (2001) 38 Common Market Law Reports 273; K Lenaerts, ‘Fundamental Rights in the EU’ (2000) 25 European Law Review 575–600; S Carruthers, ‘Beware of Lawyers Bearing Gifts: A Critical Evaluation of the Proposals on Fundamental Rights in the EU Constitutional Treaty’ (2004) European Human Rights Law Review 424–35; G de Búrca, ‘Human Rights: The Charter and Beyond’ (2007) Jean Monnet Working Papers 36. 16   For a pre-Charter analysis of the human rights deficit in EU law, see P Alston and JHH Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy’ (1998) 9(4) European Journal of International Law 658.

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constitutional order have compelled Community law to develop a new rights dimension, notwithstanding its formal ‘supremacy’.17 Sometimes, inter-layer irritation may also be accepted as the price to be paid to achieve important political objectives. Membership of the EU has resulted in wholescale legal changes throughout Europe, with scant respect being paid at times to the niceties and subtle distinctions of the individual national legal systems that have been re-shaped to give effect to the required common standards. However, the importance of the political objectives in question may limit the negative tensions that can arise out of such a process. This is particularly marked in Eastern Europe, where post-Communist societies have undergone massive re-engineering in the interest of securing compliance with the ECHR and EC law, with the ultimate goal of entry into the EU. In such cases, the inter-layer irritation is often shrugged off as an inevitable and acceptable by-product of a desirable process. However, there are other times where inter-layer tensions can generate antagonism and political conflict. In particular, this can occur when transnational layers of governance impose requirements upon national systems that carry a substantial cost in terms of social and economic adjustment, where the potential gains for the state in question from this process may not be obvious. The often disastrous imposition of IMF18 conditionality on developing states is a classic example of this.19 Real tension can also be generated when transnational governance frameworks begin to impose pressure on national systems to change long-established domestic legal or political modes of social organisation. The recent ECJ decisions in Viking and Laval illustrate this well.20 Sharp criticism has been directed at both decisions across Europe for their apparent favouring of the freedom to provide services across the EU at the expense of the right to strike. However, in the Nordic states, the judgments have also been attacked as representing transnational governance blundering into and disrupting efficient domestic systems of achieving labour market stability though negotiations between the autonomous social partners, which have historically prior to the Viking and Laval decisions been largely free of legal regulation.21 The examples of IMF conditionality and Viking and Laval judgments serve to illustrate that transnational governance can at times generate destructive consequences. As a result, inter-layer ‘irritation’ may often be generated by justified resistance on the part of the national systems to the undesirable and ideologically-driven demands often imposed by transnational governance.22 However, at other times, transnational govern17   It should however be noted that the ability of national legal systems to assert themselves when they come into direct or indirect conflict with transnational layers of governance will often depend upon the perceived influence that nation wields in the transitional structure in question. Had Irish courts, or Luxembourg courts, been alone in developing an extensive fundamental rights jurisprudence in 1950s and 1960s Europe, then one wonders whether the ECJ would have been so quick to respond to the absence of parallel rights protection in the EC legal order. 18   International Monetary Fund. 19   See the analysis of the application of conditionality requirements in A Buira (ed) Challenges to the World Bank and IMF: Developing Country Perspectives (London, Anthem Press, 2003). 20  C-438/05 International Transport Workers’ Federation & Finnish Seamen’s Union v Viking Line ABP [2007] ECR 1-00000, Decision of 11 December 2007; C-341/05 Laval un Partneri [2007] ECR 1-00000, Decision of 18 December 2007, [2008] Industrial Relations Law Reports 160. 21   See S Evju, ‘Laval and Viking Line: At a First Glance’ in N Bruun (ed), Särtryck un Tidskrift utgiven av Juridiska Föreningen i Finland 4/2008 (Helsingfors, 2008), available in draft conference form at www.jus. uio.no/forskning/phd/seminarer_a/20_21nov7des08/artikler20_21nov08/Evju%20-%20Laval%20and%20 Viking%20Line%20Jan%2008.pdf (last accessed 5 December 2008). 22   For a perceptive analysis of the ‘neo-liberal’ orientation of many forms of transnational governance, see D Nicol, ‘Britain’s Transnational Constitution’ (2008) 61 Current Legal Problems 125.

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ance may live up to the promise of greater rationality with which it is often associated. National systems may have themselves been shaped by ideological beliefs, dominant groups or specific modes of political and social organisation which can also be damaging or outmoded. In such situations, the impact of transnational governance may break open the carapace of national systems and introduce fresh air into mouldering domestic systems. Therefore, the impact of transnational layers of governance on national systems may be double-edged. It may also be perceived very differently, depending on the standpoint of the observer. One person’s intrusive transnational interference with long-established, well-functioning and normatively justified national systems may be another person’s bracing blast of external rationality blowing away the cobwebs of the domestic order. As a result, when inter-layer irritation occurs, the ensuing tension may be both welcomed and resented. Either way, it usually acts as a significant motor of legal change and development.

interlayer irritation within the context of fundamental rights Inter-layer irritation can have particular significance where the protection of fundamental rights is at issue. Within a multi-layered constitution, the various layers of constitutional governance can each be firmly wedded to specific accounts of how fundamental rights are to be understood, interpreted and applied. Often there may be agreement in the abstract as to what constitute the core fundamental rights. However, substantial differences can exist as to how rights are interpreted and applied within the different layers of governance. For example, the right to privacy as interpreted by the German Constitutional Court was given a dramatically wider interpretation by the European Court of Human Rights in the Von Hannover decision.23 The parameters of the same right to privacy were also understood very differently by the Irish Supreme Court and the European Court of Human Rights in Norris v Ireland.24 Multiple other examples exist. The same basic rights are often interpreted differently throughout the differing multiple layers of contemporary constitutional governance. This means that the potential for inter-layer ‘irritation’ exists in the field of fundamental rights, as it does in other contexts. Such friction can arise in several different ways. Transnational institutions may adopt different interpretations of fundamental rights from those adopted by national institutions. Alternatively, transnational governance structures may generate legislation that sits uncomfortably with the specific interpretation of fundamental rights adopted at the national level.25 The recent Kadi decision of the ECJ also shows that one transnational institution may question the extent to which rights are protected in another transnational layer of governance.26 Lying at the heart of many of these clashes will be   (2005) 40 EHRR 1.   (1988) 13 EHRR 186. 25   For example, the implementation in German domestic law of the EC Framework Equality and Race Equality Directives of 2000 proved to be a long, complex and much-disputed process, with the strong antidiscrimination provisions of the Directives regarded by some as violating the rights to individual autonomy protected by the German Basic Law. See P Follmar-Otto and H Bielefelder, Diskriminierungsschutz in der politischen Diskussion, Policy Paper No 5 (Berlin, Deutsches Institut für Menschenrechte, 2005). 26   Case T-315/01 Kadi v Council of the European Union & the Commission of the European Communities [2008] 3 CMLR 41: the ECJ at paras 320–8 of its judgment noted the inadequacy of procedural guarantees 23 24

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a divergence of views as to how fundamental rights should be interpreted and applied, which in turn will usually mirror differences in how normative values are prioritised within the different layers of governance. For a classic example of how inter-layer tensions can stem from the existence of different frameworks of normative values within multiple layers of constitutional governance, take the oft-discussed example of the Open Door/Grogan litigation.27 In the initial Open Door decision that triggered this saga, the Irish Supreme Court adhered closely to the natural law values prevailing at the time in Irish constitutional interpretation, giving priority to the constitutional value of the right to life of the unborn child at the expense of the secular liberal individualist values of freedom of speech and individual autonomy.28 In contrast, when the Grogan case reached the ECJ, the Luxembourg court viewed the case almost solely through the prism of freedom of movement of services.29 The decision of the European Court of Human Rights in Open Door Counselling Ltd v Ireland 30 saw yet another set of norms being brought to bear upon the same factual situation, with again very different results. The differing normative orientations of both systems meant that almost wholly different forms of legal analysis were brought to bear upon the same set of facts. This difference of approach also generated different outcomes in each case, notwithstanding the more or less identical factual matrix at issue. As a result, this episode of litigation is a compelling example of how inter-layer tension can be generated within the multilayered constitutional system within which Ireland is embedded.

of fairness in the operation of the UN Security Council Sanctions Committee, albeit in the politest possible language. Yet again, it should be emphasised that the inter-layer irritation generated in the human rights context is not just a question of one-way traffic between rights-respecting transnational governance structures and backward national systems. The picture is more complex than that: demands for compliance with fundamental rights may flow upwards from national systems into the transnational sphere, as evidenced by the Solange case discussed above, or from one transnational sphere to another. 27   For commentary see D Rossa Phelan, ‘The Right to Life of the Unborn v the Promotion of Trade in Services: The European Court of Justice and the Normative Shaping of the European Union’ (1992) 55 Modern Law Review 670; J Coppel and A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 Common Market Law Review 669; D Curtin, ‘Case C-159/90, Society for the Protection of the Unborn Child (Ireland) Ltd v Grogan and others’ (1992) 29 Common Market Law Review 585. 28   The historic emphasis placed on natural law theories of rights in the Irish constitutional system has been substantially diluted in recent years. See in general D Coffey, ‘Article 28.3.3, The Natural Law and the Judiciary – Three Easy Pieces’ (2004) 22 Irish Law Times 310; M de Blacam, ‘Justice and Natural Law’ (1997) 32 Irish Jurist 323; G Hogan, ‘Unenumerated Personal Rights: Ryan’s Case Re-Evaluated’ (1990–92) 25–27 Irish Jurist 95; R Humphreys, ‘Interpreting Natural Rights’ (1993–95) Irish Jurist 221; A Twomey, ‘The Death of Natural Law’ (1995) Irish Law Times 270. 29   Society for the Protection of Unborn Children (Ireland) Ltd (SPUC) v Grogan (C159/90) [1991] ECR I-4685, [1991] 3 CMLR 849. The EU constitutional system has tended to prioritise the development of the single market, respect for the ‘four freedoms’ and the efficacy of EU law over other considerations, both in the legislation it generates and, in particular, the case-law of the ECJ. In contrast, individual rights for a variety of reasons have placed less of a central role in the evolution of the EU legal order. See the analysis in G de Búrca, ‘Fundamental Human Rights and the Reach of EC Law’ (1993) 13 OJLS 283, and the articles cited in the previous footnote. However, where human rights have been recognised as integral elements of the EU legal order, the emphasis has very much been on respect for secular liberal ‘social democratic’ individual rights. 30   (1993) 15 EHRR 244.



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the significance of interlayer irritation in the context of fundamental rights Inter-layer disputes about how best to give effect to fundamental rights may often become highly symbolic and charged with contention. Questions of how individual rights are interpreted, applied and understood, and their interrelationship with collective goals and other social norms tend to be treated as matters of considerable signific­ ance. This happens not just because of the impact of decisions about individual rights on the individuals and groups concerned, but also because of the symbolic importance assigned in contemporary politico-legal discourse to the ‘working out’ of rights claims. In general, there is a considerable degree of symbolic investment in ‘constitutionalism’: across Europe and indeed often across the globe, both popular opinion and expert-elité commentators tend to view the establishment of a constitutional order that adequately reflects the vales and aspirations of the state as an important, even crucial, national project.31 Ensuring appropriate respect for human rights is now considered an essential part of this project, at least within Europe. Therefore, the results of the interaction between the multiple layers of governance in the field of human rights will invariably come to be seen as an ‘acid test’ of their healthy functioning. For example, in the Irish context, how disputes about rights are resolved within these overlapping layers of governance are often treated as an indicator of the health of Ireland’s constitutional order and its relationship with Europe and the wider international community, as well as an indicator of the wellbeing of the European project.32 the ‘open architecture’ of the european layers of governance in the context of fundamental rights The extent of the friction generated by inter-layer tension when fundamental rights are at issue is also amplified by the fact that this is an area of legal absolutes. Different institutions (and in particular different courts) may be given final authority within the various layers to make final determinations on matters of fundamental rights. For example, no other authority within the Irish constitutional order can override a determination by the Irish Supreme Court that a particular form of state action is unconstitutional: only a constitutional referendum can overturn such a decision.33 However, there is also no appeal or override mechanism that can allow states to evade a finding of a breach of the ECHR by the European Court of Human Rights (ECtHR) – although of course states can drag their feet in complying with its judgments. In addition the 31   For discussion of this symbolic investment in constitutionalism, see, eg S Wolin, ‘Collective Identity and Constitutional Power’ in S Wolin, The Presence of the Past: Essays on the State and the Citizen (Baltimore, John Hopkins, 1989) ch 1; R Cotterrell, ‘Some Aspects of the Communication of Constitutional Authority’ in D Nelken (ed) Law as Communication (Dartmouth, Aldershot, 1995) 129–51. 32   Note for example the dissatisfaction with the Viking and Laval cases expressed by the Irish Congress of Trade Unions during the referendum on the Lisbon Treaty in June 2008. Note too the media discussion in the course of that campaign of the potential impact of the European Charter of Fundamental Rights, as played out in the letters pages of the Irish Times and elsewhere. 33   To illustrate, Walsh J stated in Grogan: ‘In the last analysis only this Court can decide finally what are the effects of the interaction of the 8th Amendment of the Constitution [Article 40.3.3] and the 3rd Amendment of the Constitution [the original Article 29.4.3]’. See [1989] IR 753, 768–69.

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ECJ is the body that ultimately determines the contents of EC law, which of course is stated to be superior to national law: therefore the ECJ determines the content and scope of the fundamental rights recognised in EC law, such as freedom of movement, and also the scope of the fundamental core human rights that are recognised as general principles of EC law. Therefore, in the case of Ireland, there are three courts effectively claiming final authority in differing areas of fundamental rights within the various layers of constitutional governance within which the state is embedded. The same is true for most European States. This problem was recently illustrated by the recent controversy in Germany surrounding the decision of the German Constitutional Court in the Görgülü case, where the Court asserted the primacy within domestic law of the interpretation of fundamental rights established under the German Basic Law over the conflicting requirements of the ECHR jurisprudence.34 This triggered an expression of concern by the then President of the European Court of Human Rights that the status of the Convention would be weakened.35 A clash of interpretation in the field of rights thus has the potential to generate real conflict between the final adjudication mechanisms within the differing layers of governance. However, so far, outright conflict between the different layers has been largely evaded. For example, the potentially very serious conflict that could have been triggered between the decisions of the ECtHR in Open Door36 and the ECJ in Grogan37 on the one hand, and the interpretation of the constitutional right to life of the unborn child adopted by the Irish Supreme Court in the Grogan38 and X 39 decisions on the other, was largely circumvented by the passing of the ‘right to travel’ and ‘right to receive information’ constitutional amendments via referendum in 1992.40 Similarly, the potential for serious conflict between the ECJ and the European Court of Human Rights on who has the final say in matters of fundamental rights that touch on EU law was dodged in the decision of the ECtHR in the Bosphorus case, albeit via an unsatisfactorily and ultimately unconvincing compromise.41 The provisions of 34   Bundesverfassungsgericht, Judgment of 4 October 2004, 2 BvR 1481/04, BVerfGE 111, 307: available at www.bverfg.de/entscheidungen/rs20041014_2bvr148104e.html. 35  See the interview with President Wildhaber in Der Spiegel, 15 November 2004. For commentary in English, see Krisch, above at n 6; M Hartwig, ‘Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights’ (2005) 6(5) German Law Journal 869–92; F Müller and T Richter, ‘Report on the Bundesverfassungsgericht’s (Federal Constitutional Court) Jurisprudence in 2005/2006’ (2008) 9(2) German Law Journal 161–93, at 162–70; G LübbeWolff, ‘ECHR and National Jurisdiction – The Görgülü Case’ Humboldt Forum Recht 12/2006, S 1–9; F Hoffmeister, ‘Germany: Status of European Convention on Human Rights in Domestic Law’ (2006) 4(4) International Journal of Constitutional Law 722–31. Note that a common theme of much of this analysis is that initial media reporting on the Görgülü decision tended to overstate the degree to which the case marked a clash between German constitutional standards and the ECHR norms. Görgülü nevertheless exposed the latent potential for such a clash to exist between the ECHR and domestic law. 36   (1993) 15 EHRR 244. 37   (C159/90) [1991] ECR I-4685 [1991] 3 CMLR 849. 38   [1989] IR 753. 39   [1992] 1 IR 17. 40   See The Thirteenth Amendment of the Constitution Act 1992 and the Fourteenth Amendment of the Constitution Act 1992: also the Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995. 41   Bosphorus HavaYollari Turizm v Ireland (2006) 42 EHRR 1. See the excellent analysis of this decision by Cathryn Costello: C Costello, ‘The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe’ (2006) 6(1) Human Rights Law Review 87–130. On the potential for conflict between the ECHR and EU legal orders in this context, see P Lemmens, ‘The Relation between the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights – Substantive Aspects’ (2001) 8 Maastricht Journal of European and Comparative Law



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Protocol to the Lisbon Treaty, if it ever comes into force, may partially resolve this particular point of potential friction by enabling the EU as a distinct legal entity to ratify the ECHR and thereby to be subject to the ECtHR in the same way as are the EU Member States.42 However, while this may clarify the hierarchy between the ECJ and the Strasbourg Court, the potential for conflict between the different layers of European governance persists, as it does between Irish legal and constitutional norms and those applied within the different European legal systems. Nevertheless, Nico Krisch has argued that the ECHR, perhaps the most developed of the transnational human rights standards, and national legal systems exist in a ‘pluralist’ relationship, characterised by gradual convergence, broad harmony, and openness as to where ultimate authority is located.43 He describes this as an ‘open architecture’ system. This analysis of the relationship between the ECHR and domestic layers of governance is not wholly inaccurate. Krisch echoes Walker’s description of the ‘disorder of normative orders’ and he describes how the mutually influencing interaction between these layers of governance is often carefully mediated and smoothed out by both domestic courts and the European Court of Human Rights itself.44 A similar description could be applied to the relationship between national systems and the weaker UN standards, and even to the hierarchal relationship between EU law and the law of member states. However, the emphasis placed by Krisch on the ‘pluralist’ nature of the relationship between transnational and domestic layers of governance in the field of human rights standards may downplay the extent to which ‘cosmopolitan’ standards, such as the ECHR or other transnational frameworks are in practice often invoked to trump or overrule the particular approaches to rights issues which have evolved at national level. In other words, there are times when the open, discursive and pluralistic relationship discussed by Krisch becomes transformed into one of inter-system tension or conflict, with the application of transnational norms sometimes challenging or chafing against core or long-established legal norms of the domestic system. Characterising this often conflicted and uncertain relationship as ‘pluralist’ downplays the often considerable inter-layer irritation that can be generated in this context. Admittedly, this inter-layer irritation is usually resolved by one layer of governance deferring to the acknowledged superior status of another layer. For example, the 49; J Polakiewicz, ‘The European Union’ s Charter of Fundamental Rights and the European Convention on Human Rights – Competition or Coherence in Fundamental Rights Protection in Europe’ (2002) 14 European Review of Public Law 853; I Canor, ‘Primus inter pares: Who is the ultimate guardian of fundamental rights in Europe?’ (2000) 25 ELRev 3; R Harmsen, ‘National Responsibility for European Community Acts under the European Convention on Human Rights: Recasting the Accession Debate’ (2001) 7 European Public Law 623. 42   See the Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms, attached to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, OJ 2007C 306/01. 43   See N Krisch, ‘The Open Architecture of European Human Rights Law’ (2008) 71(2) Modern Law Review 183–216. See also the similar account of the ‘interactive mutual relationship’ between the ECHR and domestic legal systems diplomatically outlined by Lucius Wildhaber, the former President of the ECtHR: L Wildhaber, ‘The European Convention on Human Rights and International Law’ (2007) 56 International and Comparative Law Quarterly 217–31. 44  Note that the pluralistic and essentially political relationship outlined by Kirsch is particularly in evidence when it comes to the process of implementing decisions of the Strasbourg Court, where diplomatic exchanges within the Council of Europe and political debate at national level often determine whether controversial judgments of the European Court of Human Rights are in fact implemented in full.

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European Court of Human Rights on an almost daily basis via findings of incompatibility with the ECHR requires national systems to adjust how they protect human rights: however, the potential tension that could exist between the ECHR and the various national layers of governance is usually defused by states deferring to the accepted superior status of the ECHR. Therefore, on a day to day basis, the relationship between national and transnational layers in the human rights context is often one of accepted hierarchy. However, there are times when even well-accepted hierarchies may generate real tension. Decisions by transnational institutions can attract the ire of public opinion at the national level, or become subject to political attack. The same thing may occur where transnational norms are applied by national courts, as when Irish or English courts apply the incorporated ECHR rights. It is also important to reiterate that the inter-layer relationship may often generate forms of irritation and tension that fall short of full-blown crisis or overt controversy. Often the normative values underlying transitional rights standards may sit uncomfortably alongside the subtly different values that may animate national law: this may gradually produce irritation between the different normative frameworks, which may fall short of an outright clash but may nevertheless be significant in generating change across the different layers.45 the ‘cosmop olitanism’/‘particularism’ tension It would take a book to examine the different ways in which inter-layer irritation may manifest itself in the fundamental rights context. However, it may be possible to indulge in a degree of generalisation and identify a common thread which runs through many of the manifestations of inter-layer tension in this sensitive and often charged area. The transnational layers of governance that contain significant human rights standards often conceptualise these standards as ‘cosmopolitan’ norms which are to be applied irrespective of the ‘particularist’ standards and approaches to rights which have evolved at national level. This means that how transnational rights standards are interpreted and applied often varies greatly from the equivalent process at national level. This distinction lies at the heart of much of the inter-layer irritation in the realm of rights. It also acts as a significant motor of change, from which neither national nor transnational layers are usually immune. Cosmopolitan Rights Standards ‘Cosmopolitan’ rights standards can be defined as legal norms generated by inter­ national or transnational processes of deliberation and embedded in transnational layers of governance. These norms are conceptualised as embodying certain normative 45   For example, the ECHR case-law on the positive obligations of the State, as developed in cases such as Z v UK (2001) 34 EHRR 97, is built on the normative assessment that omissions by the State in performing its functions may be capable of constituting violations of fundamental rights. In contrast, the English common law of tort historically took the view that omissions by public authorities were in the main not capable of generating a duty of care, basing this partially on the normative assessment that omissions were inherently less blameworthy than acts of commission: see the analysis by Lord Hoffmann in Stovin v Wise [1996] AC 923. However, in the wake of the decision in Z v UK and heavily influenced by the Strasbourg jurisprudence, the English courts have begun to extend common law liability for omissions by public authorities: see, eg Phelps v Hillingdon London Borough Council [2001] 2 AC 619. The normative approach adopted by the Strasbourg court has thus seeped into the English common law.



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concepts about the essential dignity and equality of status of all humans: in addition, they tend to be interpreted as establishing a basic level of human rights protection which states subject to these norms are expected to respect. Such transnational human rights standards can be described as ‘cosmopolitan’, because they echo the Kantian concept of ‘cosmopolitan law’, whereby all human beings, regardless of their political or national affiliation, belong to a single community and have certain individual rights as ‘citizens of the world’ (kosmopolitês in the original Greek), rather than just having the rights to which they are entitled as citizens of particular states or national entities.46 The emergence of these standards also reflects the intellectual influence of theories of ‘legal cosmopolitanism’, which advocate the subordination of national laws to transnational standards and view the individual, as distinct from the nation or the state, as the main point of concern in the international legal order.47 The interpretation given to the European Convention on Human Rights in the case-law of the European Court of Human Rights is a prime example of such a ‘cosmopolitan’ rights framework.48 Other examples include the embryonic human rights jurisprudence of the European Court of Justice,49 the conclusions of the European Committee on Social Rights on the scope of the European Social Charter and the sophisticated case-law of the Inter-American Court of Human Rights. The UN mechanisms for establishing and upholding human rights standards are similarly ‘cosmopolitan’ in ambition and scope, even if their impact is more muted than that of the ECHR.50 In contrast, many other transnational layers of governance lack any meaningful set of cosmopolitan rights norms. The WTO has been criticised on this account,51 while the International Monetary Fund and World Bank have often face allegations that their commitment to human rights is at best tokenistic. However, where cosmopolitan rights standards are embedded into transnational layers of governance, they are treated as establishing a ‘floor’ of rights protection, which states are expected to respect within the spheres of activity regulated by the particular 46   For analysis of Kant’s concept of ‘cosmopolitan law’, which is interlinked with the cosmopolitan ideal set out in his seminal 1795 tract, Perpetual Peace – A Philosophical Sketch (translated by T Humphrey) (Indianapolis, Hackett, 2003), see O Hoffe, Kant’s Cosmopolitan Theory of Law and Peace (translated by A Newton) (Cambridge, Cambridge University Press, 2006), especially 81–135. For general discussion, see J Bohman and M Lutz-Bachmann (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Boston, MA, MIT Press, 1997); S Benhabib, Another Cosmopolitanism: Hospitality, Sovereignty, and Democratic Iterations, Berkeley Tanner Lectures 2004 (Oxford, Oxford University Press, 2006). 47   See, eg T Pogge, ‘Cosmopolitanism and Sovereignty’ (1992) 103 Ethics 48–75; D Held, Democracy and the Global Legal Order: From Modern State to Cosmopolitan Governance (Cambridge, Polity Press, 1995); S Caney Justice Beyond Borders: A Global Political Theory (Oxford, Oxford University Press, 2005) especially 148–88. B Simma, The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2002) 157–71; B Çali, ‘On Legal Cosmopolitanism: Divergences between Political Theory and International Law’ (2006) 19(4) Leiden Journal of International Law 1149–63. 48   The text of the ECHR itself is so abstract that one need not be a legal realist to identify the jurisprudence of the ECtHR as the primary source of the tangible legal norms generated by the Convention system. 49   For a comprehensive analysis of the uncertain position of human rights within the EU legal framework, see P Craig and G De Búrca, EU Law: Text, Cases and Materials, 4th ed (Oxford, Oxford University Press, 2007) ch 11. 50   See the essays in P Alston (ed) The United Nations and Human Rights: A Critical Appraisal (Oxford, Clarendon, 1995) as well as in the forthcoming second edition of this text. 51   See the exchange of views between E Petersmann, ‘Time for a United Nations “Global Compact” for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration’ (2002) 13(3) European Journal of International Law 621–50, and R Howse, ‘Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann’ (2002) 13(3) European Journal of International Law 651–59.

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transnational framework in question.52 As a result, the domestic law and practice of states subject to such cosmopolitan rights frameworks is supposed to be adjusted where necessary to conform to these transnational standards, or at least to be developed and modified in such a way so as to mirror the minimum level of rights protection they require. In other words, states that commit themselves to adhere to these standards are expected to adhere to a certain level, type and style of rights protection. States are also given very limited room to justify departures from these standards on the basis of their particular social, economic, political or legal circumstances. Conformity to a common standard is emphasised: in contrast, national deviations from this standard are seen as inherently problematic.53 The institutions that interpret and apply cosmopolitan norms are often transnational bodies sitting in ‘international capitals’ such as New York, Geneva, Luxembourg or Strasbourg. They are highly insulated from the turbulence and specific flash points of national political debates (even if their composition may be influenced to some extent by national governments). Sitting on Olympian heights, their decisions are usually not readily reviewable: their task is to define the scope of rights protection required by the relevant cosmopolitan set of norms and then to hold the various national systems subject to their jurisdiction to account for how they comply with these standards. How states arrange their internal system of separation of powers is of no account: all are equally subject to the common standards. Particularist Rights Standards However, the domestic law of States often contain their own sophisticated rights standards which are ‘home-grown’ and rooted in the specific historical, cultural and social lived experience of the state in question. Such domestic rights standards can be described as ‘particularist’, in that they are generated within the specific constitutional order of each state and are framed and applied by national courts in a manner that reflects how these rights have emerged and evolved within the particular national political, economic and social context in question.54 For example, the Irish Supreme Court has interpreted the fundamental rights guarantees in Articles 40–44 of the Bunreacht in light of Ireland’s experience under colonial rule and the desire to create a more just 52   Transnational human rights frameworks, such as the ECHR are capable of applying across the full range of a state’s activities: other types of cosmopolitan rights standards, such as those built into the general principles of EU law, only apply to those activities governed by the relevant transnational framework in question. Thus, the rights standards recognised in EU law only apply to state action directed towards the implementation of some elements of EU law and to certain acts of the EU institutions themselves. See Craig and De Búrca, above at n 48. 53   Transnational human rights institutions usually give states a ‘margin of appreciation’ in respect of issues where sharp distinctions exist between national practices, or where it is appropriate for the transnational body to grant a degree of discretion to the national authorities. However, the scope of this margin is delineated by the transnational institution itself and it can narrow to vanishing point if the initial rationale for its existence disappears: see Goodwin v UK (2002) 35 EHRR 447. The margin of appreciation is also usually only available with respect to issues that lie at the ‘margin’ of human rights concerns: where the core of a right is at issue, it is rare for states to be granted any margin of appreciation in the European or UN systems. 54   The awkward term ‘particularist’ is used here in preference to phrases such as ‘domestic’ or ‘national’, because national courts often apply cosmopolitan rights standards as an integral part of domestic law. For example, in both the Republic of Ireland and the UK, the jurisprudence of the European Court of Human Rights as applied by the national courts is part of domestic law. The distinction that is being drawn in this paper is between the rights standards that have been generated within the particular national constitutional framework of a state and the rights standards that have been generated ‘externally’ via transnational processes: both forms of rights standards may be applied within national legal systems.

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and democratic constitutional order manifested in the 1922 and 1937 Constitutions.55 The influence of natural law thought in Irish society has also been reflected at times in the case-law, and rights are usually interpreted in general against the specific context of Irish social, economic and cultural norms. Additional examples of complex and sophisticated particularist rights standards include the common law rights jurisprudence of the English courts, the US fundamental rights case-law of the American Supreme Court or the constitutional norms established by the accumulated decisions of the German Constitutional Court. In each case, the interpretation of basic human rights norms shared with cosmopolitan frameworks, such as the right to freedom of expression, have been given a unique national ‘spin’, which is shaped by the particular national context at issue. As noted above, these ‘particularist’ rights standards will often be regarded from the internal point of view of the national legal order as echoing or paralleling cosmopolitan rights norms: however, their precise delineation often reflects the balance struck between different normative values within that particular state. It may also reflect the state’s separation of powers structure (including any federalist or quasi-federalist arrangements) and the authority given to different institutions within the state’s internal constitutional order. Particularist standards are also applied by national courts which are often highly sensitive to national socio-economic and political contexts, as well as to the traditions of the specific legal system in question. At times, these particularist standards may also be much more elaborated and detailed than their cosmopolitan equivalents: they have often been developed over decades by national courts or other institutions. In addition, there is often great loyalty among both national expert-elites and the public at large to particularist national rights standards (at least in the abstract). This is often the product of the link between particularist standards and the specific historical context from which they have emerged. For example, there is considerable public attachment in Ireland to the fundamental rights standards set out in Bunreacht na hÉireann (if not always to how they have been interpreted by the Irish judiciary): this reflects the link between these rights and the emergence of the post-1922 independent Irish state. The rights standards set out by the German Basic Law attract a similar level of public and expert-elite support: they are seen as an integral part of the constitutional package that is seen as playing an importance role in the emergence of the modern German state from the ruins of 1945. Cosmopolitanism and Particularism in Tension It should be emphasised that particularist approaches do not necessarily involve hostility to cosmopolitan approaches: nor should the reader take particularism to be a polite synonym for insularity. Cosmopolitan and particularist standards will often march hand in hand, mutually reinforcing the other. For most European states at least, the particularist standards are the first port of call for those alleging violations of fundamental rights. The cosmopolitan standards usually act as a safety-net, or (to fix metaphors) serve to plug gaps in the national rights protection frameworks. For example, the ECHR is often seen as working with national systems to provide a ‘belt and braces’ approach to rights protection: if national systems fail to catch a violation, the Strasbourg court remains ready to step in.   See for example Walsh J’s seminal judgment in Byrne v Ireland [1972] IR 241.

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Even where a determination emerges from the Olympian heights of the trans­ national human rights bodies that a national government has violated cosmopolitan norms, this will often be welcomed within the state in question as curing a lapse from the embedded particularist standards: the application of the cosmopolitan standard is often seen by the public and members of the expert-elites as bringing the national system back to its ‘true’ native tradition. For example, decisions of the European Court of Human Rights finding the UK in violation of the ECHR Article 10 right to freedom of expression were subsequently cited by the House of Lords in developing the common law right to free expression: the Strasbourg judgments were treated as emanating from the same tradition as the common law jurisprudence, with both systems providing parallel protection, and therefore the findings of an in ECHR violation could be applied as reference points in expanding protection under the common law.56 However, there are also times when the application of cosmopolitan rights standards can rub up against particularist norms. Ultimately, cosmopolitan rights standards are conceptualised as trumping the particular approaches to rights issues developed at national level. Decisions by transnational human rights bodies may disrupt long-­ established (and sometimes popular) modes of national legal or political governance.57 They may find a violation in respect of an issue that popular and expert-elite opinion in the country concerned has elected to disregard or overlook, or which has been dismissed as only concerning an unpopular minority.58 Their determinations may require states to change long-standing policies of socio-economic significance.59 The trans­ national rights institutions may also issue decisions that chafe against long-established legal rules within the national system, at times leaving themselves open to the accusation that they misunderstood the relevant norms in question.60 In addition, the application of cosmopolitan standards may ultimately challenge particularist legal norms based on deeply-felt normative beliefs which are built into the fabric of national constitutional or political systems. This may occasionally occur via direct challenges to the norms in question. However, it is much more likely to occur via the application of cosmopolitan norms in a manner which indirectly begins to call into question the continued application of the particularist norm. The recent judgment by the European Court of Human Rights in Tysiac v Poland, to the effect that the applicant’s right to private and family life had been violated due to the failure of medical authorities to inform her of her right to an abortion under Polish law, is a good example.61 At one level, this decision is a simple application of the standard human rights principles of legal certainty and the right to access information essential to one’s well-being. However, at another level, Tysiac also demonstrates how cosmopolitan   Derbyshire v Times [1993] AC 534.   See, eg Dudgeon (1982) 4 EHRR 149, where the European Court of Human Rights rejected the UK’s argument that Northern Ireland should be allowed to maintain a prohibition on same-sex acts to reflect the moral beliefs of the majority of the population, in line with the UK’s standard constitutional practice of maintaining a special legislative regime for Northern Ireland. For a similar decision of the UN Human Rights Committee, see Toonen v Australia (1994). UN Doc CCPR/C/50/D/488/1992 (4 April 1994). 58   See, eg Norris v Ireland (1988) 13 EHRR 186; DH v Czech Republic, Application No 57325/00, Decision of 13 November 2007. 59   See, eg Hutten-Czapska v Poland, Application no 35014/97, Decision [GC] of 19 June 2006. 60   See, eg Osman v UK (2000) 29 EHRR 245, and the subsequent criticism of the European Court of Human Rights’s interpretation of English tort law by Lord Browne-Wilkinson in Barrett v Enfield London Borough Council House of Lords [1999] 3 All ER, p 193. 61   App no 5410/03, Decision of 20 March 2007. 56 57

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rights standards may be applied in a way that chafes against deeply-embedded particularist values, as may the outcome of the current complaint being brought against Ireland on similar grounds.62

the axes of cosmop olitan/particularist tension Therefore, as the above examples have shown, many of the points of inter-layer irritation that arise within the human rights context have at their heart the tension that can be generated between cosmopolitan and particularist rights standards. The irritation that can periodically be generated by this two approaches rubbing against each other will often be played out along the European/domestic axis, between the EU and Council of Europe institutions on the one hand and national systems on the other. It can also arise between the UN human rights frameworks and national systems. However, it may also manifest itself within the national political system. Cosmopolitan perspectives are often used by human rights institutions, NGOs and other activist groups to push for change at the national level. At times, this can generate negative responses from politicians and others who often question the utility, common sense or usefulness of applying what they see as aspirational and often utopian cosmopolitan standards within the contested and complex particular national socio-economic context on question. This ‘cosmopolitan’/‘particularist’ form of inter-layer irritation may also manifest itself within national legal systems themselves. At times, national courts may be obliged under national legislation to applying cosmopolitan principles, in particular those contained in the CHR63 which is now incorporated in every member state of the Council of Europe. Where this is the case, national courts often make use of a combination of national particularist and cosmopolitan standards, which can reinforce and supplement each other seamlessly. For example, Lord Bingham used arguments derived both from the common law and the ECHR to support his conclusions in the recent important English cases of the A v Secretary of State for the Home Department (No 1) (the ‘Belmarsh’ case)64 and A v Secretary of State for the Home Department (No 2) (the ‘torture evidence’ case).65 However, at other times, tensions may emerge between the cosmopolitan standards required to be applied by the national courts and the particularist standards that constitute the background norms of the domestic system in question. The national court may by applying cosmopolitan norms find its judgments attacked for nonconformity with particularist standards. Alternatively, a national court may have to decide whether it can or should depart from a decision of a transnational body that it considers to be erroneous, limited, deficient, or simply incompatible with the fundamental norms of the national system in question.66 Where cosmopolitan standards have not been incorporated into domestic law, then national courts also face the question of how much weight, if any, should be given to

  A, B and C v Ireland, Application no 25579/5.   Commission on Human Rights.   A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 WLR 87. 65   A v Secretary of State for the Home Department [2005] UKHL 71, [2005] 3 WLR 1249. 66   See the contrasting views on this question expressed by Lord Bingham and Lord Scott in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15. 62 63 64

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the transnational standard:67 this may generate sharp divisions of views, especially if litigants attempt to make use of cosmopolitan standards to undermine or call into question relatively well-established positions hitherto adopted by national law.68 The cosmopolitan/particularist tension is particularly in play when national courts look askance at attempts to use cosmopolitan standards in domestic constitutional cases. The cosmopolitan/particularist tension can also arise within the deliberations of national courts if judges elect to give substantial weight in interpreting and applying domestic law to the approaches of other national courts and transnational human rights bodies. McCrudden has described the emergence over the last few decades of a ‘common law of human rights’.69 General trends in the case-law of national courts, combined with the influence of similar trends in the jurisprudence of transnational human rights bodies, may effectively generate a set of cosmopolitan rights standards: these may differ from the standards that emerge from treaty processes at transnational level only by virtue of their national origin. National courts may be able to take these cosmopolitan standards into account in applying their own particular national legal norms without generating any real tension or dispute.70 However, in some contexts, the use of de facto cosmopolitan standards generated by other national courts may generate intense resistance, especially if the national courts toying with the use of these cosmopolitan standards have hitherto adhered faithfully to the established particularist standards of the jurisdiction in question. For example, the majority of the US Supreme Court in Lawrence v Texas71 was prepared to take account of the jurisprudence of the European Court of Human Rights on privacy rights. The ECHR standard was treated by the majority as representing a cosmopolitan framework which had been accepted as binding by states such as the UK and Ireland which shared a common constitutional and cultural heritage with the USA, and therefore could be considered as a relevant persuasive authority. However,

67   For this debate in the pre-HRA UK context, contrast R v Secretary of State for Home Department, Ex p Bhajan Singh [1976] QB 198 and Birdi v Secretary of State for Home Affairs [1975] SJ 322 with the subsequent decisions in R v Chief Immigration Officer, Heathrow Airport, Ex p Salamat Bibi [1976] 1 WLR 979; R v Secretary of State for Home Department, Ex p Brind [1991] 1 AC 696. 68   For example, in the Australian case of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, (1995) 128 ALR 353, the Australian High Court regarded Australia’s commitments under its treaty obligations to respect international human rights standards (in this case the convention on the Rights of the Child) as capable of giving rise to a legitimate expectation that state administrative action would conform to these commitments. This decision was at the receiving end of subsequent political attacks; subsequently, the High Court (with a mainly different composition) distanced itself from Teoh: see Al-Kateb v Godwin [2004] HCA 37 (6 August 2004). 69   C McCrudden, ‘A Common Law of Human Rights?’ (2000) 20(4) OJLS 499–532. See also B Ackerman, ‘The Rise of World Constitutionalism’ (1997) 83 Virginia Law Review 771; D Barak-Erez, ‘The international law of human rights and constitutional law: a case study of an expanding dialogue’ (2004) 4 International Journal of Constitutional Law 611; B Markesinis and J Fedtke, ‘The Judge as Comparativist’ (2005) 80 Tulane Law Review 11 and the responses to their article in the same issue. 70   Some national courts may even be expressly permitted by their national constitutions to take cosmopolitan standards into account: see for example s 39(1)(c) of the South African Constitution, which states that the South African courts ‘may consider foreign law . . . when interpreting the Bill of Rights’. The South African Constitutional Court has taken heed of this constitutional requirement with enthusiasm, giving considerable weight to the views of other national courts and the jurisprudence of transnational human rights bodies in developing its own case-law. See, eg S v Makwanyane [1995] (3) SA 391 (CC). 71   539 US 558 (2003): see also Roper v Simmons 161 L Ed 2d (2005), in particular the reference to ‘the opinion of the world community’ by Kennedy J, writing for the plurality, at 26.



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this generated fierce controversy among US academic scholars,72 judges (writing extra-judicially)73 and the media.74 Members of the formerly Republican-dominated Congress tabled a number of resolutions which sought in various ways to discourage judicial reference to international and transnational cosmopolitan precedents. Threats to impeach judges venturing down the cosmopolitan path were also aired.75 The new Chief Justice, Roberts CJ, disparaged the practice during his confirmation hearings.76

striking the balance between cosmop olitan and particularist approaches in the european context In the European context, adherence to EU law and the ECHR means that acceptance of, and compliance with, some cosmopolitan standards is now inevitable. However, the tension between the cosmopolitan and particularist perspectives surfaces in Europe as it does elsewhere. It can be seen in national government resistance to ECHR requirements, or in foot-dragging and attempts to circumvent or dilute EU legislation that touch on human rights issues such as equality. When politicians or the media in the UK voice concern about the imposition of external, non-native or ‘European’ rights standards at the expense of well-established national ways of doing business, the tension between cosmopolitan and particularist standards is in play. The same is true when concerns are expressed by nationalist and conservative politicians in Poland, Romania and elsewhere about European transnational elites imposing a liberal normative structure upon nation states which do not fully subscribe to those values, or when pro-life activists in Ireland voice concern about the potential for 72   For a sample of the arguments made by scholars who broadly support the use of cosmopolitan standards, see VC Jackson ‘Constitutional Comparisons: Convergence, Resistance, Engagement’ (2005) 119 Harvard Law Review 109; HH Koh, ‘International Law as Part of Our Law’ (2004) 98 American Journal of International Law 43. Those critical of this practice and happier with a strictly ‘particularist’ approach include RP Alford, ‘Misusing International Sources to Interpret the Constitution’ (2004) 98 American Journal of International Law 57; EA Young, ‘Foreign Law and the Denominator Problem’ (2005) 119 Harvard Law Review 148. 73   See eg Ruth Bader Ginsburg ‘“A Decent Respect for the Opinions of [Human] kind”: The Value of a Comparative Perspective on Constitutional Adjudication’ (2005) 64 Cambridge Law Journal 575; see also Justice Stephen Breyer and Justice Antonin Scalia, ‘A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication’, a public discussion at the Washington College of Law, co-­ sponsored by the US Association of Constitutional Law, 13 January 2005, available at www.wcl.american. edu/secle/founders/2005/050113.cfm (last accessed 24 May 2006). See also Richard A Posner, ‘The Supreme Court 2004 Term Foreword: A Political Court’ (2005) 119 Harvard Law Review 31, 85–88. 74   See eg Dana Milbank, ‘And the Verdict on Justice Kennedy is: Guilty’, Washington Post, 9 April 2005. 75   Reaffirmation of American Independence Resolutions, H Res 568 108th Congress (2004); H Res 97, 109th Congress (2005); S Res 92 109th Congress (2005); see also H Res 468, introduced on 21 November 2003: ‘Expressing disapproval of the consideration by Justices of the Supreme Court of the United States of foreign laws and public opinion in their decisions, urging the end of this practice immediately to avoid setting a dangerous precedent, and urging all Justices to base their opinions solely on the merits under the Constitution of the United States.’ In addition, see Title II of the Constitution Restoration Bill of 2005 that, if enacted, would have prohibited any court from ‘rely[ing] upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States’. 76   United States Senate Judiciary Committee, Hearing on the Nomination of John Roberts to be Chief Justice of the Supreme Court, Transcript, Day 2,13 September 2005, in response to questions from Senator Kyl, www.washingtonpost.com/wp-dyn/content/article/2005/09/13/AR2005091301210.html, (accessed 24 June 2006).

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transnational structures to erode he right to life of the unborn child as embedded into the Irish constitutional text. Gordon Anthony has argued that ‘Europeanisation’ was at one time typically viewed as the process whereby ‘national order reception’ of transnational standards would lead the ‘national’ gradually to assume the characteristics of a single ‘European’ cosmopolitan and transnational order. But he argues convincingly that this was too simplistic: But while there have of course been instances of osmosis, it is now accepted that the process of change is irregular, and that national systems are not converging around a single European prototype. The reception of European standards may thus raise questions about the need for national realignment; but it does not dictate the form of realignment or, indeed, whether realignment will occur.77

At times, national legal systems may have limited choice in how they choose to ‘realign’ in order to meet European standards. Judgments of the ECJ or the ECtHR will often afford countries little room for manoeuvre. However, some choice remains as to how such judgments are responded to at domestic law and how national law integrates the approach and conclusions of the transnational courts. National systems can choose to apply these judgments narrowly in the specific context out of which they arise: alternatively, they can internalise the approach of the transnational institutions and apply it throughout their case-law. Other national institutions, such as the executive or the legislative branches, have a similar choice whether to adhere narrowly to the specific requirements of the European transnational frameworks, or integrate this approach throughout their modes of operation. The same set of choices exist with respect to the determinations of the UN and Council of Europe human rights bodies, albeit here the immediate pressure to conform is less than is the case with the ECJ and ECtHR, and the corresponding range of choice available to European states is wider. (Non-European states have a similar wide range of choice in choosing how to respond to the determinations of bodies charged with interpreting and applying cosmopolitan rights standards.) It is in making that choice that the cosmopolitan/particularist tension becomes particularly significant. Should courts adopt a tentative and cautious approach to the cosmopolitan standards coming from the transnational European institutions, applying them only where clearly required to do so while adhering by and large to their well-established particularist standards? (This can be described as a ‘particularist approach’ to the application of rights standards.) Alternatively, should they embrace the new cosmopolitan frameworks and apply them beyond the immediate scope of EU law or the ECtHR case-law? (This in contrast can be described as a ‘cosmopolitan’ approach.) When Irish courts consider whether to strike out and develop a detailed ECHR analysis under the ECHR Act 2003, or adhere to well-established Irish constitutional approaches, this is the choice they are making. The same type of choice may confront policy-makers and legislatures: is there value in embracing the cosmopolitan frameworks, or is it better to rely upon the time-honoured and tested particularist approaches in framing policy initiatives in the realm of human rights? In the United Kingdom at present, the debate surrounding the tentative proposals put forward by the Labour government in 2007 and the Joint Committee 77   G Anthony, ‘Clustered Convergence? European Fundamental Rights Standards in Irish and UK Public Law’ (2004) Public Law 283–304.



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on Human Rights in 2008 for a UK Bill of Rights highlights the comsmopolitan/ particularist tension. The Labour Government was concerned that its Human Rights Act (HRA) has not attracted wide public support, partially because of the popular perception that it was an alien cosmopolitan transplant into the spoil of British constitutionalism. As a consequence, the government toyed with the idea that it might be useful for the UK should adopt a domestic Bill of Rights, which could be presented as rooted in the particular national traditions of Britain.78 (Where Northern Ireland fits into this analysis is not entirely clear.) The Conservative party differed from the Labour government in explicitly attacking the HRA for relying on artificial and nonorganic European standards, and flirted for a time with replacing this cosmopolitan standard with a ‘British Bill of Rights’ which would be by and large solely founded on home-grown approaches to fundamental rights.79 In contrast, in its ambitious and impressive 2008 report, the Joint Committee on Human Rights agreed that rights protection would be enhanced in the UK by the adoption of a home-grown bill of rights, but suggests that such a bill should contain elements of both the particularist ‘native’ British tradition of civil liberties and the UN and Council of Europe cosmopolitan rights frameworks.80 In a further twist, leading human rights academics came out against the idea of a home-grown Bill of Rights, arguing that it represents a rejection of cosmopolitan approaches in favour of a much more limited and blinkered particularist perspective.81 The contrast between the two proposals highlights the existence of very different views towards the cosmopolitan/ particularist tension in the UK. It also shows that the question of whether to emphasise cosmopolitan or particularist approaches is potentially very significant, and may require a response from more institutional structures than just the national courts.

the competing charms of cosmop olitan and particularist approaches Where then should the balance be struck between cosmopolitan and particularist approaches? How best to resolve the inter-layer tension that can be generated between these two forms of human rights standard-setting? To answer this question, it is useful to examine the comparative strengthens and weaknesses of both approaches. The attraction of cosmopolitan approaches is that they are founded on transnational standards which bind individual states and place human rights at the centre of the analysis. The specifics of national political, social, economic and cultural circumstances are ultimately subordinated to the essence of the rights protected within these cosmopolitan frameworks. Cosmopolitan standards are usually generated, interpreted and applied by expert bodies that are perceived as ‘rights friendly’ and, as discussed 78   See J Straw MP, ‘Towards a Bill of Rights and Responsibilities’, speech made on 21 January 2008, available at www.justice.gov.uk/news/sp210108a.htm (last accessed 8 October 2008). For analysis of the stance of the various British political parties on the question of a Bill of Rights in A Bill of Rights for Britain? Informing the Debate (London, Justice, 2007), available at www.justice.org.uk/images/pdfs/A%20Bill%20 of%20Rights%20for%20Britain.pdf (last accessed 10 October 2008). 79   See BBC Online, ‘Cameron “Could Scrap” Rights Act’ 25 June 2006, available at news.bbc.co.uk/1/hi/ uk_politics/5114102.stm (last accessed 5 December 2008). 80   Joint Committee on Human Rights, A Bill of Rights for the UK, Session 2007–08, HL 165-I/HC 150-I, 10 August 2008. 81   See, eg F Klug, ‘A Bill of Rights – Do we need one or do we already have one?’ (2007) PL 701.

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above, free from the hurly-burly of national debates. When national courts make use of cosmopolitan standards, or national policy-makers built systems of rights protection around these standards and the transnational bodies that enforce them, they are tapping into the promise of rationality and rights-friendly reasoning offered by the cosmopolitan frameworks. However, cosmopolitan approaches also suffer from distinct problems, which are perhaps ironically closely linked to their strengths. Their transnational origin and the Olympian remoteness of their enforcement mechanisms lack the organic roots of home-grown particular approaches to rights. They may also lack the mandate of democratic approval. At times, cosmopolitan standards are also dismissed for lacking the flexibility to respond to specific national circumstances, or else as contributing nothing to the hard-won wisdom of national standards. In contrast, particularist approaches prioritise the value of articulating rights in ‘home-grown’ constitutional language and, metaphorically speaking, at best prefer the translation of cosmopolitan approaches into the native tongue, which ultimately remains the favoured instrument of communication: cosmopolitan approaches, in contrast, tend to be happier relying on a common unifying conceptual framework and looking for parts of this rights language to be integrated more or less intact into national forms of communication. The advantage of particularist approaches is therefore that they are rooted in the organic legal and constitutional culture of a nation state. It appears that rights protection generated within a national system can be more readily accepted and become more deeply rooted in legal culture and popular esteem than other forms of rights protection generated from cosmopolitan frameworks.82 Particularist approaches may be more sensitive to national differences, and may be able to take rights protection further than cosmopolitan approaches. Take for example the controversial decision of the German Constitutional Court in the Hijacked Airplanes decision in 2005, where the Court held that it would be contrary to the guarantee of human dignity contained in Article 1 of the German Basic Law for the federal government to have the power to automatically shoot down any hijacked plane, thereby reducing the victim passengers to the status of disposable objects.83 The Court in this decision applied a Kantian analysis rooted in specific German constitutional traditions and the memory of past historical experience: while the judgment is highly problematic in many ways, it illustrates how national constitutional vocabularies can confer forms of protection than cosmopolitan frameworks may struggle to replicate. For another example from closer to home, Irish constitutional law tends to offer a greater level of rights protection in the realm of criminal procedure than does the ECHR.84 Particularist approaches can also claim the sanction of democratic approval. Whether through popular approval of the constitutional text, or via the normal election process conducted through national institutions, particularist approaches to rights can cite 82   It is noticeable that case-law upholding rights claims which is couched in the familiar language of common law values appears to receive more political and media support in the UK than decisions couched in the more alien language of Strasbourg. For an interesting analysis of the use of British history and the phraseology of the common law to frame a quite radical application of rights principles by Lord Hoffmann in his opinion in A v Secretary of State for the Home Department [2004] UKHL 56, see T Poole, ‘Harnessing the Power of the Past? Lord Hoffmann and the Belmarsh Detainees Case’ (2005) 32 Journal of Law and Society 534–61. 83   See the discussion in O Lepsius, ‘Human Dignity and the Downing of Aircraft’ (2006) 7(9) German Law Journal 761–75. 84   See the analysis in Report of the Constitution Review Group (Dublin, 1996), 211–395 and 586–611.



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evidence of democratic support. In general, it appears as if national constitutional mechanisms still attract widespread loyalty and self-identification: they remain the primary mechanisms for channelling popular opinion and participation in democratic processes. Cosmopolitan frameworks can in contrast usually only point to the very indirect sanction of governmental approval.85 However, particularist approaches may have drawbacks as well. Long-established and successful national systems of rights protection may stagnate, or fall behind the development of cosmopolitan standards: this may be the case to an extent with the Irish constitutional rights system.86 Rights protection may be unjustifiably diluted by particular national concerns or obsessions, or by the turbulence of daily political life: the ‘long view’ offered by cosmopolitan approaches can be singularly lacking in how particularist approaches are applied. Also, particularist approaches may at times lack the rational rigour of most cosmopolitan approaches to rights: the willingness of the Strasbourg court to disregard British populist panics about prisoners’ rights and asylum-seekers could serve an example of this.

resolving the tension: cosmop olitanism as a constant watchd o g against complacency in the particularist mainstream Gordon Anthony argues that the cosmopolitanism/particularist tension should be resolved in favour of a cosmopolitan approach: he argues for much greater openness to the use of European rights standards on the part of the UK and Irish courts.87 This would find favour with much of what the former Irish Minister for Justice, Michael McDowell TD, used to describe as the ‘human rights lobby’ and many academics. However, the inherent problems with cosmopolitan approaches need to be acknow­ ledged. Particularist approaches are usually more rooted in the organic soil of a nation state and, as previously noted, can often command a degree of popular support and consensus that cosmopolitan approaches cannot. Cosmopolitan approaches depend to some extent on state approval. Basak Cali has described the ECHR system as inevitably trapped in a permanent ‘crisis of political legitimacy’ between its purpose of extending human rights protection and the raw reality that its effectiveness and ultimate survival depends on the consent of states.88 Particularist approaches in contrast have a strong link with the self-constituting nation state: far from being dependent on state approval, they constitute part of the integral framework of the state, both as a matter of law and popular perception. Within most contemporary constitutional thought, the ultimate sovereignty of the people is conventionally seen as the ultimate source of authority:89 the constitutions generated by this popular mandate are intended, as Walker has argued, to provide ‘both a repository 85  See the discussion in Jed Rubenfeld, ‘Unilateralism and Constitutionalism’ (2004) 79 New York University Law Review 1971. 86   O’Cinneide, ‘The European Convention on Human Rights and the Irish Constitutional System of Rights Protection: Complementary or Divergent?’, above at n 11. 87   Síofra O’Leary has made similar arguments: see S O’Leary, ‘The Reciprocal Relationship Between Irish Constitutional Law and the Law of the European Communities’, in T Murphy and P Twomey (eds), Ireland’s Evolving Constitution 1937–97: Collected Essays (1998) 293. 88   See B Cali, ‘The Limits of International Justice at the European Court of Human Rights: Between Legal Cosmopolitanism and A Society of States’, in Marie-Bénédicte Dembour and Tobias Kelly (eds), Paths to International Justice: Social and Legal Perspectives (Cambridge, Cambridge University Press, 2007). 89   See the discussion in A Kalyvas ‘Popular Sovereignty, Democracy and the Constituent Power’ (2005) 12 Constellations 223.

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for and corroboration of the settled ethical basis of political community as well as a vehicle for its continuous adaptation . . .’90 External cosmopolitan standards lack this base in popular sovereignty and can only claim to express a settled ethical basis that is rooted in abstract universal values: cosmopolitanism in general lacks the tangible roots and established national public sphere that particularist approaches can draw upon for sustenance.91 Habermas has argued that Europe can find a shared identity through its common commitment to precisely the universal and rational standards embodied in cosmopolitan rights frameworks: he argues that the shared project of working out how to apply and institutionalise these values, and in particular fundamental rights, can provide the glue that will over time hold together a cosmopolitan European identity.92 However, as Koskenniemi notes, the cosmopolitan approach may look like a wholly expert-elite project to many, and runs the risk of looking ‘imperial’ or being experienced by the public at large as an application of the Weberian ‘iron cage’ of bureaucracy.93 Rights cosmopolitanism, as with other forms of cosmopolitanism, appears as yet not to have attracted the ‘imagined community’ that Benedict Anderson identified as key to the development of common national identities: in contrast, particularist approaches can dip directly into the common well of the imagined national community.94 In practice, this means that rights adjudication rooted in particularist standards will often be met with a more welcoming response by politicians, the national media, the judiciary and the public at large than the application of disconnected and apparently abstract cosmopolitan standards. This also explains why political attacks on attempts by NGOs and others to invoke cosmopolitan standards often strike a chord: it is easy to present such claims as involving appeals to inauthentic and artificial concepts imposed by an external bureaucracy or expert-elite body.95 It also may explain why judges are often instinctively happier reaching for home-grown rights standards rather than cosmopolitan variants. Over time, cosmopolitanism approaches may come to acquire greater resonance and attract a sense of ownership: however, at present, particularist approaches usually constitute the mainstream approach to rights adjudication 90   N Walker, ‘European Constitutionalism in the State Constitutional Tradition’ (2006) 59 Current Legal Problems 51–90. 91   Grimm has made similar arguments in questioning whether the EU can develop a meaningful constitutional framework: see D Grimm ‘The Constitution in the Process of Denationalization’ (2005) 12 Constellations 447; also D Grimm, ‘Does Europe Need A Constitution?’ (1995) 1 European Law Journal 282–302. 92   J Habermas, ‘Comment on the Paper by Dieter Grimm: “Does Europe Need a Constitution?”’ (1995) European Law Journal 303–07; see also S O’Leary ‘Issues of Democracy and Legitimacy in the European Union and the Role of Union Citizenship’ in D Melossi (ed), Migrazioni, interazioni e conflitti nella costruzione di una democrazia europea (Milan, Giuffrè, 2003) 471–504. 93   M Koskenniemi, ‘By Their Acts You Shall Know Them . . . (And Not By Their Legal Theories)’ (2004) 15(4) European Journal of International Law 839–51, 848–49. 94   BR Anderson, Imagined Communities: Reflections on the origin and spread of nationalism (London, Verso, 1991). 95   This is exemplified by the recent debates about the ECHR in the UK: see A Travis and V Dodd, ‘Reid Warning to Judges Over Control Orders’, The Guardian, 25 May 2007; BBC Online, ‘Reid Urges Human Rights Shake-Up’, 12 May 2007. See also the relatively recent controversy in Denmark, where the Council of Europe’s Human Rights Commissioner’s 2004 censure of Danish immigration policy on family reunification sparked a very critical political and media response, which questioned the relevance, usefulness and authority of international human rights standards. See Council of Europe, Office of the Commissioner for Human Rights, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on His Visit to Denmark, Doc No CommDH(2004) 12 (8 July 2004).

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at national level. Nevertheless, cosmopolitan rights frameworks such as the ECHR have earned their spurs over the last few decades by condemning rights violations which were tolerated by particular national systems, often as a result of complacency, an over-privileging of domestic political imperatives, or a refusal to treat minority perspectives with due respect. Experience has clearly shown that the cosmopolitan safety net is essential. That much can be readily demonstrated by listing critical ECHR decisions which have made a considerable impact in filling gaping holes in rights protection left by national particularist standards: Airey,96 Norris and Heaney97 in the case of Ireland, Ireland v UK,98 Dudgeon and Smith and Grady99 in the case of the UK. Cosmopolitan rights standards are also essential ingredients of transnational layers of governance: the constant political pressure for amendment of the EU treaties to enhance human rights protection and the resentment generated by the lack of such protection in the WTO and IMF processes is ample testimony to this. Transnational frameworks are essential tools of governance: therefore cosmopolitan rights frameworks have a potentially very important role to play here, whereas particularist standards usually lack sufficient reach and impact outside of national layers of governance. However, when it come to the question as to whether national institutions should give preference to cosmopolitan or particularist approaches when such a choice is available, it is probably inevitable that the particularist mainstream will hold an attraction for national courts and policy-makers that the cosmopolitan approach will lack. As a consequence, those who promote serious discussion of a Bill of Rights for the UK should not be as readily written off as some NGO and academic commentators are prone to do. Similarly, no one should expect the Irish courts to toss 50 years of constitutional jurisprudence overboard in favour of a total focus on the ECHR. However, the true value of the cosmopolitan rights frameworks is that they remain a fixed and universal standard of rational norm-setting against which the outcomes of particularist processes can be assessed and judged. Cosmopolitanism provides an external point of comparison in the field of human rights protection: it can shatter local complacency and confront well-established national consensuses with a radical demand for change and adjustment. It therefore acts as particularism’s good conscience, ensuring that it remains alive, aware and committed to self-improvement. De Búrca and Gerstenberg have expressed this very well when discussing the European multiple layers of governance, in a passage that deserves extensive quotation: While the EU and the ECHR were in some ways quite different in origin and aspiration, they are now closely linked systems of transnational cooperation sharing an instantiation of a dynamic form of constitutionalism beyond the state . . . Rather than operating as a restraint on national democracy or as an imposition of externally specified standards on locally determined preferences, the European adjudicative process instead forces reconsideration – and sometimes disruption – of particular national or local choices in light of new, potentially richer information, argumentation, and normative understandings generated by prior adjudication . . . Thus, European constitutionalism is not about restraining or undermining national democratic practices, nor about delegating the resolution of incomplete bargains   (1979–80) 1 EHRR 1.   Heaney & McGuinness v Ireland (2001) 33 EHRR 264. 98   (1978) 2 EHRR 25. See K O’Boyle, ‘Torture and Emergency Powers under the ECHR: Ireland v the United Kingdom’ (1977) 71(4) American Journal of International Law 674–706. 99   Smith & Grady v UK (2000) 29 EHRR 493. 96 97

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to judicial elites empowered to impose external, centralized standards on local communities. Instead, EU constitutionalism is about enabling local and national democratic practices to be confronted – and, ultimately, strengthened and improved-by debate in cross-national fora, generating renewed explanations of, and justifications for, localized practices . . . International rules and institutions should – as Anne-Marie Slaughter and William Burke-White have written – ensure that [domestic political actors] do what they should be doing anyway – e.g. what they have already committed to do in their domestic constitutions and laws.100

This captures what rights cosmopolitanism adds to particularist standards. It also explains why the incorporation of the ECHR (and potentially other cosmopolitan rights frameworks) into national law is useful: it strengthens the potentially transforming impact of the cosmopolitan standards and ensures that they cannot be easily left to moulder away in the back rooms of a national system’s legal consciousness. Those in Britain who would delete the ECHR from national law ignore this crucial point, as do those who downplay the potential impact of the ECHR in Irish law over time. It also represents the key reason why national courts and other institutions should keep the cosmopolitan standards consistently in mind, even while applying their conventional particularist approaches: if nothing else, these external rights standards help keep the national system alive and honest.

conclusion The inter-layer tension that is generated at times between the multiple layers of constitutional governance can be positively healthy: it can generate evolution in both national systems and transnational systems, opening up fresh perspectives and combating system stagnation. The tensions that are generated between cosmopolitan and particularist approaches to rights, a specific form of inter-layer irritation, are no different. The conflict that can exist between these two approaches can reflect wider uncertainties surrounding the process of globalisation and the shifting role of the nation state in contemporary conditions. Adopting cosmopolitan standards often involves abandoning old certainties in favour of more abstract and less historically rooted norms, often handed down from transnational human rights bodies located on Olympian heights of detachment from national contexts. This means that cosmopolitan standards can struggle at times to attract the same levels of popular resonance that particularist standards tend to enjoy. However, cosmopolitanism remains capable of infusing rights protection with new energy and fresh perspectives. It should also be remembered that healthy particularist systems may in their turn force transnational systems to change, develop and widen their protection of rights, as the stance of the German Constitutional Court in Solange achieved with respect to the EC legal order. Multi-layer systems of governance are locked into complex relationships of mutual influence: as a consequence, both cosmopolitan and particularist rights frameworks have roles in play in steering the current ‘disorder’ of such governance layers in a rights-friendly direction.

100   Gráinne de Búrca and Oliver Gerstenberg, ‘The Denationalisation of Constitutional Law’ (2006) 47(1) Harvard Journal of International Law 243–62, 257–58.

Diplomatic Protection of Northern Irish Residents by the Republic of Ireland in Reliance upon the Irish Nationality and Citizenship Act, 1956 Aonghus Heatley* This study examines the compatibility of certain aspects of Irish nationality law with public international law and, in particular, considers whether the possession in fact of Irish nationality is in all circumstances capable of satisfying the nationally of claims prerequisite in a diplomatic protection action by the Irish State on behalf of one of its nationals.1 Diplomatic protection, to use the definition adopted by the International Law Commission’s Draft Articles on Diplomatic Protection, 20062 ‘consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.’3 As the International Law Commission’s definition indicates, the link of nationality between individual, natural or legal, and State is the foundation upon which diplomatic protection relies. The possession of a State’s nationality acts to enable an individual to take advantage of a State’s protection under international law (subject to the State’s willingness to do so).

background The Irish island is divided between the territory of two sovereign States: the Republic of Ireland (Ireland) in its entirety, covering the southernmost five-sixths of the island, and a portion of United Kingdom of Great Britain and Northern Ireland (UK) covering the remaining north-east sixth of the island. Reflecting the jurisdictional divide, the population of the island can be divided, along the lines of delimitation between the *  LLB (Belfast). LLM (Leiden). E-mail: [email protected]. The author would like to thank Dr AM Vermeer-Künzli of the Department of Public Law at Universiteit Leiden and the editorial board of the Irish Yearbook of International Law for their kind feedback and comments. 1   ‘Nationality’ and ‘citizenship’ are used synonymously for the purposes of this article. 2   The International Law Commission’s Draft Articles on Diplomatic Protection. As adopted in 2006. 3  Article 1. The principle was elaborated by the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case (PCIJ, Series A, No 2, 1924, p 12) which stated that ‘by taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a state is in reality asserting its own rights, its right to ensure, in the person of its subjects, respect for the rules of international law’.

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two States, into Irish and British citizens.4 However, although Northern Irish residents reside outside the Irish State, the Northern Irish population was, until 1 December 1999, automatically vested with Irish citizenship by operation of Irish law: section 6(1) of the Irish Nationality and Citizenship Act, 1956.5 Northern Irish residents who obtained Irish nationality under section 6(1) remain Irish nationals even after a change made in the Irish nationality regime through the enactment of the Irish Nationality and Citizenship Act, 2001 which created only an entitlement to Irish nationality for individuals born in Northern Ireland.6 That the Irish Government might regard itself as having a role to play in the diplomatic protection of Northern Irish residents is not as fanciful an assertion as might be thought given that an all-island ‘Irish’ identity is recognised in the Irish constitution and is affirmed in a treaty concluded between the Republic of Ireland and the United Kingdom.7 In Article 1(6) of that treaty, the 1998 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, it is provided that ‘[the British and Irish governments] recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would

4   In addition of course to a number of people in each jurisdiction who are dual-nationals of both States and a number of people of who hold no connection with either. 5   Irish Nationality and Citizenship Act, 1956 s6(1): ‘Every person born in Ireland is an Irish citizen from birth.’ Ireland as used here refers to the Irish island and not just the Republic of Ireland: s(2) of the same Act states that ‘“Ireland” means the national territory as defined in Article 2 of the Constitution’ with that Article providing that the ‘national territory consists of the whole island of Ireland, its islands and the territorial seas’ (1937 Irish Constitution). Special circumstances concerning Northern Ireland are mentioned in the 1956 Act: s7(1) states that ‘pending the re-integration of the national territory, subsection (1) of section 6 shall not apply to a person, not otherwise an Irish citizen, born in Northern Ireland on or after 6 December 1922, unless, in the prescribed manner, that person, if of full age, declares himself to be an Irish citizen or, if he is not of full age, his parent or guardian declares him to be an Irish citizen. In any such case, the subsection shall be deemed to apply to him from birth.’ This did not preclude the automatic conferral of Irish citizenship on Northern Irish residents as they – at the time this provision was in force – were ‘otherwise Irish citizens’ by virtue of section 6(2) of the same Act:

‘[e]very person is an Irish citizen if his father or mother was an Irish citizen at the time of that person’s birth or becomes an Irish citizen under subsection (1) or would be an Irish citizen under that subsection if alive at the passing of this Act.’ s7(1) was solely intended to ‘cover the ‘limited category born in [Northern Ireland] since [independence in 1922] who [were] of entirely alien parentage without any racial ties’ – See J Handol ‘Ireland’ in R Baubock et al (eds), Acquisition and Loss of Nationality Policies and Trends in 15 European Countries, Volume 2: Country Analysis (Amsterdam, Amsterdam University Press, 2006), 291–328, 297. Note also that the Irish Nationality and Citizenship Act, 1956 did not vest Northern Irish residents with Irish citizenship through descent (jus sanguinis) even though they were ‘otherwise Irish citizens’ through descent. Their actual citizenship stemmed from s 6(1) and not from their parent’s possession of Irish nationality. For the Act see: www.irishstatutebook.ie/1956/en/act/pub/0026/index.html. 6   The new legislation, the Irish Nationality and Citizenship Act, 2001, does not have retrospective effect: s 3 amends s 7 of the 1956 Act by the insertion of ‘nothing in this section shall confer Irish citizenship on a person not an Irish citizen immediately before its coming into operation, nor deprive of Irish citizenship a person who immediately before its coming into operation was an Irish citizen.’ 7   Constitution of Ireland, Bunreacht Na hÉireann, Article 2: ‘It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation’. Available online at: www.taoiseach.gov.ie/attached_files/Pdf%20files/Constitution%20of%20IrelandNov2004. pdf.



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not be affected by any future change in the status of Northern Ireland.’8 The obvious corollary of the Irish Government’s recognition that Northern Irish residents have a ‘birthright’ to identify themselves as Irish is that the Irish Government recognises the population of Northern Ireland as being ‘Irish’.9 In conjunction with the fact that a significant number of the Northern Irish population are Irish nationals (all those born before 1 December 1999), the Irish Governments recognition of these individuals as Irish would seem to put them on an even footing with Irish nationals born and living in the Irish Republic itself. While not an example of diplomatic protection, and not amounting to an assertion that there existed any legal right of representation peculiar to Ireland and as distinct from any other State, the 1978 Ireland v United Kingdom case before the European Court of Human Rights saw the Irish Government instigate proceedings on behalf of members of the Northern Irish population against the UK.10 This is arguably indicative of a willingness on the part of the Irish Government to act on behalf of Northern Irish residents in international proceedings even if only in cases where representations by their ‘default’ government – the British Government – failed to be made or where the UK was itself responsible for an internationally wrongful act against members of its own population. To cite one hypothetical, but not unrealistic, example of when an Irish Government might decide to intervene vis-à-vis third-States on behalf of northern Irish citizens could be situations where northern Irish citizens were held in a Guantanamo Baytype facility with their detention receiving the support or tacit approval of the British Government. This kind of detention coupled with a failure of the British Government to act (though not concerning British citizens from Northern Ireland) has occurred recently as part of the United States of America’s ‘War on Terror’ with British Government co-operation.11 The focus of this article shall however be on the capacity of the Irish government to exercise protection.

the relationship between international law and nationality Before considering recent developments relating to the topic of nationality in international law, we should begin to begin with the consideration of certain basic principles. 8   See cain.ulst.ac.uk/events/peace/docs/agreement.htm or www.nio.gov.uk/agreement.pdf (PDF format) for the text of the Agreement and see www.nio.gov.uk/the-agreement for a brief overview of the text. For commentary on the Agreement see M Cox, A Guelke and F Stephen A Farewell to Arms?: Beyond the Good Friday Agreement (Manchester, Manchester University Press, 2006), 1–40. 9   It does not seem possible to confine the Irish Government’s recognition to a recognition that Northern Irish residents are eligible to hold Irish citizenship (as provided for in Irish law). Article 1(5) speaks of Northern Irish residents ‘identifying themselves’ as Irish and having this self-identification accepted without qualification. Therefore, the right to hold Irish citizenship referred to in Article 1(5) appears to result from their status as being ‘Irish’ rather than their status as ‘Irish’ flowing from their possession of an Irish passport. That ‘Irish’ and ‘British’, and the two government’s recognition of these labels, is independent of citizenship is also indicated by the fact that although most Northern Irish residents are British citizens by operation of British law, the two governments in Article 1(5) recognise NI residents’ rights to be Irish or British: ‘Irish’ therefore can be an exclusive identity unaffected by the fact that the individual is already a British citizen. 10   The Republic of Ireland v The United Kingdom, Series A, No 25. Judgment of 18 January 1978. 11   See www.timesonline.co.uk/tol/news/politics/article3883011.ece and more recently www.guardian.co.uk/ world/2008/may/31/guantanamo.usa.

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The basic proposition as regards nationality is that it falls within the exclusive domestic jurisdiction – the ‘internal legislative competence’12 – of each State.13 The oft-cited authority for this proposition is Article 1 of the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws.14 Article 1 provides that ‘it is for each State to determine under its own law who are its national’ and that that each State’s nationality law ‘shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality’15 Further affirming that basic proposition, Article 2 of the Hague Convention states further that ‘any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.’16 This ‘reserved domain’ principle has been affirmed in the decisions of numerous international tribunals and courts.17 For example, in the Nationality Decrees in Tunis and Morocco18 case the Permanent Court of International Justice gave an advisory opinion where it stated, inter alia, that ‘in the present state of international law, questions of nationality are [. . .] in principle within [the reserved domain of a State’s domestic jurisdiction]’19. The same body affirmed the principle again in the Acquisition of Polish Nationality 20 case stating that ‘a sovereign State has the right to decide what persons shall be regarded as its nationals’21. The International Court of Justice, in the Nottebohm22 case between Liechtenstein and Germany noted that ‘it is for Liechtenstein, as it is for every sovereign State, to settle by its own legislation, the rules relating to the acquisition of its nationality’23 and went on to say that ‘this is implied in the wider concept that nationality is within the domestic jurisdiction of the State’24. The same principle has also been cited approvingly by the municipal courts of a number of jurisdictions25 and has been said to be a principle of customary international law26 although it would be more correct to regard it as limiting the scope of international law through the affirmation of State sovereignty rather than being a principle of international law. Yet, while accepted as a basic ‘principle’, to say that international law has no bearing on questions of nationality would be to argue a ‘traditional’ conception of international   P Weis, Nationality and Statelessness in International Law, 2nd edn (Brill, 1979), p 65.  A Randelzhofer ‘Nationality’ in R Bernhardt (ed), Encyclopedia of Public International Law (Amsterdam, Elsevier, 1997), 501–510, 502. 14   179 LNTS 89, no 4137, Article 1. Entry into force 1937. Twenty state parties including the UK Available online at: www.coe.int/t/e/legal_affairs/legal_co-operation/foreigners_and_citizens/nationality/documents/ legal_instruments/Conv%20conflict%20nationality%20The%20Hague%2004_1930.pdf. 15   Article 1, 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws. 16   Article 2, 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws. 17   The European Court of justice has also stated that the determination of nationality falls within the exclusive jurisdiction of the member states. See D Kostakopoulou, The Future Governance of Citizenship (Cambridge, Cambridge University Press, 2008) 36. 18   PCIJ Rep, Series B, 4 (1923). 19   PCIJ Rep, Series B, 4 (1923), 24. 20   PCIJ Rep, Series B, 7 (1923). 21   PCIJ Rep, Series B, 7 (1923), 16. 22   ICJ Reports (1955), 4. 23   ICJ Report (1955), 4, 20. 24  Ibid. 25   See Weis, above, 79–81. 26   Randelzhofer, above, 502. 12 13



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law,27 a position which should now be regarded as incorrect. That international has a role to play is evidenced by the second sentence of Article 1 of the Hague Convention which, after affirming the reserved domain principle, states that domestic nationality law ‘shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’28 While the Convention itself has been described as being ‘of limited importance’29 – it was ratified by a mere 20 States in 1937 – Article 1 is oftcited30 and reflects customary law.31 Article 1 is also largely mirrored by Article 3 of the 1997 European Convention on Nationality32 which, after affirming the reserved domain principle, states that a State’s nationality law ‘shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.’ The precise scope and effect of these articles, and the parallel customary principle, is however unclear and is subject to different interpretations in the scholarly literature. Paul Weis, author of arguably the leading treatise on nationality in international law,33 suggests that Article 1 raises the question of ‘whether there exist rules of international law which impose limitations on the sovereign right of States to determine the incidents of acquisition and loss of their nationality.’34 This is certainly true however, in framing the question somewhat narrowly, Weis makes the assumption that the ‘international custom’ which Article 1 speaks of goes only to the freedom of States to legislate. This may, depending upon the correct interpretation of Article 1, be accurate. Yet the phrasing of Article 1 is prima facie ambiguous and, in addition to raising the question as framed by Weis, also raises the question of whether there are rules which impose limits on the duty of other States to recognise the acquisition and loss of nationality under certain circumstance. As Ian Brownlie notes, an antithesis between State autonomy in legislation and the duty of other States to recognise a conferral or withdrawal of nationality is apparent in the wording of Article 1.35 Indeed, it is arguable that the latter question – whether there are limits on recognition – and not the question suggested by Weis – whether there are limits on the vesting or withdrawal of nationality – is the one which is most obviously raised by the wording of Article 1. Such is the interpretation that many commentators apply to it.36 On one hand therefore the 27   P Spiro ‘Mandated Membership, Diluted Identity: Citizenship, Globalisation and International Law’ in A Brysk & G Shafir (eds), People out of Place (London, Routledge, 2004) 94. 28   Emphasis added. 29   I Brownlie Principles of Public International Law 6th edn (Oxford, Oxford University Press, 2003) 377. 30   See Randelzhofer, above, p 502. Brownlie, above, p 377. 31   Randelzhofer, above, p 502 where he states that ‘it is the common view that this article, which as a treat provision is valid only for a rather restricted number of States, describes a rule of general customary international law’. Brownlie (p 377) says that irrespective of its ‘limitations, Article 1 remains a useful authority for the view that international law sets limits to the power of a state to confer nationality’. 32  Council of Europe European Treaties; ECTS No 166; Strasburg, 6th November 1997. See http:// conventions.coe.int/Treaty/en/Treaties/Html/166.htm for full text. Convention was opened for signature in Strasbourg 6 November 1997 and entered into force after three ratifications on 1 March 2000. As of 22 June 2006 the Convention has been signed by twenty-eight members of the Council of Europe and ratified/acceded to by sixteen of those States. See: conventions.coe.int/Treaty/Commun/ChercheSig. asp?NT=166&CM=&DF=&CL=ENG for updated information. 33   P Weis, above n 2. 34   Ibid, p 66. 35   Brownlie, above, p 377. 36   See R Donner The Regulation of Nationality in International Law 2nd edn (Transnational Publishers, 1994), 29 who writes that ‘Nationality laws are . . . part of the legislative competence of States, but pursuant

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scope of Article 1, and the corresponding customary law principle, can be read in terms of the non-recognition of conferrals of nationality. As such, international law would have no bearing on a State’s freedom to legislate and would be limited to recognition or non-recognition.37 For example, some commentators argue that international law will, under some circumstances, recognise an individual as possessing the nationality of a State which does not attribute that nationality to that individual under its domestic law.38 Clearly this does not involve the existence of a limitation on a State’s freedom to confer/withdrawal nationality (since no conferral/withdrawal has taken place), but instead it contemplates an instance of recognition of a ‘nationality’ – if it can be so termed39 – existing solely in international law. The reverse – the non-recognition of nationality without the regulation of such domestically or the making of a deter­ mination that the domestic conferral of that nationality was against international law – is arguably evident in the Nottebohm case (discussed below).40 On the other hand, Article 1 can be read to refer to rules of customary international law which govern the conferral/withdrawal of nationality with recognition/non-recognition resulting as a consequence of the invalidity of the municipal legislation. To further complicate matters, these interpretations would not seem to be mutually exclusive. In practical terms, and to put the preceding discussion in context, drawing a distinction between these interpretations is crucially important and highly relevant for the purposes of present discussion. If we consider the Republic of Ireland’s conferral of its nationality on Northern Irish residents in the light of the two interpretations given to Article 1, three different possible results emerge. Each has markedly different potential consequences for Irish municipal law and the international effectivité of the conferral of Irish nationality. The first is that the ‘pre-1999’ automatic conferral of Irish nationality on the residents of Northern Ireland was valid under both Irish municipal law and international law because no rules of international law exist which would impact upon it. That conferral is then effective on the international plane and is, among other things, capable of supporting a claim of diplomatic protection. The second result is that the conferral of Irish nationality, while valid domestically, is not recognised internationally and is to article 1, States do not have a duty in international law to recognize foreign nationality legislation if it is not “consistent with international conventions, international custom”’. See also Randelzhofer, p 503 who writes that ‘limitations exist on the regulation by a State of its own nationality, in so far as other States may not recognise every criterion for the conferment of its nationality. The validity of the conferment of nationality in municipal law is in no way limited by international law’, Boll (Boll, A, Multiple Nationality and International Law (The Hague, Martinus Nijhoff Publishers, 2007) p 108 who writes that ‘[International law] may recognise attribution of nationality or not’. 37   Since recognition can be characterised as the ‘default’ response, the rules would probably go to grounds of non-recognition. 38  See Boll, above, p 108, R Jennings and A Watts Oppenheim’s International Law 9th edn (Essex, Longman, 1992) 853 note 10. Cayuga Indians Claim (1926) 6 RIAA 173. The decision is also cited in full in Nerincx, A, ‘American and British Claims Arbitration Tribunal: Cayuga Indian Claims’ The American Journal of International Law, (1926) 20(3), pp 574–594. The Tribunal concluded that the British government could espouse a claim on behalf of the Canadian branch of the Cayuga Indian Tribe as the tribe’s members, while having no status under British law as citizens of the British Empire/Canadian Dominion and being generally regarded under international law as a ‘nation’ without international status, were dealt with by Great Britain and the Canadian Dominion as individuals and were for all intents and purposes de facto nationals. 39   See Boll, above, p 108. 40   ICJ Reports (1955) 4.

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denied effectivity due to a rule of international law that precludes the recognition of that conferral. It is then effective for the purposes of Irish law – for obtaining a passport, eligibility to vote, access to social welfare et cetera – but would not be sufficient to operate as a link between an individual and Ireland for the purposes of diplomatic protection. The third result is that the conferral of nationality (before the 1956 Act was amended) would have been invalid per se due to the violation of a rule of international law which regulates the ability of a State to confer nationality entailing the non-recognition of that conferral by other States which would also deny the effective of that Irish nationality and preclude any notion of diplomatic protection by the Irish State. It would moreover have obliged Ireland to bring its nationality law into line with international law, but until then it would be valid domestically.41 Article 1 points us to three limiting factors that can take questions of nationality out of the competence of States and apply them against rules of international law: where a State has entered into treaty obligations that impact upon its ability to regulate nationality over certain individuals, where State practice and opinio juris have coalesced so to prescribe limits under customary international law and a somewhat vague final category of general principles of law specific to nationality. We can state with confidence that certain limitations, or rather categories of limitations, definitely exist: they arise out of international obligations assumed by States under treaty regimes which they have entered into. This is firmly settled both in international jurisprudence and scholarly literature.42 In terms of the former, in the Acquisition of Polish Nationality case the PCIJ remarked that while ‘it is true that a sovereign State has the right to decide what persons shall be regarded as its nationals, it is no less true that this principle is applicable only subject to the Treaty obligations the State has entered into’.43 As the PCIJ stated in the Nationality Decrees in Tunis and Morocco case a matter, such as nationality which ‘is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law’.44 International law was therefore found to be relevant in those proceedings in terms of the validity and construction of two French decrees which the British government contended conferred nationality on certain British subjects in Tunis and Morocco. The Court then went on to say that ‘to hold that a State has not exclusive jurisdiction does not in any way prejudice the final decision as to whether the State has a right to adopt such measures’45. The precise nature of such limitations is particular to the provisions of each treaty except where these are widely adopted and form the basis of or reflect a customary rule. As Ireland however did not enter into a treaty constraining its ability to legislate, no further discussion on this point is required.

  Weis, above, p 89.   Randelzhofer, above, p 502. 43   PCIJ Rep, Series B No 7, at para 16. 44   Ibid, p 24. 45  Ibid. 41 42

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the opinion of scholars Although ‘international custom’ is referred to in Article 1 of the Hague Convention, this cannot be regarded as conclusive evidence that customary rules exist. This is because quite apart from constructions of Article 1 that might limit its scope to particular categories of customary rules, Article 18 of the same Convention provides that while ‘[t]he High Contracting Parties agree to apply the principles and rules contained in the preceding Articles in their relations with each other, as from the date of the entry into force of the present Convention’ the ‘inclusion of the aforementioned principles and rules in the Convention shall in no way be deemed to prejudice the question whether they do or do not already form part of international law.’46 In terms of scholarly opinion, Weis notes that academic opinion on the existence of customary law limits to State freedom is divided in accordance with authors’ general attitudes to international law: ‘Positivists are evidently inclined to deny the existence of such rules and principles’ while ‘Monists and supporters of the theory of the supremacy of international law, on the other hand, maintain the existence of such rules and tend to widen their scope to the extent of limiting the sphere of State jurisdiction’.47 This statement might however need be viewed in a narrow historical context, contained as it is in the latest edition of Weis’ work published in 1979. Ruth Donner, surveying writings on nationality from the end of the nineteenth century/early twentieth century onwards, argues that the dominant positivist/dualist viewpoint of the time was a determination that ‘nationality [was] held to be one of the discretionary powers of the sovereign State’ and therefore that notions that international law impacted upon this sovereignty were not entertained.48 Weis, who states that ‘the right of States to regulate nationality is not absolute and unlimited’ as it ‘is limited by the principles and rules of customary international law’49 is firmly of the view that limitations go to State freedom. He argues that ‘municipal law must be consistent with international law’ and goes on to say that if ‘the municipal law is found to be inconsistent with international law this means that the State which enacted it has incurred responsibility for the violation of an international legal duty.’50 A State is therefore ‘obliged, by international law to take remedial action’ and, until this is effected, ‘international tribunals and other States will not, however, recognise such inadmissible municipal law’.51 Weis therefore links recognition to regulation: recognition or non-recognition arises as consequence of the application of rules regulating States. This conclusion does not exclude the possibility that international non-recognition could arise without regulation (as in Nottebohm). In support of this argument Weis relies upon the views of several eminent, although now out-dated, commentators, including Mervyn Jones, HF van Panhuys, Roberto Córdova and Szymon Rundstein.52 Most of these authors however, while affirming the existence of customary law limitations on State freedom note that it is impossible to   Article 18, 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws.   Weis, above, p 85. 48   Donner, above, p 26. 49   Weis, above, p 88. 50   Weis, above, p 89. 51  Ibid. 52   Weis, above, pp 85–87. 46 47

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elucidate principles, while others make bare statements to the effect that limitations on State freedom exist in customary international law. More convincingly, Weis points to the opinions of States as evidenced by State responses to the Preparatory Commission of the Hague Codification Conference. Yet the evidential basis for Weis’ conclusions is weak, something Weis himself is well aware of as, while affirming the existence of customary law limits, he qualifies his statement with the quite contrary preceding statement that ‘[a]s yet, there exist few, if any, general principles of law having specific regard to nationality. The development of such principles has been hampered by the great diversity of municipal nationality laws, by the cleavage between countries whose nationality law is based on jus soli and those in which it is based on jus sanguinis, and by the frequently noticeable tendency of States to uphold, for political reasons, their own law even if it is at variance with that of the majority of States.’53 For his part JHW Verzijl54 has argued that ‘there are certain limits to a State’s legal powers [to legislate] however uncertain their precise boundary may be’ and therefore, as a general rule, ‘any State has the exclusive competence to impose its nationality subject to certain restrictions55 determined by customary international law’56. In support of this argument Verzijl points to the fact that questions of nationality have formed the basis of international disputes and that international tribunals and arbitration bodies have found themselves competent to decide on questions of nationality.57 As no cases are cited by Verzijl it is difficult to assess the strength of his argument substantively, however, what can be said is that the fact, as he puts it, that ‘questions of nationality can give rise to valid international disputes’ does not in itself point to international law regulating nationality, but rather only that nationality is relevant to disputes involving questions of international law. There are many examples of international tribunals questioning an individual’s nationality in cases of diplomatic protection where the opposability of one nationality against another has been examined without entailing restrictions on States’ freedoms.58 We can also point to the Nottebohm case where, after affirming the ‘reserved domain’ principle, the Court stated that the non-recognition of a nationality’s character on the international plane ‘is no way inconsistent with the fact that international law leaves it to [the reserved domain of each State]’.59 Another argument put forward by those who regard international law as regulating nationality is that were international law to leave the attribution and withdrawal of nationality to individual States, this could lead to confusion or, worse, manifest affronts to good-faith in terms of which individuals a State conferred its nationality upon. Verzijl for example cites such examples as a State conferring nationality on all   Ibid, p 88.   JHW Verzijl International Law in Historical Perspective, vol 5 (The Hague, Martinus-Nijhoff, 1972).   Verzijl does not specify what restrictions he has in mind, but states subsequently that ‘it is easy to imagine a number of grounds which would not justify the compulsory acquisition of citizenship-such as [. . .] trading with a country, speaking its language, sharing its creed etc’. He notes that an example of such a doubtful ground – the granting of Mexican citizenship to individuals who purchased property in the county – were the subject of disputes before the American–Mexican Mixed Claims Commission in the 1860s. See Verzijl, above, p 23. 56   Verzijl, above, p 21. 57   Ibid, p 21. 58   For example, see the Canevaro case, Permanent Court of Arbitration: Renault, Fusinato, Calderon (1922). 11 RIAA 397 (English translation in The American Journal of International Law, vol 6, no 3 (1912), 746–54). 59   Nottebohm, above, p 23. 53 54 55

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those who fly over its territory or who visit it as occasional tourists.60 Similarly, the commentary to the Draft Convention on Nationality 1929,61 prepared by a panel of jurists from Harvard Law School, gives the examples of a law naturalising ‘all persons living outside the territory but within 500 miles of the frontier’ or a law naturalising ‘all persons in the world holding a particular political or religious faith or belonging to a particular race’ as being invalid.62 The contemplation of such manifestly arbitrary conferrals of nationality, Verzijl argues, is what leads even proponents of the ‘reserved domain’ view to accept that States do not have complete freedom. Restrictions on States’ discretion are accordingly are said to exist as a matter of customary international law. These commentators’ statements of ‘law’, which are not accompanied by case citations, evidence of State practice or opinio juris to support them, cannot be regarded as evidence of the existence of customary law limitations to State freedom. Instead they should be regarded merely as potential justifications for the proposed existence of limitations on State freedom and the identification of one way in which absurdities or breaches of good-faith might be countered. It is for this reason that some authors use the ‘absurdity’ argument or similar arguments to call for international law to regulate nationality as a progressive development of lex ferenda rather than relying upon the argument as basis for the claim that limitations exist as matter of lex lata.63 Yet even without such developments it is apparent that the non-recognition of nationality is capable of negating the effect of absurdities and confusing attributions, at least in so far as they manifest themselves internationally. Alfred Boll, considering such absurd or bad-faith conferrals, argues that ‘international law dictates that when the consequences of such [absurd] attributions are felt on the international level, it is up to international law whether a bestowal or removal of nationality must be recognised by other states’.64 Many scholars characterise customary law limitations solely as limitations on recognition. Albrecht Randelzhofer for example argues that limitations exist ‘on the regulation by a State of its own nationality, in so far as other States may not recognise every criterion for the conferment of its nationality’65, but provides no authority for this statement. The position of Sir Robert Jennings and Sir Arthur Watts, writing in Oppenheim’s International Law, appears somewhat confused as while they note that a conferral of ‘nationality is not necessarily to be accepted internationally without question’66 – relying upon the Nottebohm decision – they write subsequently that   Verzijl, above, p 21.   Harvard Draft ‘The Law of Nationality’ in 23 AJIL (Special Supplement No 13) (1929). 62   Ibid, p 23.The commentary to the Harvard Draft states at p 23 that: It may be difficult to precise the limitations which exist in international law upon the power of a state to confer its nationality. Yet it is obvious that some limitations do exist. They are based upon the historical development of international law and upon the fact that different states may be interested in the allegiance of the same natural person. If Sate A should attempt, for instance, to naturalise persons who have never had any connection with State A, who have never been within its territory, who have never acted in its territory, who have no relation whatever to any persons who have been its nationalist, and who are nationals of other states, it would seem that State A would clearly have gone beyond the limits set by international law. [. . .] The existence of these limitations in international law has often been stated but occasion has not often arisen in which it is necessary to attempt to apply them. 63   Several authors advocate a regulatory role for international law. See S Juss ‘Nationality Law, Sovereignty, and the Doctrine of Exclusive Domestic Jurisdiction’ (1994) 9 Florida Journal of International Law 219–240 and Y Zilbershats ‘Reconsidering the Concept of Citizenship’ 36 Texas International Law Journal, 689–734. See also Donner, p 27. 64   Boll, above, p 107. 65   Randelzhofer, above, p 503. 66   Jennings & Watts, p 853. 60 61

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the ‘question whether [a conferral of nationality] is contrary to international law is distinct from the question of whether the nationality thus purportedly accorded will be acknowledged in other states’.67 They highlight practice68 where certain conferrals under municipal law have been regarded by several municipal courts as being ‘contrary to international law and thus not effective to confer nationality on the person concerned’69. They appear therefore to regard customary law limits as going both recognition and regulation or they at least do not exclude the possibility of customary law rules of each kind. In a recent scholarly works focusing on nationality in international law Boll suggests that, in addition to the opinions of States (considered below in detail), current state practice indicates that States cannot ‘impose nationality on anyone they choose’.70 He points to the widespread acceptance of multiple nationality which, while on one hand pointing towards a strengthening of the reserved domain,71 has been accompanied by ‘what seems to be the quasi-elimination of the automatic attribution of nationality, except at birth’.72 After surveying the nationality laws of seventy-five States Boll argues that state practice ‘clearly reflects what must be an underlying principle related to nationality, that there can be no attribution of nationality without an expression of individual will, or consent, as provided by Weis’.73 If there was no such rule Boll argues that the incidence of multiple nationalities displays a clear need for it due to ‘the unclear standards . . . related to the opposability of nationality in cases of multiple nationality, on the international plane’, that ‘[t]here is an absolute need for a minimum stopgap to prevent abuses by States in the attribution of their nationality to individuals’.74 As the last statement indicates, Boll accepts that the existence of limitations is unclear. Furthermore, Boll infers limitations from the absence of State practice conferring nationality automatically apart from at birth which does not in itself point towards to the existence customary law norm. Negative practice is a difficult basis upon which to found the existence of a binding norm.75 As the PCIJ made clear in the Lotus case,76 ‘only if [an] abstention were based on [states] being conscious of a duty to abstain would it be possible to speak of an international custom’.77 Opinio juris coinciding with the negative act of not legislating to confer nationality automatically must be found and, as the Lotus decision indicates, the evidentiary standard is high.78   Ibid, p 874.   Ibid and see note 10. 69   Ibid, p 874. 70   Boll, above, p 280. 71   However see Spiro who also notes that States are ‘reversing past disfavour’ towards multiple nationality and that should acceptance or tolerance continue it could coalesce into a customary rule recognising an individual’s right to maintain their multiple nationality status (95–97). 72   Boll, p 280. 73  Ibid. 74  Ibid. 75   M Shaw International Law, 5th edn (Cambridge, Cambridge University Press, 2003) 77. 76   PCIJ Rep, Series A, 10 1927, 18. 77   PCIJ Rep, Series A, 10 1927, 28. 78   See GM Danilenko Law-Making in the International Community (The Hague, Martinus-Nijhoff, 1993) who states that the ‘[i]t should be noted, however, that the ascertainment of the precedential value of abstentions may create serious practical problems because it may not always be clear what is the reason behind a particular “negative” practice’ and also that ‘[i]n view of the dubious nature of abstentions, there should always be positive indications that a particular course of conduct is regarded as obligatory by the members of the international community’ (p 86, n 35). 67 68

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state practice Jones has written that ‘[t]here is evidence from the practice of States that to impose naturalisation upon individuals against their will collectively or individually (unless it be a special case like that of annexation) is a departure from the accepted principles of international law.’79 He identifies a ‘general principle’ underlying naturalisation: ‘the voluntary choice by an individual of a particular nationality.’80 It is important to distinguish here naturalisation at birth and naturalisation subsequent to birth: that a State can naturalise those born on its territory or to its citizens is uncontested. There is some evidence of State practice supporting Jones’ statement: the automatic conferral of nationality was a feature of the nationality law of several Latin American States in the nineteenth century.81 For example, under the Peruvian Constitution of 10 November 1839, Peruvian nationality was vested upon foreign nationals who had resided in Peru for four years when they married a Peruvian national and, on the acquisition of real property, a foreign national became ‘ipso facto subject to the obligations of a citizen, whose rights he was at the same time to enjoy’.82 This law was the subject of a protest by the British chargé d’affaires in Lima who declared that it was an ‘incontrovertible principle of the law of nations that the consent of a foreigner is necessary to legalise his naturalisation in another State whatever may be the provisions of the civil law of that State on the subject’.83 The Mexican Constitution of 1857 stated that ‘Mexicans are . . . foreigners who may acquire real estate within the Republic, or who may have Mexican children; on the understanding always that the desire to retain their own nationality is not manifested’ (Title1, Art 30, Sec 2). 84 A subsequent law provided that ‘[f]oreigners who may acquire real estate within the Republic provided they shall not make a formal declaration of wishing to retain their nationality85 are to be considered Mexicans’. This law was the subject of a protest from the United State’s Secretary of State Thomas F Bayard who observed that ‘The United States, while claiming for aliens within its jurisdiction, and freely conceding to its citizens in other jurisdictions the right of expatriation, has always maintained that the transfer of allegiance must be by a distinctly voluntary act, and that the loss of citizenship cannot be imposed as a penalty nor a new national statute forced as a favour by one Government upon a citizen of another. Not only is this believed to be the generally recognised rule of international law, but it is pertinent to notice that it was accepted and acted upon by the mixed commission under the convention of July 4, 1868, between the United States and Mexico’.86 Herbert Briggs notes that although the Mexican government refused to accede to the US request to modify their law in 1886, ‘the objectionable provisions were discarded in the Mexican   M Jones British Nationality: Law and Practice (Oxford, Clarendon Press, 1947) 15.  Ibid.  Weis, above, p 103. The practice is also referred to in Donner, above, pp 130–36, Briggs, above, pp 461–62, Verzijl, above, p 23, 36. 82   Weis, p 103. 83   Quoted in Weis, above, p 103. 84  Ibid. 85   Chapter 1, Art 1, sec 10 of the Law of May 28th, 1886. Quoted in Weis, above, p 103. 86   US For Rel, 1886, 723: US For Rel, 1887, 672, 678, 717, 731–33. Quoted in Briggs, H The Law of Nations: Cases Documents, and Notes, 2nd edn (New York, Appleton-Century-Crofts, 1952) p 461. 79 80 81

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nationality laws of 1934 and 1939’.87 Peter Malanczuk suggests that, while it is accepted that an individual can acquire nationality at birth, the Mexican law was questioned because the conferral of nationality it provided for was not accepted under customary international law.88 Weis highlights the example of the Brazilian Decree of 15 December 1889 whereby the Provisional Government of Brazil declared that all foreigners residing in the country on 15 November 1998 would be considered Brazilian citizens unless they made a declaration to the contrary within six months of that date.89 Weis notes that opposition to this Decree was widespread with Italy, Austria–Hungary, France, Great Britain, Portugal and Spain lodging protests. The declaratory period was subsequently extended from six-months however the Decree was subsequently transposed into the Brazilian Constitution of 24 February 1891 which again provided for a six-month declaratory period. The British government opined that this law was not contrary to international law, noting that ‘a person, who, with notice of the law and an opportunity of making the declaration therein mentioned, abstains from making such a declaration, would properly be held to have voluntarily become naturalised in Brazil . . . and to have thereby lost his status as a British subject’, but it is clear that British antipathy to the law rested on construction of an individual’s failure to make a declaration within sixmonths, provided they had full knowledge of the law, as a ‘voluntary’ act. With regard to the United States’ Government, Weis notes that the then United States Secretary of State James Blaine, in an instruction of 19 February 1890 to the American Minister in Brazil, ‘declared that by the Brazilian decree the principle of voluntary action had been wholly discarded’.90 Weis, concurring with Jones, after considering the practice cited above, concludes that although it is impossible to identify a general rule of international law governing the precise circumstances in which States may confer their nationality, nonetheless a rule that ‘the acquisition of a new nationality must contain an element of voluntariness on the part of the individual acquiring it, that it must not be conferred against the will of the individual’ is apparent.91 Verzijl similarly interprets the aforementioned State practice, noting that ‘a conferment by municipal law is considered to be contrary to international law, or incapable of producing the desired effect in that field if it takes place against the will or without the consent of the person(s) concerned’.92 In terms of more contemporary practice, there are relatively few examples comparable to the Latin-American practice referred to above. All that contemporary practice reflects is that norms of customary international mandating naturalisation may exist or may be in the process of development. For example, Peter Spiro identifies recent developments concerning the citizenship laws of Estonia, Latvia and the Czech Republic.93 The former two States enacted citizenship regimes that made it extremely difficult, due to onerous linguistic and historical knowledge requirements, for the sizable Russian minorities in those States to become naturalised citizens. Latvia   Briggs, above, p 461.   Malanczuk, P, ‘Akehurst’s Modern Introduction to International Law’, 7th edn (revised), (London, Routledge, 1997) 266. 89   Weis, p 104. 90   Ibid, p 105. 91   Ibid, p 110. 92   Verzijl, above, p 36. 93   Spiro, above, pp 98–99. 87 88

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made it particularly difficult due to age requirements that restricted the eligibility of most adults. International condemnation was swift and prolonged and the measures were opposed by the both the Council of Europe and Organisation for Security and Cooperation in Europe which went as far as launching a ‘mission’ on the issue. Spiro notes that while ‘both organisations carefully recognised the breadth of State discretion over citizenship under international law, they challenged the legitimacy of a regime denying citizenship to a substantial component of the resident population’.94 The Council of Europe went so far as to call into question the democratic character of the two States in that they were denying a large portion of their population the chance to vote which was dependent upon citizenship. In the case of the Czech Republic, those who held Czech sub-State nationality under internal Czechoslovakian law were granted citizenship of the successor Czech Republic unless they had they held a criminal record which barred a large section of the population, mainly of the Romany ethnic group, from citizenship. The Council of Europe concluded that while ‘a State may decide who are its citizens . . . it is doubtful whether, in a case of State succession, under international law, citizens that have lived for decades on the territory, perhaps even are born there, can be excluded from citizenship just because they have a criminal record’.95

opinio juris As previously noted, many scholars point to the replies of States to a questionnaire from the Preparatory Committee for the Hague Codification Conference, the international assembly that led to the adoption of the 1930 Hague Convention, as evidence of opinio juris. Of the 20 replies received, a number of States denied the existence of general principles in the field of nationality.96 Ten States97 however explicitly opined that the right to confer nationality was not unlimited and, accordingly, that States did not have unfettered discretion in a ‘reserved domain’. For example, Germany, after referring to the ‘reserved domain’ notion, stated that ‘the application of this principle . . . should not go beyond the limits at which the legislation of one State encroaches on the sovereignty of another’.98 The United States’ government stated, again after affirming the ‘reserved domain’ principle, that it did ‘not admit that a State is subject to no limitations in conferring its nationality on individuals . . . that no State is free to extend the application of its laws of nationality in such a way as to reach out and claim the allegiance of whomsoever it pleases. The scope of municipal laws governing nationality must be considered as limited by consideration of the rights and obligations of individuals and other States’.99 Naturally however the weight to be accorded to the opinion of 10 States out of a mere 20 responses to the Preparatory Commission’s survey – especially when five States denied the existence of general principles – is debatable.100   Ibid, p 98.   Quoted in Spiro, ibid, source was unable to be found elsewhere. 96   Egypt, Estonia, Hungary, the Netherlands and the Soviet Union. See Weis, above, p 83. 97  Austria, Czechoslovakia, Denmark, France, Germany, the Netherlands, Norway, Poland, South Africa and the United States. 98   League of Nations Document C, p 190(1). M 93. 1929, VI: Bases of Discussion, p 7. 99   Ibid, p 16, 145–46. 100   See J Dugard ‘Seventh Report on Diplomatic Protection’, A/CN.4/567, p 16 where he discusses the citing of the 1930 Hague Convention as support (in the context of a different principle of international law): 94 95



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For its part the British reply was not as explicit in terms of accepting that customary law limits existed as it only went to far as to say that ‘even if the discretion of the State . . . may be unlimited, the duty of the State [whose rights a conferral of nationality violates] is not unlimited. It may properly decline to recognise the effects of such legislation which is prejudicial to its own rights as a State. It is only in exceptional cases that this divergence between the right of a State to legislate at its discretion with regard to the enjoyment or non-enjoyment of its nationality and the duty of other States to recognise such legislation would occur’.101 Although the British reply would seem to go no further than endorsing a duty of non-recognition (at the discretion of a State whose rights have been infringed) without regulation, Brownlie argues that ‘if exceptional cases are admitted to exist the force of emphasis on discretion in legislation is much diminished.’102 Brownlie argues that ‘obviously there are limits to [States’ freedom to legislate on nationality] and these are not concealed by the device whereby the exercise of the discretion occurs but is not recognized by other states’.103 In terms of rules of customary international law Brownlie concludes that the scope of the margin of State discretion exists within the limits set by the divergence between State freedom on one hand and the duty of other States not to recognise on the other hand. In Brownlie’s view therefore non-recognition should be regarded as an indicator of a State overstepping customary law limits to its legislative freedom. While several States did recognise the existence of limits, their replies however gave no indication of what precisely those limits might be. As a result the Preparatory Committee, in its report to the Codification Conference, was only able to conclude that ‘it [did] not seem possible at present to formulate limitations fully and precisely; one might; it seems, agree upon a general formula accompanied by various examples which would not constitute an exhaustive enumeration’.104 The resulting Convention provides only conferrals of nationality ‘shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality’. As was noted previously, the Convention therefore neither articulates examples of what might be prohibited by international customary law nor, in speaking ambiguously in terms of recognition, does it even confirm their existence. While cited seemingly as a matter of course as evidence of the existence of customary law limits, as evidence of opinio juris the State replies, lacking any specificity and being few in number, can only in my opinion be regarded as manifestly unsatisfactory especially as a basis upon which to base a custom through negative State practice.105 We need not only rely upon 80 year-old replies to the Preparatory Commission however since Article 1 of the Hague Convention is largely mirrored by Article 3 of the ‘Although the 1930 Hague Conference for the Codification of International Law is often cited in support [for using the date of the award] it must be recalled that this “support” is based on a survey of State opinion only, and that of the 20 States that responded to the survey, eight rejected continuous nationality as a rule, three abstained and nine voted in favour (including Great Britain and four of its dominions)!’. 101   Bases of Discussion, above, p 118. 102   Brownlie, above, p 376. 103  Ibid. 104   4 AJIL 8 (1930) 9. 105   See Shaw (above, p 77) where, in the context of opinio juris as to the existence of a norm requiring that a State not do something he notes that ‘acquiescence must be based upon full knowledge of the rule invoked. Where a failure to take a course of action is in some way connected or influenced or accompanied by a lack of knowledge of all the relevant circumstances, then it cannot be interpreted as acquiescence.’

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European Convention on Nationality. While the standard or default reading of Article 1 of the Hague Convention and Article 3 of the European Convention on Nationality is that international custom impacts, through non-recognition or regulation, upon the positive legislative acts of a State, these articles are also capable of encompassing failures to legislate with regard to nationality. Although both Conventions use the positive phrase that domestic ‘law shall be recognised by other States in so far as it is consistent with international conventions, international custom’, enacting a law that does not meet international obligations is in itself a positive act and an act which one can speak of in terms of the international community ‘not recognising’ as per Article 1 or, even more clearly, not being ‘accepted by other States’ as per Article 3. As both the positive and negative legislative acts – the latter in actuality being failures to act – are encompassed by the same customary law regime, the conclusions, if any, which can be drawn from State responses to the Latvian, Estonian and Czech nationality laws can be applied also to positive legislative enactments on nationality. Indeed, the European Convention contains several provisions which prescribe rules which govern the acquisition and loss of nationality and obliges States parties to confer nationality on certain classes of individual, or to maintain an individual’s nationality in certain situations and to allow for the renunciation of nationality. For example, in terms of acquisition Article 6 of the European Convention provides that ‘[e]ach State Party shall provide in its internal law for its nationality to be acquired ex lege by the following persons: (a) children one of whose parents possesses, at the time of the birth of these children, the nationality of that State Party, subject to any exceptions which may be provided for by its internal law as regards children born abroad’ and that ‘[e]ach State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years before the lodging of an application.’ It is doubtful however whether the enactment of these provisions can be taken as evidence of opinio juris as to the existence of comparable principles in customary international law. The European Convention has a law-making character in addition to its obvious codifying/affirming character.106 In the accompanying Explanatory Report107 it is noted that the ‘problems which emerged as a result of the democratic changes which have taken place in central and eastern Europe since 1989 further underlined the need for a new convention on nationality. [. . .] The existence of a comprehensive Council of Europe convention constitutes an important standard in this field.’108 The Explanatory Report also notes that that the Convention, ‘in particular Articles 4–6, 10–13 and 18–20 relating to the acquisition of nationality and to nonnationals, will be of relevance for the implementation of the 1995 Council of Europe Framework Convention for the Protection of National Minorities with the aim of the Framework Convention being to specify the legal principles which States undertake to respect in order to ensure the protection of national minorities.’109 The Explanatory Report therefore points to the Convention being at least in part aspirational.   Though many provisions, such as Article 3 do reflect customary international law.  European Convention on Nationality Explanatory Report (conventions.coe.int/Treaty/Commun/ QueVoulezVous.asp?NT=166&CL=ENG). 108   Explanatory Report, para 14. Emphasis added. 109   Ibid, para 15. Emphasis added. 106 107

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Nonetheless, the opinions of States that were evident in the statements directed towards Estonia, Latvia and the Czech Republic, combined with the subsequent alignment of those State’s nationality laws into accordance with the requirements of those statements, must be regarded as evidence of developing customary law limitations on nationality at least some of which were reflected in the European Convention. Spiro characterises the Eastern European ‘developments’ as ‘evolutionary, rooted in existing international law constraints on nationality practice’, but notes that ‘[a]t this stage they qualify as no more than soft law, representing aspirational norms that are not yet amenable to direct enforcement against states’.110

the

nottebohm

decision

Brownlie’s conclusion that non-recognition follows from the invalidity of a municipal legislative act is difficult to reconcile with the ICJ’s decision in the famous Nottebohm case.111 If non-recognition is held to be the consequence of a State violating its obligations under international law then the limitations which that State is subject to should be logically be found (and found to be breached) before a non-recognition can be advocated. For this reason, it would seem to have been necessary for the Court in Nottebohm to come to a determination as to whether such limits existed before stating that Guatemala was not obliged to recognise Mr Nottebohm’s Liechtensteinian nationality. If the Nottebohm decision in examined in terms of recognition, the linking of the ‘effective nationality’ and ‘non-recognition’ was obviously a very progressive development.112 The application of the ‘effective nationality’ principle before Nottebohm was limited to instances of dual-nationality in order to allow a tribunal determine which nationality, in a dispute between the two States of nationality, would be given more weight and be regarded as dominant. As the Italian-United States Conciliation in the post-Nottebohm Mergé claim remarked, the application of the ‘effective nationality’ principle in cases of dual-nationality is ‘not a question of adopting one nationality to the exclusion of the other. Even less when it is recognized by both Parties that the claimant possesses the two nationalities’113. The oft-cited classic application of the ‘effective nationality’ is the Canevaro case114 between Italy and Peru. There the Permanent Court of Arbitration said that Peru had a right to consider a dual Peruvian/Italian national as a Peruvian citizen ‘whatever [his] status may be in Italy with respect to his nationality’.115 If parallels are sought to be maintained with the ‘conventional’ ‘effective nationality’ principle as it is applied to cases of dual-nationality when the effectivité of one nationality is called into question non-recognition should be confined to the State which the individual has a genuine or stronger de facto connection with. Nonrecognition should not occur from the international community as a whole. Such was   Spiro, above, p 99.   ICJ Reports (1955) 4. 112   Boll, above, p 111. 113   (1955) 14 RIAA 236 at 246. 114   Permanent Court of Arbitration ‘Renault, Fusinato, Calderon’ (1922) 11 RIAA 397 (English translation in 6(3) The American Journal of International Law (1912) 746–54). 115   (1912) 6 American Journal of International Law, 746–54, 747. 110 111

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the application of the ‘effective nationality’ principle to Nottebohm’s Liechtensteinian nationality and, given that the Court was not contemplating non-recognition generally, the statement that it was ‘not necessary to determine whether international law imposes any limitation on [a State’s] freedom of action’ does not necessarily lead to a conclusion that rules regulating nationality and non-recognition are unrelated. In effect the Court was not discussing non-recognition of nationality in the sense of how non-recognition has been discussed in this article and, for example, in Article 1 of The Hague Convention or Article 3 of the European Convention. However, the Court made a much broader statement of principle in stating that ‘a State cannot claim that the rules [of its municipal law conferring nationality] are entitled to recognition by another State unless it has acted in conformity with the general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State which assumes the defence of its citizens by means of protection as against other States’.116 This goes much further than the transposition of the ‘effective nationality’ principle to cases where an individual possesses a single nationality as the Court’s statement suggests a valid basis for non-recognition can arise due to the nature of a conferral of nationality rather than out of the existence of a ‘more genuine’ connection – but not amounting to nationality – with the State to which the claim is directed. Relying upon the Court’s statement, Jennings and Watts contend that international law is not obliged to recognise the effect of certain conferrals of nationality: that ‘the determination by each state of the grant to its own nationality is not necessarily to be accepted without question’.117 The classic theory of effective nationality involves a determination of which nationality is ‘dominant’ and which is ‘nominal’. In effect it seeks to compare the individual’s multiple nationalities against each-other and not against a set standard which is required to be met before an individual’s nationality can be regarded as ‘genuine’.118 It was probably for this reason that the Court in Nottebohm, in coming to its actual decision, made no comment upon the quality of Nottebohm’s Liechtenstein nationality since it was unimportant for the application of the ‘effective nationality’ principle given that Nottebohm’s Guatemalan de facto ‘nationality’ – his connection with that State – was manifestly stronger in character. This must be regarded as the correct application, setting aside the question of whether it was appropriate, of the effective nationality principle to a case of single nationality: comparing the ‘genuineness’ of that nationality against an individual’s de facto connection with the State the claim is directed against. Therefore, and although the Court itself seemingly restricted its ruling by stating that it did ‘not propose to go beyond the limited scope of the question which it has to decide, namely whether the nationality conferred on Nottebohm can be relied upon as against Guatemala’, the Court can only be regarded as having set out a statement of general principle. This principle clearly only contemplates non-recognition in international law in response to invalid conferrals of nationality and does not suggest that non-recognition flows from, or is otherwise accompanied by, the invalidity of a State’s municipal law.   Nottebohm, above, p 23.   Jennings & Watts, above, p 853. 118   See the Flegenheimer Claim, Italian-United States Conciliation Commission (1958) 25 ILR 91 as an example of where the classic effective nationality principle was applied. 116 117

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However, it is argued that the decision in Nottebohm should be regarded as being specific to the case’s facts and not generisable. Such is the view of the ILC in its Draft Articles on Diplomatic Protection where the Commission rejected the notion of a ‘genuine link’ for nationality119 (the lack of which was the basis of non-recognition in the judgment) noting in the accompanying Commentary to the Draft Articles that Nottebohm should be limited to its own particular facts.120 The Commission, pointing to the Court’s repeated assertions that Liechtenstein was ‘not entitled to extend its protection to Nottebohm vis-à-vis Guatemala’121, argued that this suggests that the Court ‘did not extend to expound a general rule applicable to all States but only a relative rule according to which a State in Liechtenstein’s position was required to show a genuine link between itself and Mr Nottebohm in order to permit it to claim on his behalf against Guatemala with whom he had extremely close ties.’122 This was also the opinion of the Italian-United States Conciliation Commission in the Flegenheimer claim which noted that the Court in Nottebohm ‘restricted the scope of its Decision by affirming that the acquisition of nationality in a State must be recognised by all other States “subject to the twofold reservation that, in the first place, what is involved is not recognition for all purposes but merely for the purposes of the admissibility of the Application, and, secondly that what is involved is not recognition by all States but only by Guatemala”’ thus affirming the relative nature of its decision.123 Weis also regards the case as specific to its facts in that the ‘circumstances of Nottebohm’s naturalisation were [. . .] quite exceptional and do not lend themselves [to generalisation]’.124 Limiting the case to its facts, however, does nothing to negate the effect of the Court’s broader ‘effective nationality’ statement since, as demonstrated above, this principle was not itself applied to the facts. The Court applied one ‘effective nationality’ principle between Liechtenstein and Guatemala, but set out another, broader principle, in the course of the decision. Although the latter amounts to an obiter statement this does not diminish its persuasive force since all ICJ decisions, including what might be described as the rationes decidendi portions of those decisions, lack binding effect ‘except between the parties in respect of that particular case’125, but are nonetheless relied upon in subsequent proceedings126 almost with the binding force of common-law precedent. This was the view of the one of the dissenting Judges, Judge ad-hoc Guggenheim, who argued that ‘[t]he fact that the Judgment only applies to the particular case and that the res judicata is not binding on third States in no way detracts from the force of these considerations’127 It is on the basis of limiting the case to its facts that Weis rejects as incorrect the statement made by the Institute de Droit International, relying on Nottebohm, in its Warsaw Session of 1965128: that ‘an international claim presented by a State for injury suffered by an individual may   Commentary, above, pp 32–33.   Ibid, p 33. 121   Nottebohm, above, p 26. 122   Commentary, above, p 33. 123   Ibid, p 147. 124   Weis, above, p 180. 125   ICJ Statute, Art 59. 126   J Collier and V Lowe, The Settlement of Disputes in International Law (Oxford, Oxford University Press, 1999), 177. 127   Dissenting Opinion of Judge ‘ad hoc’ Guggenheim, p 60. 128   See AJIL, vol 60, n 3, (1966), pp 517–26 for a report by one of the US Representatives on the proceedings and a statement of the principles agreed upon. 119 120

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be rejected by the respondent State or declared inadmissible when, in the particular circumstances of the case, it appears that naturalization has been conferred on the individual in the absence of any link of attachment’.129 The stronger argument for rejecting the existence of a generalisable ‘Nottebohm principle’ is rooted in policy. To apply the genuine link requirement to cases of single nationality would be to deprive a large number of people across the world from diplomatic protection where they had either moved away from their State of nationality or where they had substituted their nationality at birth for the nationality of a State with which they enjoyed no more than a tenuous connection.130 Were the wider principle to apply beyond the time at which an individual acquired a nationality, the question of whether that individual’s nationality was effective or not would have to be asked – and answered – whenever the individual tried to rely on or use the nationality. Such a determination would be highly circumstantial in nature and prone to huge uncertainties. This was a factor taken into consideration by the International Law Commission. On this point, it should be pointed out were Nottebohm principle to be generalised it would likely exclude diplomatic protection by Ireland over Northern Irish residents (assuming such individual’s Irish nationality was otherwise capable of being the basis for such a claim by Ireland) since while Northern Irish residents possess strong cultural links with Ireland, few could be said to possess a strong link to the modern Irish State. Yet even when the ‘effective nationality’ principle is rejected on such policy grounds – and it is suggested that it is justified to do so – this only negates the applicability of a ‘sham’ nationality as a ground for non-recognition, but would not seem to negate the Court’s conclusion that non-recognition, unaccompanied by invalidity, was the appropriate international law response. This would only be negated if the response of non-recognition was linked to the lack of a genuine connection and, as the appropriate response of other States, was not generalisable to other inappropriate naturalisations. This is not clear from the judgment, but it would be quite arbitrary if non-recognition was the result of certain kinds of illegitimate naturalisations, but not others.

the international law commission’s 2006

draft articles on diplomatic protection ,

The International Law Commission’s Draft Articles on Diplomatic Protection, 2006 represent an attempt to codify customary international law on the topic of diplomatic protection. The Draft Articles in their totality should not be regarded as representing customary international law since certain provisions embody progressive developments in the law which either do not yet exist in custom or have an as-yet unclear customary basis. Nonetheless, many of provisions are reflective of customary inter­national law 129   Article 4(c) reproduced in AJIL, 60, no 3, (1966), pp 517–26 at 523. Greenwood (Greenwood, CJ, International Law Reports, Vol 72, (Cambridge, Cambridge University Press, p 527) in contrast refers to the Institute’s statement as a ‘confirmation’ of the Nottebohm decision. Similarly, see Wallace (Wallace, R, in International Law, 3rd edn (London, Sweet & Maxwell, 1997) p 191) states that ‘[f]rom the Nottebohm Case it emerges that, not only must an individual posses the claimant state’s nationality, but that the nationality must be effective. The Nottebohm decision extended the concept of ‘genuine connection,’ which previously had been utilised to resolve problems of dual nationality to the issue of diplomatic protection generally’. 130   Weis, above, pp 180–81, Boll, above, p 111.



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and can be, when read in conjunction with the accompanying Commentary, useful indicators as to the current state of the law.131 The relevant articles for present purposes are Article 3 (‘Protection by the State of nationality’) and 4 (‘State of nationality of a natural person’). Article 3 provides that ‘[t]he State entitled to exercise diplomatic protection is the State of nationality’ while Article 4 provides that for ‘the purposes of the diplomatic protection of a natural person, a State of nationality means a State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States, or in any other manner, not inconsistent with international law.’ Articles 3 and 4 entail the State of nationality exercising diplomatic protection, but not in circumstances where an individual’s nationality has been acquired in a manner ‘inconsistent with international law’. Under Article 4 non-recognition would appear to be the consequence of the invalidity of a naturalisation, but the Draft Articles do not contemplate non-recognition existing independently. Until the invalid municipal law is brought into line with international law then other States, in rejecting the nationality of the individual, will not be recognising the individual’s nationality (which will remain fully effective in the domestic domain), but the basis of this non-recognition is the invalidity of the municipal law. The accompanying Commentary notes that ‘Draft Article 4 defines the State of nationality for the purposes of diplomatic protection of natural persons. This definition is premised on two principles: first, that it is for the State of nationality to determine, in accordance with its municipal law, who is to qualify for its nationality; secondly, that there are limits imposed by international law on the grant of nationality.’132 On the second principle, the Commentary goes on to state that ‘[a]lthough a State has the right to decide who are its nationals, this right is not absolute. Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws confirmed this by qualifying the provision that “it is for each State to determine under its own law who are its nationals” with the proviso “[t]his law shall be recognized by other States insofar as it is consistent with international conventions, international custom and the principles of law generally recognized with regard to nationality”. Today, conventions, particularly in the field of human rights, require States to comply with international standards in the granting of nationality.’133 If we read Article 4 in conjunction with the Commentary, it appears to do no more than codify the universally accepted position that a State can itself impose limits on its legislative freedom in the field of nationality. Special Rapporteur John Dugard’s report134 on the Draft Articles has little to say on this aspect of Article 4: he notes that ‘Article 4 has been criticized on the ground that it fails to make it clear that nationality is determined by internal, national law – provided it is not inconsistent with international law’135 (with this criticism coming from Uzbekistan). As was noted previously, the ILC in the commentary to Article 4 chose to construe the Nottebohm 131   See A Watts The International Law Commission 1949–1998, Vol 1 (Oxford, Oxford University Press, 1999), 7 where he notes that ‘[o]ne problem faced by the [ILC] has been that its function . . . embraces both the progressive development of international law and its codification’. 132   Commentary, p 31. 133   Ibid, pp 33–34. 134   J Dugard ‘Seventh Report on Diplomatic Protection’, A/CN.4/567, Available at: untreaty.un.org/ilc/ documentation/english/a_cn4_567.pdf. 135   Ibid, p 13.

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judgment narrowly: the ‘Commission took the view that there were certain factors that served to limit Nottebohm to the facts of the case in question’136 which clearly precluded the Commission from considering the issue of recognition independent of regulation which, as was discussed above, may be an incorrect approach which to take towards Nottebohm.

conclusion The question of whether the Nationality and Citizenship Act, 1956, before it was amended by the Nationality and Citizenship Act, 2001, was contrary to international law remains unresolved. One must always return to basic principles and negative practice in the context of nationality, the lack of practice of certain kinds of naturalisation, must clearly arise out of knowledge of the existence of customary norms prohibiting certain conferrals or withdrawals of nationally before the lack of practice can be regarded as being a consequence of the existence of a customary norm. If such knowledge is absent, or is as vague as is the case in this context, then negative practice cannot be reliably linked to the existence of a legal obligation. For instance, all that can be taken from the relies of States in response to the questionnaire of the Preparatory Commission of the Hague Codification Conference is that limitations on States’ freedom to legislate in the field of nationality could or might exist in customary international law. Although several of the replies, those of Germany and the United States for example, contain statements to the effect that issues of nationality are not part of States’ ‘reserved domain’, the lack of specificity in those and other replies, in particular the lack of specificity over what limitations which the States regarded themselves as subject to, would call into question the characterisation of any State practice as arising out of a rule of customary law. While it could be argued that States are in some way loathe to express themselves as being subject to and bound by specific limitations in such a politically and culturally sensitive area as nationality – with this reserve impacting upon the evidence of opinio juris discernable – this is not entirely convincing. An unlimited or even a high degree of freedom over the conferral or withdrawal of nationality could entail negative consequences for States and individuals and, as a result, one might reasonably expect States to have manifested clearer statements of opinion on the conferrals which they regard as invalid. There might reasonably have been attempts to move towards a treaty-based regime in order to standardise and clarify the situations when nationality can be legitimately conferred or withdrawn. We could characterise the 1997 European Convention as just such an effort, but as the accompanying Explanatory Report indicates, many of the obligations contained in that document do not exist independently in custom as of yet nor is it asserted that they do. The State practice and opinio juris surrounding the Latin American conferrals of nationality offers little guidance as to whether the municipal laws of those States were deemed to be contrary to international law or whether the automatic conferral of nationality was merely unrecognised by other States. There do not appear to have been calls for the Latin-American States’ municipal laws to be brought into line with those State’s obligations under international law – as would be required if the national 136

  Commentary, above, p 33.



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law was invalid – but at the same time, the widespread opposition of States to the laws, when those States could simply have refused to have given effect to the Latin-American nationality conferred upon their nationals, are perhaps indicative of an opposition to the laws themselves. Of course, this is not conclusive, and the opposition to the laws could also be explained by the fact the laws would be operative domestically irrespective of their effect internationally and could seriously impact upon the daily lives of the opposing State’s nationals living within the Latin American States. Individuals might, for example, be subject to a military service requirement on the basis that they were ‘nationals’ of a State in which they might only have invested or purchased property. That the opposition of third States might have been rooted in political or practical concerns rather than legal objections is a conclusion that cannot be discounted given the lack of clarity as to the legal regime, should one exist, which is applicable to these situations. The lack of specificity, both in terms of the precise modes of attribution/withdrawal which might be prohibited or mandated, also impacts upon our ability to conclude whether any discernible international legal regime applicable to the acquisition and withdrawal of nationality encompasses regulation in addition to non-recognition or whether the latter is the result of the former as both Weis and Brownlie argue. The Nottebohm case, while obviously questionable in many respects, would nonetheless suggest that nonrecognition might be capable of arising independently so that municipal law, while not recognised in the international domain, remains in force domestically, but is not itself incompatible with international law so as to require amendment. Brownlie’s argument, which is similar to that put forward by Weis, that non-recognition should be regarded as an indicator of an underlying invalidity of municipal law cannot easily be reconciled with Nottebohm and while that decision is correctly to be read narrowly on the point of effective nationality as applied to cases of single nationality, the underlying principle of non-recognition cannot be so confined to the case’s facts. In practical terms however, the conclusion as to whether the Irish Nationality and Citizenship Act, 1956 s6(1) is invalid or not is largely irrelevant as the law is no longer on the Irish statute books having been replaced by a regime where the performance of a voluntary act asserting a right to Irish nationality is required by a person born on the Irish island before they will be regarded as an Irish national.137 Under the Irish Nationality and Citizenship Act, 2001, which operates retrospectively so as to have taken effect from the 2 December 1999, people born in Northern Ireland after that date have not been vested with Irish citizenship automatically, but instead are merely entitled to be Irish citizens.138 Their entitlement is only converted into de jure citizenship, which is vested retrospectively so as to render that individual a citizen from birth, when ‘a person born in the island of Ireland . . . does . . . any act which only an 137   Irish Nationality and Citizenship Act 1956 (as amended by the Irish Nationality and Citizenship Act, 2001) s 6(1): ‘every person born on the island of Ireland is entitled to be an Irish citizen’. This was itself amended by s 3 of the Irish Nationality and Citizenship Act, 2004 so that only those born on the island of Ireland to at least one parent who was, or was entitled to be, an Irish citizen or a British citizen could become Irish citizens. 138   Irish Nationality and Citizenship Act 1956 (as amended by the Irish Nationality and Citizenship Act, 2001) s 6(1): ‘every person born on the island of Ireland is entitled to be an Irish citizen’. This was itself amended by s 3 of the Irish Nationality and Citizenship Act, 2004 so that only those born on the island of Ireland to at least one parent who was, or was entitled to be, an Irish citizen or a British citizen could become Irish citizens. As Northern Irish residents are predominantly British citizens they remain entitled to become Irish citizens notwithstanding this amendment.See: www.irishstatutebook.ie/2001/en/act/pub/0015/ index.html for the 2001 Act and www.inis.gov.ie/en/INIS/Act2004.pdf/Files/Act2004.pdf for the 2004 Act.

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Irish citizen is entitled to do’.139 It should be borne in mind however that this change did not arise out of a realisation on the part of the Irish government that automatic conferrals of nationality fell afoul of international law. Instead, it arose out of the peace settlement ending the conflict in Northern Ireland and the desire to appease the Unionist140 residents of Northern Ireland who do not regard themselves as possessing historic or ethnic ties to the Irish Republic. The repeal of the Irish Nationality and Citizenship Act, 1956 s6(1) does not however protect Northern Irish residents whose Irish nationality arose out of it from the allegation that their nationality exists as a nullity under international law. Indeed, the consequences for those Northern Irish residents whose Irish nationality arises out of the 1956 law would be the same irrespective of whether the municipal law was invalid or not – these individual’s Irish nationality would not, as a matter of law, be recognised by other States as having been validly conferred. Unfortunately, it is difficult to come to a firm conclusion, but what can at the very least be said is that it is legally quite uncertain that the Irish nationality conferred on Northern Irish residents under the 1956 Act would be capable of supporting a diplomatic protection claim. This form of Irish nationality’s international effectivité should be regarded as suspect. In practice, however, this form of Irish nationality is, without fail, regarded as valid internationally irrespective of the degree of reliance placed upon it, even in dealings with the UK.141 It is the UK which must be regarded as the State having most to lose from a number of its nationals possessing the citizenship of another State. Yet the British Government is quite content to give the Irish Republic some say over some of its nationals as, in the context of the Northern Irish conflict, this is what many of Northern Ireland’s Nationalist142 residents wished to see as evidence of recognition of their cultural heritage. Therefore, the 1998 ‘Good Friday’ Agreement provides that ‘[The British and Irish governments] recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments.’143 The consent of the UK to Ireland conferring its nationality upon British nationals in Northern Ireland probably does not affect the validity of Irish nationality obtained under the 1956 Act since it is the consent of the individual which appears to be important rather than the consent of their State: the 1998 Agreement is not a treaty contracting the two States out of customary international law. Nonetheless, the imposition of nationality on a national of another State may be an internationally wrongful act in its own right144 for which the British Government’s consent, as expressed in the 1998 Agreement, may be relevant as amounting to a waiver of its right to bring a claim under the state responsibility regime.   Irish Nationality and Citizenship Act 1956 s 6(2).   The term refers to those individuals (who are in a majority) who wish to see Northern Ireland remain within the United Kingdom. 141   We cannot regard this as evidence of opinio juris by States who, for example, regard the Irish passports of Irish citizens from Northern Ireland that an automatic conferral of nationality is permissible: it is not generally known that Irish citizens in Northern Ireland obtained their nationality automatically through the 1956 Act. 142   The term refers to the nationalistic Irish identity of those Northern Irish residents who trace their heritage to ‘Ireland’ rather than the United Kingdom. 143   Article 1, Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland. See www.nio.gov.uk/agreement.pdf. 144   Brownlie, above, p 376. 139 140

Representation in the Doctrine of Estoppel in International Law Killian O’Brien* Effective relations between international actors require that these must be able to place their trust in the representations made by others, in particular, when such representations directly or indirectly affect. More specifically, a State ought to act in such a manner so that other subjects of international law are able to rely on such acts or statements and comport themselves accordingly.1 Mere reliance per se does not give rise to potentially far-reaching legal consequences, however, reliance, which is legitimate and therefore worthy of legal protection, must be recognised as such and shielded.2 The practical promotion of consistency occurs in international law (as in several domestic legal orders) by way of the application of, inter alia, the doctrine of estoppel, the existence of which is trite law.3 Notwithstanding several applications of this doctrine, which in essence shields an innocent party from the detrimental consequences of reliance on the actions of another party, by international tribunals, the International Court of Justice has declined to elaborate extensively on the dogmatic basis of the doctrine, its specific elements or its application. This reticence has resulted in several missed opportunities to provide clarity as to the exact scope and content of this doctrine which has, in the past, caused difficulties with its interpretation. This chapter considers the potential of applying the estoppel principles developed within the Common Law as a means of helping to clarify the doctrine of estoppel as it is recognised in international law. By drawing on a number of national innovations, a better differentiation and delimitation of the various elements of the doctrine will serve to provide for a more unified theory of estoppel and, thus, greater legal certainty. It must be stressed that it is neither necessary nor helpful to attempt to extensively categorise estoppel as it is recognised in international law in order to demonstrate its convergence with municipal law and that this study does not seek to rigidly foist

*  LLB (Ling Germ), LLM, MA Research Associate and Doctoral Candidate at the Walther-Schücking Institute for International Law, Kiel Germany. Thanks are owed to Prof Dr Graf Vitzthum LLM, Prof Dr Alexander Proelß, Tobias Thienel, Aleke Stöfen and Friederike Erxleben for their comments on earlier drafts. 1  MacGibbon, ‘Estoppel in International Law’ (1958) 7 International & Comparative Law Quarterly 468, 478; Wagner, ‘Jurisdiction by Estoppel in the International Court of Justice’ (1986) 74 California Law Review 1777, 1779. 2  Müller, Vertrauensschutz im Völkerrecht (Cologne, Carl Heymans Verlag, 1971) 1. 3  Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge, Cambridge University Press, 1953) 140; Lauterpacht, Private Law Sources and Analogies of International Law (Cambridge, Cambridge University Press, 1970) 203–206.

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Common Law estoppel principles onto international law;4 rather that greater precision is required, which will, in turn, lead to a more predictable, more manageable doctrine capable of consistent application. The municipal and international doctrines of estoppel cannot be considered as identical; nevertheless, a better examination of the specific criteria for municipal estoppels, for example the need for the party seeking to enforce the estoppel to have suffered a detriment, might provide a better indication as to the limits of estoppel in international law especially regarding the complex relationship between estoppel, unilateral declarations and good faith. The first and second sections of this study deal with the nature and source of the doctrine of estoppel. Both the development of the doctrine as well as its contemporary application suggest that the doctrine of estoppel is founded upon an application of the principle of good faith, undoubtedly an overarching principle permeating the very framework of international law. What remains unclear is the relationship of estoppel to the prohibition against inconsistent conduct and, moreover, the relationship between this prohibition itself and good faith. This issue will be discussed in the third section. The fourth section is devoted to the specific requirements which must be at hand in order to confirm the existence of estoppel in the first place. Thereafter, the nature of the representation which can give rise to an estoppel will be considered. It is the central thesis of this study that the doctrine of estoppel, as it is known at international law, is considerably broader than its narrowly-interpreted Common Law counterpart, and that it is preferable for the development of a consistent doctrine to more strictly scrutinise the individual requirements regarded as essential to the creation of an international estoppel. Should it be the case that one of the elements is not present, no estoppel can be created. In order to balance the potential for harsh results arising from this thesis and to ensure a uniform development of the doctrine as well as the maximum protection of States legitimately attempting to rely on estoppel, it will be argued that the previous categorisation into conduct, silence, promise etc can plausibly be substituted by the single category of a representation.

nature of estoppel Semantically, the origins of the word ‘estoppel’ appear to come from the French word estoupper meaning to close an opening.5 This term thus implies that an act of acceptance from one party would prevent (or close the door to) the other party to challenge that state of affairs.6 Estoppel exists in various forms in both the Anglo-American Common Law and in the European civil legal systems, although the doctrine in international law developed predominantly under the influences of the Anglo-Saxon legal tradition. Some have even gone so far as to say that ‘[e]stoppel in international law is a direct descendant of its Anglo-American counterpart.’7 The locus classicus of the doctrine is stated in the British case Pickard v Sears: 4  Contrast: Brown ‘Comparative and Critical Assessment of Estoppel in International Law’ (1996) 50 University of Miami Law Review 369. 5   Hudson (2004) Equity and Trusts 477. 6   Ibid, 371. 7   Brown ‘Comparative and Critical Assessment of Estoppel in International Law’ (1996) 50 University of Miami Law Review 369, 370.

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Where one by his words or conduct causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time.8

As previously indicated, this doctrine has been applied several times by the International Court of Justice,9 the Permanent Court of International Justice on at least one occasion,10 as well as countless international arbitral tribunals.11 Nevertheless, the nature of the doctrine remains to be considered as it may be merely a procedural principle relating to the law of evidence or does it, in fact, also carry with it a material legal effect. Early thinking in international law tended towards the opinion that estoppel was merely a procedural doctrine governing the law of evidence in that it precluded the introduction of certain facts before a court or tribunal.12 This limits the doctrine to a theory of the inability to rely on a set of facts to prove a case. The reasoning provided for this belief is usually that estoppel is to be viewed as a technical rule of the law of evidence and it is therefore not suitable for an application within the realm of the ‘rough jurisprudence of nations.’13 Despite these earlier statements, estoppel can be said by now to belong to the substantial principles of material international law. This has been confirmed in several judicial decisions, both domestic and international. In the Canada and Dominion Sugar Company v Canadian National (West Indies) Steamships Ltd. the court held that ‘the whole concept is more correctly viewed as a substantive rule of law.’14 Several years later, this time within the forum of a proceeding before the International Court of Justice, the substantive nature of the doctrine was once again confirmed by Judge Fitzmaurice in the Temple of Preah Vihear case when he explicitly wrote that estoppel ‘certainly applied as a rule of substance and not merely as one of evidence or procedure.’15 Indeed, the quintessential function of the doctrine itself, namely the protection of the rights of an innocent party who reasonably placed reliance in the actions of another, would tend to suggest that it is worthy of more than the mere position of an evidentiary rule.

  Pickard v Sears 6 Ad And El (1837) 469 per Denman LCJ.   Nottebohm (Liechtenstein v Guatemala) ICJ 6 April 1955, 4; Anglo-Norwegian Fisheries Case (United Kingdom v Norway) ICJ 18 Dec 1951, 130 (18 December); Temple of Preah Vihear (Cambodia v Thailand) ICJ 15 June 1962, 31; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) ICJ 26 Nov 1986, 14. 10   Case Concerning Serbian Loans Issued in France (France v Kingdom of Serbs, Croats and Slovenes) [1929] PCIJ (ser A/B) No 20/21; Compare: The Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ (ser A/B) No 53. 11   Decision of the Permanent Court of Arbitration in the Matter of the Maritime Boundary Dispute between Norway and Sweden (1910) 4 AJIL 226; Tinoco Arbitration (Costa Rica v United Kingdom) (1924) 18 AJIL 145; Award of Her Majesty Queen Elizabeth II for the Arbitration of a Controversy between the Argentine Republic and the Republic of Chile Concerning Certain Parts of the Boundary between their Territories (1967) 61 AJIL 1071. 12   Friede, ‘Das Estoppel-Prinzip im Völkerrecht’ (1935) 5 Zeitschrift für Auslandisches Öffentliches Recht und Völkerrecht 517; Lauterpacht, Private Law Sources and Analogies of International Law (1970) 203. 13  Hall, A Treatise on International Law (Oxford, Clarendon Press, 1924) 395. See also McNair, ‘The Legality of the Occupation of the Ruhr’ (1924) 5 British Year Book of International Law 17, 36; Friede, ‘Das Estoppel-Prinzip im Völkerrecht’ (1935) 5 Zeitschrift für Auslandisches Öffentliches Recht und Völkerrecht 520. 14   [1947] AC 46. 15   Temple of Preah Vihear, above n 9, Separate Opinion of Judge Fitzmaurice. 8 9

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the source of estoppel The starting point for any examination of a doctrine of international law must be its source, particularly when there is no consensus on this matter. Art 38 of the Statute of the International Court of Justice, enumerates the different sources of the law, which are to be applied in the process of the judicial settlement of disputes.16 It must be borne in mind that the enumeration of these sources only has a declaratory function and the sources themselves are not possessed of the binding legal effect of law in the sense of law created by national parliaments. Nevertheless, regarding the doctrine of estoppel, two potential sources come into question: general principles of law and international custom.‘ General principles are elementary and generally accepted rules of a national legal order of fundamental importance. These principles are essential for the functioning of the legal system. In particular the principles prevalent within the private law of States play an important role because many such principles find a general acceptance among the various international actors. A doctrine of estoppel, or some equivalent thereof, can be found in both the common and civil law traditions.17 The Anglo-American legal family recognises a highly technical, extremely developed form of the doctrine of estoppel. It is noteworthy that several British judges have described estoppel as being a universally accepted general principle: ‘The doctrine is found, I believe, in the laws of all civilised nations,’18 and ‘it is perhaps only an application of one of those general principles which do not belong to the municipal law of any country.’19 A similar legal concept is found in the civil law jurisdictions.20 Indeed, such a concept is found in the Roman digests (which form the historical basis of the civil law tradition) of Ulpian.21 Both German and French law are acquainted with general clauses with the basic effect of ensuring that parties cannot simply alter their position to the detriment of another.22 Even if these national forms are not identical, they are sufficiently similar so that one could still easily describe estoppel as a general principle of law.23 This has been recognised on several occasions by both renowned international commentators as well as international tribunals. Hersch Lauterpacht has stated with absolute certainty that ‘the principle underlying estoppel is recognised by all systems of private law.’24 Further, the Permanent Court of International Justice has confirmed the status of estoppel as ‘a principle of international law, and even a general conception of law.’25 Thus, the solid legal basis of estoppel as a general principle of law appears to be indefeasible. It is somewhat less clear whether estoppel has developed sufficient support to be considered international custom.   Graf Vitzthum in Graf Vitzthum (ed), Völkerrecht (2007) 54.  Hudson, Equity and Trusts (2004) 478: ‘Estoppel in all its forms is based on a variety of underlying conceptions, varying from honesty to common sense to common fairness. What emerges . . . is that common principles underlying all estoppel can be identified . . .’ 18   Cairncross v Lorimer, Macqueen’s Scotch Appeals (House of Lords) vol 3 (1860) 827 per Lord Campbell. 19   Halifax Union v Wheelwright, Law Reports Exch vol 10 (1865–1875) 183. 20   See: Riezler, Venire Contra Factum Proprium (1912). 21   Digests 1, 7, 25 pr. 22   Compare: § 242 German Civil Code and Art 1134 French Civil Code. 23  Friedmann, Legal Theory (1967) 320. 24  Lauterpacht, Private Law Sources and Analogies of International Law (1970) 204; Friede, ‘Das EstoppelPrinzip im Völkerrecht’ (1935) 5 Zeitschrift für Auslandisches Öffentliches Recht und Völkerrecht 517, 545. 25   Case Concerning the Factory at Chorzów (Germany v Poland) 1933 PCIJ (ser A) No 17, 29. 16 17



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Customary international law is generated by the conduct of the States, whereby a particular practice has developed which has then become accepted by a considerable number of States as being law.26 The International Court of Justice elucidated the essential elements of customary law in the North Sea Continental Shelf Case when it stated that ‘there must be a settled practice (consuetudo) and the practice must be exercised in a manner evident of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it (opinio juris).’27 Certainly it is difficult to attempt to prove the elements of the practice element due to the fact that estoppel is not a doctrine which gives rise to a positive legal effect; rather it is a shield, not a sword. Consuetudo could possibly be seen in the frequency with which estoppel is pleaded before national and international courts.28 In this vein, a decision of the German Federal Court of Justice has (obiter) stated that estoppel is in actual fact an integral part of binding customary law within the context of Article 25 of the German constitution, the Basic Law.29 While this example does not, of course, prove the existence of sufficient State practice by and of itself, it does reflect the tendency of States to adopt the view that they, and all other States, ought potentially to be bound by the representations they make and that the States are in point of fact bound. MacGibbon has stated there to be a valid customary basis for the doctrine of estoppel: ‘It may be considered probable, however, that some of the aspects of estoppel are in process of fulfilling, if they do not already fulfil, the criteria demanded of an international custom.’30 Thus, it can be said by way of review that estoppel is still undergoing a process of change and that many, if not all, aspects of the doctrine seem to have become customary international law. foundations of estoppel Three potential theoretical bases for the doctrine of estoppel are foreseeable, namely good faith, the prohibition against inconsequent conduct, which is embodied in the Latin maxim allegans contraria non audiendus est or the contractual theory. Good Faith At the risk of engaging in banalities, it is fair to say that the principle of good faith is the most recognised principle of international law, indeed, perhaps the most recognised legal principle overall. Such reference to good faith as the fundament of estoppel seems to lend further credence to the supposition that estoppel can be assigned a place as a general principle of international law. Grotius, in De Jure Belli ac Pacis Libri Tres, advocated the view that all States are subject to the application of this principle31 and this is confirmed in, inter alia, Art 2(2) of the Charter of the United Nations. The question nonetheless remains as to whether good faith is capable of serving as the legal 26  Pellet, Article 38, in Zimmermann et al (ed) The Statute of the International Court of Justice: A Commentary (Oxford, Oxford University Press, 2006) 748. 27   North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark/The Netherlands) ICJ 20 February 1969, 44. 28   Above, n 26. 29  BGH RzW 1963, 370; Schweitzer/Weber, Handbuch der Völkerrechtspraxis der Bundesrepublik Deutschland (2004) 204. 30   MacGibbon ‘Estoppel in International Law’ (1958) 7 International & Comparative Law Quarterly 468, 513. 31   Grotius, Vol II, ch XXV, 860.

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foundation of estoppel despite the principle being incapable of ‘lend[ing] itself to rigid legal application.’32 In the Liechtenstein Memorial submitted in the Nottebohm case, the argument was made that the recognition of Nottebohm’s nationality by Guatemalan authorities prevented subsequent rejection of this citizenship. Liechtenstein explicitly stated that estoppel is ‘essentially grounded in considerations of good faith and honest conduct in the relations of States and individuals alike.’33 Similarly Judge Fitzmaurice in the Temple of Preah Vihear case drew upon the assertions made by Lauterpacht in his first report on the international law of treaties in which estoppel was described as ‘probably no more than one of the aspects of good faith.’34 The more recent jurisprudence of the International Court of Justice also shows the continuation of this trend to view good faith as the basis for estoppel.35 Finally, the thinking of international scholars reflects the position adopted by the international courts.36 Perhaps the best indication for the doctrinal suitability of the principle of good faith as a basis for the doctrine of estoppel can be seen by examining one of the fundamental requirements of the doctrine itself. Estoppel can only have binding effect if the party seeking to enforce the estoppel has relied upon the representation of the other party and, as a consequence thereof, has been hindered in exercising its own rights, ie the fact that one party ‘has drawn logical conclusions in respect of his own conduct from the conduct of the other party.’37 In the decision rendered in the Tinoco Arbitration, the arbitrator stated that ‘an estoppel to prove the truth must rest on previous conduct of the person to be estopped, which has led the person claiming the estoppel into a position in which the truth will injure him.’38 As a result of the lack of such a reliance regarding the British recognition of the Tinoco government Costa Rica’s claim was rejected. The standard with which this reliance is to be viewed is objective, taking into consideration the usual circumstances present.39 Subsequently, it is fair to say that the more prevalent the reliance element, the greater the chances that an estoppel could be applicable: ‘The more pronounced the reliance upon the considerations of good faith the more sympathetic a tribunal may be expected to be in the face of arguments based on the concept of estoppel.’40 The reliance criterion has, unfortunately, not always been dealt with in a consequent manner in the international jurisprudence. In the first case in which estoppel played a decisive role, the Permanent Court of International Justice failed to sufficiently account for the reliance element. Friede, in particular, criticises 32   Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, ICJ 7 June 1955, 120 Separate Opinion of Judge Lauterpacht. 33   Nottebohm, above n 9, Memorial submitted by the Government of the Principality of Liechtenstein, 41. 34   Lauterpacht, Report on the Law of Treaties, UN Doc A/CN.4/63, 24 March 1953: 157, 166; Temple of Preah Vihear above n 9 Separate Opinion of Judge Fitzmaurice. 35   Military and Paramilitary Activities in Nicaragua (Nicaragua v United States of America) ICJ 26 Nov 1986, 14. 36   Müller, n 2, 9; Bowett, ‘Estoppel before International Tribunals and its Relation to Acquiesence’ (1957) 33 British Year Book of International Law 176. 37   Friede ‘Das Estoppel-Prinzip Im Völkerrecht‘ (1935) 5 Zeitschrift für Auslandisches Öffentliches Recht und Völkerrecht 517, 525 (author’s translation). 38   Tinoco Arbitration (1924) 18 AJIL 156. 39   Conditions of Admission of a State to Membership of the United Nations (Advisory Opinion) ICJ, 1948, 80 Individual Opinion of Judge Azevedo. 40   MacGibbon ‘Estoppel in International Law’ (1958) 7 International & Comparative Law Quarterly 468, 507.



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the legal reasoning of the Chorzów Factory case when he supposes that there was no reliance placed on the conduct of the Polish government and, thus, Germany was not capable of claiming an estoppel.41 Conversely, the decision in the Serbian Loans case showed greater understanding of the necessity for a reliance and it was found that estoppel could not be applicable because the debtor State had not altered its position such that the ‘Serbian debt remains as it was originally incurred.’42 By far the most disappointing decision regarding this aspect of the doctrine is that of the Temple of Preah Vihear case, which receives further attention below in respect of the other elements. The primary question before the Court was the binding character of a series of maps produced by the French during the colonial period setting out the territorial delimitations between Thailand43 and Cambodia. Cambodia argued that Thailand was estopped by virtue of over 40 years of consistent conduct during which time Thailand did not dispute the validity of the maps, thus Cambodia successfully asserted its reliance on the Thai conduct. This interpretation of the reliance criteria fails to properly account for considerations of good faith and, as was recognised by Judge Spender: France did not rely upon any conduct of Thailand in relation to [the map]. On the contrary, she relied solely upon the accuracy of the surveys and calculation of her own topographical officers . . . She acted not on the faith of Thailand’s silence or other conduct, but upon the faith she reposed in the competence of the officers who established [the map].44

Estoppel functions to protect parties, which, in reliance on a particular representation or course of conduct, have detrimentally changed position. Logically, only reliance which is worthy of legal protection is deserving of such security. Thus, any reliance placed in a representation where the party seeking to rely on the representation was aware or ought reasonably to have been aware that the party that had made the representation did not intend to induce certain consequences will not be capable of forming an estoppel. Good faith is particularly suited to be applied to doubtful obligations or to obligations which are difficult to characterise in legal terms with sufficient clarity so as to provide these obligations with definition. This function may result in the creation of a legal rule ‘where the moral content of good faith, in a legal context, appears to demand articulation.’45 According to the foregoing, it is clear that good faith is an acceptable and convincing basis for the doctrine of estoppel. The Prohibition Against Inconsistent Conduct Were one to end one’s exploration of the basis of the doctrine of estoppel at this point it would seem to be relatively certain that good faith alone serves this purpose adequately. However, a further potential source has been suggested – the prohibition against inconsistent conduct; although it is, indeed, questionable whether this can be said to be a further source distinct from the principle of good faith or whether it 41   Friede ‘Das Estoppel-Prinzip Im Völkerrecht’ (1935) 5 Zeitschrift für Auslandisches Öffentliches Recht und Volkerrecht 517, 525. 42   Case Concerning Serbian Loans Issued in France (France v Kingdom of Serbs, Croats and Slovenes) 1929 PCIJ (ser A/B) No 20/21, 39. 43   Unless good sense or context suggest otherwise, Thailand will be used instead of Siam for the sake of convenience despite Siam being the nomenclature accorded to the State at the time the maps were drawn. 44   Temple of Preah Vihear above n 9, Dissenting Opinion of Judge Spender. 45  O’Connor, Good Faith in International Law (Aldershot, Dartmouth, 1991) 124.

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represents, as Judge Alfaro seemed to suggest, a more specific source. The requirement that a State ought to have a certain consistency or continuity in its approach regarding factual or legal situations can, nevertheless, be said to reflect ‘the underlying principles of consistency which may be summed up in the maxim allegans contraria non audiendus est.’46 Hurst justified this maxim in his presidential address to the Grotius Society in 1944 with the argument that all States are considered equal under the auspices of the international legal order and, therefore, a State cannot attempt to enforce claims against other States, which it would not accept from other subjects of international law.47 The most striking advocacy on behalf of this principle is to be found in the opinion delivered by Judge Alfaro in the Temple of Preah Vihear case: Inconsistency between claims or allegations put forward by a State, . . . is not admissible (allegans contraria non audiendus est). Its purpose is always the same: a State must not be permitted to benefit by its own consistency to the prejudice of another State. [. . .] A fortiori, the State must not be allowed to benefit by its own inconsistency when it is through its own wrong or illegal act that the other party has been deprived of its right or prevented from exercising it.48

Alfaro opined that a broad view ought to be taken of equitable principles and that good faith must prevail in international relations. He interestingly went on to say that there is a close relationship between good faith and the prohibition against inconsistent conduct. It remains from the text of his judgment, however, unclear to what extent estoppel may be based exclusively on the prohibition against inconsistent conduct or whether recourse must be had to the broader principle of good faith as a legitimisation. It would appear to be reasonable to surmise that Judge Alfaro seemed to tend towards a broad anti-consistency principle as the precept for the binding of States to specific principles without there being any need for a particular defined reliance. In contrast, Judge Spender warns against using just such a doctrinal basis as it runs the risk of rendering the doctrine itself and international law more generally amorphous: ‘phrases, such as “a party may not blow hot and cold” or “allegans contraria non audiendus est” and other to the same effect do not, in my view, express general principles of international law.’49 So, according to Judge Spender the estoppel doctrine is based exclusively on considerations of good faith. It is submitted that the two basic tenets have a similar but slightly different application in that there is an independent category of inconsistent conduct, which does not give rise to an estoppel per se but which can influence the ability of a party to act in a certain manner particularly in respect of the pleading which may be made at bar.50 That is to say that estoppel is not based upon the prohibition against inconsistent conduct rather it is distinct and finds its doctrinal basis elsewhere, namely the principle of good faith. This difference is best explained by way of a brief example. If State A, say Albania, has carried out the particular action X over a period of 10 years and the decision is then made that it will begin to carry out the action Y with 46   MacGibbon ‘Estoppel in International Law’ (1958) 7 International & Comparative Law Quarterly 468, 512. 47   Hurst, ‘Transactions of the Grotius Society’ (1944) 30 123. 48   Temple of Preah Vihear above n 9, Separate Opinion of Judge Alfaro. 49   Above, n 43, Dissenting Opinion of Judge Spender. 50   That is to say that an international court may find a party is not entitled to plead a matter as it would not be in accordance with the prohibition against inconsistent conduct without the court necessarily finding that the requirements of an estoppel are fulfilled.



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immediate effect, this conduct could be said to be inconsequent. As a result, it would be imaginable that the rights of State B, say Brazil, would be affected and Albania would no longer be entitled to plead certain matters. An application of broader principles of good faith with a view to justifying an estoppel would not be permissible. ‘This is not estoppel eo nomine, but shows that international jurisprudence has a place for recognition of the principle . . . allegans contraria non audiendus est.’51 If, however, Albania has carried out the particular action X over the same period of 10 years and Brazil has relied upon this action for a period of seven of those 10 years, then a drastic alteration in this conduct could be a breach of the duty to act in good faith and, at the same time, it would be inconsistent conduct. The essential element is the reliance: a breach of good faith need not be necessarily obvious in order to be able to describe a particular course of conduct as inconsistent. However, if a particular conduct is to be described as a breach of good faith due to the presence of a reliance, then this conduct must be simultaneously defined as inconsistent.52 From the foregoing it can be briefly summarised that the principle of good faith provides the most suitable doctrinal basis for the doctrine of estoppel and that it is necessary to distinguish between good faith and the prohibition against inconsistent conduct (which draws on aspects of good faith for its own validity) by looking to the reliance criterion. The Contractual Theory The contractual theory is based on the premise that the representations made by two parties may be viewed as an informal contract and can, thus, have a reciprocal binding effect upon the parties which made the utterances. This premise is based on the ‘reliance theory of contract,’53 ie the promiser (or party which made the representation) is compelled to adhere to their promise. Denmark made arguments to this end in the Eastern Greenland case, namely, that the reciprocity of the performances promised gave rise to a bilateral obligation. The reciprocal nature of the transaction arose from the Danish readiness to recognise Norwegian sovereignty over Spitzbergen and the statement made in return by the Norwegian Foreign Minister recognising Denmark’s claim to Eastern Greenland.54 The Danish submission was that two independent representations were made in the form of diplomatic statements and that a favourable Danish response in regard to the Spitzbergen issue was a conditio sine qua non for the Norwegian agreement in respect of the Danish claims. The Permanent Court of International Justice, however, did its utmost to avoid reaching the conclusion that an informal treaty was concluded by virtue of the representations made. In so doing, the Permanent Court directed the focus of the decision towards the unilateral nature of the declaration:

51   McNair ‘The Legality of the Occupation of the Ruhr’ (1924) 5 British Yearbook of International Law 17, 35. 52   Tinoco Arbitration (1924) 18 AJIL 155; Costa Rica Packet Arbitration, Report of the Law Officer to the Foreign Office, 15 August 1984: Netherlands; quoted in MacGibbon ‘Estoppel in International Law’ (1958) 7 International & Comparative Law Quarterly 468, 489. 53  Rubin ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American Journal of International Law 21. 54  The exact nature of the statement is as follows: ‘Denmark, having no special interest at stake in Spitzbergen, would raise no objections to Norway’s claim upon that Archipelago. [. . .] [Denmark] would not encounter any difficulties on the part of the Norwegian Government.’ Legal Status of Eastern Greenland (Denmark v Norway) 1933 PCIJ (ser A/B) No 53, 36.

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The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.55

Nevertheless the dissenting opinion of Judge Anzilotti is worthy of mention by virtue of his assertion that an informal treaty was created by the Foreign Minister’s declaration. Judge Anzilotti saw a clear connection between the Danish conduct regarding Spitzbergen and the position that Denmark requested Norway to adopt in the matter of Eastern Greenland: ‘The outcome of all this is therefore an agreement, concluded between the Danish Minister at Christiana, on behalf of the Danish Government, and the Norwegian Minister for Foreign Affairs, on behalf of the Norwegian Government, by means of purely verbal declarations.’56 The contractual theory, it should be noted, has not found widespread acceptance and cannot truly be described as an estoppel stricto sensu. Ignoring for a moment the significant difficulties surrounding the issue of the binding nature of individual representations of a promissory nature in international law,57 principles of estoppel would not play as important a role as principles of treaty law, where pacta sunt servanda enjoys primacy. What is more, the fact that there is a single dissenting opinion only, which has since found no great amount of international acceptance, indicates a lack of adherence by States and lacks a satisfactory theoretical basis for the doctrine of estoppel. Having described the doctrinal basis it now remains to examine the legal basis of the doctrine within the legal order of international law. creation of estoppel in international law As already mentioned, the doctrine of estoppel requires that one party, in reliance on the assurance(s) or implied behaviour of another party, is induced to act in a manner that can be described as legally relevant. According to classic estoppel thinking, this act must be adequate so as to result in a damage being caused to the party, which placed its trust in the representation made.58 Described in this manner, the doctrine of estoppel in international law is not that removed from the traditional forms of the same doctrine known to the Anglo-American legal system such as estoppel in pais, estoppel by record, estoppel by silence, etc in that there are three requirements, which must be fulfilled in order to result in the doctrine taking effect: a conduct, which can manifest itself in many forms, a reliance thereon and a detriment.59 An initial embouchure to this was provided in the Serbian Loans decision handed down by the Permanent Court of International Justice in 1929. In that instance the French proprietors of debentures sought to enforce their rights to payment in gold in respect of the respective state-issued loans. The Kingdom of Serbs, Croats and Slovenes wished to continue to make payments in francs, as was the accepted practice over many years. The latter argued that the debenture holders were as a consequence of their conduct for many years no longer   Ibid 71.   Ibid 91 (Emphasis added). 57   Fiedler ‘Zur Verbindlichkeit Einseitiger Versprechen Im Völkerrecht’ (1976) 19 German Yearbook of International Law, 35. 58  Müller, Vertrauensschutz im Völkerrecht (1971) 10. 59   Bowett, ‘Estoppel Before International Tribunals and Its Relation to Acquiesence’ (1957) 33 British Yearbook of International Law 176, 188; Chan ‘Acquiesence/Estoppel in International Boundaries: Temple of Preah Vihear Revisited’ (2004) 3 Chinese Journal of International Law 421, 425 et seq. 55 56



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in a position to demand payment exclusively in gold, that is they were ‘estopped’.60 The Court decided that, in any case, estoppel was not applicable; however, the result in this particular case is not of primary concern here. What is rather more interesting is that the Court not only expressly recognised the existence of the doctrine at international law but also provided a list of the requirements thereof. The PCIJ explicated the necessity of a ‘clear and unequivocal representation’ vis-à-vis the other party ‘upon which the debtor State was entitled to rely and in fact did rely’. The Court went on to further stipulate that the interests of the party in reliance must have been prejudiced to the extent that there was a ‘change in position on the part of the debtor State.’61 As mentioned in the previous paragraph, it is somewhat trite to state that the Common Law recognises certain forms of estoppel. Each form was developed along a different dogmatic and pragmatic basis and the various estoppels present in the Common Law have ‘different theoretical moorings that apply in vastly different circumstances.’62 However, it is submitted that the development of estoppel in international law has not been as consequent as at Common Law, nor does there exist the common international desire to create several relatively strict, well-defined categories of estoppel. As such, while one is absolutely required to take cognisance of the various forms of estoppel provided for in the Common Law legal systems, it is not realistic to attempt to construe estoppel as it is found to exist in international law in an identical light. For example, Brown writes that an understanding of the policy basis of the various estoppel doctrines is essential for the determination of the breadth of the application of that theory at Common Law.63 This is not necessarily the case in international law. An estoppel at Common Law created by the acquiescence of one party requires fault by one party in failing to act in order to protect a legal right64 whereas classic promissory estoppel is based upon the concept of protection of the reasonable reliance placed by one party in the conduct or representations made by another party. These terms have a dogmatic and an important historical basis. Notwithstanding this, it would be too simplistic to suggest that these are the only bases for estoppel in international law. The fundament of estoppel caused by the silence of one party can equally be the protection of the reasonable reliance created in the mind of the other party, fault must not necessarily play a role.65 Indeed, this was the view of the Permanent Court of Arbitration in the Grisbadarna Arbitration. In the view of the Permanent Court of Arbitration, Sweden’s reliance upon the Norwegian silence, which led to the installation of expensive infrastructures, gave rise to an estoppel which precluded Norway from claiming title over the disputed territory.66 This has been reiterated on several occasions by eminent legal scholars, perhaps best by Lauterpacht: 60   Case Concerning Serbian Loans Issued in France (France v Kingdom of Serbs, Croats and Slovenes) 1929 PCIJ (ser A/B) No 20/21, 11. 61  Ibid. 62   Brown ‘Comparative and Critical Assessment of Estoppel in International Law’ (1996) 50 University of Miami Law Review 369, 371. 63   Ibid, 382. 64  Bower/Turner, The Law Relating to Estoppel by Representation (Haywards Heath, Tottel, 2003) 265. 65  Müller, Vertrauensschutz im Völkerrecht above n 2, 1; O’Connor, Good Faith in International Law above n 4. 66   Decision of the Permanent Court of Arbitration in the Matter of the Maritime Boundary Dispute between Norway and Sweden (1910) 4 AJIL 226–227 and 223–235; Antunes and Bradley, Estoppel, Acquiescence and Recognition in Territorial and Boundary Dispute (University of Durham, International Boundaries Research Unit 2000) 8.

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The far-reaching effect of the failure to protest is not a mere artificiality of the law. It is an essential requirement of stability . . . ; and it is in accordance with equity inasmuch as it protects a State from the contingency of incurring responsibilities and expense in reliance on the apparent acquiescence of others, and being subsequently confronted with a challenge on the part of those very States.67

This clearly illustrates that the bases of the doctrine differ from those at Common Law. In the following, the individual requirements necessary to create an estoppel in international law will be dealt with in sequence.

requirements of estoppel Representation Any claim which a party seeks to enforce under the doctrine of estoppel must necessarily be related to the express or implied representation made by another party. It is a fundamental idea of the doctrine that ‘in law a person cannot deny the effect created by his own conduct upon other parties.’68 These representations can indeed be made in a multitude of guises. The peculiarities of these various forms of representations are particularly problematic and, consequently, require further elaboration. With the exception of the fundamental requirements mentioned below there are no strict formal requirements which must be fulfilled in order for a representation to be considered as the basis for an estoppel. Within the context of this chapter, the term ‘representation’ is to be understood as any act or deed which has the capacity to express the intention or position of a party and upon which another party, acting under an objective appraisal of the act or deed, can reasonably be entitled to rely. This definition would include, for example, a declaration made within the scope of diplomatic exchanges regarding the particular course of action which a State intends to take in respect of a particular legal question. It is submitted that the excessive categorisation, which has previously dominated the development of the doctrine of estoppel, can be largely abandoned and replaced with the concept of an estoppel by representation, where the definition of a representation is to be broadly interpreted. Detractors may argue that a broad definition of the term representation would lead to a flood of potential estoppel claims. This would not, however, be the case as there are still a number of not inconsiderable hurdles to overcome before an estoppel can be successfully pleaded, as evidenced below. As the first type of representations capable of providing a foundation for an estoppel it appears reasonable to assert that a promise at public international law could have a binding effect if a sufficient intention to be bound is concurrently present. Such a promissory estoppel is certainly recognised in Anglo-American law.69 This is clear from

67   Lauterpacht, ‘Sovereignty over Submarine Areas’ (1950) 27 British Year Book of International Law 415; Müller, Vertrauensschutz in Völkerrect, n2 above, 42; Barale, ‘L’acquiescement dans la jurisprudence internationale’ (1965) 12 Annuaire Francais de Droit International 390. 68  Friedmann, Legal Theory, 522 (emphasis added). 69   For example: Truck and Machinery Sales Ltd v Marubeni Komatsu Ltd [1996] 1 IR 12 per Keane J; Sohio Petroleum Co v Weyburn Security Co Ltd [1971] SCR 81 (www.canlii.org/en/ca/scc/doc/1970/1970canlii137/ 1970canlii137.html); John Burrows Ltd v Subsurface Surveys Ltd [1968] SCR 607, 614–15 (http://www.canlii. org/en/ca/scc/doc/1968/1968canlii81/1968canlii81.html).

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the famous English decision, Central London Property Trust Ltd v High Trees House Ltd 70 where it was confirmed that an estoppel can be formed when there exists: A promise . . . which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact so acted on. In such cases the courts have said that the promise must be honoured.71

Nevertheless, due to the indefinite role of a promise made in international law, this form of estoppel remains utterly divisive and contentious. Of particular interest in this respect is the close connection visible between a promise as such and a unilateral declaration. A unilateral declaration may be defined as follows: ‘une seule manifestation de volonté, c’est-á-dire d’une manifestation de volonté d’un seul sujet de droit.’72 The essential issue in respect of both promises and unilateral declarations is the same, namely, whether the promise or declaration ought to be seen purely as an expression of the variable political perception of a party or, whether it ought to be deemed as binding upon the party making the statement. The contentious source of the unilateral declaration must be briefly commented before any further examination of its exact content can be undertaken. The classification of unilateral declarations within one of the accepted sources of international law in accordance with Art 38 of the Statute of the International Court of Justice is not without its problems as Art 38 contains no mention of this type of declarations. A lack of State practice precludes any determination as customary international law as pointed out in the jurisprudence of the Permanent Court of International Justice.73 It is plausible that they belong to the general principles of law as many legal systems recognise the principle of an act of a unilateral nature potentially giving rise to a binding effect. Rubin has said that: Every legally significant act in a legal system that posits individual legal personality is, in a sense, unilateral. Thus, in most if not all legal systems that have a concept of contract, the contractual tie is created by the law giving legal value to various acts of the several parties to the transaction.74

It is, however, difficult to suggest that there is such a general consistency in the individual legal orders of the world, which could be said to be sufficient to construct a general principle of international law.75 Briefly summarised, a small minority of academic   [1947] 1 KB 130.   Ibid, 134 per Denning J. 72  Suy, Les actes juridiques unilatéraux en droit international public (Paris, 1962) 35; Nuclear Tests Case (Australia v France) ICJ 20 Dec 1974, 270. See also: Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, Yearbook of the International Law Commission, 2006, vol II, Part two, 370, also available at: untreaty.un.org/ilc/texts/instruments/english/commentaries/9_9_2006. pdf: ‘Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected.’ 73   The Legal Status of Eastern Greenland (Denmark v Norway) 1933 PCIJ (ser A/B) No 53. 74  Rubin ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American Journal of International Law 1, 8. 75   Certain legal orders proceed on the basis of the binding nature of a promise from the moment in which it was made, eg the German civil law (§ 145 BGB). The French Civil Code requires a causa, whereas the English common-law applies the doctrine of consideration. Thus, utterly different bases exist. 70 71

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opinion advances the view that Art 38 of the ICJ-Statute contains an exhaustive list of the sources of international law,76 a supposition which cannot be supported by the literal wording of the Article itself. What is clear is that the nature of international law itself allows for a modification of the content of Art 38 by contractual or customary methods, ie further sources of law are possible, as long as they based upon amicable agreement.77 This reflects the fundamental structural norm of the international legal order, sovereignty, which allows for States to act freely so as to bind themselves however they so wish. Therefore, it is submitted that unilateral declarations make up their own legal source sui generis. Finally, the issue of whether the declaration has a binding effect remains to be examined. Without doubt the most important case in the progression of this matter is the decision in the Nuclear Tests cases. This represents the first time that a declaration (or in this case several declarations) were afforded a binding effect without the declaration being made under any special set of circumstances such as during a process of negotiations.78 The International Court of Justice found that the declarations made by France in respect of protests by New Zealand and Australia against a series of nuclear tests in the South Pacific Ocean were binding on the French and this led to the consequence that the claims of Australia and New Zealand were no longer admissible as ‘the objective of the Applicants has in effect been accomplished, inasmuch as the Court finds that France has undertaken the obligation to hold no further [tests].’79 Nonetheless, the Court made several interesting observations obiter dictu. In total, six declarations were made, which could potentially be considered as unilateral declarations. The two most important were, first, a statement by the President of the French Republic at a press conference in which he declared that the round of tests that had just been completed was to be the last and, second, a further statement by the Minister for Defence that there would be no further testing given again in the setting of a press conference. The Court put considerable weight on these particular statements as they, in contrast to all other statements made in this matter, were not qualified by the phrase ‘in the normal course of events.’ Thus, the International Court determined that: [D]eclarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligation. Declaration of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking the State being thenceforth legally required to follow a course of conduct consistent with the declaration. [. . .] Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration.80

The Court supported its decision on two factors, the intention of the State and good faith. It is extremely doubtful that the nature of the declarations made lend themselves to an external intention to be bound. The only diplomatic communication delivered was carefully formulated and from a purely grammatical point of view was written in the  Bos, Methodology of International Law (Amsterdam, Elsevier, 1984) 88.   Vitzthum in Graf Vitzthum (ed), Völkerrecht (Berlin, de Gruyter, 2007) 72.  Rubin ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American Journal of International Law 1, 7. 79   Nuclear Tests Case (Australia v France) ICJ 20 Dec 1974, 270. 80   Ibid, 267–68. 76 77 78



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future tense, seeming to indicate no intention of a desire to be bound. The manner by which the International Court read a desire to be bound into any of the statements is not readily apparent. Moreover, it is questionable to state as a rule of law that a politician can irrevocably bind his State by making an utterance in a press conference. That a State may be bound by expressions of intention made by, for example, ministers of State with the requisite competences is clear, however, the binding nature of such a declaration cannot be based on the mere fact of the utterance itself81 and where the scope of the obligation created is unclear, a restrictive interpretation must be applied.82 In addition, France expressly rejected the theory that it is possible to be bound on the basis of a unilateral declaration. This is in unison with the conclusion which can be drawn from the North Sea Continental Shelf cases where it was said that (with the exception of customary international law) a rule of international law can only be applied against a State after that State has given its consent to being bound by such a rule.83 It is clear from the French statements that they intended not to be bound to anything more than a self-imposed period of abstinence from atmospheric testing. Placing the binding effect of unilateral declarations partially within the realm of the intention to be bound and partially with the doctrine of good faith is a further indication of the hidden uncertainty regarding the dogmatic reasoning for their binding nature in the first place. ‘It would appear that the ICJ has found a new rule of international law saddling a state with apparently irrevocable treaty-like commitments erga omnes, arising out of public unilateral declarations with a presumed intention to be bound and nothing more.’84 Thus, the confusion that reigns in respect of unilateral declarations is apparent. By way of remedy it is once again submitted that the application of estoppel could serve to bring increased clarity to this conundrum. Were one to view the unilateral declaration as a representation capable of creating an estoppel by virtue of the reliance placed in it, as opposed to viewing it as a distinct category of unilateral act sui generis, potential injustices arising from the reliance thereupon could be avoided. ‘But if reliance is not a necessary ingredient, any intended unilateral promise becomes irrevocable even though its maker seeks to repudiate it before any state has taken it up.’85 It is submitted that the unilateral declaration is not suitable to create binding legal obligations and it is better viewed, not as an independent form of act with general legal consequences, rather it can better be assigned to the category of a representation with the potential to create legal obligations as by way of an estoppel. Consequently, estoppel based on a simple, widely defined representation would remove dogmatic uncertainty as to the rationale for the doctrine relating to unilateral declarations and it would remove potential difficulties regarding the differentiation between promises and unilateral declarations. 81   Guiding Principle 4 of the International Law Commission on unilateral declarations of State (note 70) clearly provides heads of States, heads of Government and ministers for foreign affairs with the competence to formulate such declarations. Other persons may bind the State but only where they have the competence to do so. See also, Case concerning Armed Activities on the Territory of the Congo (New Application, 2002) (Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006, Jurisdiction of the Court and Admissibility of the Application, para 46. 82   See Guiding Principle 7 (see note 70); Nuclear Tests (Australia v France; New Zealand v France), ICJ Reports 20 Dec 1974, 267, para 44, and para 47, 472 and 473. 83   North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark/The Netherlands) ICJ 20 Feb 1969, 25. 84  Rubin ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American Journal of International Law, 1, 28. 85   Franck ‘Word Made Law: The Decision of the ICJ in the Nuclear Tests Case’ (1975) 19 American Journal of International Law, 612, 619 (emphasis added).

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Second, a consistent conduct over a long period of time by a party has been recognised as being akin to a representation which is capable of creating an estoppel: in the parlance of the Anglo-American legal order, a so-called estoppel by conduct. This was the constellation presented before the ICJ in the North Sea Continental Shelf case in which the Court was charged with deciding whether the Federal Republic of Germany was bound to accept the applicability of the equidistance method embodied in Art 6 of the Geneva Convention on the Continental Shelf of 1958 as a result of the lengthy acceptance, or rather lack of demur, on the part of Germany despite the fact that Germany had not ratified the aforementioned Convention. While this case is most widely known for its treatment of customary law, the Court also made several remarks relevant to the doctrine of estoppel.86 The Court confirmed that a long period of consequent conduct will lead to the possibility of an estoppel being created if a State has, by its continuous and unequivocal conduct, engendered the impression that it has accepted the state of events. Although the Court ultimately rejected the possibility of Germany being estopped,87 the Court confirmed that it is possible for a party to become bound “by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; [. . .].”88 What is, moreover, worthy of mention in this case was the reference by the International Court to two further elements enunciated as requirements for an estoppel: first, a detrimental change in position, which was, second, caused as a result of the reliance placed on such conduct or representations. Finally, a particularly thorny issue in deciding on the nature of the representations possibly giving rise to an estoppel is the question regarding the importance to be afforded to a qualified silence. Acquiescence in this instance refers to a silence in which a ‘passive position [of one party] cannot be otherwise understood except as a silent acceptance when interpreted in accordance with good faith.’89 It is often stated in both jurisprudence and literature that the silence simpliciter (or failure to voice concern) by a party over a long period of time can lead to a situation where the silence acts as a quasi-estoppel. The French author Witenberg has expressed this view as have MacGibbon as well as Schwarzenberger who states most clearly that ‘an acquiescence produces an estoppel.’90 The International Court of Justice occupied itself with this matter and made indirect reference to acquiescence as an estoppel in the AngloNorwegian Fisheries case, when the Court referred to a ‘prolonged abstention’91 on the part of Great Britain. There are, nonetheless, considerable differences between estoppel and acquiescence. Silence simpliciter, ie complete inaction without any utterance whatsoever, does not lead to an estoppel, whereas silence, usually over a longer period of time, can lead to the invocation of the doctrine of estoppel where it has the capacity to reflect the intention of the silent party, which can be reasonably relied upon and can thus be classified as a representation. Despite initial indications   North Sea Continental Shelf Cases above n 26.   Ibid 26–27. 88   Ibid 25 (emphasis added). 89  Müller, Vertrauensschutz im Völkerrecht above n 2, 38 (author’s translation). 90   MacGibbon, ‘Estoppel in International Law’ (1958) International and Comparative Law Quarterly 7, 468, 502; Compare: Witenberg, ‘L’Estoppel: un aspect du probléme des créances américaines’ (1933) 60 Journal du Droit International 529, 537–38; Schwarzenberger, ‘The Fundamental Principles of International Law’ (1955) 87 Hague Recueil 195, 256. 91   Anglo-Norwegian Fisheries Case (United Kingdom v Norway) ICJ 18 Dec 1951, 130. 86 87



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in the case-law of international courts and tribunals to the contrary it would appear now that silence in respect of a matter will only end in an estoppel under certain circumstances. The International Court of Justice in the Gulf of Maine case rejected the Canadian claim because ‘any attempt to attribute to such silence, a brief silence at that, legal consequences taking the concrete form of an estoppel, seems to be going too far.’92 The Court recognised the obvious difficulties in constructing an estoppel that arises from the mere failure to mention a matter. Considered in light of the foregoing, viewing silence as a representation which can then give rise to an estoppel seems a reasonable solution, which would ensure effective legal certainty. Due to the factual situation of acquiescence usually over an extended period of time during which the normal relations between the subjects of international law continues, the plain silence is often connected with a clear, positive sign of tolerance or even acceptance which is best viewed as the sum of all parts, thus, expressing the legal recognition of a position from which a party ought not be able to shrink providing the other prerequisites are fulfilled. The Grisbadarna Arbitration, where the Hague Tribunal awarded Sweden the Grisbadarna region in view of the fact that Sweden had performed various acts, such as the installation of a series of light-boats, acting under the conviction that the disputed territory was Swedish provides an example of an application of this supposition.93 Sweden carried out the acts in question “without meeting any protest and even at the initiative of Norway, [. . .] without giving rise to any protests”94 and the Norwegian silence on the issue was accepted by the Tribunal as corresponding to legal recognition of Sweden’s territorial claims, which Norway could not later attempt to challenge. It must, nonetheless, be emphasised that silence as a representation does not eo ipso result in an estoppel; the other requirements must also be fulfilled. Voluntariness In order to constitute an estoppel, the party against whom the estoppel is pleaded must have voluntarily undertaken a representative act. Thus, in the event that a party had acted under duress or where the party was fraudulently induced to make to representation it is impossible for a valid estoppel to be formed. The voluntariness requirement received express mention in the Serbian Loans case.95 A little more than 30 years later, the International Court of Justice, however, seemed to disregard this requirement or, at least, afford it little attention in its decision concerning the Temple of Preah Vihear case in which the Court held that Thailand, by its silence, was now estopped from enforcing any claims in respect of the disputed territory. It is questionable whether the qualified silence on the part of the Siamese, and later Thai, State which was so readily accepted by the majority of the Court as being voluntary could really, upon closer inspection of the entire circumstances, be said to have been made voluntarily. The reasoning of the Court points particularly to the failure by Thailand to protest against, 92   Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America) ICJ 12 Oct 1984, 308. 93   Decision of the Permanent Court of Arbitration in the Matter of the Maritime Boundary Dispute between Norway and Sweden (1910) 4 AJIL 234; Lauterpacht, Private Law Sources and Analogies of International Law, n 2 above. 94   Decision of the Permanent Court of Arbitration in the Matter of the Maritime Boundary Dispute between Norway and Sweden (1910) 4 AJIL 234. 95   Case Concerning Serbian Loans Issued in France (France v Kingdom of Serbs, Croats and Slovenes) 1929 PCIJ (ser A/B) No 20/21, 39.

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inter alia, the use of a certain set of maps and the raising of the French (as the occupying colonial power of Cambodia) flag during a visit from a Thai prince. The Court concludes that these acts amount ‘to a tacit recognition by Siam of the sovereignty of Cambodia over Preah Vihear, through a failure to react in any way, on an occasion that called for a reaction.’96 However, a number of factors were not considered by the Court. First, the visit of the Thai prince was without any endorsement on the part of the Thai State and, as such, cannot be deemed to have contained any acceptance or rejection, tacit or otherwise, of Cambodian sovereignty. Second, the dissenting opinion of Judge Wellington Koo put considerable emphasis on the evidence presented that the prince had requested a French officer to ‘get out of his uniform’ and that the wearing of same uniform was ‘impudent’. That the prince did not make a protest at this display of French colonial power is not surprising given the French position as a colonial power. As becomes apparent from the statements in Judge Wellington Koo’s opinion, Siam found itself unable to respond appropriately to the French position of power. This he referred to as ‘the common experience of most Asiatic States in their intercourse with the Occidental Powers during this period of colonial expansion.’97 Consequently, the voluntary nature of the silence of the Siamese State, which gave rise to the alleged estoppel is certainly questionable. Moreover, the Court rather briefly and somewhat unsatisfactorily dismissed the exercise by Thai authorities of local administrative acts in the disputed area. The Court stated that it is difficult to ‘regard such local acts as overriding and negativing the consistent and undeviating attitude of the central Siamese authorities to the frontier line’.98 The Court was, however, prepared to place considerable emphasis on the mere declaration of sovereignty contained in the act of raising a flag, yet it failed to take cognisance of the overwhelming exercise of sovereignty by Siam. It is a widely accepted principle that an ‘immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation.’99 Despite the obvious difficulties that this decision presents it cannot be said to represent a move away from the voluntariness requirement, an assertion which seems to be supported by a multitude of judicial and arbitral decisions.100 Unconditional For a statement to be capable of creating estoppel, the representative conduct of that State must be carried out unconditionally. If a representation is made under conditions or with provisos, eg as part of a series of ongoing negotiations with a view to finding a common solution which is not realised or, if it is, made subject to the fulfilment of other conditions then an estoppel cannot be created.101   Temple of Preah Vihear above n 9.   Temple of Preah Vihear above n 9, Dissenting Opinion of Judge Wellington Koo. 98   Ibid, 30. 99   Clipperton Island Arbitration (France v Mexico) (1932) 26 AJIL 390, 393; Chan, ‘Acquiesence/Estoppel in International Boundaries: Temple of Preah Vihear Revisited’ (2004) 3 Chinese Journal of International Law 421, 432. 100  For example: Salvador Commercial Company Case, United States Foreign Relations (1902) 862; Bowett, ‘Estoppel before International Tribunals and its Relation to Acquiesence’ (1957) 33 British Year Book of International Law 176, 190. 101   Advisory Opinion on the European Commission of the Danube, 1927 PCIJ (ser B) No 14, 6; Bowett, ‘Estoppel before International Tribunals and its Relation to Acquiesence’ (1957) 33 British Year Book of International Law 176, 191. 96 97

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Authority As a final requirement in the creation of estoppel, representations can only be said to have potentially binding effect if they are made with an express or implicit authority. The particular status of the individual who made the statement or representation is then of crucial importance. It is perhaps of some assistance in understanding the purpose of this requirement to refer to the terms of Article 7 of the Vienna Convention on the Law of Treaties, which stipulates the conditions under which certain persons are empowered to bind their respective States.102 Similarly with regard to a statement creating an estoppel the representation must have been made within the scope of authority of the person concerned. The reference to Art 7 is particularly apt when one considers the second section of that provision. Section 2 provides a list of persons automatically entitled to act with full powers, including heads of State, heads of Government and foreign ministers. Many of those persons recognised as having full powers in accordance with Art 7(2) VCLT have, indeed, already been recognised as being so empowered by international courts. In the Eastern Greenland case the Permanent Court deemed the representations of the Norwegian Foreign Minister to be binding for the Norwegian State. In the Nuclear Tests case the International Court of Justice, without expressly making reference to the Vienna Convention on the Law of Treaties provided a similar list of persons deemed to have the authority to make statements, such as to result in their State being bound, eg Heads of State and the Heads of Diplomatic Missions.103 Detriment Estoppel can be said to have an effect only if the party which made the representation has gained an advantage or, in the alternative, the party who sought to rely upon the representation has suffered a detriment by virtue of the subsequent inconsistent conduct. This was made clear in the Temple of Preah Vihear case in the separate opinion of Judge Fitzmaurice when he stated that ‘[t]hese statements, or this conduct, must have brought about a change in the relative positions of the parties, worsening that of the one, or improving that of the other, or both.’104 The existence of such a criterion has been doubted, however, with the reasoning being that it is not prudent to simply transpose the elements of the national legal orders into the legal order prevalent at international law.105 Reliance is placed on the Eastern Greenland case in which the Permanent Court referred to Norway being debarred despite Denmark not having acted upon the Norwegian representations to its detriment. This proposition that this is estoppel by any other name can nonetheless not be said to be particularly convincing. Foremost, the essence of estoppel is to protect those who suffered as a result of the inconsistent actions of others.106 If a detriment cannot be shown to have arisen, then no hardship resulted from the lack of consistency and, thus, there is necessity to apply the protection of estoppel. Moreover, this view has subsequently been rejected, at least implicitly, by the International Court of Justice where the Court has drawn attention

  Kovacs in Corten/Klein (ed), Les conventions de Vienne sur le droit des traités, 196 et seq.   Nuclear Tests Case above n 80.   Temple of Preah Vihear above n 9, Separate Opinion of Judge Fitzmaurice. 105  McNair, The Law of Treaties (1961) 487. 106  Wagner, ‘Jurisdiction by Estoppel in the International Court of Justice’ (1986) 74 California Law Review, 1777. 102 103 104

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to the detriment requirement.107 As such, the existence of a detriment is not an artificial element, which simply materialises as a foreign body within the doctrine, rather this requirement provides the very reason for the necessity and the particular validity of the protection of the expectation previously formed and is, therefore, central to the ability of a party to be able to rely on the doctrine of estoppel. That this issue has not been subject to rigorous scrutiny is not disputed and the question, thus, persists; to what extent must the parties have suffered a detriment so as to be sufficient to fulfil the criteria necessary to lead to the creation of an estoppel? Stated quite clearly, must a party have suffered a material economic disadvantage, or is it sufficient for a party to have merely altered its legal position? This relative deterioration of the legal position of the affected party or improvement of the legal position of the other party has interestingly been described as ‘the “consideration’, to use an English term of contract law, which binds the parties.’108 Without specifically applying the altogether too technical consideration concept directly to the problems presented in respect of the detrimental element of the doctrine of estoppel in international law, the employment of some of the characteristics of ‘consideration’ opens up the possibility of an elucidation of the detrimental element of the doctrine of estoppel to the benefit of the comprehension of the doctrine itself. Consideration is a doctrine based in Anglo-American contract law with the purpose of binding a party to the declaration of intent previously made by that party. It is defined by Pollock as an ‘act or forebearance of the one party, or the promise thereof, [which] is the price for which the other is bought, and the promise thus given for value is enforceable.’109 This definition is, in turn, based on the decision handed down by the English Exchequer Chamber wherein a good consideration was described as consisting of ‘some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other.’110 It becomes apparent from the foregoing that consideration operates so as to restrict the enforceability of an agreement or course of conduct, ie an empty promise without any possibility of performance will not be viewed as binding because there is no change in position. The criteria for a detriment in the consideration theory are thus broadly formulated. Somewhat crudely stated, this theory requires any change of the legal position of the affected party with a material legal effect based upon the representation of the other party. The change, be it a benefit for the promiser or a detriment to the promisee, must merely be sufficient, it need not be adequate: this means that there must be some value of the representation made in the eyes of the law, eg the infrastructural investment made in the Grisbadarna Arbitration.111 The application of this theory on cases that have, in the past, proved to be problematic in respect of the element of detriment clearly shows the practicability of the application of consideration.

  For example, North Sea Continental Shelf Cases above n 26.   Bowett, ‘Estoppel before International Tribunals and its Relation to Acquiescence’ (1957) 33 British Year Book of International Law 193. 109  Pollock, Principles of Contract (1921) 177. See also, Odgers, Introduction to the Law of Contracts, 12; Scott/Clauson, Chitty on Contracts (1955) 38. 110   Currie v Misa (1875) LR (1st series). 10 Ex 162. 111   Decision of the Permanent Court of Arbitration in the Matter of the Maritime Boundary Dispute between Norway and Sweden (1910) 4 AJIL 233: ‘The circumstance that Sweden has performed various acts . . ., being acts which involved considerable expense . . .’ 107 108

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In the Temple of Preah Vihear case Thailand carried out acts, primarily of an administrative nature, on the disputed territory, which seem to suggest Thai sovereignty, yet ‘at no time did the French Government lodge any protest against these activities by Siam.’112 Likewise in the Minquiers Case the French authorities failed to react to the administration and payment out of the Exchequer of the United Kingdom in respect of certain maintenance expenses.113 In both instances the governing power gained an advantage and the other party altered its position, in the first instance by virtue of the stationing of Thai troops in the area surrounding the temple and in the second instance by the payment of administrative costs. The focus on the ‘consideration’ criterion thus shifts the focus away from an observance of the detriment per se and places the emphasis upon the interests of the parties. Not only is this approach in accordance with the opinion advanced by Judge Fitzmaurice in the Temple of Preah Vihear case but it also allows for an appropriate and more readily definable application of the conventional detriment. This should, properly applied, result in greater legal certainty. Consequence of Estoppel Aside from the obvious consequence resulting from the application of estoppel, namely that the party which is estopped can no longer assert a certain right or seek to enforce a particular obligation, one further issue remains to be discussed: Can estoppel result in the international responsibility of the State which caused it? The ILC Articles on State Responsibility affirm the principle of customary international law that every internationally wrongful act of a State entails the responsibility of that State, thereby giving rise to international legal relations additional to those which existed before the act took place.114 The decisive criterion in deciding whether an act or an omission by a party is internationally wrongful is whether there is a breach of an international obligation. The concept of a breach of an international obligation is often equated with conduct, ie acts or omissions, contrary to the rights of others.115 In principle, no distinction is made between acts or omissions for the purpose of establishing international responsibility.116 Thus, a breach of an international obligation and hence an internationally wrongful act could result from a positive act or a failure to act, ie by conduct or by mere silence; both relevant factors in the creation of an estoppel. However, in order for international responsibility to occur, there must be a pre-existing obligation on a State117 and the conduct of the State set to incur responsibility must be wrongful. It is possible for a State to act or fail to act in a particular manner, thereby creating estoppel, without that particular act being wrongful. Consequently, State responsibility may occur parallel with estoppel, but this does not necessarily have to be the case. Moreover, it is worthy of bearing the bases of estoppel and the regime of State responsibility in mind. The ILC Articles foresee reparations and countermeasures as   Chan ‘Acquiesence/Estoppel’ above n 58, 421, 427.   Minquiers and Ecrehos (France v United Kingdom) ICJ 17 Nov 1953, 47. 114   Art 1, ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess, suppl 10, 43 et seq. 115   Phosphates in Morocco, Preliminary Objections 1938 PCIJ (Series A/B) No 74, 10, 28. 116  Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002) 82. 117   Art 13, ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess, suppl 10, 43 et seq. 112 113

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the remedies to acts which have already been carried out.118 Estoppel on the other hand seeks to act as the proverbial shield rather than sword so as to protect the innocent party from the detrimental consequences of reliance on the actions of another party. Therefore, the international regime of State responsibility cannot be simply equated with the doctrine of estoppel due to their divergent doctrinal justification.

conclusion Estoppel, having not been created, rather merely developed by the International Court of Justice (and its predecessor) in a somewhat disjointed manner in numerous decisions, has often been confronted with the assertion that it lacks the certainty and precision required for it to be applied as a useful tool in the formation of legal relationships into which parties are capable of placing reliance. It has been shown that this uncertainty has, in the past, partly been caused by the tendency of both practitioners and theorists to overcomplicate this doctrine. Strict adherence to the estoppel principles provided for by the Common Law leads to excessive categorisation and the ‘crowbarring’ of international estoppel into unsuitable categories. Nonetheless, this general principle of international law has been shown to possess a number of key elements required in order for it to take effect, inter alia, a statement made by one international actor, reliance placed on that statement by another and detriment to the party which had relied on the initial statement. This chapter has argued for a simplification of the doctrine by creating a single category of estoppel by ‘representation’ where the term representation is offered a broad interpretation with the intention of potentially bringing as many types of statements, conduct and action under the umbrella of estoppel as is necessary. In order to balance this broad understanding of a representation, this chapter asserts that international courts would do well to consider a more systematic approach to the remaining criteria, which must be fulfilled to result in estoppel being created. Particular emphasis must be placed on the detrimental nature of the reliance placed in any representation. The doctrine of estoppel is one of the most powerful instruments in modern international law. The purpose which it seeks to fulfil, ie the protection of a reasonable reliance made in good faith is surely laudable. It is hoped that by following such a methodological approach the efficacy of the doctrine can be ensured and a consequently ensuing legal certainty guaranteed.

118  Arts 31, 34 et seq and 49 et seq, ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess, suppl 10, 43 et seq.

International Law in Ireland 2008 Fiona de Londras university college dublin scho ol of law Throughout 2008 international law and the international legal aspects of various elements of international relations played a limited, but important, role in domestic politico-legal events. The Irish Government repeated its long-standing positions in relation to a number of international legal matters, including Ireland’s obligations relative to extraordinary rendition and the diplomatic assurances received from the United States in relation to the use of Shannon Airport. In addition, the Irish Government clarified its position relating to the responsibility to protect and the US-India Agreement and its impact of the Nuclear Non-Proliferation Treaty. Ireland continued to take a leading role in the international efforts to ban the use of cluster munitions including hosting a Diplomatic Conference in May 2008 that resulted in the drafting of the Cluster Munitions Convention, which was incorporated into domestic law by means of the Cluster Munitions and Anti-Personnel Mines Act 2008. 2008 also saw the release of the Department of Foreign Affairs Statement of Strategy 2008–11.

international terrorism Throughout the year, the Government made a number of statements about the measures taken by the United States in the course of the ‘Global War on Terrorism’ and, where applicable, about any involvement that Ireland might have in these measures. As regards the detention centre in Guantánamo Bay, the Government expressed the view that this ought to be closed as soon as possible and that all those detained there should be either released or brought to trial in accordance with what the Minister for Foreign Affairs described as ‘established legal norms’.1 The Irish Government repeated its long-standing view that the practice of extraordinary rendition is illegal under international and domestic law.2 In relation to the use by the United States of Shannon Airport and ongoing suspicions that this may implicate Ireland in the process of extraordinary rendition, the Minister for Foreign Affairs originally reiterated the Government’s position that Ireland has received assurances from the United States that no prisoners are or have been rendered through Irish airport and that this would not happen without the permission of the Irish government. The Minister stated that ‘[t]he assurances are of a clear and categorical nature, relating to   Minister for Foreign Affairs, Dáil Debates, 8 May 2008, Column 950.   See, for example, Minister for Foreign Affairs, Dáil Debates, 11 March 2008, Column 852.

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facts and circumstances within the full control of the US Government. They have been confirmed at the highest level, including by President Bush to the Taoiseach [Irish Prime Minister] and by Secretary of State Rice to myself’.3 The Taoiseach also reiterated that Ireland is ‘unequivocally opposed’ to the process of extraordinary rendition and that, based on legal advice made available to the government, the diplomatic assurances received from the United States can be relied upon as a matter of international law. In describing the contents of the assurances, he stated that ‘[t]he assurances given to Ireland and confirmed at the highest level are of a particular clarity and comprehensiveness. They state unequivocally that no prisoners have been subject to extraordinary rendition through Ireland, nor would they be without our agreement’.4 The Taoiseach also opined – again reiterating the long-standing government position on this matter – that the Garda Síochána [the police force of Ireland] has sufficient powers to investigate any allegations made and to carry out searches of aircraft should there be a reasonable suspicion that it is involved in extraordinary rendition.5 In November 2008 the Minister for Foreign Affairs informed the Dáil [the lower house of the parliament of Ireland] that the Government had established a Cabinet Committee on Aspects of International Human Rights, which reviewed inter alia Ireland’s position relating to extraordinary rendition and the diplomatic assurances received. The Committee agreed that early contact ought to be made with the Administration of President Obama to seek a clear statement of intent that extraordinary rendition would cease and would not resume during the new President’s term of office. In addition, the Foreign Minister, Michael Martin TD confirmed that the Irish Government was seeking commitments relating to closure of Guantanamo Bay and to the prohibition of intensive interrogation techniques such as waterboarding. He also noted that the Committee would be reviewing current statutory powers regarding the search and inspection of aircraft in order to strengthen these provisions if and as necessary.6 The Minister for Foreign Affairs further clarified the nature of commitments being sought from the Obama Administration on 6 November 2008, when he stated that ‘while we have no reason to doubt the existing assurances in respect of the use of Irish airports, what we are looking for is a clear overall policy statement which would commit the new Administration to end the practice of extraordinary rendition wherever it may be occurring’.7 The Minister for Justice, Equality and Law Reform, Dermot Ahern TD further clarified the nature of his Department’s communication with the Garda Síochána in relation to extraordinary rendition on 13 November 2008, stating that: There has been regular communication between me and my Department, acting on my behalf, and the Garda Commissioner relating to the implementation of the programme’s commitment regarding extraordinary rendition. The Garda Commissioner has assured me that he has sufficient resources to implement the commitment, and that the commitment is being implemented and is kept under constant review so as to reflect best practice. In that context, the Garda Commissioner has requested the Deputy Commissioner, operations, to again review the training and search regime. The Garda remains ready to take whatever action is open to it under the   Ibid. See also Minister for Foreign Affairs, Dáil Debates, 1 May 2008, Columns 621–622.  Taoiseach, Dáil Debates, 28 May 2008, Columns 700–701.  Ibid. 6  Minister for Foreign Affairs, Dáil Debates, 4 November 2008, Column 988. See also Minister for Foreign Affairs, Dáil Debates, 5 November 2008, Column 189. 7   Minister for Foreign Affairs, Dáil Debates, 6 November 2008, Column 460. 3 4 5

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law in relation to any allegations involving extraordinary rendition. I must point out, for the sake of clarity, that we are not talking about military or State aircraft, which enjoy sovereign immunity. The Garda has no role in the inspection of such aircraft. Those powers of search which are available to the Garda at present, and which apply to aircraft as much as to any other type of private property, can only be exercised in accordance with the law, that is, where evidence is available which would justify their use. In practice, this means that the Garda must have reasonable grounds to believe an offence is being or has been committed.8

In relation to random searches and checks of aircraft, the Minister for Justice, Equality and Law Reform confirmed that the Irish government remains committed to seeking any necessary amendments to the Chicago Convention. However, the Minister stated that domestic legislation as it stood did not permit of random searches of aircraft: The Garda cannot check any property, and if it did, it could leave itself open to a claim for damages from the property owner. The Garda can only search a property if it can establish a reasonable suspicion that a crime has been committed, or if there is a bench warrant. Powers are granted to authorised officers under the Air Navigation Acts to board airplanes for specific purposes relating to examination and security. Under the Chicago Convention, airplanes are entitled to enter and leave countries and this right cannot be refused. We are examining the legislation in the context of the Chicago Convention.9

The Irish Government also expressed the view that international human rights and international humanitarian law must be complied with by all countries whose forces are contributing to the international military presence in Afghanistan. This included, the Minister for Foreign Affairs stated, US forces operating in Bagram airbase. The Minister also confirmed that the seven members of the Irish Defence Force serving in Afghanistan ‘have never been involved in any way in the transfer of detainees to the Afghan authorities’.10 nuclear non-proliferation The matter of the United States-India nuclear agreement was discussed in the Dáil and in the Joint Committee on Foreign Affairs. Deputy Michael D Higgins questioned the Government’s decision not to use its blocking vote in the Nuclear Suppliers’ Group to prevent the facilitation of the agreement.11 In response, the Minister for Foreign Affairs noted that Ireland had been to the forefront in raising concerns regarding the impact of the Agreement on global disarmament and non-proliferation, but also that Ireland noted that the Agreement would have the effect of extending the International Atomic Energy Commission (IAEC) safeguards to Indian nuclear facilities. In addition, he noted that the Indian government had strong reasons to seek nuclear energy in order to address poverty, promote development and combat climate change. When the Nuclear Suppliers Group met to consider the Agreement in August and September of 2008, the Minister for Foreign Affairs claimed that Ireland was active in seeking clarifications and conveying concerns about the proposed exemption of India from the Nuclear Supplier Group’s guidelines on civilian nuclear trade. During the course of the   Minister for Justice, Equality and Law Reform, Dáil Debates, 13 November 2008, Columns 306–307.   Ibid, Column 308. 10   Minister for Foreign Affairs, Dáil Debates, 6 February 2008, Column 508. 11   Deputy Michael D Higgins, Dáil Debates, 9 October 2008, Column 291. 8 9

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discussions, he claimed that it became clear that the majority of member states were in favour of granting the exemption from these guidelines and that the arrangement was supported by the Director General of the IAEA, Dr El Baradei. India released a statement on its views on disarmament and non-proliferation in September, including a unilateral moratorium on nuclear testing and strong safeguards against nuclear proliferation in third countries. According to the Minister for Foreign Affairs, it was on ‘this basis, and following a number of further changes to the text of the NSG decision, [that] Ireland reluctantly joined the consensus in the NSG on 6 September’.12 The Minister expressed the view that the final text of the agreement would help ensure that the nonproliferation treaty remains the cornerstone of disarmament and non-­proliferation and that India would be held to its commitments, through ongoing observation and monitoring and that these improvements were largely due to the Irish interventions made at the August and September meetings.13 The Minister for Foreign Affairs gave a fuller account of the changes that had been brought about due to the Irish interventions when he appeared before the Joint Committee on Foreign Affairs to discuss the US-India Agreement on 5 November 2008. At that session of the Committee the Minister stated: Our proposals, as reflected in the final text, will help to ensure that the non-proliferation treaty remains the cornerstone of the disarmament-non-proliferation regime; that India is kept to its existing commitments, including those set out in its separation plan; that transfers of sensitive technologies will be ruled out entirely once agreement is reached on the revision of paragraphs 6 and 7 of the NSG guidelines, which is a separate ongoing exercise; that all states engaged in nuclear commerce with India must notify other participating governments of each and every transfer made to India as a transparency measure; that India’s observance of its commitments will be monitored on an ongoing basis; that a single participating government may convene and extraordinary meeting to consider such implementation; and that India will not be granted any decision-making role in the NSG, as it had sought. Those improvements were brought about, in principle by Ireland and a number of other like-minded countries.

foreign conflicts Throughout the year, the Irish Government expressed concern about the domestic situations in a number of countries including Pakistan, Columbia, the Sudan, Chad, Kenya and Zimbabwe. The situation in Zimbabwe was a particular concern in 2008. In advance of the elections in the Spring of 2008, the Minister for Foreign Affairs stated that the Irish Government was not confident that the Zimbabwean people would be given the opportunity to make a free and open choice in those elections.14 This was amplified by the reported detention of the leader of the opposition which, the Minister said, ‘underline[d] the pervasive atmosphere of intimidation and violence which exists towards those who seek change in the country’.15 The key to change, the Minister said, was strong African leadership including from the SADC.16 Following the election and as a result of the ongoing unrest in Zimbabwe   Minister for Foreign Affairs, Dáil Debates, 9 October 2008, Column 291.   Ibid, Column 293. 14   Minister for Foreign Affairs, Dáil Debates, 30 January 2008, Column 306. 15   Minister for Foreign Affairs, Dáil Debates, 6 February 2008, Column 511. 16   Ibid, Column 512. 12 13

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the Minister for Foreign Affairs introduced a motion on Zimbabwe,17 which called on the African Union and the Southern Africa Development Community (SADC) to lead international pressure for a democratic and peaceful resolution to the current crisis, supported the Irish Government’s efforts to raise the issue as a matter of urgency at international level and, in particular, with South Africa and with Irish Aid’s programme countries in the SADC (Zambia, Malawi, Mozambique, Lesotho and Tanzania), welcomed the UN Secretary-General Ban Ki-moon’s call for a UN role to resolve the crisis and the active role being played by the EU, expressed concern regarding the electoral process and the post-election violence reported throughout Zimbabwe, and called for the creation of a political and social environment conducive to the peaceful conclusion of the electoral process in Zimbabwe, free of all intimidation and violence. The motion was carried without dissent. While the Minister for Foreign Affairs confirmed, in June 2008, that Ireland would welcome further UN-level initiatives to address the situation in Zimbabwe, he preferred the continued application of local and international pressure to a Chapter VII Resolution by the Security Council as suggested by Deputy Michael D Higgins.18 The Irish Government repeated its long-standing position that the IsraeliPalestinian conflict could not be resolved by military means, but rather that political negotiation and the realisation of a two-State situation were the only feasible methods of resolution. This must, the Minister for Foreign Affairs stated, include the creation of a ‘viable, independent and democratic Palestinian state based on the political unity of the West Bank and Gaza’.19 The Minister expressed his ‘extreme concern’ with the escalation of violence in the early months of 200820 and stated that the Israeli isolation of the people of Gaza by means of cutting off essential supplies constituted ‘collective punishment and is illegal under international humanitarian law’.21 He also reasserted the long-standing Irish view that the expansion of Israeli settlements into the occupied territories is a violation of both the roadmap and international law.22 This notwithstanding, the Minister did not feel that suspension of the Euro-Mediterranean Association Agreement with Israel would serve the interests of any of the parties concerned. ‘Furthermore’, he stated, ‘any proposal to suspend or review the terms of the agreement would result in a divisive debate which would divert attention from the absolute need to restore momentum to the peace process’.23

international humanitarian law As noted in this Report in the Irish Yearbook of International Law editions of 2006 and 2007, the Irish Government has a long-standing position of supporting international efforts to bring the use of cluster munitions to an end. In this respect, Ireland continued to take a leading role in 2008, hosting a conference in Croke Park in May   15 May 2008.   Minister for Foreign Affairs, Dáil Debates, 18 June 2008, Columns 50–51. 19   Minister for Foreign Affairs, Dáil Debates, 6 February 2008, Column 426. 20   Minister for Foreign Affairs, Dáil Debates, 11 March 2008, Column 769. 21   Ibid, Column 770. 22   Ibid, Column 771. 23   Ibid, Column 855. For further statements on the Israeli-Palestinian conflict, expressing the same sentiments, see also for example Dáil Debates of 1 May 2008 (Column 625–626), 8 May 2008 (Column 957), 18 June 2008 (Column 137–138), 24 June 2008 (Column 582), 7 October 2008 (Column 927). 17 18

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which resulted in the drafting of the Convention on Cluster Munitions. In advance of this conference, the Department of Foreign Affairs established a national committee on humanitarian law to begin preparing the legislation required to give effect to the Convention and to bring about a domestic ban on the use of cluster munitions.24 As a result, and although agreeing with the general tenor of the bill, the Government did not support the Cluster Munitions Bill 2008 brought forward by Fine Gael [the main opposition party] and discussed in the Dáil on 8 April 2008. The main proponent of the Bill, Deputy Bill Timmins, opined that its enactment would ‘strengthen [Ireland’s] hand as one of the nations seeking to take a lead on this issue’ in advance of the May conference.25 The stated purpose of Bill was to prohibit trade in cluster munitions, although it was acknowledged that the legislation would be largely symbolic as Ireland does not produce or use cluster munitions and has no stockpiles for destruction. The Bill also included provisions that would restrict the financing of companies engaged in the trade or procurement of cluster munitions and this would make Ireland ‘the first country to take a maximal approach to removing cluster munitions from international affairs by stemming the flow of finance to the production of munitions and by taking a step on behalf of the Irish people to demand their money must be used to finance project in a clear and transparent manner’.26 Such a measure would be more than symbolic as Deputy Timmins claimed that in 2007 the National Pensions Reserve Fund invested around €27 million in companies that trade in cluster munitions. Responding to the Bill the Minister for Foreign Affairs confirmed that, when he had learned that the National Pensions Reserve Fund might be investing in companies that trade in cluster munitions he addressed the matter with the CEO and chairman of the Fund ‘to insist that as far as Government was concerned no public funds should be expended on these investments’27 and that the Fund indicated willingness to move to this position based on ethical guidelines.28 However, the Minister stated that the Government did not want to introduce legislation in advance of the conclusions of the conference in May but rather wanted to be in a position to enact what he described as ‘a legislative template for other nations’.29 Thus, while the Bill garnered significant support in principle, the vote on 9 April 2008 resulted in a government amendment to postpone discussion for nine months being carried. The matter of investment of monies by the National Pension Reserve Fund in companies that may be involved in the trade of cluster munitions was addressed by the Tánaiste [Deputy Prime Minister] later in April 2008. The Tánaiste confirmed that the Fund had signed the UN-sponsored Principles for Responsible Investment when they were launched in April 2006. These Principles aim to integrate consideration of environmental, social and governance issues into investment decision-making and ownership practices by institutional investment funds. Further to this, and to Ireland’s policy relating to cluster munitions, the Tánaiste confirmed that he had raised the issue of investing in shares of companies which are involved in the manufacture of cluster munitions with the National Pensions Reserve Fund Commission and that the   Minister for Foreign Affairs, Dáil Debates, 6 February 2008, Column 510.   Billy Timmins TD, Dáil Debates, 8 April 2008, Column 337.   Ibid, Column 330. 27   Minister for Foreign Affairs, Ibid, Column 346. 28   Ibid, Column 347. 29   Ibid, Column 347. 24 25 26

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Commission had agreed to exclude companies involved in the manufacture of cluster munitions from the Fund.30 Ireland hosted and chaired a Diplomatic Conference in Croke Park from 19 to 30 May 2008 which resulted in the negotiation of an international treaty to prohibit the use, production, transfer and stockpiling of cluster munitions. The convention – the Convention on Cluster Munitions – was adopted by more than 100 states on 30 May 2008, which the Minister for Foreign Affairs described as ‘a major advance in international humanitarian law’.31 The Convention includes an immediate and unconditional ban on all cluster munitions that cause unacceptable harm to civilians. Each State Party undertakes that it will never use, develop, produce, acquire, stockpile, retain or transfer cluster munitions (Article 1). Nor will any state assist another party in doing so (Article 1(c)). The Convention does not allow for any transitional period in which the cluster munitions can still be used; rather states parties undertake to ensure destruction of any cluster munitions within eight years and to ensure that areas containing cluster munitions remnants will be cleared within 10 years (Arts 3 & 4). Ireland, as a state which contributes to UN-mandated peacekeeping operations, was particularly concerned with the situation of states that participate in joint military activities with states that have not become parties to the Convention. In this respect, the Minister for Foreign Affairs stated, the conference delegates ‘were careful to develop a Convention which deals with this issue in a satisfactory way while committing all States to end the use of cluster munitions and to work actively towards universal acceptance of a ban on these weapons’.32 The Convention was opened for signature in Oslo in December 2008 and will enter into force on the first day of the sixth month after the month in which the thirtieth instrument of ratification, acceptance, approval or accession has been deposited. In order to allow for Irish ratification of the Convention as quickly as possible, the Cluster Munitions and Anti-Personnel Mines Bill 2008 was moved and in November 2008 the second stage was ordered. When moving the Order for Second Stage, the Minister for Foreign Affairs explained that the Bill’s primary purpose is to ensure that Irish law is in accordance with the requirements of the Convention on Cluster Munitions adopted in Dublin. The Irish Government gave priority to legislation dealing with cluster munitions as it wanted to be in a position to sign and ratify the Convention when it opened on 3 December 2008. The Bill was developed following recommendations of the national Committee on International Humanitarian Law and having had regard to the International Committee on the Red Cross’ model code for implementation of the Convention.33 The Bill was passed as the Cluster Munitions and Anti-Personnel Mines Act 2008 enacted on 2 December 2008. The Act defines cluster munitions as follows (s 2): ‘cluster munition’ means a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions, but does not include the following: a. a munition or submunition designed to dispense flares, smoke, pyrotechnics or chaff, or a munition designed exclusively for an air defence role;   Tánaiste & Minister for Finance, Dáil Debates, 24 April 2008, Column 134.   Minister for Foreign Affairs, Dáil Debates, 18 June 2008, Column 154. 32  Ibid. 33   Minister for Foreign Affairs, Dáil Debates, 4 November 2008, Column 804. 30 31

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b. a munition or submunition designed to produce electrical or electronic effects; c. a munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:

i. each munition contains fewer than 10 explosive submunitions; ii. each explosive submunition weighs more than 4 kilograms; iii. each explosive submunition is designed to detect and engage a single target object; iv. each explosive submunition is equipped with an electronic self-destruction mechanism; v. each explosive submunition is equipped with an electronic self-deactivating feature.

The Act makes it an offence to use, develop, produce, acquire, possess, retain or transfer a cluster munition or explosive bomblet (s (1)) with limited exceptions for members of the Defence Forces or Gardaí who are carrying out powers conferred on them by law (s 7). The Act is also designed to bring Ireland more fully into compliance with its obligations under the Anti-Personnel Mine Convention. To this end, the Act provides that any person who uses, develops, produces, acquires, possesses, retains or transfers an anti-personnel mine is guilty of a criminal offence (s 9) with this provision being subject to limited exceptions for members of the Defence Forces and Gardaí (s10). Reflecting concerns noted above about the investment of funds by the National Pension Reserve Fund in companies that are engaged in activities relating to cluster munitions, Part four of the Act provides that ‘an investor, in the performance of any function conferred on it by or under any enactment, shall endeavour to avoid the investment of public monies in a munitions company’ (s 12(2)) or in equity or debt securities issued by a munitions company (s 13(1)). Where it transpires that public monies have been invested in such equities or debt securities, the Act provides that the investor shall either ‘establish to its satisfaction that the company intends to cease its involvement’ in the cluster munitions trade or ‘divest itself of its investment in that company in an orderly manner’ (s 13(2)). As regards investment in collective investment undertaking and investment products, the Act provides that no public monies should be invested in such undertakings unless, having carried out due diligence, the investor is satisfied that the monies will not be invested in a munitions company (s 14(1)). Section 14(2) goes on to provide that Where public moneys are invested in a collective investment undertaking or investment product which invests these moneys in a company which is or becomes a munitions company, the investor shall – (a) establish to its satisfaction that – (i) the company intends to cease its involvement in the manufacture of prohibited munitions or components, or (ii) the collective investment undertaking or investment product intends to divest itself of its investment in the company, and that there is not a significant probability that the collective investment undertaking or investment product will again invest public moneys in a munitions company, or (b) so far as possible, taking into account any contractual obligation it has assumed, divest itself of its investment in that collective investment undertaking or investment product in an orderly manner.

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2008 marked the fiftieth anniversary of Irish involvement in UN peace-support missions. Reflecting on this, and on the international legal obligations of defence forces members while participating in such missions, the Minister for Foreign Affairs noted that the promotion of human rights and the protection of civilian populations have always been central to Irish involvement in such missions. To this end, he confirmed that all members of the Defence Forces who receive overseas peacekeeping assignments are briefed on international human rights law and international humanitarian law and that courses on international human rights law are regularly conducted in the Defence Forces Training Centre at the Curragh. He expressed the view that human rights protection is always an element of Security Council mandated military missions as a result of Article 1 of the UN Charter which states that one purpose of the UN is the protection and promotion of human rights and fundamental freedoms, as a result of specific references to human rights that may be made in a Security Council Resolution, or as a result of the circumstances in which a resolution may have been adopted.34 Even where there is no express reference to international human rights law in the resolution, he stated that ‘the absence of such a reference does not in itself undermine human rights protection and Ireland is certainly totally committed to maintaining such protection in all peace support operations’.35 The Minister for Defence later expanded on the international law training provided to members of the Irish Defence Forces. He noted that all basic courses in the Military College include lectures on international humanitarian and international human rights law. In addition, a one day seminar on International Humanitarian Law takes place for the Command and Staff Course. In addition, all non-commissioned officers and privates are provided with instruction of what he described as ‘the fundamental rules of International Humanitarian Law applicable in armed conflicts regarding the protection of war victims’.36 Members of the Irish Defence Forces have been attending the International Military Course on the Law of Armed Conflict at the International Institute of Humanitarian Law in San Remo since the 1970s and Irish officers have contributed to the teaching on this course since 1990. Speaking at the Royal Irish Academy, the Minister for State at the Department of Foreign Affairs, Peter Power, articulated Ireland’s position relating to the Responsibility to Protect doctrine. According to the reported remarks in the Department of Foreign Affairs press release, the Minister for State said: [The doctrine of Responsibility to Protect] represents potentially one of the most significant developments of international law to emerge in recent years. The development of the doctrine of responsibility to protect . . . ensure that every stakeholder – governments and their leaders, the international community and the Security Council – is aware of their roles, obligations and responsibilities when faced with the threat of the four specific crimes of genocide, war crimes, ethnic cleansing and crimes against humanity. The establishment of a Conflict Resolution Unit (CRU) within the Department of Foreign Affairs underlines our determination to assist the international community’s efforts under R2P. The CRU is contributing to the R2P objective of assisting States develop their own capacity to protect their populations through, for example, early warning and conflict prevention.37   Minister for Foreign Affairs, Dáil Debates, 18 June 2008, Column 147.   Ibid, Column 148.   Minister for Defence, Dáil Debates, 2 July 2008, Column 525. 37   Department of Foreign Affairs, Press Release, 21 November 2008. The speech by Minister for State at the Department of Foreign Affairs, Peter Power TD is reproduced in this volume of The Irish Yearbook of International Law, p 305. 34 35 36

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the irish yearbook of international law 2008 irish aid

In the early part of 2008 the Irish Government expressed strong optimism about the potential for Ireland to reach its overseas aid target of 0.7 per cent by 2012. In 2008, the Minister of State in the Department of Foreign Affairs Michael Kitt said, the amount of aid distributed would be 0.54 per cent.38 The Millennium Development Goals (MDGs) remain at the heart of the Irish development cooperation programme. The Irish government noted that Ireland is attempting to contribute to the process of meeting the MDGs through Irish Aid, through support of the UN Maternal Health Trusts Fund No Women Should Die Giving Life, through supporting the work of the UNFPA39, and by responding to geographical disparity in MDG especially in Africa where 80 per cent of Irish Aid’s work is targeted.40 The main recipients of aid are selected by reference to the White Paper for Irish Aid and the overall aims of the aid programme are reducing poverty and encouraging sustainable development as well as addressing fundamental human needs like food security, basic education, primary healthcare and safe water. Minister of State Kitt also noted that Irish Aid aims to place focus on the development of good governance including enhanced parliamentary oversight, democratic systems with free and fair elections, strengthened rule of law, enhanced respect for human rights, improved transparency, accountability, and initiatives for enhancing public financial management and building civil society.41 Acknowledging the difficulties posed by corruption in achieving these aims, the Minister of State noted that Ireland is committed to addressing corruption by means of improved transparency, accountability and governance mechanisms. In addition, Irish Aid also has rigorous accounting and auditing controls in place to ensure a transparent, effective and high quality development programme and the projects are also independently audited in respect of outcomes and value for money.42 The role of the Inter-Department Committee on Development, initiated under the White Paper for Irish Aid, was clarified by the Minister of State. He noted that the committee was established to make best use of expertise across the public service as well as in recognition of the need for coherence across various levels of operation that affect developing countries. He announced that two sub groups have been developed: one to look at relationships with multinational organisations and one to look at making best use of expertise and skill across public service when developing the development aid programme.43

international agreements The Minister for Justice indicated that, following advice from the Attorney General that legislation will be necessary for the creation of the National Preventive Mechanisms provided for under the Optional Protocol to the UN Convention Against Torture and 38   Minister of State in the Department of Foreign Affairs Michael Kitt, Dáil Debates, 30 January 2008, Column 297. 39   United Nations Population Fund 40  Minister of State in the Department of Foreign Affairs Michael Kitt, Dáil Debates, 1 May 2008, Column 632–633. 41   Minister of State in the Department of Foreign Affairs Michael Kitt, Dáil Debates, 5 February 2008, Column 210. 42   Ibid, Column 211. 43   Minister of State in the Department of Foreign Affairs Michael Kitt, Dáil Debates, 6 February 2008, Columns 419–420.

international law in ireland 2008



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All Forms of Cruel, Inhuman or Degrading Treatment or Punishment and that preliminary work on such legislation had commenced in the Department of Justice, Equality and Law Reform.44 In late October, the Minister for State in the Department of Foreign Affairs, Peter Power, introduced the Prevention of Corruption (Amendment) Bill 2008 for its second stage reading. The Bill is intended to give fuller effect to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997), which Ireland ratified in 2003. The Minister for State also indicated that the introduction of the Bill would assist in moving towards ratification of the United Nations Convention Against Corruption (2003), which Ireland signed at the time it was opened in December of 2003. The 2008 Bill includes provisions relating to the bribery of public officials and to whistleblower protection. Upon introduction of the Bill the Minister for State reaffirmed the Government’s commitment to ratify the UN Convention in the near future.45 This reflected the fact that the Criminal Justice (United Nations Convention Against Corruption) Bill was amalgamated with the Prevention of Corruption (Amendment) Bill.46 The Minister for Education and Science, Batt O’Keefe, confirmed that Ireland was not a party to the UNESCO Convention Against Discrimination in Education (1960) and that there are no immediate plans to ratify this Convention as Ireland’s commitment to equality in education is reflected in the provisions of the Equal Status Act 2000.47 The Minister for Foreign Affairs confirmed that officials within his department were re-examining the question of ratification of the Antarctic Treaty, which Ireland has traditionally supported and which he noted had been successful in prohibiting the spread of nuclear testing to the Antarctic, and in maintaining the Antarctic as an area for peaceful purposes.48 Work towards ratification of the UN Convention on the Rights of Persons with Disabilities continued throughout 2008. The Minister for Justice confirmed that the Mental Capacity Bill was in an advanced stage of preparation and asserted that, once promulgated, it would facilitate ratification of the Convention.49 The Minister for Justice again confirmed that work towards ratification continued in July of 2008, noting that government departments are actively addressing the work programme put together by the high-level, cross-departmental implementation group established for this purpose in 2007.50 The Minister for Justice confirmed that many of the provisions of the United Nations Convention on Transnational Organised Crime are already enshrined in legislation, but that ratification cannot take place until some additional legislation and administrative procedures have been put in place. The required processes for such ratification were said to be ‘in train’.51 The enactment of the Criminal Law (Human   Minister for Justice, Dáil Debates, 22 October 2008, Column 924.   Minister for State in the Department of Foreign Affairs, Dáil Debates, 30 October 2008, Column 565–566. 46   Minister for Justice, Dáil Debates, 6 November 2008, Column 303. 47   Minister for Education and Science, Dáil Debates, 11 November 2008, Column 841. 48   Minister for Foreign Affairs, Dáil Debates, 11 March 2008, Column 863. 49   Minister for Justice, Dáil Debates, 30 April 2008. 50   Minister for Justice, Dáil Debates, 8 July 2008. 51   Minister for Justice, Equality and Law Reform, Dáil Debates, 20 May 2008, Column 999. 44 45

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the irish yearbook of international law 2008

Trafficking) Act 2008, which came into effect on 7 June 2008, was said to bring Ireland into compliance with the criminal law and law enforcement elements of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children. The Minister claimed that other aspects of the Protocol are being dealt with administratively in the context of preparation of a National Action Plan and through engagement with the Governmental and non-governmental organisations in this area. He said that it was expected that the Protocol would be ratified by Ireland in early 2009.52 Although she expressed the view that female genital mutilation constitutes an offence under the Non-Fatal Offences against the Person Act 1997, the Minister for Health and Children noted that her department is considering introducing legislation banning Female Genital Mutilation in pursuance of the recommendations of the UN Committee on the Rights of the Child (UNCRC) in its concluding observations on Ireland’s second periodic report.53 The Department of Justice, Equality and Law Reform coordinated an interdepartmental committee to advise on and monitor actions required to ensure that Ireland was in a position to ratify the UN Convention on the Rights of Persons with Disabilities. The Minister for Justice expressed that view that a substantial amount of Ireland’s obligations were met under the Disability Act 2005 as supported by the National Disability Strategy.54 The process of ratification will, the Government confirmed, be further aided by the passage of the Mental Capacity Bill, which is being developed and which is expected to be brought forward in 2009.55 The Minister for the Environment, Heritage and Local Government confirmed that Ireland is working towards ratification on the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which Ireland signed in 1998. Progression towards ratification of this Convention has both national and EU elements and two Directives have been adopted as part of the ratification process.56 In addition, work to amend any outstanding consent systems required for ratification is ongoing and the Minister indicated that once this work was completed it was his intention, and that of the Minister for Foreign Affairs, to lay the instrument of ratification before the Dáil as soon as possible.57

diplomatic matters In 2008 the Irish Government reaffirmed its long-standing position in relation to the status of the people of Western Sahara.58 To this end, the Minister for Foreign Affairs noted that Ireland has not taken any position of the future of the Territory but rather supports the exercise of self-determination by the Saharawi people. The Minister  Ibid.   Minister for Health and Children, Dáil Debates, 20 November 2008. 54   Minister for Justice, Equality and Law Reform, Dáil Debates, 16 December 2008, Column 959. 55   Minister of State at the Department of Justice, Equality and Law Reform, John Moloney, Dáil Debates, 18 December 2008, Column 527–528. 56   Directive 2003/4/EC; 2003/35/EC. 57   Minister for the Environment, Heritage and Local Government, Dáil Debates, 16 December 2008, Column 1005–1006. 58   See this correspondence report in Volumes I and II of the Irish Yearbook of International Law. 52 53



international law in ireland 2008

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noted Moroccan preference for an autonomous government in the Territory, operating under Moroccan sovereignty, and the Saharawi people’s preference for the creation of an independent State with close association with and protection of the vital interests of Morocco. These positions were set out in a serious of meetings coordinated at UN level and the Minister noted that he regarded this process and the respective parties’ outlining of their positions ‘as a positive and helpful development’ notwithstanding the considerable distance that exists between their preferred outcomes.59 Following the declaration of independence by Kosovo on 17 February 2008, the Taoiseach expressed regret that communication between the Kosovo Assembly and administrations in Belgrade and Pristina failed to produce an agreement and that there was no Security Council resolution clarifying the position of Kosovo in advance of the declaration of independence. However, the Taoiseach expressed the view that ‘Serbia effectively lost Kosovo through its own actions in the 1990s. The legacy of the killing of thousands of civilians in Kosovo and the ethnic cleansing of over 1 million made the restoration of a Serbian dominion in Kosovo unthinkable’.60 Taking this into account, and the fact that a significant number of member states of the European Union had recognised Kosovo, Ireland recognised Kosovan independence on 28 February 2008.61 The Taoiseach also stated that the Attorney General’s advice was that UN Security Council Resolution 1244 continued in force following the declaration of independence and, as a result, that Ireland was committed to maintaining participation in the UN-mandated force in Kosovo (KFOR).62 During 2008 the Minister for Foreign Affairs accepted credentials from ambassadors representing Ambassadors of Japan, Ukraine, Socialist Republic of Vietnam and Burkina Faso,63 Republic of Côte d’Ivoire, Republic of El Salvador, Republic of Indonesia, Republic of Mauritius,64 Spain, the Kingdom of the Netherlands, the Czech Republic, and Belgium.65

department of foreign affairs,

s tat e m e n t o f s t r at e g y

2008–11

The Statement of Strategy 2008–11 includes both what are termed high-level goals and some details of the mechanisms to be employed in order to bring those goals to fruition. The High Level Goals identified are as follows: 1. To contribute to international peace and security including promoting conflict resolution, human rights and respect for the rule of law, and to support effective strategies addressing global challenges; 2. To deliver on the commitments laid out in the White Paper on Irish Aid 2006 3. To secure Ireland’s interests within, and contribute to the future development of, the European Union; 4. To promote the full implementation of the Good Friday Agreement; 59  Minister for Foreign Affairs, Dáil Debates, 5 November 2008, Column 177; See also Minister for Foreign Affairs, Dáil Debates, 18 June 2008. 60  Taoiseach, Dáil Debates, 20 February 2008, Column 827. 61   Department of Foreign Affairs, Press Release, 29 February 2008. 62  Taoiseach, Dáil Debates, 20 February 2008, Column 827. See also Minister for Foreign Affairs, Dáil Debates, 2008, Columns 125–126. 63   Department of Foreign Affairs, Press Release, 30 January 2008. 64   Department of Foreign Affairs, Press Release, 17 June 2008. 65   Department of Foreign Affairs, Press Release, 2 September 2008.

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the irish yearbook of international law 2008

5. To promote Ireland and its bilateral relationships with other countries including advancing the economic interests of Ireland and promoting its cultural profile internationally; 6. To provide high quality consular services to Irish citizens and to actively engage with the Irish diaspora.66

These goals reflect and build upon long-standing Irish practice in relation to international law and, indeed, reflect the main areas in which international law issues tend to be discussed, legislated and considered within the domestic sphere.

66   Department of Foreign Affairs, Statement of Strategy 2008–10, p 7. The Statement of Strategy is reproduced in this volume of The Irish Yearbook of International Law, p 263.

International Law and Irish Practice Abroad 2008 Claire McHugh The Department of Foreign Affairs Strategy Statement 2008–10 sets out six ‘high level goals’: Contribute to international peace and security, promote conflict resolution, respect for human rights and the rule of law, and support effective common strategies to address global challenges; Promote the full implementation of the Good Friday Agreement by supporting the effective operation of its institutions, strengthening North/South co-operation and working for lasting reconciliation; Deliver on commitments in the White Paper on Irish Aid through reducing poverty, supporting sustainable development and strengthening development co-operation as an integral part of Ireland’s foreign policy; Promote Ireland and its bilateral relations with other countries; advance our economic interests and enhance our cultural profile overseas; Secure Ireland’s interests in the EU and contribute fully to the Union’s future development; Provide a high quality passport and consular service to all Irish citizens and actively engage with our Diaspora. This Correspondent Report uses these stated goals as a basis for bringing the reader up to date on developments in Irish foreign policy in 2008. A particular highlight of 2008 was Ireland’s hosting of the Cluster Munitions Convention in Dublin, which succeeded in bringing over 100 States together to agree the text of a comprehensive treaty ban on cluster munitions. Overseas development aid continued to be a lodestar of Irish foreign policy, with the amount of aid increasing to €914mn in 2008 despite a growing economic crisis. The Department of Foreign Affairs also continued to support community groups engaged with the Irish diaspora overseas, with a number of new initiatives including a strategic partnership with the Gaelic Athletic Association. Ireland’s tradition of contributing to peacekeeping abroad also continued, with a large contingent being posted to the EUFOR mission in Chad and the Central African Republic. Last but not least as a highlight of 2008 was the appointment of Patricia O’Brien, as United Nations Under-Secretary for Legal Affairs and United Nations Legal Counsel.

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the irish yearbook of international law 2008

Cluster Munitions Convention In May 2008, Ireland hosted an international diplomatic conference aimed at securing agreement on a convention to ban the use of cluster munitions.1 This conference was the final one in a series of conferences, initiated by the Oslo Process, aimed at achieving an international ban on cluster munitions.2 Ireland has played a leading role as one of the core group of States calling for such a ban. The Dublin Conference was attended by over 100 States and succeeding in adopting the Convention on Cluster Munitions. At the heart of the Convention is an immediate and unconditional ban on all cluster munitions which cause unacceptable harm to civilians. Each State Party undertakes never in any circumstances to use, develop, produce, acquire, stockpile, retain or transfer cluster munitions, or to assist another party in doing so. A particular strength of the Convention is that there is no transition period allowing for the use of the outlawed weapons. The Convention also contains groundbreaking provisions on victim assist­ ance and for clearing affected areas of cluster munitions remnants. The delegates met four times in plenary session (twice at the outset of the Conference on 19 May and twice at the conclusion of the Conference on 28 and 30 May) and in 16 sessions of the Committee of the Whole (from 19–28 May). The Committee of the Whole engaged in a detailed article-by-article discussion of the draft Convention. Where it was not possible to secure general agreement on an Article in the Committee, informal consultations took place, chaired by the President or a nominated colleague. Informal consultations were held concerning Articles 1, 2, 3, 4, 5, 6, 7, 8 and 21 of the Convention. Some provisions proved more contentious than others. An essential element of the Convention was to reach agreement on a definition of ‘cluster munition’ that would succeed in meeting the Oslo Declaration’s benchmark of banning all cluster munitions that cause ‘unacceptable harm’ to civilians. Ambassador Don MacKay of New Zealand led informal consultations on this matter. There was considerable opposition to the inclusion of Article 2(c), which exempts munitions with certain cumulative technical characteristics designed to avoid indiscriminate area effects and the risks posed by unexploded sub-munitions. Some delegates criticised this provision on the basis that it failed to include language addressing the effects of the weapon. However, the provision finally adopted succeeded in banning all cluster munitions currently in existence. Moreover, the Review Conferences provided for in Article 12 of the Convention means that there will be an opportunity to assess the definition against future developments and the Oslo Declaration benchmark. It was originally intended that interoperability and relations with non-States Parties would be dealt with in Article 1 of the Convention, but following informal consultations led by Ambassador Christine Schraner of Switzerland, it was agreed that this should be addressed in a new Article (Article 21). Several delegations shared a general reservation about including the concept of interoperability in the Convention, fearing that it may create a window for the use of cluster munitions by military coalitions. Other States considered that an interoperability provision was essential to ensure that 1  The website of the conference is www.clustermunitionsdublin.ie. For the Final Document of the Diplomatic Conference for the Adoption of a Convention on Cluster Munitions, see the Document Section of this volume at p 311. 2   See J Allain ‘Irish Practice Abroad 2007’ in (2007) 2 Irish Yearbook of International Law 125–127.



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States politically willing to join the Convention would not be constrained by fears of the potential impact on military alliances (including multi-national peace support operations), and the protection of their troops from liability in joint operations. The text agreed upon in Article 21 was considered to achieve a delicate balance between these interests. Delegates hailed the Convention as a strong, ambitious and balanced text which achieved the best possible consensus. They pointed to the spirit of cooperation and compromise which had underpinned the negotiations. In his closing statement to the Dublin Diplomatic Conference, Minister for Foreign Affairs Micheál Martin stated: The Convention is strong and ambitious. Its ban on cluster munitions is comprehensive. It sets new standards for assistance to victims and for clearing affected areas. And even though we all know that there are important States not present, I am also convinced that together we will have succeeded in stigmatising any future use of cluster munitions. . . . It is now time to focus on the future. I suggest that we set ourselves three immediate goals. First, we need to do all that is necessary nationally to allow us to ratify the Convention as soon as possible after signature. For the Irish Government, the preparation of the required domestic legislation has already begun. Once it has been drafted, its enactment will be a priority. I intend to introduce a Bill during the autumn session of the Dáil [ie: lower house of Parliament]. The second goal must be to ensure the greatest possible number of accessions to the Convention. We want ultimately to see it ratified by all Member States of the United Nations. We should work together to explain and argue for its provisions with those who are not here. Third, we all need to plan to do what is necessary to implement the Convention in full, not least in regard to victim assistance and clearance.3

The Convention was signed by 94 States, including Ireland, in Oslo on 3 December 2008. It will enter into force six months after the thirtieth State has submitted its instrument of ratification. It is open for ratifications and signature at the United Nations headquarters in New York. In October 2008, the Minister for Foreign Affairs published the Cluster Munitions and Antipersonnel Mines Bill, to give effect in Irish law to the Convention on Cluster Munitions. In implementing the Convention, the Bill will create offences in relation to the use, development, production, acquisition, stockpiling, retention or transfer of cluster munitions and explosive bomblets. The Bill also makes similar provision in relation to anti-personnel mines in order to improve provision for the implementation of the Anti-Personnel Mine Ban Convention.4 Support for the Responsibility to Protect Principle In a speech to the Royal Irish Academy Committee for International Affairs in November, Minister of State for Overseas Development Peter Power outlined Ireland’s support for the emerging norm of a responsibility to protect in international law and 3   Statement by Minister for Foreign Affairs Micheál Martin at Closing Ceremony of Dublin Diplomatic Conference on Cluster Munitions, 30 May 2008. Available online at www.clustermunitionsdublin.ie. 4   ‘Minister Martin publishes Cluster Munitions and Anti-Personnel Mines Bill’. Press Release available at www.dfa.ie.

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the irish yearbook of international law 2008

practice.5 The emerging norm has attracted considerable attention as the cornerstone for humanitarian protection and intervention in keeping with the principles of the UN Charter. The concept is relatively new, having been endorsed by United Nations (UN) Member States in the World Summit Outcome Document 2005, and is at a fragile stage of transition from theory to practice. It involves the idea of ‘sovereignty as responsibility’, and rests on three constitutive elements: 1. that States are under an obligation to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity; 2. that the international community has a responsibility to assist States in that regard and to use all appropriate peaceful means in pursuit of that protective role: 3. where national authorities fail in their implementation, and as a last resort, military intervention may become necessary in accordance with international law and in particular the UN Charter. Minister Power outlined several examples from Irish foreign policy which illustrate Ireland’s support for the concepts central to the responsibility to protect: Ireland’s support for international human rights bodies and monitoring mechanisms; Irish personnel serving in UN peacekeeping operations; the work of Irish Aid which is building capacity of developing States to serve and protect their population; and the establishment of a Conflict Resolution Unit within the Department of Foreign Affairs. The role of the Conflict Resolution Unit is to offer support for conflict resolution efforts internationally while also seeking to develop national capacity in this area. A pilot conflict resolution project is underway in Timor Leste where Dame Nuala O’Loan has been appointed as Special Envoy. Ireland’s engagement in Timor Leste, in close cooperation with Irish Aid’s development programme there, is designed to address key issues directly related to the risk of renewed internal conflict. Initiatives include support for an early warning and response system based in civil society, a programme on peace, remembrance and reconciliation, advice on security sector reform, and support for structured high level dialogue amongst rival leaders.6 In addition, the Department of Foreign Affairs announced grants totalling €4mn to strengthen the capacity of the United Nations Department of Political Affairs and the UN Development Programme to engage in conflict resolution and peace-building activities.7 Ireland also contributed €100 000 to the Kofi Annan-led mediation effort in Kenya, in response to a request from the United Nations.8 Overseas Development The White Paper on Irish Aid in 2006 set forth a vision for Irish development cooperation and aid, and provides a benchmark for assessment of the Irish Aid programme.

5   Speech by Minister of State for Overseas Development, Peter Power TD, to the Royal Irish Academy Committee for International Affairs Annual Conference, ‘Responsibility to Protect: From Concept to Implementation’, 21 November 2008. Reproduced in this volume of The Irish Yearbook of International Law, p 305. 6   In response to a parliamentary question on the role and functions of the Conflict Resolution Unit, 12 February 2009, Reference No 5340/09, available at www.dfa.ie. 7   ‘Minister for Foreign Affairs announces €4 million in grants for UN conflict resolution and peacebuilding activities’ Press Release, 20 January 2008, available at www.dfa.ie. 8   ‘Ireland to support Annan peace talks’ Press Release, 17 February 2008, available at www.dfa.ie.



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Ireland has pledged to reach the UN target of spending 0.7% of GDP on development aid by 2012. Ireland’s overseas development programme has grown considerably in recent years, with a budget of over €900mn in 2008. Speaking in January 2008, the Minister for Foreign Affairs commented: The level and internationally recognised quality of Ireland’s overseas aid puts us in a position of leadership when it comes to tackling international poverty and its underlying causes. Ireland’s development budget is 100% untied and we have been ranked as the sixth most generous donor per capita by the OECD. This year Ireland will spend €914mn on overseas aid. Our aim is to address the problems of our priority countries, which are largely in subSaharan Africa, in such a way as to make our work redundant within a generation.9

Where development assistance is concerned, Ireland has been ranked second only to Sweden in terms of its commitment to African development by the Centre for Global Development in Washington DC. The African regional Commitment to Development Index ranks donor countries across seven domains; aid quality, trade, investment, security, migration, the environment and technology. Ireland scored particularly well in the aid quality, security, migration and environmental domains.10 As a result of a recommendation in the White Paper on Irish Aid, the Government established a Hunger Task Force, illustrating its commitment to the first of the UN Millennium Development Goals, to reduce by half the number of people suffering from hunger by 2015.11 The Task Force presented its report to the Taoiseach [Irish Prime Minister] Brian Cowen in September 2008, in the presence of the UN SecretaryGeneral Ban Ki-Moon. It makes three priority recommendations which have been endorsed by the Irish Government: increasing smallholder agricultural productivity in Africa; targeting maternal and infant under-nutrition and working to ensure that governments internationally fulfil their commitments to eradicate hunger.12 Irish Aid provided €20mn in funding in 2008 to Irish missionaries to support the work of over 800 missionary personnel in over 60 developing countries.13 Three year agreements were also concluded by Irish Aid with eight Irish-based aid development agencies: AidLink, Children in Crossfire, Christian Blind Mission, Frontline, Plan Ireland, Progressio Ireland, Vita, and VSO Ireland. Under the terms of the agreements, the Irish government will provide funding of approximately €23mn over three years to support the development programmes of these non-governmental organisations (NGOs) in many of the world’s poorest countries.14 The funds will be targeted at poverty reduction programmes in over 22 countries in sectors such as education, health, disability, water, sanitation, food and at strengthening the capacity of people in the developing world to pursue their human, economic and social rights. 9   ‘Ireland firmly on course to meet ODA target, says Dermot Ahern TD, Minister for Foreign Affairs’ Press Release, 2 January 2008. Available at www.dfa.ie. 10   ‘Ireland ranks second among donors in its commitment to African development’ Press Release, 21 May 2008. Available at www.dfa.ie. 11   For a consideration of the White Paper on Irish Aid see H O’Neill ‘White Paper on Irish Aid’, 1, 2006 Irish Yearbook of International Law 331–337. 12   ‘Ministers welcome timely report on world hunger and its calls for greater international action’ Press Release, 25 September 2008. Available at www.dfa.ie. 13   ‘Minister of State Kitt announces €20 million in support for the overseas development work of Irish missionaries’ Press Release, 5 March 2008. Available at www.dfa.ie. 14   ‘Minister Michael Kitt announces additional funding of €23 million for NGOs’ Press Release, 30 April 2008. Available at www.dfa.ie.

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the irish yearbook of international law 2008

The Government also delivered upon a further commitment made in the White Paper on Irish Aid by opening the Irish Aid Volunteering and Information Centre on O’Connell Street, Dublin.15 The Centre, a multi-media exhibition space, aims to raise awareness of development issues and to make information available on developmentrelated volunteering. During 2008, humanitarian assistance was provided under the Government’s Rapid Response Initiative to the Democratic Republic of Congo,16 Iraq,17 Burma,18 Tajikistan,19 Rwanda,20 and Kenya.21 United Nations In January 2008, the Irish Ambassador to the United Nations (UN) in New York, Paul Kavanagh and his Tanzanian counterpart were appointed by the President of the UN General Assembly to lead consideration of the recommendations of the High-Level Panel on System-Wide Coherence, which seeks to address the improvement of the UN’s internal coherence and its ability to deliver development assistance. In September 2008, the UN General Assembly adopted an Irish-led measure which could significantly advance the process of UN reform. The initiative is intended to improve the delivery of development assistance by the United Nations at the country level. The resolution seeks to streamline the fragmented United Nations development system. A Pilot programme in eight countries has seen bodies such as UNICEF, the UN Development Programme (UNDP) and the World Health Organization (WHO) agreeing a single operational plan and budget based on the priorities of the host Government. In the past each of these agencies operated on an individual basis. The Resolution also commits the General Assembly to taking an early decision to rationalise the various UN bodies dealing with gender equality and the empowerment of women around the world. Advocates of this reform have called for a single UN entity which can advance women’s interests at intergovernmental level and work with women’s groups in the field.22 Beyond this, notice should be given to the appointment by United Nations Secretary-General, Ban Ki-moon, of Patricia O’Brien, formerly Legal Adviser to the Department of Foreign Affairs, as United Nations Under-Secretary for Legal Affairs and United Nations Legal Counsel on 6 August 2008. Ms O’Brien is the first female to hold this position, the appointment being one of the highest ever made within the United Nations system of an Irish national. 15  ‘Taoiseach opens Irish Aid Volunteering and Information Centre’ Press Release, 22 January 2008. Available at www.dfa.ie. 16   ‘Emergency humanitarian aid shipment to Congo’ Press Release, 9 December 2008. Available at www. irishaid.gov.ie. 17   ‘Minister of State for Overseas Development, Peter Power TD, announces assistance package for Iraq’ Press Release, 8 August 2008 Available at www.irishaid.gov.ie. 18   ‘Minister Power announces airlift of humanitarian aid to Burma’ Press Release, 12 June 2008. Available at www.irishaid.gov.ie. 19   ‘Minister Kitt announces €250,000 Irish Aid humanitarian relief in response to severe weather’ Press Release, 19 March 2008. 20   ‘Ireland responds to earthquake in DRC and Rwanda’ Press Release, 13 February 2008. Available at www.irishaid.gov.ie. 21   ‘Minister for Foreign Affairs announces €1 million in humanitarian funding for Kenya’ Press Release, 7 January 2008. Available at www.irishaid.gov.ie. 22   ‘Minister Martin praises progress in United Nations Reform Effort. Ireland helps to lead the way in advancing gender equality and women’s empowerment’ Press Release, 17 September 2008. Available at www. dfa.ie.

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Further, an Irish national, Professor Michael O’Flaherty, was re-elected for a second four-year term in 2008 as a Member of the UN Human Rights Committee, the treaty monitoring body of the International Covenant on Civil and Political Rights.

peacekeeping In 2008, Ireland Had Soldiers Abroad in the Following Locations MISSION

Start DATE

COMMITMENT

September 1991

3

May 1997

40

February 2008

411

August 1999

221

December 2001

7

UN Observer Mission in Congo (MONUC)

June 2001

3

UN Interim Force in Lebanon (UNIFIL)

May 1978

7

UN Interim Administration in Kosovo (UNMIK)

July 1999

4

UN, Mission and Operation in Côte d’Ivoire (UNOCI)

June 2004

2

December 1958

14

UN, Mission for the Referendum in Western Sahara (MINURSO). Stabilisation Force and EU Force Bosnia Herzegovina (EUFOR BiH) EU, Mission to Chad and the Central African Republic (EUFOR Chad/CAR) Kosovo Force (KFOR) International Security Assistance Force (ISAF Afghanistan

UN Truce Supervision Organisation in the Middle East (UNTSO)

Bilateral Relations, Consular Services and the Diaspora A new visa agreement was signed with the United States of America in September 2008, which allows a minimum of 20 000 Irish citizens to work and travel in the US for up to 12 months. Up to 5000 US citizens will also be able to work and travel in Ireland on the same basis.23 The Government further provided support to undocumented Irish migrants in the United States of America by lobbying US political leaders to resolve the situation facing the undocumented Irish and to put in place new arrangements to facilitate legal migration between Ireland and the US. In a series of meetings with senior US politicians in Washington on 24 September 2008, the Minister for Foreign Affairs pushed for the issue to be treated as a priority following November’s Presidential and Congressional elections. Speaking following his meetings on Capitol Hill, the Minister stated: 23   ‘Minister for Foreign Affairs, Micheal Martin, announces new visa deal with US government’ Press Release, 24 September 2008. Available at www.dfa.ie.

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In my meetings I made clear that we are pursuing a three-pronged approach involving a solution for our undocumented; new bilateral arrangements to provide reciprocal long term working visas (known as E3s) and the Working Holiday Agreement. I was encouraged by the response of those with whom I met and am hopeful that good progress can be made following November’s elections.24

The Minister also met with the Irish Lobby for Immigration Reform and announced the allocation of $50 000 to the organisation, bringing total Government funding to ILIR to over $235 000 since 2006. The Minister for Foreign Affairs signed a Working Holiday Agreement with Argentina in 2008 which will allow young people under 35 to stay and work for extended periods of time in either country.25 In 2008, the Government announced a strategic partnership with the Gaelic Athletic Association (GAA) to promote Gaelic games abroad. Gaelic games are the traditional sports played in Ireland, mainly Gaelic football, hurling, camogie and handball. The large Irish diaspora means that Gaelic games are played all over the world, including in New Zealand, America, Australia, Britain, Canada and mainland Europe. Speaking at the launch of the partnership, Foreign Minister Micheal Martin stated: The GAA plays a key role in the social and cultural life of Irish communities abroad. The Association underpins and promotes Irish heritage and identity across the globe, and is a major contributor to Irish Community networks and outreach. As a Government, we are determined to maintain and strengthen our links with Irish communities abroad. One of the many results flowing from the effective end of emigration is that Gaelic games in Britain and North America are now being played increasingly by the children of our Diaspora. I share the belief of the GAA that the future of our Gaelic games overseas will increasingly depend on young people with an Irish background.26

The Government also announced funding in the form of grants totalling €8.21 million to support 130 voluntary organisations working with the Irish community in Britain. The bulk of the funding will go to welfare projects, including significant funding for projects providing services for the elderly and vulnerable members of the Irish community in Britain.27 Funding was also provided to four Irish community organisations in Australia which are engaged in the provision of support and advisory services to Irish emigrants.28 The range of consular services provided at Cork Passport Office was broadened in 2008 to include certificates for marriage abroad, legalisation of documents and foreign birth registration.29 24   ‘Minister for Foreign Affairs, Mr Micheal Martin TD, presses US political leaders for solution to situation facing undocumented Irish — announces $50,000 for Irish Lobby for Immigration Reform’ Press Release, 27 September 2008. Available at www.dfa.ie. 25   ‘Minister Ahern signs new work agreement with Argentina’ Press Release, 19 March 2008. Available at www.dfa.ie. 26   ‘Minster Micheal Martin announces partnership agreement with the GAA to promote Gaelic games abroad’ Press Release, 24 June 2008. Available at www.dfa.ie. 27   ‘Minister for Foreign Affairs, Mr Micheal Martin TD, announces grants of over €8 million to Irish community groups in Britain’ Press Release, 10 August 2008. Available at www.dfa.ie. 28   ‘Minister Martin announces over AUD 300,000 in grants to Irish community organisations in Australia’ Press Release, 29 December 2008. Available at www.dfa.ie. 29   ‘Minister for Foreign Affairs, Mr Micheal Martin TD, announces expansion of consular services at Cork Passport Office’ Press Release, 23 June 2008. Available at www.dfa.ie.



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northern ireland Delivering the Annual St Brigid’s Day Lecture in Belfast on 27 February 2008, the Minister for Foreign Affairs commented I believe that the real impact and legacy of conflict can only be truly understood by those who have experienced it, primarily here in almost every parish and townland across the North, but also of course by people in Dublin and Monaghan and my own home-town of Dundalk, and by people in London and Warrington and elsewhere in Britain. Equally, the value of peace – won by hard work and risk-taking and difficult compromises – is best appreciated by those who lived through that conflict and through those slow and tortuous and seemingly interminable peace negotiations. We cannot undo what has been done over the past 40 years, nor can we erase the mistakes that catapulted this society towards conflict. However, all of us – each in our own spheres and lives – can and must do everything in our power to ensure that the absolute horror of violent conflict never again stalks our land.30

The Minister outlined some of the challenges facing Northern Ireland, namely the need to combat sectarianism and to reconnect with the wider world. He announced the launch of an Anti-Sectarianism Fund to help communities to tackle sectarianism in Northern Ireland and to promote tolerance.31 The initial outlay for this fund is €1mn. The first allocation of grants was made to eight community groups in April 2008.32 €0.6mn was also made available from the Department’s Reconciliation Fund for crossborder outreach and reconciliation work.33 Progress continued towards the drafting of a Bill of Rights for Northern Ireland, as required by the Good Friday Agreement. Flowing from the commitments made within the 1998 Good Friday Agreement and the St Andrews Agreement in October 2006, the Bill of Rights Forum was established to formulate recommendations to the Northern Ireland Human Rights Commission as it fulfils its statutory duty in providing advice to the Secretary of State on a future Bill of Rights for Northern Ireland. In March 2008, the Bill of Rights Forum made its recommendations on the contents of a proposed Bill.34 The rights will be supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international human rights instruments and experience. These additional rights will reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – will constitute a Bill of Rights for Northern Ireland. In December 2008, the Northern Ireland Human Rights Commission presented its advice to the UK Government on the content of a Bill of Rights for Northern Ireland.35

30   Speech by the Minister for Foreign Affairs, Dermot Ahern TD, St Brigid’s Lecture, Belfast, 27 February 2008: ‘New hope, new growth, new beginnings’. Available at www.dfa.ie. 31   ‘Dermot Ahern Announces Anti-Sectarianism Fund’ Press Release. Available at www.dfa.ie. 32   ‘Minister Dermot Ahern announces first anti-sectarian grants’ Press Release, 1 April 2008. Available at www.dfa.ie. 33   ‘Minister Dermot Ahern announces €0.6 million Cross Border Funding’ Press Release, 28 March 2008. Available at www.dfa.ie. 34   See www.billofrightsforum.org. 35   See www.borini.info and www.nihrc.org.

Ireland and the European Union – 2008

Catherine Donnelly trinity college, dublin When considering Ireland’s participation in the European Union (EU), 2008 will be remembered as the year in which Ireland provoked a ‘crisis’ for the EU by rejecting the Lisbon Treaty.1 Although explanations for the rejection are multi-faceted, it seems that the desire of the Irish people to pursue multilateralism, peacekeeping and, in particular, neutrality in international relations, underpinned at least a percentage of ‘No’ votes. In the Area of Freedom, Security and Justice, as in 2007, the European Arrest Warrant and the Qualification Directive continued to raise concerns, resulting in important judgments by Irish courts and the European Court of Justice (ECJ); while in the context of European Community (EC) law, an unusually high number of cases explored the application and scope of the general principles of EC law, such as direct effect, conforming interpretation and the definition of an ‘emanation of the state’ for the purpose of enforcing directives. Also under scrutiny was Ireland’s record on citizenship protection, environmental law, enforcement of judgments and state aid. Finally, Irish cases contributed to elucidating aspects of the ECJ’s procedural rules, while the impact of Article 226 EC infringement proceedings on national litigation was also reviewed.

the lisbon treaty No doubt the most important event relating to Ireland’s involvement in the EU in 2008 occurred on 12 June, when the Irish public rejected the Lisbon Treaty by a margin of 53.4 per cent to 46.6 per cent. Of the political parties represented in the Dáil, the Treaty had been supported by Fianna Fáil, Fine Gael and Labour, but opposed by Sinn Féin. Unsurprisingly perhaps, recriminations among parties supporting a ‘Yes’ vote followed the referendum, with one Fine Gael TD observing in the Dáil that ‘No’ voters had been motivated by ‘lack of trust in politicians in this country as a direct result of the tribunals which [had] dominated the political scene’,2 and Fianna Fáil TDs countering that opposition parties had not sufficiently motivated their supporters to vote ‘Yes’.3 The European Council in Brussels the following week was dominated by 1   See, eg S Collins, ‘No solution to Lisbon crisis by October-Martin’ Irish Times, 19 June 2008; S Carroll, ‘Sarkozy vows to find a solution that will avert Lisbon “crisis’’ ’ Irish Times, 11 July 2008; M Hennessy, ‘Sarkozy accepts there is no quick fix to Lisbon crisis’ Irish Times, 22 July 2008. 2   Deputy Lucinda Creighton, Dáil Éireann, Vol 657 Col 695 (25 June 2008). 3   See, eg D de Bréadún ‘FF and FG point finger of blame at each other’ Irish Times, 19 June 2008.

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discussion of the rejection. Although the Council’s conclusions ‘noted’ the outcome of the referendum, and indicated that ‘more time was needed to analyse the situation’,4 some individual European leaders incurred the ire of Irish ‘No’ voters, most notably, French President, Nicholas Sarkozy, who took over the EU presidency in July and promptly announced to colleagues that the Irish would have to hold a second referendum.5 There was initially uncertainty as to whether such a second referendum would take place – with the Taoiseach informing the Dáil at the end of June 2008 that he had explained to his EU colleagues that there was ‘no quick fix or easy solution’.6 However, it became apparent in December 2008 that a second referendum would be called, and at the time of writing, that referendum is scheduled for 2 October 2009. Understanding the rejection of the Lisbon Treaty is not straightforward, but a survey conducted by Millward Brown in July7 cast some light on the situation. Turnout for the Lisbon Treaty referendum was 53 per cent, in excess of the 35 per cent who voted in the Nice I referendum, and the survey suggested that the decisive issue was the increase in ‘No’ voters as a proportion of the total electorate (from 18 per cent at Nice II to 28 per cent in June 2008), rather than ‘Yes’ voters staying at home.8 The overriding reason for abstaining from voting appeared to be a lack of understanding of the Treaty (46 per cent).9 In terms of the vote itself, the primary reason that emerged for voting ‘No’ was ‘lack of knowledge/information/understanding’, with 42 per cent of ‘No’ voters citing this as a reason.10 It also emerged that ‘No’ voters were far more likely to believe that erosion of Irish neutrality 42 per cent, end of control over abortion 34 per cent and conscription to a European army 33 per cent would follow ratification of the Lisbon Treaty.11 Loss of a Commissioner was a common concern for ‘No’ voters, with focus groups indicating that many people believed that the loss of a Commissioner would mean Ireland would have no voice in Europe at all.12 Other important, although less prominent concerns, included workers’ rights, control over public services and control over corporate taxation.13 Overall, it was concluded by the survey that a general EU knowledge deficit was present which contributed to the ‘No’ vote: understanding of EU institutions appeared to be particularly low, which clearly rendered advocating a referendum based on institutional reform difficult.14 In terms of the profile of ‘No’ voters, of 25–34 year olds, 59 per cent voted ‘No’, of women, 56 per cent, and the ‘No’ vote was also more common among voters from lower socio-economic groups.15 From the perspective of Ireland’s future participation in the EU, the large percentage of ‘No’ voters among 25–34 year olds may be of concern. On   Council of the European Union, Presidency Conclusions, 19/20 June 2008, p1.   See, eg J Smyth ‘Sarkozy promises to find solution to institutional crisis’, Irish Times, 2 July 2008; E Burke-Kennedy ‘Protest over Sarkozy planned’, Irish Times, 24 June 2008. 6   Dáil Éireann, Vol 657 Col 691 (25 June 2008). 7   Millward Brown IMS, Post Lisbon Treaty Referendum Research Findings, September 2008 Available at: www.lisbontreaty.ie/files/post-lisbon-treaty-referendum-research-findings.pdf (last accessed 29 September 2009). 8   Ibid 1. 9   Ibid 2. 10   Ibid ii. 11   Ibid 8. 12  Ibid. 13   Ibid 14, 15, 25. 14   Ibid ii, iii. 15   Ibid 5. 4 5

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a more positive note though, the survey also indicated that 60 per cent of Irish voters believed that Ireland’s interests are best pursued by remaining fully involved in the EU,16 while the 2008 Eurobarometers indicated that Irish people remain among the most positive in their attitudes towards the EU – the Spring Eurobarometer revealed that 73 per cent of Irish peopled considered EU membership to be a good thing,17 with the slight lower percentage of 67 per cent in Autumn.18 Whether these positive attitudes will be reflected in the vote on the second referendum remains to be seen.19

area of freed om, security and justice Police and Judicial Co-operation in Criminal Matters: the European Arrest Warrant Although not as prevalent before the courts as in 2007,20 the European Arrest Warrant (‘the EAW’) continued to generate litigation in 2008.21 In Ferenca,22 for example, at issue was Section 38 of the European Arrest Warrant Act 2003 (the 2003 Act) which gives effect to the 2002 EAW Council Framework Decision (the Framework Decision),23 and which 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’. In the High Court, Peart J held that 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 specifically in Article 2.24 This holding was overturned on appeal. Murray CJ accepted that Peart J was ‘perfectly correct’ in stating that one of the specific purposes of the Framework Decision is to remove the complexities in extradition arrangements between Member States. However, Murray CJ was concerned that the effect of Peart J’s judgment was that once a person was convicted in one Member State, that conviction would suffice for his or her surrender without the correspondence of offences being required. This was not what the 2003 Act envisaged, and if it did, there would have been no need for a provision in the terms of Section 38, nor any need for a reference to Article 2.2 of the Framework Decision, which only gives dispensation from the correspondence test for a limited number of offences. Relying on the Leden van de Ministerraad case,25 Murray CJ also noted that in upholding the compliance of Article 2 of the Framework Decision with the principle of legal certainty in that case, the ECJ had explained that   Ibid 3.   Eurobarometer National Report Ireland, Spring 2008, p 12 available at: http://ec.europa.eu/public_opinion/archives/eb/eb69/eb69_ie_nat.pdf (last accessed 29 September 2009). 18   Eurobarometer, National Report, Ireland, Autumn 2008, available at: http://ec.europa.eu/public_opinion/archives/eb/eb70/eb70_ie_nat.pdf (last accessed 29 September 2009). 19   One week before the referendum, the signs are positive, with an MRBI poll indicating that 48% were likely to vote ‘yes’ on 2 October 2009: S Collins, ‘Poll shows steady support for Lisbon’, 25 September 2009. 20   See C Donnelly ‘Ireland and the European Union – 2007’ (2007) 2 Irish Yearbook of International Law 133, 137–141. 21   See, eg Minister for Justice Equality and Law Reform (‘MJELR’) v Breen [2008] IEHC 54. 22   MJELR v Ferenca [2008] IESC 52. 23   Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures between Member States [2002] OJ L190/01. 24   MEJLR v Ferenca [2007] IEHC 199. 25   Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633. 16 17

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the offences to which Article 2.2 applies are not defined by the vague terms of the Article itself, but by legislation of each Member State. Thus, it was not open to a court to ascertain whether an offence is an offence to which Article 2.2 applies by looking at some conceptual element in Article 2.2 alone, as the High Court had done. In May 2008, an issue which had been raised in a number of High Court cases,26 namely, the constitutionality of the 2003 Act, was finally resolved by the Supreme Court in the case of MJELR v Puta.27 A challenge had been raised to the 2003 Act on the basis 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. Three differences were drawn to the Court’s attention: first, ‘motor vehicle crime’ in the draft is replaced by ‘Trafficking in stolen vehicles’ in the final version; second, ‘Counterfeiting of currency’, in the draft, included only ‘the euro’ but is extended in the final version to any currency; and third, the final version is expressly stated to extend to Gibraltar, whereas the draft contains no mention of Gibraltar. The appellants contended that the 2003 Act was enacted in contravention of Article 29.4.6°, which requires the prior approval of both Houses of the Oireachtas to the exercise by the State of any of the ‘options or discretions’ provided for by Article 1.11 of the Amsterdam Treaty as it amended the Treaty on European Union (‘TEU’). This includes Article 34 TEU, which requires a unanimous vote of the Council for the adoption of framework decisions and pursuant to which the EAW Framework Decision had been adopted. The case therefore raised the question of the appropriate level of judicial intervention in or scrutiny of parliamentary procedures, and the interpretation of Article 29.4.6°, first, in relation to the meaning of the expression ‘options or discretions’ and second, in relation to the level of detail or precision of the advance approval required. The Supreme Court concluded that the adoption of the EAW Framework Decision involved the exercise of an ‘option’ within the meaning of Article 29.4.6°, as the power to adopt framework decisions, as expressed in Article 34(2)(b) TEU and pursuant to which the EAW Framework had been adopted, was preceded by the word ‘may’ indicating discretion. On the issue of whether the Houses of the Oireachtas were required to give prior approval of the exact text of the measure which was ultimately adopted, Murray CJ noted the context in which approval had been given: namely, the resolutions approved the participation of the State, with other Member States, in the adoption of the Framework Decision. The participation had to be regarded as a process to which it is intrinsic and inevitable that texts originally proposed will, through discussion and negotiation, undergo change and amendment: ‘change of text’ was ‘inherent in the process of lawmaking’ and a ‘fact of political life’ of which parliamentary representatives would have been conscious. The objective of Article 29.4.6° was to ensure ‘[a] measure of democratic control of the exercise of State power’, which was ‘consonant with developing ideas and concerns about the need to remedy a democratic deficit in the European institutions.’ Participation by the executive arm of the State in the adoption by the Council of a framework decision without complying with the provisions of Article 29.4.6° would represent ‘defiance of a mandatory constitutional requirement’ and ‘[a]ny act of the 26 27

  See, eg MJELR v Iqbal [2007] IEHC 133 [2008] 4 IR 362; see also MJELR v Sulej [2007] IEHC 132.   [2008] IESC 29.

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Oireachtas enacted for the purpose of implementing the measure would constitute an attempt to validate unconstitutional action by the executive.’ However, for Murray CJ, Article 29.4.6° constituted a parliamentary and, in practice political rather than legal control over government action, and it was for the Houses of the Oireachtas to decide on the degree of authority they wished to confer on the executive in the context of Title VI measures and to judge retrospectively whether their mandate has been observed, when called on to enact implementing legislation. In assessing the standard of review to be applied, Murray CJ relied upon his own judgment in the earlier High Court case of TD v Minister for Education28 which had been approved by the Supreme Court in Curtin v Dáil Eireann.29 It is only where there is ‘clear disregard’ by an organ of the State of – ‘a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness’ – that the court should intervene. That had not arisen in this case, and the constitutionality of the 2003 Act could not be impugned on the basis of Article 29.4.6°. Visas, Asylum, and Immigration: The Qualification Directive The new concept of ‘subsidiary protection’ in the refugee context, introduced by Council Directive 2004/83/EC (‘the Qualification Directive’) – 30 and implemented by the European Communities (Eligibility for Protection) Regulations 2006 (the 2006 Regulations) – 31 received consideration in a number of important cases in 2008. At issue in the Gavrylyuk case32 was the meaning of Feeney J’s judgment in the H case,33 decided in 2007.34 The applicants in Gavrylyuk, husband and wife from the Ukraine, stated that if returned to Ukraine, they would be imprisoned and the conditions to which they would be subjected would amount to cruel, inhuman and degrading treatment. Article 18 of the Qualification Directive provides for subsidiary protection of third country nationals or stateless persons who do not satisfy the conditions for refugee status, and by Article 2(e) those entitled to such protection include those who, if returned to their country of origin, would face a real risk of suffering serious harm. By Regulation 4(2) of the 2006 Regulations, the Minister is not obliged to consider an application for subsidiary protection from a person other than a person whose application for asylum has been refused and in respect of whom a deportation order may be made but has not yet been made.35 Each of the applicants fell outside the scope of the 2006 Regulations as deportation orders had been made in respect of them. To recall, in the H case, Feeney J had concluded that because the Qualification Directive did not purport to back-date the application of subsidiary protection, the applicants in H, who had received deportation orders prior to the coming into effect of the 2006 Regulations, did not have an automatic right to apply for subsidiary protection. However,   TD v Minister for Education [2001] 4 IR 259.   Curtin v Dáil Eireann [2006] 2 IR 556.   Council Directive 2004/83/EC of 29 April 2004 sets down minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection. 31   SI No 518 of 2006. 32   Gavrylyuk v MJELR [2008] IEHC 321. 33   H v MJELR [2007] IEHC 277; [2008] 4 IR 452. 34   See Donnelly (n 20) 141–42. 35   Regulation 4(2) cross-refers to Section 3(2)(f) of the Immigration Act 1999. 28 29 30

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the applicants could apply pursuant to Regulation 4(2), which, as Feeney J concluded, granted the Minister discretion to consider applications from individuals other than persons automatically entitled to apply for subsidiary protection. Having determined that the Minister had discretion pursuant to Regulation 4(2), Feeney J proceeded to identify the differences in the issues arising for consideration at the deportation order stage and at the subsidiary protection stage and observed that in the vast majority of cases, the issues to be considered at the deportation stage, prior to implementation of the Directive, would have been the ‘same or identical’ to those to be considered in relation to ‘serious harm’ pursuant to the Directive. The Minister had interpreted the judgment in H as meaning that the exercise of his discretion under Regulation 4(2) was limited to situations where the applicants could show new facts or circumstances.36 In Gavrylyuk, it was argued that this approach was incorrect, first, on the basis that the High Court did not have the jurisdiction to prescribe and limit the Minister’s discretion in this way,37 and second, on the basis that the Minister had unlawfully fettered the exercise of his discretion by refusing to exercise that discretion unless an applicant had demonstrated altered circumstances.38 For Birmingham J, there was no ambiguity in Feeney J’s judgment,39 and its ‘bedrock’40 was that the exercise of the Minister’s discretion under Regulation 4(2) should be in cases where the grounds upon which the subsidiary protection application is made are not ‘the same or identical’ to the matters already considered at the deportation order stage.41 Thus, the Minister did not have an obligation to reconsider the situation of any person in respect of whom a deportation order was made prior to the coming into force of the 2006 Regulations; however, the Minister had discretion under Regulation 4(2) to accept and consider an application from an applicant who was able to show that a change of circumstances had arisen since the deportation order was made.42 Importantly, in N v MJELR,43 Charleton J gave detailed guidance on when the entitlement to ‘subsidiary protection’ arises. The applicants had contended that they were entitled to subsidiary protection in part on the basis that they needed the benefit of the health system in Ireland and that they should not be returned, in the light of the condition of the applicant N in particular, to Nigeria where much lesser forms of assistance are available. The applicants also complained about the procedure which had been adopted to give effect to the Qualification Directive. Charleton J began with the definition of a person entitled to subsidiary protection under the 2006 Regulations, Regulation 2(1) of which states that a person is entitled to subsidiary protection where they meet a number of conditions, including that there are ‘substantial grounds’ for believing that the person ‘would face a real risk of suffering serious harm’ if returned to his or her country of origin. Serious harm, following the definition in Article 15 of the Qualification Directive, is defined as consisting of:

  Gavrylyuk (n 32).   Ibid [65]–[66]. 38   Ibid [67]–[73]. 39   Ibid [82]; see also [79]. 40   Ibid [76]. 41   Ibid [75]. 42   Ibid [82]. 43   N v MJELR [2008] IEHC 107, [2009] 1 IR 88. 36 37

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a. death penalty or execution; b. torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or c. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Charleton J noted that prior to the Qualification Directive The Minister already had a responsibility to protect actual rights rather than merely exercise his discretion as to the granting of a privilege when deciding whether to deport a non-citizen: for example, pursuant to Section 5 of the Refugee Act 1996 (enshrining the non-refoulement principle of the Refugee Convention44 and the European Convention on Human Rights (‘ECHR’)). However, the Regulations extended the protection previously available as of right to non-citizens against expulsion from the State,45 as they made it explicit that a threat on account of racism or bigotry by way of persecution is not required, and that the State is obliged to protect a person in the circumstances defined in Article 15. That said, Charleton J was not persuaded that access to better healthcare justified granting subsidiary protection,46 given that the principle of protection contained in the Regulations is ‘against human action’ – not against illness or natural disaster. Execution and torture required human action; and while threats of the most serious kind to life or person can occur through individual criminal activity or gang warfare in Ireland or Nigeria or any other country, protection was only afforded where this arose from either ‘situations of international or internal armed conflict’ or where there had been such a breakdown of structure within the country of origin that there is no adequate response to violence by reasonable attempts at law enforcement. In other words, the legislation was ‘based on a “need for international protection”’ – not health or welfare. To support this conclusion, Charleton J relied upon, inter alia, Recital 9 of the Qualification Directive which states that those who seek to remain in Member States on the basis of ‘compassionate or humanitarian grounds’ fall outside the scope of the Directive; Recital 26, which declares that risks to which a population or a section of the population is generally exposed do not normally, in themselves, create an individual threat which would qualify a serious harm;47 and Article 8 of the Directive which enables Member States to determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. In a conclusion sufficiently important to be cited in full, Charleton J summarised his thoughts as being that, depending on an assessment of the facts, a non-citizen may be entitled to subsidiary protection in a Member State where: 1. no substantial part of an applicant’s country of origin is capable of providing them reasonable protection, through police and criminal justice services, from a real risk of suffering serious harm, or worse, through human action arising from inter­ national or internal armed conflict;   Convention Relating to the Status of Refugees, 1951.   N v MJELR (n 43) 106. 46   Ibid 106–07. 47   Ibid 107–08. 44 45

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2. a substantial territory within the country of origin can provide an applicant with a haven, despite international or internal armed conflict, against a real risk of suffering serious harm, or worse, through human action, either under the control of the country of origin, or another country, or of an international organisation, but the conditions in that place are so serious from the point of view of resort to police and criminal justice protection, or from an imminent risk of international or civil war, that having regard to the personal circumstances of the applicant, he or she cannot reasonably have been expected to relocate there before applying for international protection or cannot reasonably now be returned there; 3. an applicant is likely to suffer a real risk of being executed other than in accordance with due process of law in respect of a crime which is not internationally recognised as being so serious as to be responsibly considered as allowing for imposition of the death penalty, discounting, as Charleton J considered himself obliged to, Ireland’s opposition to that punishment on the basis of its obligations to implement European law; 4. an applicant is likely to suffer a real risk of torture or inhuman or degrading treatment at the hands of his or her country of origin authorities or, if the apprehended harm comes from a non-State source, then (1) or (2) above applies or the situation in the country lacks any reasonably functioning police and criminal justice protection and no haven as in (2).    Charleton J added that the European and Irish legislation both focus on attacks or threats by human agency, which excluded consideration of the state of health, whether physical or mental, of an applicant.48 Turning to the applicants’ procedural complaints, a complaint was made by the applicants that the Minister had erred in considering country of origin information that was not known by the applicants and not sent by them in their application.49 Relying on the H case, Charleton J observed that Feeney’s J emphasis in that case on changed circumstances highlighted the importance of the Minister considering up to date information,50 both of the situation of the applicant and ‘the true situation in their country of origin’.51 The applicants had also proposed a complicated procedure for determining entitlement to subsidiary protection based on interactions between the applicants and the Minister, a proposition which Charleton J rejected as not required by the Qualification Directive,52 and as indicating a ‘complete lack of trust’ in the Minister.53 Charleton J stated that where an additional right is claimed to those which entitle an applicant to refugee status under s 2 of the Refugee Act 1996, the Minister, prior to deporting such an applicant, must first consider whether the claim made is the same in substance as that which has already been made in seeking refugee status. If it is, the Minister is entitled to place some degree of weight on the failure of the applicant to succeed in an application for refugee status and as to their credibility.54 If, however,   Ibid 130.   Ibid 121. 50   Ibid 121–22. 51  Ibid. 52   Ibid 117–18. 53   Ibid 122. 54   Ibid 117. 48 49

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substantially new facts are asserted, then the Minister must consider it fairly.55 In terms of the protection granted to the applicant for subsidiary protection, Charleton J also noted that heightened judicial scrutiny applied and any decision of the Minister should only stand if rational and fairly supported by the country of origin information.

european community treaty General Principles of EC Law A number of general principles of EC law received consideration this year, both in cases involving Ireland before the ECJ and in Irish cases involving the application of EC law. Effective Judicial Protection, Conforming Interpretation and Direct Effect The Impact case – 56 which arose from a reference for a preliminary ruling from the Labour Court – concerned the framework agreement (‘the Fixed-Term Work Framework Agreement’) on fixed-term work annexed to Council Directive 1999/70/EC (‘the Fixed Term Work Directive’)57 and its transposing legislation, the Protection of Employees (Fixed-Term Work) Act 2003 (‘the Fixed-Term Work Act’). Impact, acting on behalf of Irish civil servants, had brought the proceedings against various Government departments concerning the conditions applied to civil servants on fixed-term worker status and conditions relating to renewal of fixed-term contracts. Impact’s complaints relied directly on the Fixed-Term Work Directive in respect of the period between the deadline for transposing the Directive and the date on which the Fixed-Term Work Act actually came into force, and on the Fixed-Term Work Act for the period thereafter. Responding to the Labour Court’s query required consideration of the principles of effective judicial protection, direct effect, and conforming interpretation. The Fixed-Term Work Act provides a mechanism for complaints to be made by employees or trade unions to a Rights Commissioner,58 and the first question related to the issue of whether the Rights Commissioner had jurisdiction to consider complaints based on Directive 1999/70, rather than based simply on domestic law, or whether questions relating to the Directive could only be raised before the High Court. The ECJ began by referring to the well-established principle of effective judicial protection in the EC – which the ECJ described as a ‘general principle of Community law’59 – and reiterating the requirements of equivalence and effectiveness which form the basis of national procedural autonomy.60 The principle of effective judicial protection requires that where individuals rely on optional jurisdiction conferred on a specialised court by the national legislation transposing the directive, in this case the Rights Commissioner, those individuals should be able to seek the protection of the directive itself before that court, if to divide the actions into separate claims would render excessively difficult   Ibid 116.   Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483. 57   Council Directive 1999/70 of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p 43). 58   Sections 14 and 15, Fixed-Term Work Act. 59   Impact (n 56) para 43. 60   Ibid, paras 44–47. 55 56

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the exercise of Community rights – an issue to be determined by the national court.61 The ECJ added that the onus would fall on the national court to interpret domestic jurisdictional rules in a way that would ‘wherever possible’ contribute to the attainment of the objective of effective judicial protection.62 On the question of direct effect, the ECJ held that Clause 4(1) of the Fixed-Term Work Framework Agreement, which prohibits, in a general manner and in unequivocal terms, any difference in treatment of fixed-term workers in respect of employment conditions which is not objectively justified, was unconditional and sufficiently precise for individuals to be able to rely upon it before a national court.63 However, Clause 5(1) which assigned to Member States the general objective of preventing the abusive use of successive fixed-term employment contracts or relationships was not capable of direct effect.64 Clause 5(1) gave Member States a number of options in measures adopted to achieve its objective and while the ECJ accepted that following Francovich, the fact that a number of options were presented did not in itself preclude the possibility of direct effect,65 unlike the provision at issue in Francovich, ‘content comprising minimum protection in favour of individuals’ could not be identified in Clause 5.66 Given that Clause 5 was not found to be directly effective, a question then arose as to whether the Fixed-Term Work Act should be interpreted retrospectively to render unlawful a decision taken to renew a fixed-term contract for a period of eight years in the period immediately prior to the coming into force of the 2003 Act. The ECJ held that reading the duty of loyalty in Article 10 EC, alongside Article 249 EC and the Fixed-Term Work Directive, a public authority could not adopt measures contrary to the objective of the Directive – such as renewal of such contracts for an unusually long term – in the period between the deadline for transposing Directive 1999/70 and the date on which the transposing legislation entered into force.67 The ECJ was informed that as a matter of national law, legislation was not to be given retrospective effect unless there was a clear and unambiguous indication to the contrary.68 Thus, the ECJ ruled that given that background, there was no obligation on a national court to give retrospective effect to the national legislation transposing the Directive to the date by which that legislation should have been transposed, as that would result in an interpretation contra legem, which was not required by EC law.69 The reach of the principle of conforming interpretation arose again in Ryanair Ltd v Commission for Aviation Regulation.70 Ryanair had sought an order overturning a decision of the Commission, made pursuant to the European Communities (Access to the Ground Handling Market at Community Airports) Regulations 1998 (the 1998 Regulations) – 71 implementing Council Directive (EC) 96/67 – 72 to permit the notice   Ibid, para 53.   Ibid, para 54. 63   Ibid, paras 59–68. 64   Ibid, paras 69–80. 65   Ibid, para 72. 66   Ibid, paras 74–75. 67   Ibid, para 92. 68   Ibid, para 102. 69   Ibid, paras 100–03. 70   [2008] IEHC 278. 71   SI No 505 of 1998. 72   Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports OJ 1996 L272/36. 61 62

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party, Dublin Airport Authority, to charge certain fees in respect of check-in desks at Dublin Airport. Ryanair brought its challenge by means of special summons under Order 3 rule 21 of the Rules of the Superior Courts, which provides in relevant part that the special summons procedure may be adopted in various cases and in ‘any other proceeding which is required or authorised by law and for which no other procedure is prescribed by these rules’ Having found that the 1998 Regulations did not authorise the bringing of the challenge by special summons, Kelly J considered Ryanair’s argument that the ability to challenge by special summons could be read into the 1998 Regulations when they were interpreted in light of Article 21 of Council Directive (EC) 96/67, which provides that Member States or airports’ managing bodies should ensure that any party with a legitimate interest has the right to appeal against the decisions or measures taken, and that it must be possible to bring the appeal before a national court or a public authority other than the airport’s managing body and independent of the public authority controlling the managing body. Kelly J accepted that the obligation of conforming interpretation did arise, but observed that he was ‘not entitled to rewrite’ the 1998 Regulations. That conclusion raised the question as to whether the Directive had been transposed correctly, which Kelly J refused to answer given that the proper parties were not before the Court. Abuse of Rights The principle of abuse of rights was given detailed consideration in Cussens v Brosnan.73 VAT assessments had been raised against the applicants in respect of sale of holiday cottages pursuant to the Value Added Tax Act 1972, as amended, which implements the Sixth Council Directive on VAT (‘the Sixth Directive’).74 The applicants’ contention that the sale was exempt from VAT was rejected by the Inspector of Taxes because the VAT exemption arose from a series of artificial transactions. The applicants argued that the abuse of process principle should not be applied, because of the absence of a legal instrument transferring the principle of abusive practice from European into Irish law.75 It was also argued that to assess the transactions in light of the principle of abusive process was to infringe the first principle of revenue law whereby taxation is entirely based upon ‘literal’ basis or the application of statute law without the modification of any general principle of fairness or equity.76 Charleton J engaged in an extensive review of a series of ECJ judgments,77 and concluded that the principle of abuse of process, derived from and having wide application in civil law systems, had become: an overriding principle whereby the effect of European Union measures are not to be set at nought through legal transactions that may be apparently valid on their face but which are entered into with the essential aim of undermining the supremacy of European legislation.78

  Cussens v Brosnan [2008] IEHC 169.   Sixth Council Directive (EEC) 77/388 of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes [1977] OJ L145/1. 75   Cussens (n 73) [27]. 76   Ibid [29]. 77   Ibid [31]–[45]. 78   Cussens (n 73) [30]. 73 74

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Relying in particular on the ECJ’s judgment in Halifax v Commissioners of Customs and Excise,79 Charleton J held that the transactions involved in an abusive practice must be redefined so as to re-establish the situation that would have prevailed in the absence of the transactions constituting that abusive practice.80 Given that all the transactions at issue here were clearly entered into for no economic purpose and were constructed solely for the purpose of obtaining a tax advantage, the principle of abusive process operated so as to properly define the economic activity which is subject to VAT and to the circumstances in which it applies and the rate at which it applies.81 To his analysis of the case law, Charleton J added that two provisions of the Treaties of the EU referred to ‘general principles’: Article 6(2) EU, which refers in the context of human rights protection to ‘general principles of Community law’ and Article 288 EC, which makes reference to ‘the general principles common to the laws of the Member States’ in the context of legal liability.82 For Charleton J, the principle of abusive process was one ‘of interpretation’ and ‘of general application’.83 This meant that this was not a case where a directive was being relied on by a Member State against an individual, or where a law was being improperly transposed without legislation: rather the principle of abusive process required the Court to properly construe a purported transaction so as to properly apply the text of the Sixth Directive.84 Proportionality The principle of proportionality arose for consideration in Montemuino v Minister for Communications,85 in which a fisherman challenged the proportionality of a penalty of forfeiture of the entire catch of his vessel (worth €31,057) for the offence of having failed to log the catch of a particular fish, known as ‘Fork Beard’ (worth €600). Failure to log the catch constituted a breach of Regulation 4 of the Sea Fisheries (Control of Catches) Regulations 2003,86 Section 224(B) of the Fisheries (Consolidation) Act 1959, and Article 6 of Council Regulation (EEC) 2847/93.87 Feeney J held that the penalty was proportionate for a number of reasons. First, the mandatory statutory consequence of forfeiture of catch is expressly envisaged in Article 31.3 of Council Regulation (EEC) 2847/93, which meant that the sanction of forfeiture was not inappropriate. Second, the recitals of Council Regulation (EEC) 2847/93 refer to: the necessity of a common EU control system for the success of the common fisheries policy; the necessity of an effective system of control; and the necessity of ensuring that all catches and landings were kept under surveillance. Finally, it could not be said that the penalty was arbitrary or unfair or based upon irrational considerations, as Article 31.2 of Council Regulation (EEC) 2847/93 makes it clear that Member States should not only ensure that proceedings are capable of effectively depriving those responsible of the economic benefit of infringements, but   Case C-255/02 [2006] ECR I-1609.   Ibid [42].   Ibid [42]. 82   Ibid [43]. 83   Ibid [43]. 84   Ibid [45]. 85   Montemuino v Minister for Communications [2008] IEHC 157; [2009] 1 ILRM 218. 86   SI No 345 of 2003. 87   Article 31.3 of Council Regulation (EEC) 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy [1993] OJ L261/1. 79 80 81

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also of producing results proportionate to the seriousness of such infringements and effectively discouraging further offences of the same kind. The Court therefore concluded that forfeiture of the entire catch, even if the major portion of the catch is properly recorded, was a sanction rationally connected to the objective sought to be achieved, and went no further than what was necessary to achieve a Community aim. Emanation of the State In the case of Farrell v Whitty,88 Birmingham J had to consider whether the Motor Insurance Bureau of Ireland (the MIBI) constituted an ‘emanation of the state’ for the purposes of the application of Article 1 of the Third Directive on insurance against civil liability in respect of the use of motor vehicles,89 which had been found by the ECJ to be directly effective in an earlier preliminary ruling reference.90 In brief, the MIBI, which is a private company set up by the insurance companies who operate in the motor insurance market in the State, operates subject to the terms of an agreement made between it and the Minister for the Environment (1988 Agreement).91 As is well-known, in the case of Foster v British Gas,92 the ECJ commented of the term ‘emanation of the state’ as follows: a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.93

In applying the Foster criteria, Birmingham J began by noting that the term ‘emanation of the State’ was not a phrase that had appeared in a statute, but was rather a ‘convenient label’,94 and consequently, the Foster criteria could not be applied as a ‘checklist’.95 That a broad or purposive approach was required in assessing whether the MIBI was an ‘emanation of the State’ was also supported by a range of authorities and commentators.96 Birmingham J observed that the emphasis appeared to be on whether the organisation ‘had been given a responsibility for providing a public service’,97 and commented of the relevant paragraph of the Foster judgment that: reference to ‘is included in any event’ is quite inconsistent with any suggestion that what is being offered is a comprehensive, all embracing test. On the contrary it seems to me that the phrase ‘is included in any event’ signals that the category of bodies is wider than those that meet the three tests and that bodies that do meet the three tests constitute only a subset of the entire category.98

  [2008] IEHC 124.   Council Dir (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. 90   Case C-356/05 Farrell v Whitty [2007] ECR I-3067. 91   Ibid [6.1]–[6.5]. 92   Case 188/89 [1990] ECR I-3313. 93   Ibid para 20. 94   Farrell (n 90) [9.1]; see also [12.2]. 95   As adopted by Flaux J in Byrne v Motor Insurance Bureau [2007] 3 All ER 499: see ibid, para 10.6. 96   Farrell (n 90) [9.1]–[9.6]. 97   Ibid [9.3]. 98   Ibid [12.3]. 88 89

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Birmingham J conducted an extensive review of English cases involving the English Motor Insurers Bureau, as well as number of Irish cases dealing with the question99 and was particularly persuaded by the case of The National Union of Teachers v Governing Body of St Mary’s, Church of England (Aided) Junior School,100 in which the Court of Appeal had taken the view that the Foster tripartite test was indicative rather than a statutory definition.101 In finding the MIBI to be ‘an emanation of the State’, Birmingham J was influenced by a number of factors. The MIBI performed the functions of a body authorised for the purpose of Article 1(4) of the Second Directive on insurance,102 which involved a ‘public’ responsibility created by the Second Directive itself.103 The fact that the MIBI was in existence well before the State joined the EC was of no relevance, since when the Second Directive came into being, all concerned must have been well aware that there were already in existence in at least a number of Member States bodies providing compensation, and it must have been obvious to all concerned that these existing structures were likely to continue and to be authorised.104 Likewise, the fact that the authorisation took the form of an agreement rather than a statute or statutory instrument was irrelevant.105 In addition, while there was no doubt that the MIBI was private body, a company incorporated by guarantee, it was ‘in practice’ subject to a ‘considerable degree of state control or influence’ as evidenced by a number of factors. First, the 1988 Agreement referred to a duty to satisfy judgments in respect of liability for injury or damage required to be covered by an approved policy of insurance under Section 56 of the Road Traffic Act 1961, which had and could be amended by the State.106 Second, while the State could not dictate how the MIBI dealt with individual claims, Clause 3(7) is an ‘unusual feature’, which provides that when assessing the obligation on a claimant to take all reasonable steps against a person against whom there might a remedy, disputes could be referred to the Minister for the Environment, whose decision is final.107 Third, amendments to the Memorandum and Articles of Association of MIBI required the consent of the Minister for Employment and Enterprise.108 Finally, Birmingham J was persuaded by the fact that, by legislation,109 in order for an undertaking to issue an approved policy of insurance, it must be a member of the MIBI and ‘perhaps, even more unusually’, before a body can become an exempted person and so be freed of the obligations of compulsory insurance, it must provide an undertaking to deal with third party claims in respect of its vehicles on terms similar to those agreed between the Minister and the MIBI.110   Ibid [10.1]–[10.6].   The National Union of Teachers v Governing Body of St Mary’s, Church of England (Aided) Junior School [1997] 3 CMLR 630. 101   Farrell (n 90) [10.6]. 102  Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles. 103   Farrell (n 90) [12.7]. 104   Ibid [12.8]. 105   Ibid [12.8]. 106   Ibid [12.9]. 107   Ibid [12.10]. 108   Ibid [13.2]. 109   Section 78 of the Road Traffic Act 1961 as substituted by Article 9 of the European Communities (Compulsory Insurance) (Amendment) Regulations, 1992 (SI No 347 of 1992). 110   Farrell (n 90) [13.3]. 99

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EU Citizenship In July, responding to a reference from the High Court, the ECJ gave an extremely important judgment in the Metock case111 to clarify confusion which had arisen in its earlier Jia112 and Akrich113 case law. It will be recalled that in Akrich, the ECJ had ruled that, in order to benefit from the rights provided for in Article 10 of Council Regulation (EEC) 1612/68114 the national of a non-member country who is the spouse of a Union citizen must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated.115 In Metock, the ECJ announced that the conclusion in Akrich ‘must be reconsidered’.116 The ECJ ruled that Directive 2004/38/EC117 (which amended Council Regulation (EEC), 1612/68) must be interpreted as applying to all nationals of non-member countries who are family members of an EU citizen within the meaning of Article 2(2) of that Directive, without distinguishing according to whether or not the national of a non-member country has already resided lawfully in another Member State.118 Citing such cases as Carpenter,119 the ECJ observed that even before the adoption of Directive 2004/38/EC, the Community legislature had recognised the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC Treaty.120 The ECJ added that to allow the Member States exclusive competence to grant or refuse entry into and residence in their territory to nationals of non-member countries who are family members of EU citizens and have not already resided lawfully in another Member State would have the effect that the freedom of movement of EU citizens in a Member State whose nationality they do not possess would vary from one Member State to another, according to the provisions of national law concerning immigration, with some Member States permitting entry and residence of family members of a Union citizen and other Member States refusing them.121 Such a result would not be compatible with the objective set out in Article 3(1)(c) EC of an internal market.122 Arguments by the Minister for Justice to the effect that given the background of the strong pressure of migration, it was necessary to control immigration at the external borders of the Community, and that the ECJ’s interpretation would greatly increase the number of persons able to benefit from a right of residence in the Community were rejected.123 The ECJ responded that not all non-EU nationals would derive rights, only those who are family members of an EU citizen who has exercised his right of freedom   Case C-127/08 Metock v Minister for Justice, Equality and Law Reform [2008] 3 CMLR 39.   Case C-1/05 Jia v Migrationsverket [2007] 1 CMLR 41. 113   Case C-109/01 Secretary of State for the Home Department v Akrich [2003] ECR I-9607. 114   Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L257/2. 115   Akrich (n 113). 116   Metock (n 111). para 58. 117   Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 (Directive 2004/38). 118   Ibid para 54. 119   Case C-60/00 Carpenter v Secretary of State for the Home Department [2002] ECR I-6279, para 38. 120   Metock (n 111) para 56. 121   Ibid para 67. 122   Ibid para 68. 123   Ibid paras 71 and 72. 111 112

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of movement;124 Member States also retained the ability under Chapter VI of Directive 2004/38/EC to refuse entry and residence on grounds of public policy, public security or public health;125 and Member States could refuse, terminate or withdraw a right conferred by Directive 2004/38 in the case of abuse of rights or fraud, such as marriages of convenience.126 With regard to an argument regarding reverse discrimination in respect of nationals of the host Member State who have never exercised their right of freedom of movement, the ECJ observed that it was ‘settled case-law’ that the EC Treaty rules governing freedom of movement for persons and the measures adopted to implement them could not be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all relevant respects within a single Member State.127 In response to a second question from the High Court, namely whether the protection of Directive 2004/38/EC applied regardless of when the marriage took place or the circumstances in which he entered the host Member State, the ECJ pointed to the objective of Directive 2004/38/EC of facilitating the exercise of the right of the EU citizen to move and reside freely, which meant that the Directive could not be interpreted restrictively.128 Moreover, none of the provisions of the Directive required that the EU citizen must already have founded a family at the time when he moves to the host Member State in order for his non-Member State family members to be protected by the Directive,129 since, whether the family is founded before or after the move, the refusal of the host Member State to grant a right of residence is equally liable to discourage the Union citizen from continuing to reside in that Member State.130 Environmental Law Environmental infringements featured heavily in Ireland’s interactions with the ECJ in 2008, with Ireland being ranked in 2008 as having the third highest number of open infringements in the environmental context after Italy and Spain.131 The Waste Water Treatment Directive In September, the ECJ found Ireland in violation of Articles 4(1) and 3 of the Waste Water Treatment Directive,132 due to its failure ensure that the waste water from Bray, Howth, Letterkenny, Shanganagh, Sligo and Tramore had been made subject to secondary treatment or an equivalent treatment before entering collecting systems.133 Ireland raised preliminary objections on the basis that the nature of the Commission’s complaint had been altered during the course of the proceedings and that the letter of   Ibid para 73.   Ibid para 74. 126   Ibid para 75. 127   Ibid paras 76–78. 128   Ibid paras 82–84. 129   Ibid para 87. 130   Ibid para 92. 131   L Cashman, ‘Key Goals of Commission Enforcement Policy in Relation to the Environment, with Particular Reference to Ireland’ (2008) 15 Irish Planning and Environmental Law Journal 102. See also T Flynn, ‘Transposition and Enforcement of European Community Environmental Law in Ireland: Some Key Issues’ (2008) 15 Irish Planning and Environmental Law Journal 58 (noting that the implementation of EC environmental law in Ireland remains unsatisfactory). 132   Council Directive (EEC) 91/271 of 21 May 1991 concerning urban waste-water treatment [1991] OJ L 135/40). 133   Case C-316/06 Commission v Ireland [2008] ECR I-124. 124 125

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formal notice had not been sufficiently detailed. The ECJ ruled that while the Article 226 EC procedure is circumscribed by the pre-litigation procedure provided by that article – and the letter of formal notice, the reasoned opinion and the application to the Court must be based on the same objections – that requirement could not be carried so far as to mean that in every case exactly the same wording must be used in each, provided that the subject-matter of the proceedings has not been extended or altered.134 In response to the complaint regarding the letter of formal notice, the ECJ noted that the reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the Member State in question had breached the EC Treaty. However the letter of formal notice could not be subject to such strict requirements of precision, since it could not, of necessity, contain anything more than an initial brief summary of the complaints.135 The EIA Directive Ireland was found to have failed to correctly transpose the Environmental Impact Assessment Directive (the EIA Directive)136 on two occasions in 2008.137 In July, the ECJ found that Ireland’s system of retention planning permission for projects not subjected to an EIA – including allowing permission in the absence of a prior EIA, where no exceptional circumstances were proved, and giving that retention permission the same effect as a prospective permission – undermined the objectives of the EIA Directive.138 Irish law expressly requires that permission be obtained before the commencement of new works and that in respect of any development that must be subject to an EIA, the assessment must be carried out before the works. Failure to comply with those obligations is a criminal offence and may result in enforcement action. However, by way of exception to the general rule, retention permission, established by the Planning and Development Act 2000 (‘the 2000 Act’) and the Planning and Development Regulations, 2001 (‘the 2001 Regulations’) may be obtained. The ECJ held that the system of retention permission could have the effect of encouraging developers to forgo ascertaining whether intended projects satisfied the criteria of the EIA Directive in a prior assessment,139 and thereby deprived the EIA system of any effectiveness.140 Ireland’s reliance on the need to weigh the interests of developers, landowners, the public and directly affected individuals could not provide justification for that ineffectiveness.141 Moreover, Ireland could not rely on the ECJ’s judgment in the Wells case (which Ireland had cited)142 since, as is made clear in that judgment, under the principle of cooperation in good faith laid down in Article 10 EC, Member States are required to nullify the unlawful consequences of a breach of   Ibid, para 16.   Ibid, para 17. 136   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. 137   Case C-66/06 Commission v Ireland (ECJ 20 November 2008); Case C-215/06 Commission v Ireland (ECJ 3 July 2008). 138   Case C-215/06 Commission v Ireland (ECJ 3 July 2008). 139   Commission v Ireland (n 137) paras 49–58. 140   Ibid, para 76. 141   Ibid, para 77. 142   Case C-201/02 R (Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723. 134 135

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Community law. This means that the competent authorities are obliged to take the measures necessary to remedy failure to carry out an EIA – for example the revocation or suspension of consent already granted – subject to the limits resulting from the procedural autonomy of the Member States.143 A remedial EIA undertaken after the project has already been carried out, would be equivalent to an EIA preceding issue of the development consent, as required by and governed by the EIA Directive.144 This ruling on the general implementation of the EIA Directive was followed by a specific finding of breach: Ireland had failed to comply with the Directive by failing to take all measures necessary to ensure that the grant of development consents relating to three phases of construction of the Derrybrien wind farm in Co. Galway (involving extraction of peat and of certain minerals; road construction; and installation of wind turbines) had been preceded by an EIA.145 In November, at issue was the way in which Ireland had defined projects requiring an EIA.146 As in the Water Treatment case, Ireland raised preliminary objections,147 which were again rejected. The ECJ accepted that it was necessary for the essential points of fact and of law on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the ECJ did not rule ultra petita or indeed fail to rule on a complaint.148 The ECJ also observed that in Article 226 proceedings, the reasoned opinion and the action must set out the Commission’s complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the scope of the infringement of Community law complained of, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a breach of obligations as alleged.149 However, on the facts, the ECJ was satisfied that Commission’s contentions in the course of the pre-litigation procedure and the procedure before the Court had been sufficiently clear to enable Ireland to defend itself.150 The ECJ also rejected Ireland’s contention that the Commission had not adequately established the factual basis for the action, since the action was concerned with the way in which the EIA Directive had been transposed, and not with the actual result of the application of the legislation transposing it. Thus, the question for the ECJ was whether the national legislation itself harboured the insufficiencies or defects in transposition of the directive which the Commission alleges, without any need to establish the actual effects of the legislation with regard to specific projects.151 On this issue, the ECJ found that by setting thresholds which took account only of the size of projects – to the exclusion of the other criteria laid down in Annex III to the EIA Directive – for a number of project categories152 and by not providing for a caseby-case examination for those project categories to ensure that projects likely to have significant effects on the environment did not escape an EIA, Ireland had transposed   Ibid, para 59.   Ibid, para 60.   Ibid, paras 84–112. 146   Case C-66/06 Commission v Ireland (ECJ 20 November 2008). 147   Ibid, paras 25–27. 148   Ibid, para 30. 149   Ibid, para 31. 150   Ibid, paras 32–36. 151   Ibid, paras 58–59. 152   Listed in paras 1(a) to (c) of Annex 2. 143 144 145

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the EIA Directive incorrectly.153 The criteria set down in the EIA Directive154 and overlooked by Ireland in its transposition included the characteristics of the projects, the location of the projects and the characteristics of the potential impact of the projects on the environment, having regard inter alia to the geographical area and the size of the population.155 In addition, the size of the project set out by the 2000 Act and 2001 Regulations, relative to the average size of Irish fields, was too large, with the result that projects could be deemed not to require an EIA, even though the project could for example result in loss of hedgerows with significant negative effects for Irish biodiversity.156 Enforcement of Judgments The enforcement of a maintenance order in divorce proceedings pursuant to the EC recognition of judgments regime was given extensive consideration by the Supreme Court in T v L.157 The appellant and the respondent were Irish citizens who were married in Ireland and had lived together in the Netherlands for a period of time. They had separated and returned to Ireland at different times, and the appellant had obtained a decree of divorce from a Dutch Court in 1994 (the Dutch Decree), which included provision for maintenance for the respondent but not for the children (the Dutch Maintenance Order). In 2000, the respondent applied to the Irish courts for a decree of judicial separation, or a decree of divorce and for various ancillary orders, and the appellant resisted that application on the basis that the Dutch Decree should be recognised in Ireland. In 2003, the Supreme Court had held that the appellant had not acquired a Dutch domicile of choice, and consequently the Dutch Decree was not entitled to recognition. In 2004, the appellant applied for an order that the High Court should decline jurisdiction in respect of the respondent’s claims for ancillary relief, raising new grounds based on the provisions of the EC Judgments Convention (Brussels) 1968 (the Judgments Convention),158 the Brussels I Regulation,159 the Brussels II Regulation160 and the Brussels II bis Regulation,161 as well as the free movement of persons under Article 39 EC. Starting with the Judgments Convention, Fennelly J noted that Article 27(4) of the Brussels Convention provided for non-recognition of judgments if the court of the State of origin, in order to arrive at its judgment, had decided a preliminary question concerning the status of natural persons in a way that conflicted with a rule of the private international law of the State in which the recognition is sought. Since the   Ibid, para 85.   Annex 2. 155   See Annex 2, and para 63 of the ECJ’s judgment. 156   Commission v Ireland (n 146) para 69. 157   T v L [2008] IESC 48. 158   1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1998] OJ C27/1 (Consolidated version); [1972] OJ L299/32. 159  Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1. 160   Council Regulation (EC) 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses [2000] OJ L160/19. 161   Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. 153 154

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Dutch court had to decide to grant the Dutch Decree before making its maintenance order, the court had clearly decided such a preliminary question,162 which meant that the Irish courts were not required to recognise the Dutch Maintenance Order, as that would conflict with the 2003 Supreme Court judgment.163 The next question to be considered was whether the appellant could succeed on the basis of the Brussels II Regulation or Brussels II bis Regulation. It was found that the Brussels II Regulation did not apply, since, by Article 2, it was confined to proceedings relating to divorce, legal separation or marriage annulment and did not affect maintenance obligations.164 In addition, Article 42 of the Brussels II Regulation had temporal limitations which excluded its application.165 Turning to the Brussels II bis Regulation, which replaced the Brussels II Regulation as from 1 August 2004, similar subject matter166 and temporal limitations applied.167 This meant that the Netherlands decree did not fall within the scope of either the Brussels II Regulation or the Brussels II bis Regulation. The Court then considered the Brussels I Regulation, which had largely replaced the Judgments Convention, but which contained no provision corresponding with Article 27(4) of the Judgments Convention.168 By Article 66 however, the Brussels I Regulation was limited to judgments given after, or proceedings instituted before but judgment given after its date of entry into force, 1 March 2002.169 The appellant tried to argue that the Brussels I Regulation should apply, in part on the basis that the word, ‘supersede’ used in Article 68 of the Brussels I Regulation by reference to the Judgments Convention meant that the Brussels I Regulation was for the future to apply to cases covered by the Judgments Convention. Fennelly J rejected this argument on the basis that legislation would only be given retrospective effect if it was ‘clearly expressed so as to lead to that result’.170 Given that Article 66 of the Brussels I Regulation was clear and unambiguous, it should not be contradicted or qualified.171 Furthermore, Recital 19 of the Brussels I Regulation referred to the need for transitional provisions to ensure continuity between the Judgments Convention and the Brussels I Regulation, as well pointing to the need for continuity in relation to the interpretation of the Judgments Convention by the ECJ, and stating that the 1971 Protocol to the Judgments Convention should remain applicable to cases already pending when the Regulation entered into force. Fennelly J concluded that this necessarily implied that pending cases continued to be covered by the Judgments Convention.172 On the free movement point, the appellant attempted to point to a potential restriction of his free movement rights on the basis that a later maintenance order of an Irish court, inconsistent with the Dutch Maintenance Order, might force him to terminate his employment in Ireland and move to another Member State, where the   T v L (n 157) [44].   Ibid [44]–[49]. 164   Ibid [52]. 165   Ibid [53]–[54]. 166   See Article 1(3)(e). 167   See Article 1(3)(e). 168   T v L (n 157) [59]–[60]. 169   Articles 66 and 76; T v L (n 157) [62]–[64]. 170   T v L (n 157) [70]. 171   Ibid [71]. 172   Ibid [79]–[83]. 162 163

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Dutch Maintenance Order would be recognised and that if he were subsequently to return to Ireland, he could be compelled to respect a conflicting Irish order.173 Fennelly J rejected this argument as ‘theoretical and unreal’ as the appellant did not suggest that a court in either jurisdiction would contemplate ordering payment of duplicate maintenance, that an order of an Irish court would be less favourable to him, or that he should not be subject to a duty to pay maintenance to his wife.174 State Aid In the BUPA case in February, the CFI rejected a state aid challenge to the risk equalisation scheme in the health insurance context.175 As is well-known, there is a public health insurance system in Ireland, financed through general taxation, which provides cover for the entire Irish population irrespective of the income of the persons concerned. Private medical insurance (PMI) provides alternative cover, and at the time of the proceedings, BUPA was the main competitor for the publicly instituted Voluntary Health Insurance Board (VHI) on the Irish PMI market. The legislation regulating PMI authorised the Minister for Health to order and regulate the establishment of a ‘Risk Equalisation Scheme’ (RES), which was a mechanism providing for payment of a charge by PMI insurers whose risk profile was healthier than the average market risk profile and for a corresponding benefit to PMI insurers whose risk profile was less healthy than the average market risk profile. Determination of RES payments was directly linked to differentials between market operators and the assessment involved consideration of a number of risk factors, including the age and sex of the persons covered. The principle governing the calculation of RES payments was that each PMI insurer should bear the costs it would have had to bear if its own risk profile had been equivalent to the average market risk profile. Although in theory the RES was intended to apply to every PMI insurer active on the Irish market, its application would essentially lead to a transfer of funds from BUPA for the benefit of the VHI. The Irish authorities had notified the Commission of the RES pursuant to Article 88(3) EC, and the Commission found that the RES did not constitute state aid – on the basis that the scheme involved payments which were limited to the minimum necessary to compensate PMI insurers for the obligations of services in the general economic interest (SGEI obligations). BUPA sought annulment of that decision. In a very lengthy judgment, the CFI rejected BUPA’s challenge, and only a very cursory summary of the reasoning can be provided here. In summary, the CFI adopted a ‘relaxed’ approach to the question of determining whether state aid existed.176 On the question of whether an SGEI mission in fact existed, the CFI noted that Member States had a wide discretion to define what they regarded as SGEIs, given the absence of a Commission competence in this field, the absence of a precise definition of the concept of SGEI in Community law, and the fact that the health sector fell almost exclusively within the competence of the Member States.177 That said, a Member State relying on the need to protect an SGEI mission had to ensure that the mission satisfied certain minimum criteria common to every SGEI, as set down in the ECJ’s judgment   Ibid [90].   Ibid [91].   Case T-289/03 [2008] ECR II-81. 176   See M Ross ‘A Healthy Approach to Services of General Economic Interest? The BUPA Judgment of the Court of First Instance’ (2009) 34 European Law Review 127. 177   Ibid, paras 166–169. 173 174 175

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in Altmark,178 namely: first, there must be clearly defined public service obligations to discharge; second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner; third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations; and fourth, where the undertaking is not chosen pursuant to a public procurement procedure, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.179 With regard to the first condition that the operator is entrusted with an SGEI mission, the ECJ found this requirement satisfied by the Health Insurance Act 1994, as amended by the Health Insurance (Amendment) Act 2001, and the 1996 Health Insurance Regulations.180 It was not necessary that the operator be entrusted with an exclusive or special right to carry out the SGEI mission,181 the requirement that the SGEI constitute a ‘universal service’, did not mean that the service in question should respond to a need common to the whole population or be supplied throughout a territory. Here, the Irish population had wide and simple access to PMI services, which entitled those services to be characterised as universal within the meaning of Community law.182 Meanwhile, the ‘compulsory nature’ of universal services did not preclude a certain latitude being left to the operator on the market, including in relation to the content and pricing of the services which it proposed to provide: the combination of the various PMI obligations imposed on all Irish PMI insurers meant that the PMI services should be regarded as compulsory.183 The second Altmark condition of objectivity and transparency was satisfied by the manner in which the RES payments were to be calculated, which was considered to be ‘clearly established’ by the legislation.184 With regard to the third requirement of necessity and proportionality of compensation, the CFI observed that given the context of complex economic facts, the Commission was only entitled to exercise review of the Member State for ‘manifest error’, with the ECJ’s review of the Commission’s decision adopting the same limit.185 While the RES could not strictly fulfil the third Altmark condition, the quantification of the additional costs by means of a comparison between the actual risk profile of a PMI insurer and an average market risk profile was consistent with the purpose and the spirit of the third Altmark condition, in so far as the compensation was calculated on the basis of elements which were specific, clearly identifiable and capable of being controlled.186 178   Ibid, para 172, referring to Case C-280/00 Altmark Trans GmbH & Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH and Oberbundesanwalt beim Bundesverwaltungsgericht [2003] ECR I-7747. 179   Altmark (n 178) paras 89–93. 180   BUPA (n 175) paras 181–83. 181   Ibid, para 179. 182   Ibid, paras 186–87, 201. 183   Ibid, paras 188–193. 184   Ibid, paras 209–13 and 216. 185   Ibid, paras 220–22. 186   Ibid, paras 237–38.

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Turning to the fourth Altmark condition, the RES payments were not determined solely by reference to the payments made by the PMI insurer in receipt of the compensation, but also by reference to the payments made by the contributing PMI insurer, to reflect the risk profile differentials of those two insurers by comparison with the average market risk profile. This meant that there was no need to draw a comparison between the potential recipients of the RES payments and an efficient operator (as would normally be required by Altmark given the absence of a procurement procedure).187 Nevertheless, in light of the purpose of the fourth Altmark condition, the Commission was still required to satisfy itself that the compensation provided for by the RES did not entail the possibility of offsetting any costs that might result from inefficiency on the part of the PMI insurers subject to the RES, and the Commission Decision had made a finding to that effect.188

judicial pro ceedings Article 226 Infringement Proceedings and National Litigation The question of the impact of Article 226 infringement proceedings on litigation before the national court was considered by the Supreme Court in Ringaskiddy & District Residents Association v EPA.189 The applicants sought a stay or adjournment of proceedings pending the outcome of potential proceedings by the Commission against Ireland for an alleged failure to correctly transpose the EIA Directive,190 on the basis that there was a substantial or material risk of a conflict of decisions between the national court and the ECJ. In its Reasoned Opinions, the Commission had raised issues concerning non-transposition of the EIA Directive which were the same as certain of the issues relied upon by the appellants in the proceedings before the national court. However, Murray CJ observed that he did not know the basis on which proceedings would be brought by the Commission, given that the decision to take proceedings had been taken on 17 October 2007 and no proceedings had been commenced by 31 July 2008 (the date of the judgment), which Murray CJ found to be ‘remarkable’. The Court accepted that the Commission, having made a decision to bring proceedings, would as a matter of probability commence such proceedings at some stage in the future – but there remained at least a possibility that the Commission would not pursue this course of action. Given that proceedings had not yet been commenced, the Court did not have knowledge of the legal basis of the Commission’s proceedings, which rendered it ‘difficult, if not impossible’ to form a considered view as to whether there would be a conflict with the national proceedings. Given that they had commenced in 2005, it was in the general interest of the administration of justice both at national and Community level, that the proceedings are heard and determined with reasonable expedition. Moreover, given that the proceedings could perhaps be determined on the basis of issues other than those concerning transposition of the EIA Directive, the   Ibid, paras 245–48.   Ibid, para 249. 189   [2008] IESC 55. 190   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. 187 188

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Supreme Court was not satisfied that the appellants had demonstrated a substantial risk of conflict of decisions between the national court and the ECJ. Preliminary Rulings In 2008, the ECJ celebrated a reduction in the length of Article 234 proceedings to the shortest time in the entire period for which there is reliable data – 16.8 months.191 Concerns had been mounting in recent years over the duration of Article 234 proceedings, and a number of procedures have been introduced to the ECJ’s Rules of Procedure to expedite proceedings before the court, including the Article 104(a) accelerated procedure.192 Pursuant to Article 104a, the request for an accelerated procedure must be made by the national court. After the request is lodged with the ECJ, the Judge-Rapporteur makes a proposal and the Advocate General must be heard, and the President of the ECJ will then decide whether the case is a matter of ‘exceptional urgency’. Once a decision has been made that the accelerated procedure is appropriate, a case can be dealt with in a matter of weeks. In practice, however, it has rarely been held that the requirement of ‘exceptional urgency’ is met, so as to justify use of the accelerated procedure.193 In April however, the President granted an application for use of the accelerated procedure by the High Court, in the Metock case, which has already been discussed.194 The High Court requested that the accelerated procedure be used for two reasons: first, the consequences of the uncertainty in the law; and second, Article 8 ECHR family rights. On the first concern, the High Court pointed out that the Minister for Justice received several thousand applications for residence each year, so the reference affected a large number of people; refusals to grant residence on the basis of the regulations which implemented the Directive 2004/38/EC were giving rise to continuing applications to the High Court, which involved both significant costs for the Minister for Justice and applicants and a significant burden for the court. In a number of the proceedings, the applicants, who were not permitted to work because they did not have a right of residence, had brought actions for damages for alleged loss of earnings, such that if the Minister for Justice should be found liable, the longer the period prior to final judgment, the greater the amount of damages would inevitably be.195 On the second concern, the High Court noted that the particular applicants in the case were being deprived of their Article 8 ECHR rights.196 The President was persuaded by these submissions, and concluded that a reply from the ECJ within a very short period could bring a swifter end to the uncertainty, which was preventing the persons concerned from leading a normal family life.197 Consequently, the use of the accelerated procedure was justified. Given the infrequency with which requests to use the Article 104(a) procedure have been granted, this case will provide a useful precedent in respect of the relevant factors involved in granting such a request.   Annual Report 2008, Proceedings of the Court of Justice, 3–4.   See also Article 104(3) (simplified procedure) and Article 104b (urgent procedure); For commentary, see EB de la Serre ‘Accelerated and Expedited Procedures before the EC Courts: A Review of the Practice’ (2006) 43 Common Market Law Reports 783. For commentary, see EB de la Serre ‘Accelerated and Expedited Procedures before the EC Courts: A Review of the Practice’ (2006) 43 Common Market Law Reports 783. 193   De la Serre (n 192) 797. 194   Case C-127/08 Order of the President of the Court (ECJ 17 April 2008). 195   Metock (n 111) para 11. 196   Ibid, paras 12–13. 197   Ibid, para 16. 191 192



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Re-Opening Proceedings Before the ECJ Finally on procedural matters, in proceedings on a preliminary ruling from Hungary, Ireland had requested that the oral procedure be reopened, pursuant to Article 61 of the Rules of Procedure.198 Ireland contended that it emerged in the Advocate General’s opinion that one of the factual premises of the Opinion was incorrect,199 namely that the Advocate General had interpreted the reference as being about the transfer of a company’s real seat (its centre of administration), rather than its registered office, as should have been the case. The ECJ pointed out that it could clearly, of its own motion, on a proposal from the Advocate General or at the request of the parties, order the re-opening of procedure where it lacked sufficient information or where judgment had to be based on an argument not debated between the parties.200 However, on the facts, Ireland had had an opportunity to set out its contentions on the question of transfer of a company’s registered office, and, albeit briefly, on the question of transfer of a company’s registered seat.201 Consequently, the ECJ had all the information it required for its judgment.202

conclusion In so far as the EU is concerned, 2008 did not involve any digression from Ireland’s traditional focus on multilateralism, peacekeeping and neutrality. If anything, that focus was at the fore given that, as was outlined above, concerns about conscription motivated a significant number of voters who rejected the Lisbon Treaty. Regardless of the reasonableness of such beliefs in relation to the Lisbon Treaty, it is clearly the case that these aspects of Ireland’s traditional policy in international relations resonate deeply with a significant proportion of the Irish public. The other aspects of Ireland’s participation in the EU did not have any effects for multilateralism, peacekeeping and neutrality, although it is interesting that in a year which was so turbulent from the perspective of the future of the EU, the very foundational principles of EC law, such as direct effect and the principle of conforming interpretation, should have received such attention from the Irish and European judiciaries. Most notably though, it is perhaps strange to complete the 2008 correspondence report on Ireland’s participation in the EU in a similar vein to the conclusion of the 2008 report – namely, with uncertainty about the outcome of the Lisbon Treaty referendum.

198  Case C-210/06 CARTESIO Oktato es Szolgaltato bt. Reference for a preliminary ruling: Szegedi Iteltabla – Hungary (ECJ 16 December 2008). 199   Ibid, paras 42–44. 200   Ibid, para 46. 201   Ibid, para 51. 202   Ibid, para 52.

Developments in the North–South Bodies 2008 Ursula Kilkelly university college cork The aim of this Correspondent’s Report is to document activities in the North SouthBodies during 2008. In the main, this involves a report of the work undertaken by the North/South Ministerial Council (NSMC), the cross-border body established under the Good Friday Agreement in 1998, which meets in plenary and in sectoral format a number of times annually. Due to the suspension of the Northern Ireland Assembly the NSMC did not meet between 2002 and 2007. However, last year’s report noted that since its re-establishment in 2007 there has been considerable activity in the Council, supported by its secretariat based in Armagh, and this continued in 2008 when there were 12 meetings of the Council, one in plenary format and the other 11 in sectoral format. Beyond the North/South Ministerial Council, this Report updates readers on the work of the Joint Committee of Representatives of the Human Rights Commissions.

plenary meeting of the north/south ministerial council The NSMC met for its sixth meeting on 7 February 2008 in Dundalk Institute of Technology. The Irish Government delegation was led by An Taoiseach, Bertie Ahern TD, who chaired the meeting. The Northern Ireland Executive delegation was led by the First Minister, The Rt Hon Dr Ian Paisley MP MLA and Deputy First Minister, Martin McGuinness MP MLA. The Joint Communiqué issued following the conclusion of the meeting reported progress in a number of areas.1 A number of key developments had taken place since 2007. Particular progress was noted with respect to decisions on specific road projects (notably A5 (NorthWest Gateway to Aughnacloy) and A8 (Belfast to Larne)) and work on re-opening a stretch of the Ulster Canal between Clones and Upper Lough Erne. Ministers noted their commitment to continuing road safety initiatives, looked forward to the early assessment of options for the development of the Dublin/Belfast Enterprise rail service. The Council also looked forward to reports from the Working Groups established at the NSMC meeting in Institutional format on the transfer of pensions on a crossborder basis and on cross-border banking issues which are of direct relevance to greater cross-border mobility. Progress was also reported on acquiring new, purposebuilt, accommodation for the NSMC Joint Secretariat in Armagh. 1

  Joint Communiqué 7 February 2008 available at www.northsouthministerialcouncil.org.

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St Andrews Review, North/South Consultative Forum and Parliamentary Forum The NSMC noted that the progress made to date by the St Andrews Agreement Review Group in taking forward the Review and the intention to bring forward a final report to an NSMC Plenary meeting later in 2008. However, no further meetings took place in 2008. The Council also noted ongoing discussions between the Irish Government and the social partners with respect to the North/South Consultative Forum and in light of discussions between the Houses of the Oireachtas [Parliament] and the Northern Ireland Assembly on the North/South Parliamentary Forum it agreed to keep this matter under review. Child Protection The NSMC welcomed the opportunity to discuss north/south cooperation on child protection issues. It requested the Department of Health, Social Services and Public Safety and the Office of the Minister for Children to establish and co-chair a crossborder group of officials from relevant departments to intensify cooperation on Child Protection including: a. early progress on an all-island Child Protection awareness campaign; b. the identification of other medium/long term measures to improve Child Protection, including an examination of an all-island approach to child protection, focusing in particular on vetting and exchange of information; c. any areas for cooperation on children’s services emerging from the North South Feasibility Study on health and social services. It requested a report on these developments for the next NSMC Plenary meeting.

sectoral meetings of the north–south ministerial council The NSMC also meets in sectoral format whereby the respective ministers of the Northern Ireland Executive and the Irish Government meet to discuss one of the 12 areas of cooperation set out by the Belfast/Good Friday Agreement. These include 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 cooperation (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. After each sectoral meeting, a Joint Communiqué is issued reporting progress achieved and agreement reached.2 In 2008, there were sectoral meetings in all but two areas (environment sector format and EU special programmes sector) as noted below.

2   All Joint Communiqués are available on the NSMC website at www.northsouthministerialcouncil.org (16 June 2009).



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Transport Sector The Transport Sector met in Mullaghbawn, County Armagh on 21 May 2008. The Joint Communiqué reports on progress in a number of areas including roads, bridges, rail, airports and road safety. With respect to roads, the meeting noted the progress made with regard to the A5 (North-West Gateway to Aughnacloy) and the A8 (Belfast to Larne). It was noted that an A5 project is on target to achieve the first significant milestone by late 2008 and that a number of key milestones have been agreed which can be aligned with the timing of payments from the Irish Government. The Council reviewed progress on the opening of two bridges on the Tyrone/Monaghan border with construction due to begin in 2008. The importance of local consultation was noted. Progress on the Irish Government’s proposal for the construction of a bridge at Narrow Water linking County Louth with County Down was noted. In particular, the technical study, environmental impact statement and preliminary design work was noted to be due to be completed by the end of 2008 with future reports to be made to the NSMC Transport sectoral format. Developments in the improvement of the railways were also noted. With regard to the Dublin-Belfast Rail Service, it was noted that the two railway companies – Iarnród Eireann and Northern Ireland Rail – have considered replacing rolling stock which could lead to increased frequency on the Dublin-Belfast line. A costed business plan is to be presented to the next Transport sectoral meeting. In addition, the Department for Regional Development has agreed to undertake a study to consider the long term social, physical and economic redevelopment of the railway throughout the North/ West. This report is also to be brought to the next Transport sector meeting. Work has been ongoing to improve Derry City Airport. The Northern Ireland Executive and the Irish Government have now paid over grants amounting to over £3mn following the adoption of new governance arrangements by Derry City Council. In addition to the approved grant scheme, Derry City Council has funded the construction of a new taxiway and extended the aircraft parking apron. With regard to road safety, efforts to reduce road fatalities on both sides of the border were noted and the Ministers welcomed the continuing cooperation between the authorities on advertising and publicity and on road safety in border areas. Ministers requested an intensification of work on a bilateral agreement on the EU Convention on Driving Disqualifications to ensure that it is brought into effect by late 2008/early 2009 and also noted the potential for further liaison on key road safety issues such as drink driving limits, road safety strategies and cross border enforcement. The Council noted that preparations are underway for a cross border communitybased rural transport pilot project, and also discussed the various sustainable transport initiatives underway in both Northern Ireland and the Republic, agreeing to share information and experience on such projects. The Ministers noted that work and studies on rapid transit are being undertaken in Cork, Galway, Limerick, Waterford and Belfast and welcomed the ongoing work and discussions between officials in relation to the sharing of information and cooperation in this area. The presentation by the Confederation of British Industry – Northern Ireland jointly with the Irish Business and Employers’ Confederation (IBEC/CBI) on the findings of the ‘Freight Transport Report for the Island of Ireland’ was welcomed and the Ministers asked that their officials consider those recommendations of the study relevant to the NSMC Transport Area for Cooperation and report to a future meeting.

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Health and Food Safety The Health and Food Safety sectors (combined) met in Belfast on 28 May 2008. According to the Joint Communiqué, Ministers welcomed the progress made since the last meeting in November 2007 on a range of issues, including the initial findings of the pilot studies into cross-border cooperation on GP out of hours provision, the continuing work on paediatric and congenital cardiac services, the recent second major cross border emergency planning exercise, the formal cross-border arrangement whereby Fire and Rescue appliances now respond jointly to incidents on the new road link between Newry and Dundalk, developments regarding the location of a satellite radiotherapy centre at Altnagelvin Hospital and the range of developments on Cancer Research. Ministers also noted and welcomed the update on the joint Feasibility Study which will consider options and opportunities for greater cooperation in the sphere of health and social care and look forward to examining the report in detail when complete. The following issues were discussed: Health Promotion Dr Jane Wilde, Chief Executive of the Institute of Public Health (IPH) in Ireland made a presentation to the meeting and in response, Ministers congratulated the Institute on its achievements over the past decade informing public health in both jurisdictions. The meeting also noted that, in the coming years, the IPH plans to focus on research to develop agreed and accurate estimates and forecasts for common chronic conditions, a review of policy and practice approaches to young men and alcohol and health inequalities. The Council welcomed the broad range of cooperation on health promotion currently underway across key areas including: men’s health; physical activity/nutrition; research; health promoting hospitals; training; smoking; breastfeeding and workplace health promotion; and requested officials to bring forward to a future NSMC meeting a planned programme of mutually beneficial joint activities to promote public health and to tackle health inequalities, with input as appropriate from other health promotion/public health organisations. Under the heading of Obesity, Ministers welcomed the establishment of the allisland obesity action forum for a three year period. They also noted the development of a range of communications initiatives in selected settings including the workplace and educational settings, and noted work to build a new evidence base from a range of sources including academia, research in action and surveillance. Mental Health Ministers welcomed the cooperation on suicide prevention and endorsed proposals for planned future cooperation in areas to include the all-island evaluation of the Applied Suicide Intervention Skills Training, the development of performance indicators relating to the All-Island Action Plan, the production of an annual report on the all-island Plan to be tabled at NSMC on an annual basis and the development of Phase 3 of the All-Island Promoting Mental Health Public Awareness Campaign. Child Protection Ministers welcomed the establishment of a coordinating group led by senior officials in the Department of Health Social Services and Public Safety in Northern Ireland and



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the Department of Health and Children in the Republic of Ireland and the development of a work programme to intensify cooperation on Child Protection in accordance with the NSMC Plenary decision of 7 February 2008. Ministers welcomed plans to develop a cross-border awareness raising campaign in conjunction with non-governmental organisations to consider the increasing problems associated with the internet and social networking; production of generic cross-border information using a variety of media dealing with such issues as the reporting of abuse; safe parenting; and good employment practice recognising the two separate legislative and structural arrangements. The Council also welcomed the ongoing cooperation on cross border monitoring and management of sex offenders. Ministers discussed the legislative measures designed to improve safeguarding of children and vulnerable adults and agreed to keep each other advised of developments and, where possible, to explore opportunities for achieving a consistency in approach. Food Safety Promotion Board (Safefood) Ministers welcomed the appointment of the new Advisory Board for the Food Safety Promotion Board, (safefood), including the Chair Mr John Dardis. It considered a Progress Report on the activities of safefood, including the appointment of Dr Jon Bell, former Chief Executive of the UK Food Standards Agency, and Prof Henrik Wegener an independent technical expert with an international reputation in enteric reference laboratory services, both of whom will facilitate and provide technical and expert advice on safefood’s proposals on an enteric reference laboratory. The meeting also noted the ongoing scientific and promotional activities of safefood, including preliminary discussions with the Food Standards Agency in London regarding sharing of scientific information, the launch of new research projects, including infectious intestinal disease in the community and completion of the gastroenteritis research project, the extension of the allergy awareness programme, the food hygiene awareness campaign and the ongoing partnership work with other bodies and agencies. Aquaculture and Marine (Foyle, Carlingford and Irish Lights Commission) Sector Two meetings of this sector took place in 2008: one in Dublin on 21 May 2008 and a further meeting in Belfast on 26 June 2008. At the first meeting a range of issues was discussed. The Chairperson and the Chief Executive of the Loughs Agency, Mr Tarlach O’Crosain and Mr Derick Anderson, respectively, presented a report to the Council on developments since the last meeting in November 2007. The Ministers noted the Agency’s plans for the delivery of its Marine Tourism and Recreation and Fishing strategy and requested that a fuller report on this strategy be brought to a future meeting. The Council noted ongoing work to develop an emergency procedure for the approval of regulations to deal with events requiring immediate intervention for the protection of the fisheries of the Foyle and Carlingford Areas. The Loughs Agency’s Aquaculture and Shellfisheries strategy was also discussed and a report on its implementation invited. Ministers also noted that it is planned to finalise a Management Agreement later this year with a view to initiating Aquaculture licensing in Lough Foyle during 2009. The Council noted progress in respect of the Commencement Orders required to bring forward a staged and managed introduction of the new powers available to the

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Loughs Agency with regard to developing and licensing aquaculture and protecting fisheries in the Foyle and Carlingford areas. The Agency’s legislation implementation plan was welcomed and it was noted that five sets of regulations will require NSMC approval in June and that a further nine sets will require NSMC approval later in 2008. The Council approved five sets of regulations at its meeting in June 2008. The first of these prohibits the sale, within the Foyle and Carlingford Areas, of salmon and sea trout caught by rod and line. According to the Loughs Agency, the introduction of this legislation will inhibit the opportunities for the disposal of illegally caught salmon and sea trout for gain and will also encourage the conservation of stocks by legitimate anglers. The other regulations approved by Ministers at the June meeting are designed to help with the conservation and protection of the native oyster in Lough Foyle. The Loughs Agency also reported to the meeting that the first Commencement Order relating to the 2007 Foyle and Carlingford Fisheries legislation came into operation on 1 June and that two further Commencement Orders are being considered and will be reported on later in the year. These Commencement Orders are required to bring into effect provisions of the legislation which extend the functions of the Foyle, Carlingford and Irish Lights Commission in relation to licensing and development of aquaculture, and the conservation and protection of the fisheries in the Foyle and Carlingford areas. Ministers noted that the Agency had purchased a 17 metre catamaran at a cost of approximately £300,000 (€380,000) with delivery anticipated before the end of 2008. The new boat will be used to collect the management data required for the sustainable development of Lough Foyle and Carlingford Lough. Ministers also noted the Agency’s successful Biodiversity Week held during May. This involved 37 different events and attracted participation by over 1,500 people. Finally, the Council received a presentation on the Loughs Agency’s financial assistance strategy for sustainable angling and marine tourism. Twenty-five applications have been recommended for funding support including angling events, the provision of drying rooms at tourismbased accommodation and habitat enhancements to encourage the natural development of fish stock. Inland Waterways Sector The seventh meeting of the Council sitting in Inland Waterways sectoral format took place in Limavady on 4 July 2008. The Chief Executive of Waterways Ireland, Mr John Martin, presented a progress report to the meeting on the organisation’s activities since the last meeting. Significant achievements in the period included continued progress on the restoration of the Royal Canal, including the provision of an additional 86 m of public moorings, the provision of 283 m of mooring on the Erne System and a 36 m floating mooring and gangway on the Lower Bann, increasing mooring capacity by over 1900 m since 2000. Additional achievements include the launch by Waterways Ireland of the Accessible Sailing Initiative at the London Boat Show in January 2008. Work on the new Waterways Ireland Headquarters is on time and on budget and due for completion in August 2008. Progress was also reported on preparation to restore the Clones-Upper Lough Erne Section of the Ulster Canal. Waterways Ireland’s business plan for 2008 was discussed and the impact of currency fluctuations on its budget allocation noted. Its annual report and accounts for 2006



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were noted. The Council noted Waterways Ireland’s proposals for a programme of activity under the National Development Plan 2007–13 to include: •  Completion of the reopening of the Royal Canal to boating traffic in 2009. •  Completion of investigations and construction of extensions on the Shannon Navigation. •  Consolidation of other existing navigations by improving access to and facilities and infrastructure. •  Preliminary investigations on a number of other waterways. Finally, the Council welcomed the tourism and marketing initiatives of Waterways Ireland which include the key objectives of developing Waterways Ireland’s corporate identity, promoting greater use of the waterways, awareness creation and building a platform for sustained market development. Language Sector The sixth meeting of the Language Body sector took place in Limavady on 4 July 2008. 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 Council approved the Business Plans for 2008 and Corporate Plans for 2008–10. Budgets for 2008 were agreed and indicative budgets for 2009 and 2010 were indicated: these are subject to further discussions between the sponsor Departments and to budgetary considerations by the NI Executive and the Irish Government. The Council noted the proposal from the Minister for Culture, Arts and Leisure to provide further additional funding of £1mn to the Ulster-Scots Agency in 2009 and 2010 and that the Minister for Community, Rural and Gaeltacht Affairs is positively disposed to this proposal (subject to budgetary considerations in both jurisdictions and assurances about the necessary financial accountability systems being in place in the Agency). The Ministers requested officials to prepare a more developed paper in this regard, to be brought before the next NSMC Meeting in Language sectoral format. The Council noted the work that has been done to date to progress the decentralisation from Dublin of 30 posts of Foras na Gaeilge to Gaoth Dobhair in accordance with the announcement made by the Irish Government in December 2003. The Council also approved, for immediate implementation, seven additional posts for Foras na Gaeilge from their approved staffing complement, five of which will be located in Gaoth Dobhair and two in Belfast. Finally, future arrangements for Colmcille were considered and Ministers approved the transfer of its functions, staff and funding to Foras na Gaeilge. It was agreed that Foras na Gaeilge and Bórd na Gáidhlig would form a partnership to take forward the aims and objectives of Colmcille. Special EU Programmes Sector The mission of the Special EU Programmes Body (SEUPB) is to effectively manage and implement funding programmes on behalf of the two governments and the European Union aimed at delivering social and economic improvements to the

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people in Northern Ireland and Ireland through cross-border, transnational and interregional cooperation. The SEUPB is the Managing Authority for the EU Programme for Peace and Reconciliation (PEACE III) and the INTERREG IVA Programme. It is also responsible for monitoring and promoting the Common Chapter, the strategic framework for cross-border cooperation across a broad range of sectors agreed between the two Governments. The Body is also responsible for the North South elements of the Community Initiatives (LEADER +, URBAN II, and EQUAL in Ireland and Northern Ireland). SEUPB will also support North/South participation in INTERREG IVB Transnational Programmes and the INTERREG IVC Interregional Programme. Further details are available at www.seupb.org. The 2008 NSMC Annual Report noted that during 2008 the SEUPB completed its role in respect of the closure of PEACE I on behalf of the two member states and also brought the PEACE II Programme to a successful closure. In addition, the INTERRREG IIIA Programme met all of its annual spending targets and achieved or exceeded most of its performance targets.3 The PEACE III and INTERREG IVA Programmes were formally approved by the EU Commission on 6 November 2007. Matching funding from the Irish Government and the Northern Ireland Executive means that a total of €589mn (PEACE III €333mn and INTERREG IVA €256mn) will be made available through these programmes for investment to help build a peaceful stable society in Northern Ireland and the creation of a more prosperous cross border region. During 2008, Steering Committees for both programmes were established, project selection criteria were agreed and all themes were open for application. In 2008, the SEUPB focused on the efficient delivery of the new programmes to ensure objectives were met and impact was maximised in the region. The SEUPB has a role in facilitating North South participation in the INTERREG IV Transnational and Interregional Programmes (IVB and IVC). During 2008 the SEUPB was active in promoting the programmes and encouraged quality project applications. The body also organised a number of events to promote North South participation in 2008, including a successful workshop in June and several presentations to potential project applicants. The SEUPB and the two Finance Departments North and South have developed proposals for the establishment of a PEACE network to communicate the experience of managing EU PEACE funding. These were disseminated at an EU ‘Open Days’ event in Brussels on 7 October 2008. Agriculture Sector The ninth meeting of the Agriculture sector was held in the College of Agriculture, Food and Rural Enterprise, Enniskillen, Co, Fermanagh on Wednesday, 30 April 2008. The meeting discussed cooperation on animal health, plant health, common agricultural policy issues, and cross-border rural development. Progress on the activities in the draft All-Island Animal Health and Welfare Strategy were noted, including: •  Agreement on a common chapter in the respective epizootic contingency plans for Foot and Mouth Disease with common chapters for Avian Influenza and Bluetongue to follow. 3   North South Ministerial Council Annual Report 2008, 33–34 available at www.northsouthministerialcouncil.org (17 June 2009).



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•  On-going development of a report on the potential for joint data sharing which is expected to be completed by June 2008. •  Continuing examination of the feasibility of a joint approach to the electronic ident­ ification of sheep. •  The development of common approaches to sheep scrapie genotyping. •  Development of a common approach to salmonella, in line with an EU baseline report which is due to be published in May 2008. Ministers approved further specific measures to progress the all-island approach relating to Aujeszky’s Disease in pigs, and, in conjunction with respective food safety/standard agencies, consideration of the hygiene package with respect to the transmission of food chain information with animals going to slaughter and of the feasibility and priority of an all island approach relating to Trichinella in pigs. They also noted plans for consultation and a future cross-border event with key agriculture stakeholders from both jurisdictions to discuss the all-island strategic approach. With respect to plant health, Ministers noted that the Department of Agriculture and Rural Development has developed a draft Plant Health Strategy which includes a section on North–South cooperation consistent with the Department of Agriculture, Fisheries and Food (DAFF) plant health strategies. The meeting recognised the need to develop a more strategic approach to cross-border cooperation on plant health and pesticide matters and agreed to establish a Steering Group to identify areas of mutual interest in the plant health and pesticides areas. The Council had a wide-ranging discussion on issues of common concern in relation to the EU Common Agriculture Policy (CAP). Recent CAP reforms were welcomed, in particular the significant simplification of the Single Farm Payment Scheme. Ministers noted the contents of the CAP Health Check communication from the EU Commission and the EU Council conclusions and requested officials to remain in close contact on CAP issues. Finally, the Council discussed an innovative and strategic approach to collaboration and cooperation on Rural Development Programmes designed to foster improved community relations in remote rural areas and complement the economic regeneration of disadvantaged cross-border regions. In relation to the EU Programmes (2007–13), Ministers noted the development of proposals for a Rural Enabler Project for submission to the PEACE III Programme. This project aims to bring together rural people from both traditions and migrants to increase understanding and to work to address issues of sectarianism and racism in a rural context. Ministers also considered a cross-border project under INTERREG IVA to promote tailored rural development initiatives for a number of the most disadvantaged rural regions. They agreed that the Department of Agriculture and Rural Development and the Department of Community, Rural and Gaeltacht Affairs should continue to discuss other aspects of cooperation which would benefit rural communities across the region. Environment Sector The NSMC did not meet in Environment sector format in 2008. However, the NSMC Annual Report 2008 notes that the NSMC area for cooperation in Environment includes Research into Environmental Protection and Water Quality Management and Waste

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Management in a Cross-Border context and that work on these issues was taken forward in 2008 by the Department of Environment and the Department of Environment Heritage and Local Government.4 The two Departments continued to progress the development of a joint Market Development Programme for recycled materials based on specific deliverables of mutual benefit and exploiting opportunities to benefit from economies of scale. According to the Annual Report, the issue of a paper mill will be discussed at an NSMC meeting in due course. Progress continued on implementation of the EU Water Framework Directive. Draft River Basin Management Plans were developed for the three cross-border river basin districts as required by the Directive and published on 22 December 2008. These plans set out the environmental objectives for water bodies to meet the required water quality standards together with the measures to be undertaken to achieve these objectives. The Environmental Protection Agency (EPA) and the Northern Ireland Environment Agency (NIEA) reviewed current cooperation on environmental research and explored the scope for further work including environmental awareness campaigns. Education Sector The NSMC met in Education sector format twice in 2008 – the first meeting took place in De La Salle High School, Downpatrick, County Down, on Wednesday, 28 May 2008 and the second meeting took place in Dublin on Wednesday, 10 December 2008. The discussions addressed a number of issues as follows: Educational Underachievement Presentations were made to the Council on best practice in Traveller Education and School Leadership in tackling Underachievement. Council welcomed the continuing practical cooperation in relation to addressing educational underachievement, particularly in the area of literacy and numeracy. Ministers considered proposals for enhanced joint working, and agreed to convene a joint Working Group on Educational Underachievement, with an initial work programme to include consideration of approaches in both jurisdictions to raise overall levels of achievement in education and to tackle underachievement, particularly among more disadvantaged groups, including lower income families, the Traveller community and young people from minority ethnic groups. At the meeting in December, proposals for future work on Educational Underachievement were approved. These will initially focus on interventions to support parents and families in helping their children with education and challenges facing children from the most disadvantaged backgrounds. The Ministers noted the positive report from the successful first joint conference on numeracy and noted that possible collaboration in the area of mathematics in initial teacher education is under consideration by the two Departments. In May, Ministers welcomed the proposal to organise a conference on best practice in the education of children from the Traveller community and looked forward to receiving the published report which will contribute to the development of specific objectives and targets in this area. It also welcomed the establishment by the Department of Education 4   North South Ministerial Council Annual Report 2008, 20 available at www.northsouthministerialcouncil. org (17 June 2009).



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of a Committee for the Education of Traveller Children and looked forward to their collaborative work with the Department of Education and Science in the future. The Ministers also welcomed: •  the establishment by the Department of Education of a Task Force on Traveller Education which will bring together a wide range of stakeholders across the island; •  the proposal to hold a North South conference on Best Practice in Traveller education in March 2009; •  the proposal to hold a peer learning event in March 2009 on the subject of school attendance. Teachers’ Qualifications In May 2008, Ministers discussed steps to facilitate trained teachers to achieve the necessary Irish language qualification requirement for teaching in southern schools, with a view to assisting greater cross-border mobility. The ongoing cooperation between the Education Departments’ respective Inspectorates, including the agreement of a protocol for exchanges, was welcomed as was the work of the Standing Conference on Teacher Education North and South (SCoTENS), including on citizenship education and special educational needs. Ministers noted that the Regional Training Unit (RTU) and the Leadership Development for Schools (LDS) programme continue to work on a collaborative basis on leadership development issues and have agreed to develop a joint research project which will concentrate on how best to attract and develop new school leaders. Finally, in this area, Ministers noted the ongoing work of the working group on the transfer of pensions rights, which is now gathering evidence on difficulties experienced by teachers in moving between both jurisdictions as a result of the inability to transfer pension entitlements. At the December meeting, the Ministers noted •  the seminars for student teachers to provide information on the Irish language qualification requirements for teaching in schools in the Republic of Ireland; •  the communication and cooperation between the Inspectorates of both Departments of Education in relation to the professional development of inspectors; •  the collaborative work on leadership development issues and the joint research project on how best to attract and develop new school leaders; •  the collaborative work on the portability of teachers’ pensions. The Council also welcomed the findings of a study on the North South Student Teacher Exchange Programme which had been a great success in terms of developing greater knowledge of each other’s education system and curriculum. Special Education Needs At both meetings in 2008, the Council welcomed the significant progress made to date on the development of a Centre of Excellence for Autism at Middletown and the fact that the Centre has begun to deliver training courses. The autism research and information service is being developed and will start service delivery following completion of a recruitment exercise currently underway. The educational assessment service and the

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learning support service will come on stream at a later date on completion of the new training, research and administration building. Council welcomed the progress made by the Centre in its consultations with parents, professionals and others to inform how the proposed services. This outcome of the consultation was reported to the December meeting, where the Ministers noted that 90 per cent of those who responded agreeing with the Centre’s residential approach. Ministers also noted that, along with key partners: In May 2008, Ministers noted the success of the Autism Stock-take by the Department of Education (DE) and the Education and Training Inspectorate, on 10 and 11 March 2008, to inform the development of an autism strategic plan for DE as well as establishing common strategic thinking in respect of autism. Ministers also noted the success of the conference on Autistic Spectrum Disorders held on 15 April in Dublin. At the December meeting, the Council welcomed plans by the two Departments of Education to jointly organise an Autistic Spectrum Disorders Conference in November 2009. School Youth and Teacher Exchanges The May meeting was updated on educational exchanges and the ongoing cooperation between Departments was noted. In 2008, 20 school and youth based exchange programmes will be undertaken. NSMC noted that a review of educational exchanges and supporting mechanisms has recently been completed and its findings are being considered by officials with regard to what is required to jointly manage and coordinate educational exchanges in the future. In December, the ongoing commitment to cross border School, Youth and Teacher exchanges was welcomed as a means of fostering mutual understanding and exploiting opportunities for mutual benefit. Council also welcomed the work programme for the North South Exchange Consortium (NSEC), which will support the work of the two Departments in developing a joint approach for the future management and funding of educational exchanges. Tourism Sector NSMC met in tourism sector format in Enniskillen on 29 May 2008. The Ministers welcomed the appointment of the new Board of Tourism Ireland, including the Chair, Mr Hugh Friel, who reported on the work of the Board since the last NSMC meeting in 2007. The Council received an update from Tourism Ireland’s Chief Executive, Paul O’Toole, on progress in implementing the Tourism Ireland 2008 Business Plan. Council noted progress to date in implementing the Plan and the analysis of the Visitor and Revenue Targets, including the more challenging trading environment arising from increased economic uncertainty in some key overseas markets. The Council considered a paper detailing the increased staffing requirement to facilitate the opening of a regional hub to manage the New and Developing Markets such as China and India. The Council noted the increasing importance of New and Developing Markets for the future growth of overseas visitors to the island of Ireland and welcomed Tourism Ireland’s proposals to open a New and Developing Markets Hub Office which will enable the Company to operate more effectively against increasing global competition. The Council approved an increase in Tourism Ireland’s staffing complement by four to enable the Company to recruit the staff for the proposed Hub.



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Council considered a paper on Tourism statistics which summarised the core requirements for tourism statistics, identified actual or potential gaps in key statistics and identified areas where pragmatic cross-border cooperation might play a useful and effective role in filling such gaps. Ministers requested their officials to engage with the relevant agencies on the areas identified in the paper. Trade and Business Sector The eighth meeting of this sector met in Enniskillen on 29 May 2008. Ministers welcomed the appointment of the new Board of InterTradeIreland, including the Chair, Dr David Dobbin. Dr Dobbin, and the Chief Executive, Mr Liam Nellis, presented a progress report on InterTradeIreland’s work noting: •  the recent launch of the Entrepreneurship Network and Masterclass Programme; •  in the area of Design InterTradeIreland is scoping the potential for cooperative initiatives that will deliver competitiveness benefits; •  cooperation with other agencies and the private sector to explore the potential for initiatives on Environmental goods and services; •  work with Enterprise Ireland and Invest Northern Ireland to identify suitable projects for submission under the EU’s 7th Framework Programme for Research; •  the recent publication of a report, Mapping Research and Technological Development Centres on the island of Ireland; •  work exploring new opportunities for the aerospace sector. Ministers welcomed InterTradeIreland’s creation of 39 North/South Business Networks and the provision of information, advice and services to more than 14 500 companies, the participation of more than 1300 companies directly on InterTradeIreland’s programmes, resulting in the generation of £134mn/c€171mn worth of trade and business development value, with an additional forecast of £260mn/c€331mn to be reported from ongoing programmes. The Council noted the increase in Cross-Border Trade of 19.6 per cent between 2003 and 2006. Recent figures show that cross-border trade has increased to €3.1bn in 2007. The Council noted InterTradeIreland’s Annual Review of Activities and Annual Report 2006 prior to their being placed before the Northern Ireland Assembly and the Oireachtas. It approved InterTradeIreland’s Corporate Plan and noted its two core strategic goals: •  to generate Business Value, by enhancing company competitiveness and capability through cooperative North/South initiatives; •  to improve the Competitive Environment, for mutual benefit, through cooperative policy research, reports and networks. The Council supported the priority InterTradeIreland will give to Science, Technology and Innovation in its Corporate Plan. It noted the targets identified in the 2008 Business Plan: •  £47mn/c€69mn total value of reported trade and business development activity generated by InterTradeIreland’s North/South business networks and by firms engaged in InterTradeIreland’s projects;

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•  four hundred firms actively involved in developing the competitiveness of their businesses through the utilisation of InterTradeIreland’s resources offered through its cooperative North/South initiatives; •  2000 firms engaged in developing their business capabilities through the utilisation of InterTradeIreland’s information and knowledge services; •  twenty-five North/South cooperative business and economic networks.

joint committee of representatives of the human rights commissions Previous correspondent reports have noted that the Good Friday Agreement made provision for a joint committee of representatives of the Human Rights Commissions, North and South. To date, the work of the Committee has focused on the development of a Charter of Rights for the Island of Ireland, for which the Good Friday Agreement also makes provision, as well as furthering cooperation in areas of racism and migration and matters of mutual concern. The Joint Committee had two meetings in 2008, one in Belfast on 3 May 2008 and the second one in Dublin on 3 September 2008.5 The meetings allowed the Commissions to update each other on their respective work and activities and a particular focus of the Committee during 2008 was the identification of the commonality that existed. The need to extend the sharing of information and experiences to the other national human rights institutions in Great Britain has also been a priority. In 2008, a contractor was appointed to the Joint Committee which has clearly enabled the advancement of it agenda. At the September meeting a workplan for the period September–December 2008 (and another for January to December 2009) was agreed, including •  producing a paper containing the key arguments relevant to the island of Ireland for ratification of the Migrant Workers Convention and a proposal for undertaking consultation with NGOs and others working with migrant workers on the likely impact of ratification; •  Drafting an outline Strategic Plan; •  Developing a paper scoping the process of a review of human rights protections in both jurisdictions for consideration by the Joint Committee; •  Developing an options or discussion paper on possible ways forward for the Charter. These matters were to be brought to the 2009 meeting of the Joint Committee and will be reported in next year’s correspondent’s report.

conclusion The range and depth of activities undertaken by the North South Ministerial Council stress its relevance and value to the development of strong north–south relations and governance on the island of Ireland. Areas where cooperation seems most apt – tourism, agriculture, waterways and transport – are clearly where activities are increasingly 5   Minutes of both meetings are available on the website of the Northern Ireland Human Rights Commission at www.nihrc.org (17 June 2009).



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coordinated. But there is strong collaboration too in areas like education, food safety and health where mobility and the pooling of resources present both opportunities and challenges. Some positive outputs can be seen in all the areas reported here. Also on a positive note the work of the Joint Committee of representatives of the Human Rights Commissions appears to have gathered some momentum and again the value of collaboration and cooperation on a north south basis is apparent.

Human Rights Law in the Republic of Ireland – 2008 Liam Thornton university of ulster There continued to be significant engagement with human rights issues by the Irish legislature, government and judiciary in 2008. The strengthening of the human rights of trafficking victims, lesbian, gay and bisexual men and women are worthy points of note. This must be contrasted with the continuing controversies in immigration law, the failure of the Irish Government to legislate so as to protect the rights of transgendered persons and the severe financial cutbacks imposed on the Equality Authority and the Irish Human Rights Commission. The number of cases argued before the Irish Courts on issues relating to human rights continues to rise. The judiciary have engaged in human rights disputes in a large number of areas, ranging from criminal law, family law, child law, immigration law, property law and mental health law. The incorporation of the European Convention on Human Rights and Fundamental Freedoms into Irish law has had no small part to play in this increase in human rights adjudication before the courts. As can be seen from the range of cases examined below, judicial engagement with other international human rights law instruments and treaties remains low. Nevertheless, in the area of child law at any rate, the judiciary seems more prepared to at least make reference to international legal instruments in coming to decisions, even if domestic or European human rights law can solve the issue at hand. It remains to be seen whether in future years, judicial reference to unincorporated international human rights treaties will expand. Criminal Justice Criminal Justice (Human Trafficking) Act 2008 The Criminal Law (Human Trafficking) Act 2008, which came into force in May 2008, made the crime of trafficking a specific offence within Irish law. The 2008 Act changed little from the Criminal Justice (Human Trafficking) Bill 2007, which was discussed in last year’s Report.1 Jurisprudence Both the High Court and the Supreme Court have dealt directly with human rights issues in criminal matters in 2008. One issue which has gained increasing importance is the delay in bringing a person charged with a criminal offence to trial. In C (a minor) v 1   L Thornton ‘Human Rights Law in the Republic of Ireland-2007’ (2007) 2 Irish Yearbook of International Law 175, at 176–77.

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Director of Public Prosecutions2 there was a delay of 14 months between the time of the alleged offence (arson) and the first court hearing of the matter. The applicant claimed inter alia that she was entitled to expect that summary criminal proceedings would be conducted with all due expedition and because this had not occurred, it violated Article 6 of the European Convention on Human Right (ECHR). Ms Justice Dunne did not deal in any great detail with European Court of Human Rights (ECtHR) case law on this issue, however did note that the applicant, being a particularly vulnerable child, had an entitlement to a speedy trial.3 There was a ‘special duty’ on the State to provide for a speedy trial, and in all circumstances of the case, the State had failed to vindicate this ‘special duty’. This duty was all the more pressing when evidence before the High Court suggested that the applicant was engaged in serious self harm prior to, during, and after court appearances. Ms Justice Dunne stated that in light of the ‘wholly exception circumstances’ of the case, it would be unfair and unjust to put the accused on trial. The Supreme Court has, in one case, dealt with the issue of delay with bringing criminal proceedings. McFarlane v Director of Public Prosecutions4 relates to the attempts by the Director of Public Prosecutions (DPP) to prosecute Mr McFarlane for the kidnapping of Mr Donald Tidey in 1983. This was the second set of judicial review proceedings brought by the appellant. The first judicial review proceedings commenced in November 1999 and ended with a judgment of the Supreme Court (denying the reliefs sought) in March 2006 (a period of six years and four months). The appellant contended that the delay in the hearing and determination of the first judicial review proceedings constituted a breach of the appellant’s constitutional right to a fair trial in due course of law in accordance with the Irish Constitution and Article 6 of the ECHR. Mr Justice Fennelly noted that ‘the decisions of the Court of Human Rights provide useful guidance on the question of whether there has been a breach of the right of an accused person to a trial within a reasonable time or with reasonable expedition.’5 Relying on the case of Barry v Ireland,6 Mr Justice Fennelly noted that the European Court of Human Rights assesses whether the delay is reasonable having regard to the complexity of the case, the conduct of the applicant and the relevant State authorities and the importance of what was at stake for the applicant in the litigation.7 Mr Justice Fennelly refused an order to prohibit the trial from taking place. Mr Justice Kearns also referred to the judgment of Barry v Ireland ,8 where a trial delay period of fourteen months between reserving and delivering the judgment of the High Court which was deemed ‘clearly unreasonably long’9 having regard to the fact that the case had already been substantially delayed. The ECtHR held that the delay 2   C (a minor) v Director of Public Prosecutions [2008] IEHC 39 (21 February 2008), please note that the judgment contains no page or paragraph references to which pointed reference can be made. 3   Ms Justice Dunne referred to the case of Jackson v DPP and Walsh v DPP [2004] IEHC 380 in making this finding. 4   McFarlane v Director of Public Prosecutions [2008] IESC 7 (05 March 2008). 5   [2008] IESC 7, para 74. 6   Application no 18273/04 Barry v Ireland (Unreported Judgment, ECtHR, 15 December 2005). 7  [2008] IESC 7, para 74, quoting application no 18273/04, Barry v Ireland (Unreported Judgment, ECtHR, 15 December 2005), para 36. 8   Mr Justice Kearns also referred to a negligence case, where delay in the conduct of trial proceedings was found to have violated Art 6 of the ECHR, see McMullen v Ireland [2004] ECHR 404. The judgment of Mr Justice Kearns does not contain page or paragraph numbers to which pointed reference can be made. 9   Above n 6, para 44.



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of thirteen months between the final Supreme Court decision and the reopening of the prosecution against Mr Barry violated Article 6(1) of the ECHR.10 Mr Justice Kearns then considered the rights and interests of the Community in prosecuting crime even after a long delay in the events which took place (Mr McFarlane was serving a prison sentence in Northern Ireland from 1985 to 1998 for terrorist activities, it was therefore not possible to secure his presence in the Republic of Ireland for questioning until 1998). In refusing the appellant the relief sought, Mr Kearns noted that there was no blameworthy prosecutorial or systemic delay within the case. Finally, Mr Justice Geoghegan issued a judgment indicating his concurrence with the decision reached. However, he noted that what constitutes systematic delay had not yet been fully teased out by the ECtHR.11 In addition, the question was posed as to how the courts should deal with issues relating to systematic delay, with Mr Justice Geoghegan stating obiter the concept should be kept ‘within tight limits and should be more or less confined to a situation where there is a positively negligent system or negligent failure of system within the resources that exist of administering criminal justice.’12 Immigration Law Immigration, Residence and Protection Bill 2008 In January, the Government introduced the Immigration, Residence and Protection Bill 2008 (‘the 2008 Bill’). The stated aim of this 2008 Bill is to reformulate and restate immigration and asylum law within Ireland. Part 2 of the Bill contains general principles relating to those who are lawfully and unlawfully present within Ireland. A foreign national is only deemed to be lawfully present in the State where permission is granted, or deemed to be granted, under the Bill.13 The rights of those unlawfully present in the State to access social and other government services is severely curtailed.14 However, those unlawfully in the State may access education up to the age of 16 and will retain access to emergency medical and social care.15 Nothing prevents the Minister for Justice, Equality and Law Reform from granting aid of a humanitarian nature or to repatriate a foreign national, after consultation with ministerial colleagues responsible for the services sought.16 Parts 3 and 4 of the 2008 Bill regulate the grant of visas and the right to enter the State respectively. The right to residence, including long term residence, for foreign nationals in the State is governed by Part 5 of the 2008 Bill. Part 5 also transposes the European Union’s Temporary Protection Directive into 10  In Barry v Ireland, the ECtHR also held that Art 13 of the ECHR was breached due to the lack of an effective remedy for the breach of the requirement under Art 6 of the ECHR to hear a case within a reasonable time, above n 6, paras 48–56. 11   [2008] IESC 7. The Judgment of Mr Justice Geoghegan does not contain page or paragraph numbers to which pointed reference can be made. 12   In June 2008, the charges against Mr McFarlane for the kidnapping of Mr Donal Tidey were dismissed by the Special Criminal Court, see Court Report, ‘Former IRA leader freed on Tidey kidnapping charges’ Irish Times, Friday 6 June 2008. 13   Section 4 of the Immigration, Residence and Protection Bill 2008 (the 2008 Bill). 14   Section 6 of the 2008 Bill. 15   Section 6(2) of the 2008 Bill. Services which still may be provided include, inter alia, emergency medical treatment, access to one off emergency needs payments and/or access to supplementary welfare allowance in cases of urgency and access to civil legal aid or advice in relation to the foreign national’s removal from the State. 16   Section 6(3) of the 2008 Bill.

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Irish law.17 Provisions relating to the removal of foreign nationals from the State are contained in Part 6 of the 2008 Bill. The 2008 Bill also seeks to consolidate provisions on asylum and refugee law within Ireland,18 including a single procedure for the determination of protection claims. The more significant aspects to the changes in this field revolve a decision at first instance on the protection claim will be taken by the Minister for Justice, Equality and Law Reform.19 Within the present system, the first instance decision is made by the statutorily independent Office of the Refugee Applications Commissioner (ORAC).20 A new appeals body from a first instance decision, the Protection Review Tribunal (PRT),21 will replace the Refugee Appeals Tribunal (RAT),22 when the Bill is enacted into law.23 The final part of the 2008 Bill contains a number of sections which potentially raise serious human rights concerns, including provisions relating to biometric data,24 sharing of information between State departments and institutions, as well as with other States,25 appointment and powers of immigration officers26 and the provision of a period of recovery and reflection for victims of human trafficking.27 In addition, Section 123 of the 2008 Bill restricts the right of foreign nationals within Ireland to marry (either between two foreign nationals or an Irish citizen and a foreign national). Those seeking to marry are obliged to seek permission of the Minster for Justice, Equality and Law Reform at least three months in advance of the proposed marriage ceremony. The Minister may refuse permission to marry on a number of grounds, including: subversion of Ireland’s immigration law, public order, public security or where an immigration decision under the 2008 Bill has yet to be taken.28 Concerns have been raised by the Irish Human Rights Commission (IHRC) in relation to the compliance of the 2008 Bill with Ireland’s international and European human rights obligations.29 The Irish Human Rights Commission (IHRC) expressed a large number of reservations about the 2008 Bill as initially introduced. Some of these

17   See generally, Section 48 of the 2008 Bill. This section attempts to transpose Council Directive 2001/55/ EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L212/12. 18   Part 7 of the 2008 Bill. 19   Section 74 of the 2008 Bill. 20   Sections 6 and 8 of the Refugee Act 1996 (as amended). An unofficial restatement of the 1996 Act, as amended by the Immigration Act 1999, the Illegal Immigrants (Trafficking) Act 2000 and the Immigration Act 2003, is available from the website of the Irish Naturalisation and Immigration Service, www.inis.gov. ie/ (website last accessed, August 2009). 21   See generally, Chapter 4, Part 7 of the 2008 Bill. 22   Section 15 of the Refugee Act 1996 (as amended). 23   The 2008 Bill is currently going through the Committee Stage within Dáil Éireann (Irish Lower House of Parliament) where a significant amount of government and opposition amendments have yet to be discussed. The Bill is expected to be enacted into law sometime in late 2009 or early 2010. 24   Section 108 of the 2008 Bill. 25   Sections 105 and 106 of the 2008 Bill. 26   Sections 114 and 115 of the 2008 Bill. 27   Section 124 of the 2008 Bill. The period of reflection and recovery is for 60 days. At its initial introduction, the 2008 Bill provided for a 45 day period. 28   Section 123 of the 2008 Bill. 29   Irish Human Rights Commission, Observations on the Immigration, Residence and Protection Bill 2008 (March 2008) and Irish Human Rights Commission Further Submission on the Immigration, Residence and Protection Bill, 2008 (July 2008). These documents are available on the IHRC website www.ihrc.ie (website last accessed: August 2009).

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concerns included, inter alia, the large degree of ministerial discretion in immigration matters provided for in the 2008 Bill;30 the amalgamation of the rights and obligations of different categories of immigrants within one piece of legislation;31 the potential for restrictive access to the protection system;32 issues relating to safe countries of origin, safe parts of countries of origin and safe third countries33 and restrictions on judicial review of immigration decisions.34 The IHRC stated that sections of the Bill relating to non-service provision for those unlawfully in the country35 and protection of victims of trafficking36 may not comply with prevalent international norms and standards. A number of other non-governmental organisations (NGOs) expressed similar reservations about the human rights compliance of the 2008 Bill.37

human trafficking In February 2008, an Anti-Trafficking Unit was established in the Department of Justice, Equality and Law Reform. The purpose of this unit is to ensure a coordinated response to the crime of human trafficking amongst various State agencies and to provide support to victims of trafficking.38 The Minister for Justice, Equality and Law Reform, Mr Dermot Ahern TD, introduced Administrative Immigration Arrangements for the Protection of Victims of Trafficking.39 These administrative arrangements are to be in place until the passage of the Immigration, Residence and Protection Bill 2008. The administrative arrangements provide for a 60 day period of recovery and reflection.40 The Minister may grant a trafficking victim six months temporary residence permission where the person has severed all relations with the traffickers and the victim is assisting the Gardaí (Irish Police Force) or other authorities in relation to an investigation or prosecution in relation to human trafficking.41 The recovery period and the temporary residence permission may be terminated for stated reasons.42 The administrative arrangements also contain a commitment to facilitate the voluntary repatriation of victims of trafficking.43   Observations on the Immigration, Residence and Protection Bill 2008 (March 2008), pp 25–30.   Above n 30, pp 31–32. 32   Above n 30, pp 39–45. 33   Above n 30, pp 49–52 and Further Submission on the Immigration, Residence and Protection Bill 2008 (July 2008). 34   Above n 30, pp 52–52. 35   Above n 30, pp 95–98. 36   Above n 30, pp 95–105. 37   See generally, Irish Refugee Council, Submission on the Immigration, Residence and Protection Bill (March 2008) (www.irishrefugeecouncil.ie); NASC ‘Concerns with the Immigration, Residence and Protection Bill’ (www.nascireland.org); Jesuit Centre for Faith and Justice, The Immigration, Residence and Protection Bill: Well Founded Fears? (November 2008) (www.jcfj.ie). The United Nations High Commission for Refugees (UNHCR) has also made a number of comments on the 2008 Bill see: www.unhcr.ie (documents last accessed, August 2009). 38   Information on the role and ambit of the Anti-Trafficking Unit may be found at their website, www. blueblindfold.gov.ie/ (website last accessed, August 2009). 39   Department of Justice, Equality and Law Reform, Administrative Immigration Arrangements for the Protection of Victims of Trafficking, (November 2008) available at www.inis.gov.ie (website last accessed: August 2009). 40   Above n 39, para 5. 41   Above n 39, para 11. 42   Above n 39, para 8 (recovery period); at para 13 (temporary residence permission). 43   Above n 39, para 17. 30 31

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The IHRC while welcoming these new administrative arrangements nevertheless voiced a number of concerns. The IHRC did not want the six month temporary residence permission to be conditional on assistance in prosecution of those accused of trafficking.44 The IHRC also expressed concern regarding the failure of the administrative guidelines to provide for victims of trafficking to have access to legal advice, socio-economic supports and for child specific guidelines to be introduced.45 Jurisprudence As has become common over the last number of years, migration law, in particular refugee and asylum law has come before the Irish superior courts on a number of occasions. Many of the decisions in 2008 relating to migration were for leave to judicially review decisions of the refugee status determination bodies. The traditional test for granting review of decisions, known as the O’Keefe test46 stipulates that courts will only interfere with decisions of specialised decision making bodies where the decision may be irrational or the decision is manifestly unreasonable.47 However, in a number of applications for leave to apply for judicial review, it had been submitted by the applicants that the court should apply an ‘anxious scrutiny’ test in deciding whether or not to allow an application for judicial review of immigration decisions with human rights implications. It has been argued that to do otherwise would inter alia be contrary to the ECHR.48 While some judges in the High Court appear to adopt the anxious scrutiny test,49 others have resisted expanding the grounds upon which judicial review of the status determination bodies may be made. Mr Justice McCarthy stated that he would follow the O’Keefe test in deciding whether or not to grant leave for unsuccessful refugee applicants to challenge decisions of the status determination bodies.50 In applying the O’Keefe test to such challenges, Mr Justice McCarthy stated that ‘every case which comes before the court, whether bearing upon constitutional or human rights of parties or otherwise, receives anxious scrutiny, including, of course, judicial review in matters pertaining to refugees.’51 In S v Office of the Refugee Applications Commissioner52 Mr Justice Birmingham rejected the argument that paper appeals to the Refugee Appeals Tribunal breached 44   Irish Human Rights Commission, Further Submission on the Examination of Ireland’s Third Periodic Report in Relation to the List of Issues (ICCPR) para 26. 45   Above n 44, para 111. See also, Irish Human Rights Commission, Submission to the UN Human Rights Committee on the Examination of Ireland’s Third Periodic Report on the ICCPR (March, paras 103–116). 46   O’Keeffe v An Bord Pleanála [1993] 1 IR 39. 47   [1993] 1 IR 39, 70–72 (per Finlay CJ). 48  See, F v Refugee Appeals Tribunal [2008] IEHC 135 (8 May 2008); I v Refugee Appeals Tribunal [2008] IEHC 345 (29 October 2008); O & Others v Minister for Justice, Equality and Law Reform and Others [2008] IEHC 4045 (28 November 2008). 49   Fr N and Others v Minister for Justice, Equality and Law Reform (Charleton J, Unreported, High Court, 24 April 2008). 50   BJN v Minister for Justice, Equality and Law Reform [2008] IEHC 8 (18 January 2008), Kamil v Refugee Appeals Tribunal (Mr Justice McCarthy, Unreported, High Court, 27 August 2008), Mwiza v Refugee Appeals Tribunal and Another (Mr Justice McCarthy, Unreported, High Court, 22 October 2008), Kongue v Refugee Appeals Tribunal and Others (Mr Justice McCarthy, Unreported, High Court, 29 October 2008) and Bucumi v Refugee Appeals Tribunal and Others (Mr Justice McCarthy, Unreported, High Court). All these cases were referenced by Mr Justice McCarthy in O and Others v Minister for Justice, Equality and Law Reform [2008] IEHC 4045 (28 November 2008), para 43. 51   O and Others v Minister for Justice, Equality and Law Reform [2008] IEHC 4045, para 43. 52   S v Office of the Refugee Applications Commissioner [2008] IEHC 399.



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natural justice or fair procedures under the ECHR or the Irish Constitution.53 Matters relating to fair procedures, delay, and protection of family life under the European Convention on Human Rights and Fundamental Freedoms were raised in relation to the family reunification procedure for recognised refugees. In POT v Minister for Justice, Equality and Law Reform,54 Mr Justice Hedigan voiced concerns about the period of time it took the Office of the Refugee Applications Commissioner/the Minister to consider the application for family reunification in light of Irish constitutional protection of the family, Article 16 of the Universal Declaration of Human Rights and Article 8 of the European Convention on Human Rights.55 Mr Justice Hedigan further stated that the administrative Irish Born Child Scheme 2005 could not be compared with the statutory regime regarding family reunification.56 Under principles of constitutional justice, the applicant should have been provided with an opportunity to respond to doubts about the veracity of documents submitted.57 Mr Justice Hedigan also stated his doubts that even a two year delay in arranging the reunification of the family of a person granted refugee status would be an acceptable delay in the light of Article 8 of the European Convention on Human Rights and the protection of the family within the Irish Constitution.58 The Supreme Court continued to hear appeals relating to the administration of the Irish Born Child Scheme 2005.59 In two cases, Dimbo60 and Oguekwe,61 the Supreme Court noted its decision in Bode 62 that the Minister for Justice, Equality and Law Reform did not have to consider Article 8(1) rights under the ECHR in administering this scheme.63 However, the Supreme Court did find that when the Minister proposes to issue a deportation order under Section 3 of the Immigration Act 1999, there must be a reasoned consideration of the ECHR of the citizen child64 (as well as a consideration of the constitutional rights of the citizen child). One final case of interest emerged during 2008, and while the matter was settled between the applicant and the State, it is worthy of mention. In AN v Minister for Justice, Equality and Law Reform,65 Mr AN was an Afghan asylum seeker who was 53   Section 13(5) of the Refugee Act 1996 allows for a paper appeal to the Refugee Appeals Tribunal once certain statutory criteria have been met. A paper appeal is provided for where the Office of the Refugee Applications Commissioner concludes (under Section 13 (6) of the 1996 Act) that the application for refugee status showed either no basis or a minimal basis for the contention that the applicant is a refugee; the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded; the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable; the applicant had lodged a prior application for asylum in another state party to the Refugee Convention and/ or the applicant is a national or has a right of residence in a designated safe country of origin. 54   POT v Minister for Justice, Equality and Law Reform [2008] IEHC 361 (19 November 2008). 55   [2008] IEHC 361, para 14. 56   [2008] IEHC 361, para 17. 57   [2008] IEHC 361, para 18. 58   [2008] IEHC 361, para 21. 59   For the background to the Irish Born Child Scheme 2005, and commentary on the decisions of the High Court and Supreme Court, see S Mullally et al ‘Human Rights in Ireland 2006’ (2007) 1 Irish Yearbook of International Law 313, 317–18 and L Thornton, above n 1, 182–83. 60   Dimbo v Minister for Justice, Equality and Law Reform [2008] IESC 26 (01 May 2008). 61   Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25 (01 May 2008). 62   Bode v Minister for Justice, Equality and Law Reform [2008] 3 IR 663. 63   [2008] 3 IR 663, 691–92. L Thornton, above n 1, 182–83. 64   [2008] IESC 26, para 19; [2008] IESC 25, para 27. 65   Outline Submission of the case by the applicant is on file with the author, no further written submissions were made to the High Court (The author expresses his appreciation to Michael Lynn BL for making

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expelled from direct provision accommodation which Ireland provides for asylum seekers.66 Mr AN suffered from mental illness and his counsel argued that failure by the State to provide a minimum standard of shelter and food constituted a breach of Article 3 and/or Article 8 of the ECHR.67 The State agreeing to re-admit Mr AN into the direct provision system before the case was fully argued and decided upon.

international humanitarian law There have been a number of developments since the 2007 edition of the Irish Yearbook of International Law regarding Ireland’s attempts to negotiate a treaty on cluster munitions.68 In May 2008, Ireland hosted a diplomatic conference attended by representatives of over 100 States,69 which led to the adoption of the Cluster Munitions Convention.70 The aim of this Convention is to ban cluster bombs and prohibits countries that ratify the Convention from using cluster munitions, developing or acquiring cluster munitions or assisting, encouraging or inducing any person or State from violating terms of the Convention.71 The Cluster Munitions and Anti-Personnel Mines Act 2008 (‘the 2008 Act’) incorporates the Cluster Munitions Convention into Irish law. The 2008 Act also incorporates the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction into Irish law.72 2008 also saw Ireland incorporate the Comprehensive Nuclear-Test-Ban Treaty into Irish law.73

gender, sexuality and the law Scheme of the Civil Partnership Bill 2008 The Programme for Government 2007–12 emphasised the government’s commitment ‘to full equality for all in our society’ and promised to legislate for civil partnerships as this submission available to him). See also, Mary Carolan, ‘Refugee who sleeps in factory seeks subsistence aid’, Irish Times, (October 24 2008) Mary Carolan, ‘State undertakes to house destitute asylum seeker’, Irish Times, Saturday and M Carolan ‘Afghan Man Wins Case on Housing Provision’ Irish Times, (October 31 2008). 66   For an analysis of reception conditions for asylum seekers in Ireland, see L Thornton ‘Upon the Limits of Rights Regimes: Reception Conditions for Asylum Seekers in the Republic of Ireland’ [2007] Refuge, Canadian Periodical of Refugee Law 58 and Claire Breen, ‘The Policy of Direct Provision in Ireland: A Violation of Asylum Seekers’ Right to an Adequate Standard of Housing’ [2008] 20 International Journal of Refugee Law 611. 67   Counsel for Mr AN relied in particular on the British case of R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396. 68   F de Londras ‘International Law in Ireland-2007’ (2008) 2 Irish Yearbook of International Law 105, 114–15. 69   Conference statements and conference documents are available from the following website: www.clustermunitionsdublin.ie/ (website last accessed, August 2009). 70   In December 2008, 107 countries signed the Cluster Munitions Convention in Dublin. By years end, 4 countries, including Ireland, ratified the Convention. The Convention is not yet in force. The full text of the Convention and an up to date list of signatories and ratifying countries is available from the UN Treaty Bodies database, treaties.un.org/ (website last accessed, August 2009). See also this edition of the Irish Yearbook of International Law, p 311. 71   Article 1, Convention on Cluster Munitions. 72   United Nations, Treaty Series, vol 2056, p 211. 73   Nuclear Test Ban Act 2008 The International Treaty has yet to enter into force, for the full text of the Treaty, (1996), 35 International Legal Materials 1439.



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early as possible.74 In June 2008, the Department of Justice, Equality and Law Reform published the Scheme of the Civil Partnership Bill 2008 (‘the 2008 Scheme’). The 2008 Scheme seeks to grant gay, lesbian and bi-sexual couples in a same sex relationship the right to enter into a civil partnership. While not equated with marriage, the 2008 Scheme provides a similar (though not identical) range of rights to that of marriage, including inter alia: pension benefits;75 rights and obligations under the Mental Health Act 2001;76 immigration rights;77 succession rights;78 rights relating to the family home;79 and matters relating to dissolution of civil partnerships.80 The Government gave a commitment to the UN Human Rights Committee that social benefits for those who enter civil partnerships would be dealt within the relevant legislation.81 In addition, the 2008 Scheme provides certain protections for unmarried opposite sex and same sex cohabiting couples.82 A number of non-governmental organisations have expressed concerns that the 2008 Scheme does not go far enough in ensuring equality and non-discrimination for same-sex couples who enter into civil partnerships.83 The IHRC released a Discussion Document on the 2008 Scheme which highlighted the failure of the 2008 Scheme to adequately legislate so as to protect the rights of children raised within civil partnerships.84 The IHRC also raised concerns regarding the failure of the 2008 Scheme to permit civil partners the right to be assessed for suitability to adopt as a couple.85 Jurisprudence As was noted in last years report, in 2007 the High Court ruled that the failure of the State to provide a male to female transsexual with a copy of a birth certificate which states the acquired gender was contrary to Article 8 of the ECHR.86 The State has now appealed this verdict to the Supreme Court and the case has not yet been listed for hearing. One significant case relating to the right of lesbian parents came before the High Court in 2008. In McD v L,87 Mr McD applied for guardianship and/or access to his biological child (D). D lived with his biological mother, Ms L and her same sex partner Ms M who raised D as their child. L and M entered into a civil partnership in 74   Department of An Taoiseach, An Agreed Programme for Government: A Blueprint for Ireland’s Future 2007–2012 (June 2007), p 87. 75   Head 26 of the 2008 Scheme. 76   Head 27 of the 2008 Scheme. 77   Head 28 of the 2008 Scheme. 78   Part 3, Chapter 2 of the 2008 Scheme. 79   Part 3, Chapter 4 of the 2008 Scheme. 80   Part 5 of the 2008 Scheme. 81   Mr Séan Aylward, Irish Delegation to the UN Human Rights Committee on the Consideration of Ireland’s Third Periodic Report, UN Doc (2008), 2552 CCPR/C/SR 2552 para 34. 82   Part 7 of the 2008 Bill. 83   Irish Council of Civil Liberties ‘Submission on the Civil Partnership Scheme’ (August 2008); Gay and Lesbian Equality Network, Submission to the Department of Justice, Equality and Law Reform on the General Scheme for the Civil Partnership Bill (2008); Marriage Equality, Proposed Civil Partnership – A Denial of Rights and Equality (2008). 84   Irish Human Rights Commission ‘Discussion Document on the Scheme of the Civil Partnership Bill 2008’ (December 2008) 52–67. 85   Above n 84, pp 69–78. The IHRC discussion document also considers issues relating to equality and non-discrimination for same sex couples and the provisions of the 2008 Scheme on the rights and obligations of cohabitees. 86   Liam Thornton, above n 1, 184. Foy v An t-Ard Chláraitheoir & Ors [2007] IEHC, 470. 87   McD v L & Another [2008] IEHC 96 (16 April 2008). There are no page or paragraph numbers in the judgment to which pointed reference may be made.

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2006 under the United Kingdom’s Civil Partnership Act. McD agreed to donate sperm to L, and it was agreed by both and M that the child would be raised by the lesbian couple and McD would have the role of ‘favourite uncle’. Disputes arose between the parties as L and M believed that McD was overstepping the terms of the agreement reached by seeking to spend time with his child, D. A number of court applications were made by McD preventing L and M from removing D from the jurisdiction (L and M had planned to go to Australia for one year with D). McD submitted inter alia that under Article 9(3) of the United Nations Convention on the Rights of the Child,88 D was entitled to access to both parents, unless this was contrary to the best interests principle. L and M argued inter alia that they were a de facto family under Article 8 of the ECHR and had a right to enjoy family life with D. Mr Justice Hedigan noted that there was no jurisprudence from the ECtHR where a lesbian couple living together and raising a child were considered a de facto family, however stated the belief that the case of X, Y and Z v United Kingdom,89 demonstrated a ‘substantial movement towards such a finding.’ The Court considered L, M and D to be a de facto family for the purposes of Article 8 of the ECHR and Mr Justice Hedigan (relying on an expert report ordered by the High Court) stated that the child did not have any close contact whatsoever with McD, and therefore McD could not rely on Article 8 in establishing family life with D.90 The Court found that there was nothing in Irish law preventing the recognition of de facto same sex families. In his concluding remarks, Mr Justice Hedigan urged the State to consider a range of issues including access to fertility facilities for same sex couples, the need for counselling, the rights and likely problems of the various parties to a sperm donation agreement and possible succession rights between a child and a biological parent. As is noted above, the Scheme of the Civil Partnership Bill 2008 (published after this judgment was rendered) has not dealt with any of these issues.

housing law Jurisprudence As noted in last years report, the ECHR has been actively utilised in housing law issues.91 This trend continued unabated in 2008. Mirroring the trend of the cases reported upon in last years report, the issue of Travellers rights, the right to housing and the implications of the ECHR Act 2003 for the protection of socio-economic rights has continued. In O’Donnell v South Dublin County Council 92 the applicants, members of the Travelling Community, sought orders that their rights under the ECHR Act 2003 were violated. The respondents had failed to provide adequate accommodation for Ellen O’Donnell (a fifteen year old child) who suffered from cerebral palsy and was confined   United Nations Convention on the Rights of the Child (1989), 1577 United Nations Treaty Series 3.   X, Y and Z v United Kingdom [1997], 24 EHRR 143. 90   In coming to this conclusion, Mr Justice Hedigan relied on the European Commission on Human Rights decision in Application no 16911/90, M v Netherlands (8 February 1993). 91   Liam Thornton, above n 1, 185–86. 92   O’Donnell & Others v South Dublin County Council & Others [2008] IEHC 454 (11 January 2008). Pointed reference cannot be made to page or paragraph numbers in the judgment. This case should not be confused with the case discussed in last years human rights report: O’Donnell v South Dublin County Council [2007] IEHC 204 (22 May 2007), different applicants were involved in both cases (above n 1, 185–86). 88 89



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to a wheel chair. The applicants argued that the failure to provide a disability friendly caravan resulted in a breach of Article 3 and/or Article 8 rights under the ECHR.93 The accommodation the family occupied was overcrowded and cramped and both sides agreed that the conditions the family were living in were unfit for human habitation. The respondents argued that accommodation was provided to the applicants in the recent past; however they gave away one caravan and failed to maintain the other caravan in a suitable state of repairs. Mr Justice Edwards, while appreciating the point of view of the council, stated that nevertheless the Convention rights of Ellen must be vindicated. Mr Justice Edwards stated that overcrowding alone, while unfortunate, is ‘to be endured on a “grin and bear it” as it would not be regarded as crossing the threshold between merely regrettable circumstances as opposed to breaching fundamental rights.’ Quoting the judgment of Ms Justice Laffoy in O’Donnell v South Dublin County Council (2007), Mr Justice Edwards held that the State had failed in its Article 8 duties towards Ellen. The High Court judge then proceeded to make a declaration requiring South Dublin County Council to provide temporary accommodation to relieve the housing conditions of the family (in particular Ellen). However, Mr Justice Edwards stated that he would not order that this temporary accommodation be provided by means of a caravan, and it would be for South Dublin County Council to decide how best to carry out the effect of the court’s declaration. Damages for a breach of Ellen’s Convention rights were to be decided at a subsequent hearing. In Dooley v Killarney94 the applicants claimed that their Article 3 and/or Article 8 rights (also in conjunction with Art 14) under the ECHR were violated by the respondents’ failure to provide them with adequate housing. The High Court noted that the applicants were on the lowest priority list for housing, however this was in line with standards applied to all persons, whether members of the Travelling or settled communities. Mr Justice Peart stated that Article 3 and Article 8 of the ECHR would only be breached where ‘it can be established [. . .] that the respondents are simply permitting the applicants to needlessly languish, without any justification, in conditions which are such as to amount to inhuman or degrading treatment, or lacking in respect for their private and family life.’ Mr Justice Peart went on to state that the local housing authority, which is required to respect Convention rights, also has a margin of appreciation to vindicate those rights with reference to their housing budget. In Lawrence v Ballina Town Council,95 the High Court did not find that the respondents had breached the ECHR in refusing to place a Traveller family in accommodation after they were evicted from a site they had been illegally occupying. As the full judgment is not readily accessible, the interpretation and application of ECHR law in this area may be considered in next years report. Outside of the jurisprudence on the right to be provided with a home, the ECHR and housing law has been considered by the courts in one other area, namely, the right for those in local authority (social) housing to be afforded an opportunity to challenge a proposed eviction order. In Leonard v Dublin City Council96 the applicant suffered from 93   An argument that the State violated Art 3 and/or Art 8 of the ECHR in conjunction with Art 14 (discrimination on ethnic grounds) was not substantiated. 94   Dooley & Others v Killarney Town Council and Another [2008] IEHC 242 (15 July 2008). No page or paragraph numbers are contained within the judgment, therefore it is not possible to make pointed references. 95   Lawrence & Others v Ballina Town Council & Others (unreported judgment, Murphy J, 31 July 2008). This judgment is not yet available online and has not been reported in the Irish Reports. 96   Leonard v Dublin City Council & Others [2008] IEHC 79 (31/03/2008). There are no page or paragraph numbers in the judgment to which pointed reference can be made.

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heroin addiction and was a local authority tenant. As part of the applicant’s agreement to live in local authority housing, the applicant agreed that her partner would not be allowed to enter the house. This was in addition to a standard form tenancy agreement. This agreement was breached on a number of occasions. The statutory framework for the removal of local housing authority tenants simply requires a district court judge to approve the order once it is in the correct form. The applicant cannot challenge the facts as presented by the local housing authority.97 The District Court duly granted the housing authority’s application for the applicant to vacate the premises. The applicant, in sum, contended that provisions of the ECHR Act 2003 were not complied with because she did not have legal representation at the District Court hearing (see Art 6), the State failed to respect the applicant’s home (see Art 8), there was no effective remedy to challenge the alleged breach of Convention rights (Art 13) and she was treated differently than a private tenant would have been in the same circumstances (see Art 14). Counsel for the respondents argued that there was no violation of the applicant’s Convention rights. Ms Justice Dunne, after considering ECtHR and UK jurisprudence on related issues,98 concluded that there was no breach of human rights under the ECHR Act 2003. In relation to the claim under Article 6 of the ECHR, Ms Justice Dunne concluded that if there was any procedural unfairness, the applicant could challenge this by way of judicial review, however this was not proven on the facts of the case. The applicant’s claim also failed under Article 8, since the local authorities had complied with the statutory methods of removing a tenant from local authority housing. Noting the decision in Connors v United Kingdom, Ms Justice Dunne stated that a number of Article 8 principles on housing emerged from these provisions, including: (a) there is a wide margin of appreciation for the State in housing matters; (b) a court should respect the legislature’s decision of protecting the community interest in housing (c) judicial review was available to the applicant as a procedural safeguard. There was no violation of Article 13. In relation to the argument that the applicant’s Article 14 (in conjunction with Art 6 and/or Art 8) rights were breached, due to different procedures in place for public tenants and private tenants, the High Court stated that the ‘fact that a private tenant in this jurisdiction may have greater security of tenure than a local authority tenant is not in my view an element of discrimination but is merely one of the incidents of being a local authority tenant and is a reflection of the importance of the prudent management of the limited availability of local authority housing.’ In May 2008 a second challenge to Section 62 of the Housing Acts 1966–98 came before the High Court. This challenge was successful. In Donegan v Dublin City Council 99 the applicant claimed that the procedure for removing a local authority tenant from his house was contrary to Articles 6, 8 and 13 of the ECHR. In this case, the plaintiff was being removed from his house because of the actions of his son, who was a drug user and allegedly engaged in anti-social behaviour. Ms Justice Laffoy, distinguishing   Section 62 of the Housing Act 1966.   Harrow London Borough Council v Qazi [2003] 3 WLR 792; Begum v London Borough of Tower Hamlets [2003] UKHL 5; Kay and Others v Lambeth London Borough Council and Leeds City Council v Price and Others [2006] 2 AC 465; Albert and Le Compte v Belgium [1983] 5 EHRR 533; Bryan v United Kingdom [1995] 21 EHRR 342; Blecic v Croatia [2004] 41 EHRR 185 and Connors v United Kingdom [2005] 40 EHRR 189. 99   Donegan v Dublin City Council [2008] IEHC 288 (08 May 2008). There are no page or paragraph numbers in the judgment to which pointed reference can be made. 97 98



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Leonard, stated that on the facts of this case, ‘judicial review does not constitute a proper procedural safeguard where the tenant’s contention that the Council was not entitled to terminate his tenancy is based on a dispute as to the facts.’ Ms Justice Laffoy, after extracting principles from the ECtHR decisions in Blecic and Connors, and noting rele­ vant differences to the case at hand, stated that the failure to provide a local authority tenant the opportunity to challenge the reasons for termination of his right to live in local authority housing before the District Court or an independent housing tribunal is not ‘proportionate to the need of the housing authority to manage and regulate its housing stock in accordance with its statutory duties and the principles of good estate management.’ Ms Justice Laffoy therefore granted a declaration that Section 62 of the Housing Acts 1966–98 was incompatible with the State’s obligations under Article 8 of the ECHR.100

rights of the child Twenty-Eight Amendment of the Constitution Bill The Twenty-Eight Amendment of the Constitution Bill 2007 recognises the ‘the natural and imprescriptible rights of all children’;101 allows for the adoption of all children in certain circumstances102 and proposes to give legal authority to collect information, including ‘soft’ information, and provide for the exchange of such information to protect children from sexual abuse, sexual exploitation and endangerment.103 The Oireachtas Joint Committee on the Constitutional Amendment on Children released its interim report in September 2008.104 The interim report only dealt with aspects relating to the protection of children from sexual exploitation. The Committee stated that after considered deliberation, there was no need for a constitutional amendment to give effect to a law providing for the collection and exchange of information (including ‘soft’ information).105 Both the IHRC106 and the Office of the Ombudsman for Children (OCO)107 have criticised the Twenty-Eight Amendment of the Constitution Bill 2007 for failing to adequately prescribe the rights which children have under the UN Convention on the Rights of the Child. The deliberations of the Committee are set to continue into 2009.

100   Similar decisions were subsequently rendered by the High Court in Dublin City Council v Gallagher [2008] IEHC 354 (11 November 2008) by Mr Justice O’ Neill. This case originated from questions posed by a District Court judge by way of a case stated to the High Court, Mr Justice O’Neill held that a declaration of incompatibility could be granted in this manner, and there was not a requirement for Mr Gallagher to bring a judicial review See also, Pullen and Others v Dublin City Council [2008] IEHC 379 (12 December 2008). 101   Proposed Article 42(A)(1). See, Twenty-Eight Amendment of the Constitution Bill 2007 for full text. 102  Ibid. 103  Ibid. 104  Joint Committee on the Constitutional Amendment on Children Interim Report: Twenty-Eight Amendment of the Constitution Bill 2007 (September 2008). 105   Ibid, 3–4. 106   Irish Human Rights Commission Submission of the Irish Human Rights Commission to the Oireachtas Joint Committee on the Constitutional Amendment on Children (January 2008). 107  Office of the Ombudsman for Children, Submission to the Oireachtas Joint Committee on the Constitutional Amendment on Children (February 2008).

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Jurisprudence The rights of the child have also been considered in cases outside of the immigration sphere.108 In particular, the Irish superior courts were called upon to consider the rights of the child in abduction cases. In N v D109 it was alleged that D unlawfully removed two children from their country of habitual residence, France, and brought them to Ireland contrary to Article 3 of The Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘The Hague Convention’).110 Evidence before the High Court suggested that the children suffered corporal punishment at the hands of their grandparents in France. Mr Justice Edwards noted that the ECHR could potentially have an impact on any order to be granted. However, the High Court noted that while chastisement of the children may have taken place, the respondent could report matters relating to potential physical abuse of the children to the French authorities. Two other cases of human rights interest in child abduction proceedings arose in 2008. In R v R111 and N v N112 the High Court held that on the basis international law,113 international human rights law114 and European Union human rights law,115 that children should, in general have a right to express their views in child abduction proceedings, unless this would be contrary to the best interests of the child. In N v N, Ms Justice Finlay Geoghegan, relying inter alia on the UN Convention on the Rights of the Child, stated that the test for determining whether a child would be heard was whether ‘the child on the evidence appears prima facie to be of an age or level of maturity at which he is probably capable of forming his own views.’116 One further case of interest revolves around a compensation scheme for persons who were abused in institutions (not necessarily run by the State, and in most cases run by religious orders). In D v Residential Institutions Redress Review Committee117 the applicant entered into a Mother and Child Home (for unwed mothers) eleven days after her 18th birthday (Ms D was subject to sexual abuse and rape by her older brothers in the family home and became pregnant. Ms D remained in the home from November 1968 to April 1969). The Residential Institutions Redress Act 2002 (‘the 2002 Act’) provided that those under 18 who were in designated institutions could apply for compensation for abuse suffered in these institutions. The applicant argued that the exclusion of those over 18 and under 21 (which was then the age of majority in Ireland) within the compensation scheme under the 2002 Act was contrary to inter alia Article 8 of the ECHR. However, 108   See above, the section on Immigration Law, in particular the discussion on the Irish Born Child Scheme 2005. 109   N v D [2008] IEHC 51 (4 March 2008). 110   [2008] IEHC 51, Section 1. The Hague Convention on the Civil Aspects of International Child Abduction 1980 was incorporated into Irish law by the Child Abduction and Enforcement of Custody Orders Act 1991. Pointed reference cannot be made to a precise page or paragraph number in the judgment. Hague Convention on the Civil Aspects of International Child Abduction (1980) 9 ILM 1501. 111   R v R [2008] IEHC 162 (21 May 2008). 112   N v N [Hearing a Child] [2008] IEHC 382. 113   Article 13 of The Hague Convention. 114   Article 12, United Nations Convention on the Rights of the Child, (1989) 1577 United Nations Treaty Series 3. 115   Article 24, Charter of Fundamental Rights of the European Union [2000] OJ L 364/1 and Art 11 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [2003] OJ L 338/1. 116   [2008] IEHC 382, para 27. 117   D v Residential Institutions Redress Review Committee & Others [2008] IEHC 350 (11 November 2008). There are no page or paragraph references in the judgment to which pointed reference can be made.



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the High Court was not prepared to apply Article 8 positive rights obligations on events which happened in the 1960s or to the 2002 Act, which became law before the ECHR had domestic effect before the Irish courts in 2004.118

human rights treaty bodies Ireland had its third periodic review under the International Covenant on Civil and Political Rights considered by the UN Human Rights Committee in July 2008. There was intense civic and NGO engagement with this process compared with when Ireland’s last periodic report was examined in 2000.119 In the Committee’s Concluding Observations,120 Ireland was praised for establishing equality and human rights bodies; for adopting measures on mental health and women’s rights; incorporating the European Convention on Human Rights into Irish law and establishing an independent Garda Síochána (Police) Ombudsman Commission (GSOC).121 The UN HRC did express concerns in a number of areas, including inter alia: • The need to further protect the rights of women;122 • The need to respect the rights of transgendered persons to a new identity in their acquired gender;123 • Provision of sufficient funding to the IHRC and GSOC to enable these bodies to carry out their respective mandates;124 • Failure of the State to reform the law on imprisonment for failure to fulfil a contractual obligation;125 • Concern that tax and social welfare issues were not considered in the Scheme of the Civil Partnership Bill 2008;126 • The privileging of religion within Ireland;127 • For Ireland to recognise members of the Travelling Community as an ethnic minority;128 118   The High Court did hold that the definition of child as being under 18 in the 2002 Act violated the equality provision (Art 40.1) of the Irish Constitution. Mr Justice O’Neill noted that when Ms D entered the Mother and Child Home (in the 1960s) she was a child for the purposes of the law at that time. 119   For a list of submissions and concerns raised by NGOs and statutory bodies in relation to Ireland’s compliance with the ICCPR, see, www2.ohchr.org/english/bodies/hrc/hrcs93.htm. Many of the concerns raised by the NGOs, in particular the NGO Alliance (Free Legal Advice Centres, Irish Council of Civil Liberties and the Irish Penal Reform Trust) and the IHRC, were reflected in the Concluding Observations of the Human Rights Committee. The NGO Alliance shadow report can be accessed at rightsmonitor.org/. The IHRC shadow report is available at www.ihrc.ie (Reports last accessed, August 2009). 120   UN HRC, Concluding Observations of the Human Rights Committee: Ireland, UN Doc, CCPR/C/IRL/ CO/3. These observations are available on the UN HRC website www2.ohchr.org) and on the website of the Department of Foreign Affairs (www.dfa.ie) (Last accessed: August 2009). 121   Ibid, at paras 3–4. 122   Ibid, at para 9 (strengthening laws and policies on domestic violence); para 10 (reinforcing measures to protect equality between men and women and adopting a gender neutral alternative to Art 41.2 of the Irish Constitution (Bunreacht na hEireann)) and para 13 (a need for a reconsideration of Ireland’s strict prohibition on abortion). 123   Ibid, at para 8. 124   Ibid, at para 7 (IHRC) and para 14 (GSOC). 125   Ibid, at para 18. 126   Ibid, at para 8. 127   Ibid, at para 21 (the abolition of the mandatory nature of a religious oath that has to be taken by judges) and para 22 (the failure to provide adequate options for secular education). 128   Ibid, at para 23.

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• T  o respect the rights of those accused of crimes129 and the rights of incarcerated prisoners;130 • Matters relating to the new immigration legislation131 and issues regarding the detention of asylum seekers;132 • The need to adopt measures that fully protect victims of trafficking.133 Council of Europe In June 2008, the European Committee on Social Rights (ECSR) made a decision in the case of International Federation of Human Rights Leagues (IFHR) v Ireland.134 The Committee found that the Irish scheme of free travel,135 which was not available to Irish citizens who resided outside the State, did not violate Article 23 (right of elderly persons to social security) in conjunction with Article E (non-discrimination in the enjoyment of rights) of the European Social Charter (Revised).136 The ECSR noted the Appendix to the Revised Social Charter which states that foreign nationals of States parties to the Revised Social Charter who are lawfully resident or working regularly in a State, can benefit from the social rights under the charter.137 The ECSR found that Ireland may legitimately restrict the benefits of the free travel scheme to Irish citizen’s resident within Ireland.138 The ECSR also rejected the argument that the free travel scheme violated non-resident Irish citizens’ rights under Article 12(4) of the Revised Charter (undertaking to conclude bilateral and multilateral agreements to ensure equal treatment in social security provision). The ECSR concluded that the free travel scheme was not a social security right for the purposes of Article 12(4).139

miscellaneous The usage of the ECHR greatly increased in areas where, in the past, human rights issues would not have been raised. Cases relating to delays in civil hearings by courts and

129   Ibid, at para 11 (introduce a definition of ‘terrorist acts’ and have a monitoring regime to prevent extraordinary rendition); para 14 (concerns regarding access to lawyers during Garda interrogations and restrictions on the right to silence in Irish law) and para 20 (the continued operation of the Special Criminal Court, a non-jury court, without reasonable and objective grounds being put forward by the Director for Public prosecutions for its use in each individual case). 130   Ibid, at para 15 (ensure adequate conditions of detention). 131   Ibid, at para 17. 132   Ibid, at para 19 (concerns with the independence of the proposed Protection Review Tribunal under the Immigration, Residence and Protection Bill 2008). 133   Ibid, at para 16. 134   Complaint No 42/2007, International Federation of Human Rights Leagues (IFHR) v Ireland (Decision on Merits, 3 June 2008). This case, its background and the argument of the IFHR and Ireland were discussed in last years report, Liam Thornton, above n 1, at 187. 135   The Free Travel Scheme, for free travel within the island of Ireland, is available to those over 66 years of age, or to those under 66 who are in receipt of certain disability payments, where they are permanently resident in Ireland. 136   CETS no 163, European Social Charter (Revised), 3 May 1996. 137   International Federation of Human Rights Leagues (IFHR) v Ireland, para 10. 138   International Federation of Human Rights Leagues (IFHR) v Ireland, para 20. 139   International Federation of Human Rights Leagues (IFHR) v Ireland, para 32.



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tribunals,140 property rights,141 continued detention under mental health legislation,142 and acquisition of alleged proceeds of crime by State institutions,143 gave rise to arguments that actions by the State violated the ECHR. Delay in Civil Cases In Kelly v Director of the Equality Tribunal144 the applicant claimed that the delay of four and a half years in the Equality Tribunal considering a case brought by him violated Article 6 of the ECHR.145 The plaintiff sought an award of damages of €100 000 for breach of Article 6 of the ECHR under Section 3(2) of the European Convention on Human Rights Act 2003.146 Mr Justice Gilligan, noting the decision of McMullen v Ireland,147 considered the complexity of the case, the conduct of the applicant and of the Equality Tribunal and the importance of what was at stake for the applicant in the litigation. The court held that the matters at stake for the applicant were not exceptionally serious (noting he was in fact subsequently offered a place by UCD) and complaints about delay only surfaced in 2005.148 The High Court could only take cognisance of any delay post the coming into force of the 2003 Act.149 Given the fact that counsel for UCD had to deal with a large number of legal issues, while the delay in the case was undesirable, it was not unreasonable.150 Property Rights In Weston v An Bord Pleanála151 the applicant argued that a condition on a grant of planning permission was inter alia disproportionate and a violation of Article 1 of Protocol 1 of the ECHR. Mr Justice MacMenamin refused to consider the argument on the basis that were a decision to be given regarding proportionality of a condition imposed by An Bord Pleanála (The Planning Board), it would result in the High Court going beyond its own jurisdiction, and possibly prescribing how An Bord Pleanála would deal with such issues in the future.152 For the sake of clarity, Mr Justice MacMenamin stated that ECHR rights did not arise within this case.153 In Rafferty v Minister for Agriculture154 the High Court, examining an ECHR issue that was not substantively raised (but probably 140   Kelly v Director of the Equality Tribunal [2008] IEHC 112 (11 April 2008); Flynn v AIB PLC [2008] IEHC 199 (27 June 2008); Bingham & Another v Crowley & Others [2008] IEHC 453 (17 December 2008). 141   Weston v An Bord Pleanála [2008] IEHC 71 (14 March 2008) Rafferty v Minister for Agriculture, [2008] IEHC 344 (31 October 2008). 142   B v Mental Health (Criminal Law) Review Board and Others [2008] IEHC 303. 143   K and Another v Ireland [2008] IEHC 25 (15 January 2008); J v Criminal Assets Bureau [2008] IEHC 168 (1 May 2008). 144   Kelly v Director of the Equality Tribunal [2008] IEHC 112. 145   [2008] IEHC 112, para 1. The applicant was placed on a waiting list and subsequently offered a place in the course, which he declined as he had accepted a similar course in TCD. 146   [2008] IEHC 112, para 1. Section 3(2) of the ECHR Act 2003 states: ‘A person who has suffered injury, loss or damage as a result of a contravention [by an Organ of State of Convention rights] may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court [or in the Circuit Court, if the amount claimed is within its tort jurisdiction] and the Court may award to the person such damages (if any) as it considers appropriate.’ 147   McMullen v Ireland [2004] ECHR 404. 148   [2008] IEHC 112, paras 58–59. 149   [2008] IEHC 112, para 59. 150   [2008] IEHC 112, para 61. 151   Weston v An Bord Pleanála [2008] IEHC 71 (14 March 2008). 152   [2008] IEHC 71, para 59. 153   [2008] IEHC 71, para 60. 154   Rafferty v Minister for Agriculture [2008] IEHC 344 (31 October 2008).

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considered for reasons of completion), held inter alia that there was no violation of Article 1 of Protocol 1 of the ECHR where market value compensation was provided to the owners of animals culled for reasons of public health.155 Mental Health Law In B v Mental Health (Criminal Law) Review Board 156 the applicant sought to challenge his continued detention in the Central Mental Hospital (CMH) as being contrary to the ECHR.157 Mr B. was on supervised release from the CMH, so that he spent four days and nights at home (and in work during the day) and the remaining three days and nights in a low security hostel in the grounds of the CMH. Under the Criminal Law (Insanity) Act 2006 (‘the 2006 Act’) this supervised release allowed for the attachment of conditions.158 The Mental Health (Criminal Law) Review Board, while wanting to release the applicant, felt it was inappropriate to do so as they could not (under the 2006 Act) enforce conditions upon the applicant if he was fully released. The applicant sought a declaration inter alios that Section 13 of the 2006 Act, in so far as it may require a person in the circumstances of the applicant to be refused a conditional discharge and thereby to be deprived of his liberty, was incompatible with the State’s obligations under Article 5 of the ECHR. The Review Board noted that it was faced with the choice under the 2006 Act of unconditional release (without the imposition of conditions) or continued detention of the applicant under the Section 14 regime. Mr Justice Hanna, after considering the ECtHR decisions in Winterwerp v The Netherlands159 and Johnson v United Kingdom,160 stated that while the current regime may be unsatisfactory (given that the Review Board would like to release the applicant full time, but with conditions attached), it did not violate the ECHR. The confinement of Mr B for a period of time did not fall within the factual scenario of Johnson v United Kingdom. The ECtHR held in Johnson that confinement for the purposes of organising post-confinement supervision did not violate the ECHR Mr Justice Hanna found that the applicant enjoyed considerably more freedom than was the case of the applicant in Johnson v United Kingdom. Acquisition of Proceeds of Crime In K and Another v Ireland 161 the applicants sought to challenge provisions of the Proceeds of Crime Act 1996 as being contrary to the ECHR (and the Irish Constitution). Mr Justice Hanna refused to allow the applicants to challenge the 1996 Act as it related to matters arising before the ECHR Act 2003 came into force. In a subsequent case, regarding the exercise of the powers of a tax inspector under the 1996 Act, the High Court held that there was no breach of Article 6 of the ECHR where there was a refusal by the tax inspector to furnish documents regarding how the Revenue Commissioners gained information relating to the applicant’s actual income.162 155   [2008] IEHC 344, paras 33–36. The issue appeared moot in other respects, since the cull took place in 2001, the ECHR Act 2003 was not in force and there could be no claim to compensation under the 2003 Act. 156   B v Mental Health (Criminal Law) Review Board and Others [2008] IEHC 303. 157   There are no page or paragraph numbers in the judgment to which pointed reference may be made. 158   Section 14 of the 2006 Act. 159   Winterwerp v The Netherlands [1979/80] 2 EHRR 387. 160   Johnson v United Kingdom [1999] 27 EHRR 296. 161   K and Another v Ireland [2008] IEHC 25 (15 January 2008). There are no page or paragraph numbers in the judgment to which a point reference can be made. 162   J v Criminal Assets Bureau [2008] IEHC 168 (1 May 2008).



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statutory agencies Irish Human Rights Commission The IHRC continued to comment on proposed legislation and act as amicus curiae (friend of the court) in 2008. The IHRC provided recommendations on seven separate pieces of legislation or proposed legislation163 and made a submission to the Oireachtas Joint Committee on the Constitutional Amendment on Children on the content of a proposed constitutional amendment to protect the rights of the child.164 The IHRC published three substantive pieces of research in 2008 on prostitution in Ireland,165 on the Scheme of the Civil Partnership Bill 2008166 and on Travellers rights.167 The IHRC also actively engaged with the UN Human Rights Committee on the examination of Ireland’s third periodic report for the ICCPR.168 The Enquiries and Legal Section of the IHRC continued to act as amicus curiae in the higher courts in matters relating to criminal legal aid,169 housing law,170 retention of telecommunications data171 and asylum and refugee law.172 Submissions were also made relating to the rights of transgendered persons173 and on health care law.174 With the continued economic downturn, the IHRC suffered a large cut in its operating budget. Plans for the IHRC to amalgamate with five other bodies were seemingly shelved.175 From a government grant of €2.092mn in 2008, there was a 24 per cent cut 163   Charities Bill 2007; Employment Law Compliance Bill 2008; Immigration, Residence and Protection Bill 2008; Proposed Health Information Bill 2008; Scheme of the Mental Capacity Bill 2008; Scheme of the Criminal Law (Insanity) Act 2006 (Amendment) Bill 2008 and the Scheme of the Criminal Justice (Public Order) (Amendment) Bill 2008. All observations are available on the IHRC website www.ihrc.ie (documents last accessed August 2009). 164  Irish Human Rights Commission ‘Submission of the Irish Human Rights Commission to the Oireachtas Joint Committee on the Constitutional Amendment on Children’ (January 2008). 165   Centre for Gender and Women’s Studies, School of Histories and Humanities, Trinity College, Dublin, Interdisciplinary Report on Prostitution in Ireland (December 2008). 166   Above n 84. 167   Irish Human Rights Commission/Pavee Point ‘Travellers Cultural Rights: The Right to Respect for Traveller Culture and Way of Life’ (December 2008). 168   Irish Human Rights Commission Submission to the UN on Examination of Ireland’s Third Periodic Report on the ICCPR (March 2008); Irish Human Rights Commission Further Submission to the UN on Examination of Ireland’s Third Periodic Report on the ICCPR in Relation to the List of Issues (July 2008). 169   Carmody v The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General (Supreme Court judgment not given by years end, the High Court decision is available at [2005] IEHC 10). 170   Lawrence & Others v Ballina Town Council & Others (unreported judgment, Murphy J, 31 July 2008); Pullen & Others v Dublin City Council [2008] IEHC 379. 171   Digital Rights Ireland Limited v The Minister for Communications, Marine and Natural Resources, The Minister for Justice, Equality and Law Reform, The Commissioner of An Garda Síochána, Ireland and the Attorney General (High Court granted Digital Rights Ireland leave to challenge certain data retention laws, the case has not yet come to full hearing at year’s end). 172   I v The Refugee Appeals Tribunal (Unreported judgment, Herbert J, 5 December 2008). 173   Irish Human Rights Commission Submission to Government Concerning the Protection of the Rights of Transgendered Persons (October 2008). 174  Irish Human Rights Commission Submission to the Mental Health Commission on the Draft Code of Practice: Guidance for Persons Working in Mental Health Services with People with Intellectual Disabilities (November 2008); Irish Human Rights Commission Submission to the Health Information and Quality Authority (HIQA) On the Draft National Quality Standards on Residential Services for People with Disabilities (November 2008). 175   D de Bréadún ‘State Plans Merger of Five Bodies Instead Of Just Three’ Irish Times, Wednesday 20 August 2008; Susan McKay, ‘Robinson criticises plans to merge human rights bodies’, Irish Times, Monday 25 August 2008; Deáglan de Bréadún, ‘Merger of five rights bodies in doubt’, Irish Times, Thursday 9 October 2008. In November 2008, the Minister for Justice, Equality and Law Reform stated

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(€1.596mn) in funding for the operation of the IHRC for the 2009 financial year.176 The IHRC has condemned this cut noting that the 24 per cent cut would render it ‘completely unable to perform its functions’ and would ‘put its survival in doubt’.177 The 2009 Budget estimates cut funding to the Equality Authority by 43 per cent.178 The Combat Poverty Agency lost its independence and is to be integrated into the Department of Social and Family Affairs.179 The National Consultative Committee on Racism and Interculturalism has been abolished.180 A new campaigning group, the Equality and Rights Alliance (ERA) has been established to fight these cutbacks to the equality and human rights infrastructure within Ireland.181 It is interesting to note, that bodies similar to the IHRC and the Equality Authority have not suffered cutbacks to the same extent, GSOC had its budget cut by 5 per cent182 while the Ombudsman for Children’s budget was cut by 3 per cent.183 The overall cut to the Department of Justice, Equality and Law Reform’s budget was 4.9 per cent.184 Ombudsman for Children The Office of the Ombudsman for Children (OCO) continued to advocate effectively for the full protection of the rights of all children in Ireland during 2008. Like the IHRC, the OCO also made a submission on the proposed children’s rights constitutional amendment.185 In the legislation and policy field, the OCO gave the Irish Government advice on matters relating to immigration and asylum,186 religious manifestation of beliefs in schools187 and on spent criminal convictions.188 The OCO also has a complaints and investigations function. Under Sections 8–16 of the Ombudsman for Children’s Act 2002, the OCO can investigate complaints which children (or any other person) may make regarding public organisations, schools or hospitals. The number of complaints for 2008 is not yet available, however in 2007; the OCO had 724 that there would be a merger of administrative facilities for the IHRC and the Equality Authority (Dáil Debates, Volume 667, (13 November 2008). There was to be no apparent merger of functions, however this move faced some criticism as the Department of Justice, Equality and Law Reform was to proceed with the decentralisation of the Equality Authority to Roscrea, Co. Tipperary. The IHRC was to remain in Dublin. Only a small number of Equality Authority staff were to remain in Dublin. By year’s end there was no movement on the merger of back office administration within both organisations. 176  Department of Finance, Estimates for Public Services and Summary Public Capital Programme (14 October 2008), Section 19. 177   Irish Human Rights Commission ‘Press Release’: Irish Human Rights Commission Condemns Proposed 24% Cutback to Its Budget (4 November 2008). 178   Above, n 176 at Section 19. 179   For the rationale for its submersion into the Department of Social and Family Affairs, see, Deputy Mary Hanafin, Minister for Social and Family Affairs, Dáil Debates, Volume 666 (11 November 2008). 180   See, Deputy Conor Lenihan, Minister for Integration, Dáil Debates, 665 (2008). 181   Further details on the ERA campaign can be found at their website, www.eracampaign.org/ (website last accessed, August 2009) 182   Above, n 176 at Section 19. 183   Above, n 176 at Section 39 (Budget comes from Department of Health and Children). 184   Above, n 176, Table 1, p 12. 185  Office of the Children’s Ombudsman, Submission to the Joint Committee on the Constitutional Amendment on Children, (February 2008). All OCO documents can be found on their website at www.oco. ie (all documents last accessed, August 2009). 186   Office of the Children’s Ombudsman, Advice on the Immigration, Residence and Protection Bill (March 2008). 187   Office of the Children’s Ombudsman, Advice on issues related to manifestation of religious belief in schools (August 2008). 188   Office of the Children’s Ombudsman, Advice in relation to the Spent Convictions Bill, 2007 (Private Members Bill) (March 2008).

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complaints on these issues between January and December 2007.189 In November 2008, the OCO announced an investigation into the Health Service Executive (HSE) implementation of the Children First: National Guidelines for the Protection and Welfare of Children. The investigation was launched after ‘serious concerns’ emerged about their implementation.190

  Office of the Children’s Ombudsman, Annual Report 2007 (Published 2008) p 20.   Office of the Children’s Ombudsman, Press Release: ‘Ombudsman for Children launches national investigation into child protection’ (20 November 2008). 189 190

Human Rights in Northern Ireland –2008 Brice Dickson queen’s university, belfast The year 2008 saw the 10th anniversary of both the Belfast (Good Friday) Agreement and the passing of the Human Rights Act. But it was not a particularly good year for Northern Ireland either politically or in human rights terms.1 For as long as five months, from June to November, there was no meeting of the Northern Ireland Executive because of a row between the Democratic Unionist Party and Sinn Féin over the timing of devolution of policing and justice to the Northern Ireland Assembly. The row was settled, but devolution had still not occurred by year’s end. In July there was a warning from the Secretary of State for Northern Ireland, Shaun Woodward, that dissident republican activity was at its highest level for five years. The International Monitoring Commission recorded several attacks on police officers by members of the Continuity IRA and the Real IRA (though fortunately there were no fatalities),2 and the two main loyalist paramilitary organisations – the UVF and UDA – refused to promise the Independent International Commission on Decommissioning that they would put their weapons beyond use. Paramilitary organisations carried out 56 ‘punishment attacks’ and as many as 151 people were arrested under the Terrorism Act 2000, although only 28 were then charged with an offence.3 In June a man charged with the 2005 murder of Robert McCartney – widely thought to have been killed on the orders of the IRA – was acquitted, and two others were cleared of lesser charges connected to the killing.4 In October a bank employee was acquitted of involvement in the infamous 2004 Northern Bank robbery, which allegedly netted £26.5 million for the IRA.5 Mercifully there was only one troubles-related death in 2008 – the lowest figure since 1968 – but 65 people were injured in troubles-related incidents – all of them civilians except for three police officers. There were fewer shootings (42) but more bombs and incendiaries (also 42) than in each of the previous two years. the rule of law On the rule of law front there were two uplifting decisions by the House of Lords of the United Kingdom, but these were more than outweighed by two very disappoint1   For alternative summaries of the human rights year see the US Department of State Annual Report on Human Rights in the UK(www.state.gov/g/drl/rls/hrrpt/2008/eur/119111.htm) and the 2008 Annual Report of British Irish Rights Watch (www.birw.org/BIRW%20Report%20Online.pdf). 2   18th, 19th and 20th Reports of the IMC: www.independentmonitoringcommission.org. 3   Annual Statistics of the PSNI: www.psni.police.uk/persons_arrested_and_charged_cy.pdf. 4   R v Davison, McCormick and Fitzpatrick [2008] NICC 28. 5   News Letter, 9 October 2008.

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ing decisions. One of the former cases was In re Duffy,6 where the House held that the appointment of two members of the Orange Order to sit on the supposedly impartial Parades Commission for Northern Ireland was one which no reasonable Secretary of State could have made if properly directing him- or herself in law, having been apprised of the relevant facts and taking account of all relevant considerations. This ruling was a welcome corrective to the government’s growing fondness for manipulating the public appointments system in Northern Ireland in order to gain political advantages, a clear abuse of the merits principle. The second laudable decision was in R (BAPIO Action Ltd) v Secretary of State for the Home Department,7 where the House applied the doctrine of legitimate expectations when holding that the UK Government had acted unlawfully in issuing guidance to employing bodies within the National Health Service. The guidance had said that, when NHS employers were looking for junior doctors to fill postgraduate training positions, applicants who were not nationals of the UK or of any other European Economic Area State, and whose leave to remain in the UK was not due to extend beyond the duration of the position on offer, should not be offered the position unless there were no suitable candidates who were UK or EEA nationals. The House held (Lord Scott dissenting) that this guidance was inconsistent with legitimate expectations already generated by the Home Secretary and was therefore an unlawful exercise of power by the Secretary of State for Health. This decision has considerably enhanced the value of the doctrine of legitimate expectations and ought to lead to more consistent policy-making across government departments. On the downside, in R (Corner House Research) v Director of Serious Fraud Office8 the Director of the SFO was held not to have surrendered his discretionary decisionmaking power to a third party (the Prime Minister) when he decided that the public interest in pursuing an important investigation into corruption on the part of BAE Systems plc was outweighed by the public interest in protecting the lives of British citizens, given that the authorities in Saudi Arabia had told the UK Government that if the SFO investigation into money paid into Swiss bank accounts by a Saudi prince were to continue they would withdraw from counter-terrorism cooperation arrangements with the UK Government. Very unfortunately, an otherwise liberal bench could not bring itself to develop the law on judicial review in such a way as to impose upon a prosecutor a duty to abide by international standards on corruption. The OECD’s Working Group on Corruption, which monitors implementation of the Anti-Bribery Convention, ratified by the UK in 1998, strongly criticised the Lords’ decision and said it was ‘disappointed and seriously concerned’ about the UK’s continuing failure to address deficiencies in its laws on bribery of foreign public officials.9 A retired Law Lord, Lord Steyn, has since written that he hopes this decision ‘will not lead to the relapse to the public law of yesteryear’.10  [2009] UKHL 4 [2008] NI 152.   [2008] UKHL 27 [2008] 1 AC 1003. 8   [2008] UKHL 60 [2008] 3 WLR 568. 9  www.oecd.org/document/8/0,3343,en_2649_34855_41515464_1_1_1_1,00.html. 10   ‘Civil Liberties in Modern Britain’ [2008] Public Law, 228 234. Lord Steyn approved the critique of the decision written by Jeffrey Jowell, ‘Caving In: Threats and the Rule of Law’ (2008) 13 Judicial Review 273, where he said (at 276) ‘there is a regrettable failure in this case fully to confront, and therefore to guide, the approach to constitutional principle’. See too J R Spencer, ‘Fiat justicia: ruatque Concordia cum Arabe’ (2008) 67 Camb LJ 456. 6 7

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The second disappointing decision by the Law Lords was in the so-called ‘Chagos Islands case’: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs:11 The question here was whether the British Indian Ocean Territory (Constitution) Order 2004 was valid in so far as it prevented the local islanders from exercising their right to live on the Chagos Islands.12 Amazingly, the House held that it was, either because (according to Lord Hoffmann) the prerogative power to make laws for the peace, order and good government of a colony had not been breached by the Order, or because (according to Lord Rodger) the provision was unchallengeable under the Colonial Laws Validity Act 1865. There was a strong dissent from Lord Mance, and a shorter one from Lord Bingham. The case did not receive much publicity on account of the remoteness of the islands in question and the few number of people affected by what the UK Government had done there in the 1960s,13 but the principles upon which it is based are highly questionable.

the bill of rights debate Discussion about whether there should be a Bill of Rights for Northern Ireland continued apace throughout 2008. The Forum on a Bill of Rights (comprising 14 political representatives, 14 civil society representations, and an international chairman), after sitting for 16 months, produced its final report at the end of March. Alas, the report revealed serious differences of opinion, with only a handful of its more than 200 recommendations achieving unanimous approval. Rather than being a forum in which people came to the table willing to negotiate a compromise, all sides seem to have seen it as an opportunity to dig themselves further into their trenches, the result being that the final report was a very disappointing hodgepodge of ideas. With this as its starting point, the Northern Ireland Human Rights Commission worked hard during the following 8 months to produce its final advice on the matter to the Secretary of State (a process begun in 2000), but again the opposition within unionist circles to a wide-ranging Bill of Rights (especially one including socio-economic rights) meant that the NIHRC document, when published, fell rather flat. This is the third occasion on which the Commission has proposed a comprehensive Bill of Rights,14 and unfortunately the time has probably come to admit that, to use the terms employed by the Belfast Agreement, the ‘scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland’ is actually quite limited. There just is not the required political consensus, even if many people continue to feel very strongly that a wide-ranging Bill of Rights could do no harm. Alternative ways of enhancing the protection of human rights in Northern Ireland will have to be developed.

  [2008] UKHL 61 [2008] 3 WLR 955.   s 9(1) read: ‘Whereas the Territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the Territory’. 13   One of the islands, Diego Garcia, was also in the news in 2008 when the UK Foreign Secretary admitted that it had been used as a refuelling base for two ‘rendition’ planes carrying US prisoners. 14   The earlier documents were published in 2001 and 2004. The author declares an interest, as he was Chief Commissioner at the time. 11 12

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Into this mix has been thrown a suggestion by the UK Government that there should be a Bill of Rights and Responsibilities for the whole of the country,15 a view echoed by David Cameron’s Conservative Party.16 The former would be the completion of Labour’s rights revolution presaged in its 1997 election manifesto; the latter would be a British version of the European Convention on Human Rights and might even entail the repeal of the Human Rights Act 1998. During 2008 the Liberal Democrats worked on drafting a Freedom Bill that would reverse many of the laws that have infringed civil liberties in the UK in recent years.17

observations by international treaty-monitoring bodies No fewer than three UN treaty-monitoring bodies examined periodic reports from the UK during 2008 and each of them had some negative things to say about human rights in Northern Ireland. In July the Committee on the Elimination of Discrimination Against Women criticised the fact that the Convention on the Elimination of Discrimination against Women (CEDAW) had still not been fully incorporated into UK domestic law and that, although the UK had ratified the Optional Protocol to the Convention, public knowledge about what that meant in practice was low (it gives individuals the right to lodge complaints with the Committee). The Committee was concerned about the situation of female prisoners in Northern Ireland, noting the absence of comprehensive policies dealing with matters such as family visits, childcare arrangements, programmes for rehabilitation and resettlement, and services for physical and mental health. It also highlighted the absence of a comprehensive national strategy and programme to combat all forms of violence against women and girls, noting the lack of adequate support for victims, including shelters, and the funding crisis facing NGOs working in this area. The Committee praised the UK’s Action Plan on Tackling Human Trafficking and the rolling out of national multi-agency policing operations (Pentameter I and II). It also acknowledged the government’s target of ratifying the Council of Europe’s Convention on Action against Trafficking in Human Beings by the end of 2008 (which was met). The low representation of women in the judiciary in Northern Ireland (there has never been a female High Court judge there) and the considerable underrepresentation of women in public office and in key institutions established as a result of the peace process was also remarked upon. The Committee observed, moreover, that the fact that abortion continues to be illegal in Northern Ireland had ‘detrimental consequences for women’s health’ and it recommended that the government should initiate a process of public consultation on abortion law in Northern Ireland. The Northern Ireland Department of Health issued new draft guidance on the termination of pregnancy in Northern Ireland early in 2007,18 but by the end of 2008 the final version had still not appeared. 15   But a Green Paper on the issue had not appeared by the end of the year, and a leading adviser to the government, Lord Lester of Herne Hill, QC, resigned from his post in November because he did not think the government’s proposal’s would add to what is already in the Human Rights Act 1998. 16  ‘Cameron ‘will scrap Human Rights Act’ in Campaign for UK Bill of Rights’ Daily Mail, 8 December 2008 www.dailymail.co.uk/news/article-1092716/Cameron-calls-UK-Bill-Rights-Straw-revealsplans-overhaul- Human-Rights-Act.html. 17   See freedom.libdems.org.uk. 18   See www.dhsspsni.gov.uk/guidance-termination-of-pregnancy-ni-draft-jan07.pdf.



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Also in July 2008 the UN’s Human Rights Committee issued its concluding observations on the UK’s latest report on compliance with the UN International Covenant on Civil and Political Rights. It upbraided the UK for being the only EU state not to have ratified the Optional Protocol to the Covenant, which, like the Protocol to CEDAW, gives individuals in the UK the right to lodge their personal complaints and it expressed concern at the fact that several years after some murders had taken place in Northern Ireland (including of solicitors) inquiries had still not been established or concluded; and that some of these that had been established were liable to government interference under the Inquiries Act 2005.19 The Committee also commented adversely on aspects of anti-terrorism laws, such as the power to prevent a detainee from speaking to a solicitor for 48 hours after being arrested, the breadth of the offence called ‘encouragement of terrorism’, and the fact that juryless trials could still take place in Northern Ireland on the say-so of the Director of Public Prosecutions, against whose decisions there is no right of appeal. It is also clear that the Committee was very much on the side of the Chagos Islanders in the Bancault case. The UN Committee on the Rights of the Child, reporting in October 2008, called for a section on children’s rights to be included in any future Bill of Rights (whether for Northern Ireland or for the UK). It also regretted that the principle of the best interests of the child was still not a primary consideration in areas such as juvenile justice, immigration, freedom of movement and peaceful assembly. It recommended that plastic bullets and Tasers should not be used against children, that children’s DNA should not be so readily stored in databases, that depicting children in reality TV shows could be a breach of their right to privacy, that corporal punishment in the home should be outlawed, and that detention of asylum-seeking and migrant children should always be a measure of last resort. The Committee called for the UK to ratify the Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse20 and it wanted the age of criminal responsibility in England, Wales and Northern Ireland to be raised from 10. The Committee’s General Comments Number 10 says that any minimum age of criminal responsibility less than 12 is internationally unacceptable and that it would prefer to see the ages 14 or 16 set as the minimum.21 Throughout 2008 the UK remained overdue in submitting its latest periodic report to the UN Committee on the Elimination of Racial Discrimination (the last examination by that Committee was in 2003). The Government also failed to ratify the UN Convention on the Rights of Persons with Disabilities by the end of the year and it remained unmoved by calls from several quarters for ratification of the UN Conventions on the Protection of the Rights of All Migrant Workers and the Protection of All Persons from Enforced Disappearances.22 In July 2008 the Council of Europe’s Committee of Ministers adopted recommendations on the UK’s implementation of the Framework Convention for the Protection 19   The Bloody Sunday Inquiry began in 1998 and has taken place under the Tribunal of Inquiry (Evidence) Act 1921; the last witness was heard in 2005; a final report was expected in 2008 but in November the chairman, Lord Saville, announced that it would not be delivered until 2009. The Billy Wright, Rosemary Nelson and Robert Hamill Inquiries were all announced in 2004 and have since been converted to inquiries under the 2005 Act. Oral hearings in the Billy Wright Inquiry began in 2007 and continued through 2008; those in the Rosemary Nelson Inquiry began in 2008; those in the Robert Hamill Inquiry were meant to have started in 2008 but did not. No inquiry has yet been established into the murder of Patrick Finucane. 20   The UK signed this Convention on 5 May 2008. 21   General Comment No 10 (2007), paras 32–3. 22   The UK has not even signed these treaties. No EU State has yet ratified the former.

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of National Minorities.23 This follows the UK’s comments in 2007 on the opinion of the Advisory Committee on the Framework Convention earlier that year. The recommendations rather blandly recognise that the authorities in Northern Ireland are working on proposals for the implementation of the strategy on ‘A Shared Future’ (in fact, almost nothing happened on that front during 2008) and that housing estates and schools in Northern Ireland ‘still tend to be split along sectarian lines’. It noted that there is ‘a lack of clarity regarding the language rights of Irish speakers’ and that ‘further support is required for the Ulster-Scots language, culture and heritage’.

p olicing Crime statistics are compiled on an April to March basis and we now know that in the 2008–09 period the overall crime rate rose by 1.5 per cent on the 2007–08 period. Recorded sexual offences and burglaries were each up by 6.6 per cent, robbery by 12.2 per cent, offences against the state by 24.3 per cent, and fraud and forgery by 28.4 per cent. But the overall crime rate was still lower than it was 10 years earlier, and the ‘clear-up’ rate (while still low by UK standards) rose by 2.5 per cent to 23 per cent.24 The number of people arrested under the Police and Criminal Evidence (NI) Order 1989 (ie non-terrorist suspects) was 27 095, an increase of 1.8 per cent on the previous year.25 In 2008–09 the Police Ombudsman received 3081 complaints, a 3 per cent increase on the 2007–08 figure; 11 cases were referred to the Public Prosecution Service with recommendations that 13 charges be brought against 12 officers; four of these charges were for assault occasioning actual bodily harm.26 In March 2008 the Ombudsman exonerated the police of any blame for the death of Harry Jack, who had gone missing from a hospital in Derry in 2006 and whose body was found three days later in a field two miles away.27 Under the Police (NI) Act 2000 the Policing Board for Northern Ireland has a duty to monitor the performance of the Police Service of Northern Ireland (PSNI) in complying with the Human Rights Act 1998 (and in 2008 a similar duty was imposed on all police authorities in England and Wales).28 A report on the PSNI’s record in this regard was published during the year.29 The author recorded that she had not been refused access to any officer, event or document when conducting her work as a human rights adviser and that by September 2008 only three of the 149 recommendations made by her and her colleague in 2005, 2006 and 2007 remained outstanding. She praised the police for demonstrating a clear commitment to entrenching a human rights based approach to training, and she noted that for the third year running there had been a sustained high level of compliance with the advisers’ recommendations concerning complaints, discipline, public order and covert policing. The introduction of a new version of the PSNI’s Code of Ethics in 2008, which refers extensively to  www.coe.int/t/dghl/monitoring/minorities/3_FCNMdocs/PDF_2nd_CM_Res_UK_en.pdf.   This does not mean that people were convicted for 23% of the recorded crimes, only that the police closed their files in that percentage of cases, for whatever reason 25   All these figures are taken from the Annual Reports of the Chief Constable of the PSNI. 26   Annual Report of the Police Ombudsman for 2008–09. 27   See Press Release by the Office of the Police Ombudsman dated 7 March 2008. 28   Police Authorities (Particular Function and Transitional Provisions) Order 2008 (SI 82). 29   Northern Ireland Policing Board ‘Human Rights Annual Report 2008’. in BL Jane Gordon (comp). 23 24

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internationally human rights standards,30 was also welcomed. On the negative side, the author expressed concern about some officers’ low level of understanding of basic police powers and the lack of any internal police mechanism for auditing the use of force. In early 2008 the PSNI Chief Constable, Sir Hugh Orde, decided to issue Taser stun guns to specialist and authorised firearms officers and was criticised for not having first conducted an equality impact assessment on this new policy. A Taser was first fired in August, and again on at least two later occasions in the year, all of which incidents were then subjected to investigations by the Police Ombudsman. At the end of the year Amnesty International published a comprehensive review of the use of Tasers in the USA, where they claimed that, since 2001, the number of people who had died after being struck by a Taser was 334.31 Amnesty therefore concluded that the weapon is not safe and recommended that governments should ban it or authorise its use only in truly life-threatening situations. The PSNI fired very few plastic baton rounds in 2008 – they are now called AEPs (attenuating energy projectiles) – but, as noted above, their use was condemned by the UN Committee on the Rights of the Child. The police would have been greatly relieved that in 2008 the challenge mounted against the way in which they had handled the loyalist ‘protest’ at Holy Cross Primary School in North Belfast in 2001 finally failed in the country’s highest court.32 As in the lower courts, the Law Lords said that, as judges, they were not in a position to secondguess the professional assessment made by senior police officers at the time as to the likely consequences elsewhere in Belfast of a more heavy-handed approach to the policing of the Ardoyne protest. They made it clear that they had to subject the police’s decision to strict scrutiny in order to see whether the right not to be ill-treated under Article 3 of the European Convention had been breached, but even after applying that stringent test they could not fault the police. Baroness Hale’s judgment focused more on whether a different approach to the protesters would have made the situation better for the particular children and adults involved and she categorically said it would not. The decision is in line with what the majority members of the Northern Ireland Human Rights Commission had thought at the time, even though a minority of the Commission insisted that funding be made available to support the challenge to the police’s actions. counter-terrorism measures Yet another statute on terrorism was enacted in 2008 – the Counter-Terrorism Act, which applies as much in Northern Ireland as in Great Britain. It gives the police greater powers to gather and share information, allows for the authorisation of postcharge questioning of terrorist suspects, enhances the sentencing powers of courts, requires certain convicted terrorists (just like sex offenders) to keep the authorities notified of their whereabouts after being released from prison, and provides for restrictions to be placed on terrorist suspects’ financial dealings. During the passage of the legislation through Parliament the government dropped its proposal to extend the  www.nipolicingboard.org.uk/final_code_of_ethics-2.pdf.   USA: ‘Less than lethal’? The use of stun weapons in US law enforcement. Available at www.amnesty.org/ en/library/info/AMR51/010/2008/en. 32   In re E (A Child) [2008] UKHL 66; [2008] 3 WLR 1208. 30 31

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maximum pre-charge detention period for terrorist suspects from 28 to 42 days,33 but the Home Secretary announced that she would keep a Bill to that effect in reserve, ready to be re-introduced into Parliament if and when an emergency required it.34 Control orders continued to be enforced during the year, though one or two of the controlees absconded and have not since been traced, and a challenge was begun in the courts to the compatibility of the control order process with Article 6 of the European Convention, since controlees are often given little indication of the information available to the authorities which has led them to seek a control order. The Criminal Justice and Immigration Act 200835 allows foreign nationals in the UK to be ‘designated’ so that they cannot then qualify for leave to enter or remain in the country even though they cannot be removed from it without violating the European Convention. In October the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) criticised the UK for allowing terrorist suspects to be held for longer than 14 days in police custody suites as opposed to prisons. They regarded the conditions at the high security detention facility at Paddington Green police station in London to be inadequate for prolonged detention. This does not, however, mean that the conditions would constitute a breach of Article 3 of the European Convention. No-one was held for longer than 14 days in pre-charge detention in Northern Ireland during 2008. A significant legislative development which has largely escaped notice in academic circles was the enactment of section 76 of the Criminal Justice and Immigration Act 2008. This goes a long way towards clarifying both the common law on self-defence and the statute law on using force to prevent crime or make an arrest. The notorious decision of the House of Lords in the McElhone case36 suggested that a police officer or soldier could shoot dead someone running away from a scene if the officer or soldier thought that if the person got away he or she might later commit a terrorist offence. The new section confirms that whether the degree of force used was reasonable is to be decided by reference to the circumstances as the officer or soldier believed them to be,37 but it adds that the reasonableness of that belief is relevant to the question whether the officer or soldier genuinely held it.38 Crucially, the degree of force used by the officer or soldier is not to be regarded as having been reasonable in the circumstances as they were believed to be if in fact it was disproportionate in those circumstances.39 Nevertheless, the section goes on to say that evidence that the person who used the force only did what he or she honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken.40 Although the official explanatory note to this section merely says that it ‘clarifies’ the law, one could be forgiven for suggesting that it makes it much less likely that a court will in future decide a case with facts like McElhone in the same way. 33   The government won a vote on this in the House of Commons by just 9 votes in June (those voting in favour included the nine DUP MPs from Northern Ireland), but lost in the House of Lords by 191 votes in October. 34   HC Deb, vol 480, col 624 (13 October 2008). 35   Pt 10. 36   ‘Attorney General for Northern Ireland’s Reference’ [1977] AC 105. 37   s 76(3). 38   s 76(4)(a). 39   s 76(6). 40   s 76(7)(b).

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The other important development on terrorism in Northern Ireland was the creation of the Commission for Victims and Survivors, by an Act of the Northern Ireland Assembly.41 This amends the Victims and Survivors (NI) Order 2006, which had provided for a single Commissioner for Victims and Survivors. The DUP and Sinn Féin could not agree on one permanent appointee to that post42 so they appointed four joint post-holders. It was to avoid any challenge to the legality of this that legislation was passed changing the nature of the body to which the appointments were made (although this still means that there was some unfairness in the original appointments process because some people who did not apply might have done so had they known that more than one post was to be filled). During the year the work of the Consultative Group on the Past, begun in 2007, continued; it was expected to have issued its report by December 2008, but it did not meet that deadline.

the right to life and not to be ill-treated There were several interesting court cases on these rights during 2008. In R (Gentle) v PM43 the House of Lords ruled that the applicant mothers, whose soldier sons had been killed in Iraq, did not have a right under Article 2 of the European Convention on Human Rights for a public inquiry to be held into whether the Government had taken proper advice before deciding whether to send troops to that country in the first place. Likewise, in Van Colle v Chief Constable of Hertfordshire Police,44 the House held in two appeals that there had been no breach of the State’s Article 2 duty to protect people who are under a real immediate risk to their life. In one of the appeals it was not shown that the police knew or ought to have known of any such risk and in the other (a domestic violence scenario) the House gave preference to the general principle that the police do not owe a duty of care to victims of crime when they are exercising their investigative duties. The decision in the latter appeal (in which Lord Bingham dissented) seems particularly harsh. By way of contrast, when another preliminary issue concerning the existence of an Article 2 duty came up in Savage v South Essex Partnership NHS Foundation Trust 45 the Law Lords ruled that a health trust did have to protect the life of persons compulsorily detained under the Mental Health Act 1983. In this case a patient had walked out of a hospital and thrown herself in front of a train. Having established the applicable principle, the case was sent back to the High Court for trial. Tending in the same direction is the House’s decision in R (L) (A Patient) v Secretary of State for Justice,46 where it held that there had not been an Article 2 compliant investigation into   Commission for Victims and Survivors Act (NI) 2008.   The temporary appointment of Mrs Bertha McDougall (the widow of a police officer) was successfully challenged in 2006 by judicial review proceedings brought by a nationalist. Girvan J held that it was in breach of the Northern Ireland Act 1998 (s76), in breach of the merit norms applicable to public appointments, in breach of the Ministerial Code of Practice, in breach of the power of appointment under the Royal Prerogative, motivated by an improper political purpose (‘confidence building’), and not based on evidence that the appointee would command cross-community support: [2006] NIQB 77. At the end of 2008 an appeal against this decision was still pending. 43   [2008] UKHL 20; [2008] 1 AC 1356. 44   [2008] UKHL 50; [2008] 3 WLR 593. See G Anthony ‘Positive Obligations and Policing in the House of Lords’ [2009] European Human Rights Law Review, 538. 45   [2008] UKHL 74; [2009] 2 WLR 115. 46   [2008] UKHL 68; [2008] 3 WLR 1325. 41 42

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the attempted suicide of a 20-year-old prisoner at Feltham Young Offenders Centre in 2002. At an inquest into the suicide of a former Burnley FC football player in Donaghadee, Co Down, the coroner called upon a health trust to review its practices of discharging mental patients whenever there was a shortage of beds. The NIHRC intervened in this case to stress to the coroner the reach of Article 2 of the European Convention.47 The NIHRC was also successful in its campaign against a proposed clause in the Counter-Terrorism Bill which would have allowed inquests to be held in secret in certain circumstances. The clause was eventually dropped.48 In July 2008 the Police Ombudsman’s office circulated a draft policy on how it would investigate State-related deaths, including those referred to the office by the PSNI’s Historical Enquiries Team. The main point of this document was to confirm that investigators who were previously employed as members of the now defunct Royal Ulster Constabulary (RUC), or in an army regiment acting in support of the RUC, would not be involved in such investigations. In R (Wellington) v Secretary of State for the Home Department49 the applicant was fighting extradition to Missouri, where he would face life imprisonment without the possibility of parole if he was convicted of two murders. He argued that this would be a breach of his Article 3 rights under the European Convention but the House of Lords disagreed. What is most disappointing about this decision (apart from its inhumanity) is the fact the three of the judges – Lord Hoffmann, Lady Hale and Lord Carswell – suggested that Article 3 did not have to be applied as rigorously in extradition situations as it did in domestic situations. In Lord Hoffmann’s rather worrying words: ‘the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the “minimum level of severity” which would make it inhuman and degrading’. This relative approach to Article 3 (which was not shared by Lord Scott and Lord Brown) is depressing, since it undermines efforts to raise fundamental human rights standards worldwide. In such situations it would be better if UK courts extradited people only for offences for which the likely punishment in the receiving State was less than lifelong imprisonment. Adults who, as children, were victims of sex abuse have benefited enormously from the Lords’ decision in A v Hoare,50 where they overruled one of their previous rulings51 and held that the limitation period for bringing a civil claim against the perpetrator of such abuse does not begin to run until the victim first considered the injury that he or she suffered to be sufficiently serious to justify proceedings and that the limitation period can be extended if it is equitable to do so. In this case the defendant was worth suing because he had become a millionaire through winning the lottery. the right to liberty and a fair trial At the end of November 2008 there were 1562 prisoners in Northern Ireland, almost 100 more than a year earlier. This upward trend is unfortunate, but overcrowding is   See NIHRC Press Release dated 26 June 2008R.   ‘Straw Abandons Secret Inquest Plans’ The Guardian, 15 May 2008.   [2008] UKHL 72; [2009] 2 WLR 48. 50   [2008] UKHL 6; [2008] 1 AC 844. 51   Stubbings v Webb [1993] AC 498, a decision later found by the European Court of Human Rights to be perfectly compatible with the European Convention’: Stubbings v UK, [1996] 23 EHHR 213. 47 48 49

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not yet the problem it is in England and Wales. However the Criminal Justice (NI) Order 2008 permits the courts to award indeterminate custodial sentences to persons convicted of violent or sexual offences in many more situations than before, and this could obviously lead to an increase in the number of prisoners. In In re Doherty,52 an appeal from Northern Ireland to the House of Lords, a prisoner sought judicial review of a decision by the Life Sentence Review Commissioners not to direct his release. He had first been released on licence in 1996 but was arrested in 1997 on suspicion of the buggery of his niece. However the DPP directed no prosecution for that offence. The Court of Appeal of Northern Ireland held that the Commissioners, when deciding to keep Mr Doherty in prison even after the DPP’s decision, should have required a higher standard of proof as to his behaviour than merely proof on the balance of probabilities.53 But the House rejected that approach and allowed the appeal by the Commissioners. Lord Carswell reaffirmed that the standard of proof to be applied in such cases remains the balance of probabilities, but he cited the wellknown remark by Lord Hoffmann in an earlier case that: ‘It would need more cogent evidence to satisfy one that the creature seen walking in Regent’s Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian’.54 There were two deaths in Northern Ireland’s prisons in 2008. The Prisoner Ombudsman, Brian Coulter, resigned from his non-statutory position because he was not satisfied that his office had the necessary independence from the Northern Ireland Office. He wanted it to be accountable directly to Parliament or, after devolution, to the Northern Ireland Assembly. His successor, Pauline McCabe, was unhappy at the fact that her office had not yet been placed on a statutory footing and she offered to conduct investigations into ‘near deaths’ in prison custody following the decision (mentioned above) in R (L) (A Patient) v Secretary of State for Justice.55 Anomalously, complaints by prisoners about health care issues are investigated by a different official, the Assembly Ombudsman. The most prominent fair trial issue arising during 2008 concerned the role of anonymous witnesses. In R v Davis56 the House of Lords ruled that the trial of a man who had been convicted of two murders primarily on the basis of evidence given by anonymised witnesses could not be considered compatible with Article 6 of the European Convention. The case was remitted to the Court of Appeal with an invitation to quash the conviction and for a decision on whether to order a retrial. The government was taken aback by this ruling and immediately set about introducing legislation to clarify the law. The Criminal Evidence (Witness Anonymity) Act 2008 received Royal Assent less than five weeks after the House’s decision, and it applies in Northern Ireland. The Act abolishes the common law rules and replaces them with statutory provisions allowing for witness anonymity orders to be issued during criminal proceedings, but in Crown Court trials the judge must warn the jury not to let the issue of a witness anonymity order prejudice them against the defendant. The power  [2008] UKHL 33; [2008] 1 WLR 1499.   [2007] NICA 33.   Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153, at [55]. 55   Annual Report of the Prisoner Ombudsman 2008–09: www.niprisonerombudsman.gov.uk/documents/ AnnualReport.PDF. 56   [2008] UKHL 36; [2008] 1 AC 1128. 52 53 54

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to make such orders will cease at the end of 2009 unless extended by a Ministerial order or replaced by provisions in other legislation which has been more fully debated in Parliament. In R v G 57 a 15-year-old boy was charged with raping a child under the age of 13, contrary to section 5 of the Sexual Offences Act 2003. He pleaded guilty because he had been advised that his belief that the child was 15 was no defence, but he then appealed arguing that section 5 was incompatible with the presumption of innocence guaranteed by Article 6(2) of the European Convention and that his prosecution was a disproportionate interference with his own Article 8 right to respect for his private life. The House of Lords held against him on both issues, although on the latter there were two dissenting judges.58 During 2008 several cases were taken to the courts of Northern Ireland by people who alleged that the trials they had been subjected to many years earlier were unfair. They argued, for example, that the ‘confessions’ they had made were not given voluntarily, that they had been denied access to legal advice, or that the police had altered notes of their interviews. The Court of Appeal’s approach in such cases is to apply the statute law and codes that were in force at the time of the original trial, but to measure these against modern standards of fairness and the current common law.59 In Re Boyle’s Application, for example, compensation was granted for a miscarriage resulting from the police’s false denial that there was another version of their notes of an interview with the claimant: electrostatic detection analysis had revealed the existence of that other version.60

the right to a private and family life Article 8 of the European Convention continues to be one of the most frequently cited human rights provisions in the courts. In 2008 it was at the centre of a number of decisions by the House of Lords, especially in immigration cases. In Beoku-Betts v Secretary of State for the Home Department61 the Lords held that section 65 of the Immigration and Asylum Act 1999 requires an adjudicator, when determining whether a claimant’s right to respect for his family life has been breached, to take account of the family unit as a whole, and if, overall, removal from the country would be a disproportionate interference with that right then all affected family members are to be considered as victims. Likewise, in Chikwamba v Secretary of State for the Home Department,62 the same section of the 1999 Act was interpreted to mean that an appellant who was challenging a decision to refuse her leave to remain in the UK should not be required to leave the country and seek leave to enter from an entry clearance officer abroad if this would violate her and her family’s Article 8 rights. And in EB (Kosovo) v Secretary of State for the Home Department the Law Lords found in favour of a young Kosovar who had come to the UK when aged 13 and whose claim for asylum   [2008] UKHL 37; [2009] 1 AC 93.   Lady Hale and Lord Carswell. 59   R v Gordon [2002] NIJB 50, following R v Bentley [2001] 1 Cr App R 21 (CA), where at [4] the court sets out clearly the four principles it thinks should be adhered to in such cases. 60   [2008] NICA 35. 61   [2008] UKHL 39; [2009] 1 AC 115. 62   [2008] UKHL 40; [2008] 1 WLR 1420. 57 58

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took four-and-a-half years to process. When the Secretary of State sought to remove him the applicant relied on his Article 8 rights. The House agreed that these had not been properly considered and remitted the case to Asylum and Immigration Tribunal for reconsideration. Perhaps most important of all in this context is EM (Lebanon) v Secretary of State for the Home Department,63 where an applicant for asylum argued that she was a victim of persecution because if she was sent back to Lebanon she would lose custody of her 7-year old child and would have only access rights. This rule of Shari’a was deemed unacceptable to UK public policy. Another liberal decision favouring a refugee was R v Asfaw,64 where a woman who had presented false travel documents in Britain when in transit to the USA was held (albeit by 3 v 2) to be entitled to protection from prosecution by virtue of the UN Convention on the Status of Refugees, even though the particular offence with which she was charged was not one of those listed in Article 31(1) of that Convention: to refuse her the protection would have been an abuse of process. Immigrants’ rights to marry were under scrutiny in R (Baiai) v Secretary of State for the Home Department (Nos 1 and 2),65 where restrictions had been imposed in order to avoid the abuse of immigration rights by marriages of convenience. But the Law Lords ruled that, while the legislation in question,66 except for the requirement to pay a high fee, was not in breach of Article 12 of the European Convention (which guarantees the right to marry), the conditions set out in the Secretary of State’s Policy Instructions imposed a blanket ban on the right to marry and had no relevance to the genuineness of a proposed marriage, so the scheme was a disproportionate interference with the right to marry. The restrictions on workers from the so-called A8 countries67 were considered in another Northern Irish appeal that went to the Lords, a case supported by the Law Centre (NI). In Zalewska v Department for Social Development68 the House held that the Accession (Immigration and Worker Registration) Regulations 2004 were compatible with EC law even though they made access to the labour market (and, indirectly, to income support) conditional upon the worker being registered with an authorised employer for a continuous 12-month period, with any breaks in that registration being fatal to eligibility. The age of consent to sex in Northern Ireland was reduced from 17 to 16 during 2008,69 and the Human Fertilisation and Embryology Act 2008 amended previous legislation on the persons who are to be treated in law as the parents of a child conceived through in vitro fertilisation. In another startling House of Lords’ decision, the Law Lords held that article 14 of the Adoption (NI) Order 1987, which prevented unmarried couples (whether heterosexual or homosexual) from jointly applying to adopt a   [2008] UKHL 64; [2008] 3 WLR 931.   [2008] UKHL 31; [2008] 1 AC 1061.   [2008] UKHL 53; [2008] 3 WLR 549. 66   Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 19, and the Immigration (Procedure for Marriage) Regs 2005. 67   These were 8 of the 10 countries which acceded to the EU on 1 May 2004. The other two countries, Cyprus and Malta, were deemed to have populations too small to cause any problems for UK immigration. 68   [2008] UKHL 67; [2008] 1 WLR 2602. 69   Sexual Offences (NI) Order 2008, which de-criminalises most sexual activity with a consenting person aged 16 or over. 63 64 65

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child, was not compatible with Article 8 of the European Convention.70 This was so even though the European Court itself has not yet asserted that Article 8 guarantees the right to adopt, and despite there being evidence that the pre-existing law was the outcome of deliberate policy making by Parliament. The relevance of Article 8 to the right to housing was brought to light in a clutch of cases in the highest court. In Doherty v Birmingham City Council71 section 5(1) of the Mobile Homes Act 1983 was found to be incompatible with Article 8 because it allowed a family of gypsies to be served with an eviction notice without due process. But no declaration of incompatibility was issued because the law had already been amended by the Housing and Regeneration Act 2008. Other cases demonstrated that the right to accommodation is often a matter of tricky statutory interpretation, given that, for resource reasons, fine lines have to drawn between deserving and undeserving applicants. Thus, in R (M) v Slough Borough Council,72 the House ruled that a local social services authority was not obliged, under section 21(1)(a) of the National Assistance Act 1948, to arrange (and pay for) residential accommodation for a person who was subject to immigration control but who was also HIV positive. The Lords stressed that his only needs, other than for a home and subsistence, were for medication prescribed by his doctor and a refrigerator in which to keep it; this did not mean that he was ‘in need of care and attention which is not otherwise available’ through the NHS. Similarly, in R (M) v Hammersmith and Fulham London Borough Council,73 the House decided that a child who had been provided with accommodation by a local authority’s housing department but who had not been brought to the attention of its children’s services department had not been ‘looked after’ for the purposes of section 22(1) of the Children Act 1989 and so was not entitled, after becoming 18, to receive support under that Act as a ‘former relevant child’. Two decisions on privacy rights by the European Court of Human Rights stand out during the year. In Liberty et al v UK the Court ruled that the government’s telephone tapping practices had violated the privacy rights of three human rights organisations (Liberty, British Irish Rights Watch, and the Irish Council for Civil Liberties) when an inquiry from the Irish Government revealed that the British security services were monitoring phone and internet connections between the two countries.74 More significantly, in December 2008 the European Court ruled that the government’s indefinite retention of the DNA of people who had never been convicted of any offence was a violation of Article 8: the blanket authorisation of such long-term retention was unacceptable (even though the British Government claimed that four murderers, including one serial killer, had been caught in the past year by matching their DNA with that in the database).75 That sometimes it can be very difficult to strike a balance between the right to privacy and the right to information is well illustrated by Common Services Agency v Scottish Information Commissioner,76 where a Parliamentary researcher wanted to obtain information about child leukaemia rates in parts of Scotland. He was strongly   In re G (Adoption: Unmarried couple) [2008] UKHL 38. Lord Walker dissented.   [2008] UKHL 57; [2008] 3 WLR 636. 72   [2008] UKHL 52; [2008] 1 WLR 1808. 73   [2008] UKHL 14; [2008] 1 WLR 535. 74   (2009) 48 EHRR 1. 75   S and Marper v UK (2009) 48 EHRR 50. 76   [2008] UKHL 47; [2008] 1 WLR 1550. 70 71



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supported in this by the Information Commissioner’s Office but in the end the House of Lords held that release of the information in the format sought would breach Data Protection Principles because it would lead to the health situation of particular children being made public. In Northern Ireland there continues to be a gap in the law in this area because organisations such as the Northern Ireland Cancer Registry are collecting and processing information in a way for which, strictly speaking, there may be no legislative or common law authority. Permission for such work can be granted in England and Wales by the Ethics and Confidentiality Committee,77 but the Privacy Advisory Committee in Northern Ireland has no such power, and nor does anyone else.

the right to free speech The Criminal Justice and Immigration Act 2008 abolished the criminal offences of blasphemy and blasphemous libel in England and Wales,78 but not in Northern Ireland. As the offences protect only the Christian religion they have for long been an anomalous feature of our law, although admittedly prosecutions are now very rare. In October 2008 the Home Secretary announced new measures to make it easier to exclude from any part of the UK foreign extremists: foreign ‘preachers of hate’ now have to prove that they have publicly renounced their views.79 In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport80 the House of Lords considered a challenge brought by ADI against the refusal of the Broadcasting Advertising Clearing Centre to approve a TV advert relating to a campaign against the use of primates by humans. The Law Lords held that the prohibition on political advertising in the Communications Act 200381 was compatible with Article 10 of the European Convention. In doing so they applied the European Court of Human Rights’ reasoning in Murphy v Ireland.82

the right not to be discriminated against There were no significant legislative developments in the field of discrimination law during 2008, although Article 14 of the European Convention was central to two House of Lords’ decisions. In AL (Serbia) v Secretary of State for the Home Department83 the government had a policy to allow families who had been in the UK for three or more years to stay in the country for longer. Two single men with no other family members in the UK argued that this was discriminatory against them, but the House ruled that distinguishing between people with families and others was not discriminatory within the terms of Article 14. Lady Hale expressed ‘considerable misgivings and regrets’ about the result but did not dissent. In R (RJM) v Secretary of State for Work and 77   Under the National Health Service Act 2006, s 251 (formerly the Health and Social Care Act 2001, s 6), which allows the common law duty of confidentiality to be set aside where anonymised information is not sufficient and where patient consent is not practicable. 78   s 79. 79   HC Deb, vol 481, col 25WS (28 October 2008). 80   [2008] UKHL 15. 81   ss 319 and 321. 82   (2003) 38 EHRR 212. 83   [2008] UKHL 42; [2008] 1 WLR 1434.

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Pensions84 there were two main questions: (1) is a disability premium a ‘possession’ for the purposes of Article 1 of Protocol 1 to the European Convention (which protects the right to peaceful enjoyment of one’s possessions), and (2) is homelessness a ‘status’ for the purposes of Article 14 of the Convention? The Lords answered both questions in the affirmative, which confirms the expansive interpretation recently given to both provisions by the European Court, but they then went on to find that the discrimination against homeless people highlighted in this particular case (the loss of a disability premium) was justified because it pursued a legitimate aim (encouraging homeless people to find accommodation) and was proportionate. Disability was also at issue in Lewisham London Borough Council v Malcolm.85 This was a test case to clarify whether a disabled tenant of a local housing authority could rely upon the Disability Discrimination Act 1995 to resist what would otherwise be an unanswerable claim to possession by the landlord. The tenant had sub-let the accommodation, in breach of his tenancy agreement, but he was suffering from schizophrenia at the time. The House of Lords held that for there to be a breach of the 1995 Act there has to be knowledge on the part of the alleged discriminator that the person discriminated against was disabled, and the discrimination must relate to the disability, neither of which was the case here. Lady Hale dissented, but only to the extent that she did not think the relevant comparator was a tenant who did not have a disability. Other discrimination issues arising during the year included agism in the provision of financial services, on which the Equality Commission for Northern Ireland published a helpful research report.86 The 18th Fair Employment Monitoring Report, published by the same Commission in December 2008, revealed that of the total monitored workforce in 2007 (excluding the ‘non-determined’ group87) the community composition was 55.4 per cent Protestant and 44.6 per cent Catholic, figures which fall within the estimated percentages for those religious groups in the economically active population of Northern Ireland. The part-time workforce was predominantly female (71.7 per cent) and had a higher proportion of Catholics (48 per cent) than the population as a whole. The NIHRC again publicised the relatively poor facilities available for female prisoners in Northern Ireland, endorsing a joint report to that effect by Her Majesty’s Chief Inspector of Prisons and the Criminal Justice Inspector of Northern Ireland.88 This inspection was conducted in October–November 2007 and the report makes 154 recommendations for improvement. Reports were also published on inspections of the Youth Conference Service, Woodlands Juvenile Justice Centre (the only such centre in Northern Ireland), Community Restorative Justice Ireland, and the operation of Anti-Social Behaviour Orders (ASBOs).89 The last of these reports found that ‘overall . . . there had been a sensible approach to the introduction of ASBOs in Northern Ireland’.90

  [2008] UKHL 63; [2008] 3 WLR 1023.   [2008] UKHL 43; [2008] 1 AC 1399. 86   B Fitzpatrick and I Kingston ‘Older People’s Access to Financial Services’. 87   ie people whose community background could not be determined as either Protestant or Catholic, who amounted to 7% of the total workforce. 88   See www.cjini.org/CJNI/files/3c/3ca1e4a3-649a-491d-bb54-f59b80fff6b5.pdf. 89   For the full list see www.cjini.org/getdoc/295c0c6f-660c-482a-8214-ffad44489d6c/Inspection-Reports. aspx. 90   p vii. Up to the end of 2007 65 ASBOs had been issued in Northern Ireland. 84 85

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so cio-economic rights It is sometimes said that socio-economic rights are not currently protected by law in Northern Ireland, but of course they are, as is apparent from some of the cases already mentioned in this Report. There is a myriad of detailed legislation securing rights to education, a minimum wage, various welfare benefits, access to the National Health Service, and accommodation for people who are non-intentionally homeless. But there is always room for improvement. In 2008 the Northern Ireland Assembly passed the Mesothelioma, etc Act (NI) 2008,91 which enables a lump sum payment to be made to those suffering from diffuse mesothelioma (or their dependant if the person is deceased). Payments can be made regardless of the recipient’s employment status, provided he or she has not already received compensation through a civil claim or other statutory provisions. Thus, someone who suffers mesothelioma after being exposed to asbestos from a relative’s clothing would be eligible for a payment. If a recipient later recovers civil compensation, the government can recoup some of the lump sum already paid. The Health and Social Care Act 2008 creates ‘health in pregnancy grants’92 and another provision of that Act93 amends the Human Rights Act 1998 so as to reverse the House of Lords’ decision in YL v Birmingham City Council.94 This means that homes in which the residents are receiving care which is paid for by a public authority will themselves be deemed to be public authorities and will thus have to comply with the 1998 Act. Also worth mentioning is the Climate Change Act 2008, the first section of which imposes a duty on the UK Government to ensure that the net UK carbon account for the year 2050 is at least 80 per cent lower than the 1990 baseline. This will benefit Northern Ireland (and the world), but other sections of the Act have not been extended to Northern Ireland, including that which allows the Government to insist that payments be made for single use carrier bags,95 and the provision on carbon emission reduction targets.96

  Which mirrors part of Westminster’s Child Maintenance and Other Payments Act 2008.   s 134.   s 145. 94   [2008] 1 AC 95. 95   s 77. 96   s 79. 91 92 93

Irish Society of International Law Colin Smith BL 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 the debate and discussion of 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 2008, the Irish Society of International Law hosted the following events: international humanitarian law in ireland – 8 july 2008 On 8 July 2008, the Society co-hosted a discussion group entitled International Humanitarian Law in Ireland with the Irish Red Cross Society in the Institute of International Integration Studies in Trinity College Dublin. Len Blazeby (Legal Advisor, International Committee of the Red Cross) delivered the first presentation, in which he gave a general explanation of international humanitarian law (IHL) as regulating the conduct of armed conflicts. He discussed the rules governing the protection of victims of armed conflict and the means and methods of warfare imposed by the Hague and Geneva Conventions. He also explored the role of the International Committee of the Red Cross and the Red Cross National Societies, including the Irish Red Cross, in the implementation and dissemination of IHL in accordance with the Geneva Conventions of 1949. Lt Col Jerry Lane (Legal Division, Irish Defence Forces) then spoke about the instruction in IHL received by personnel in the Irish Defence Forces. He described how this training is put into practice when they are deployed overseas. Colin Smith (Irish Society of International Law) spoke last, outlining the legislative measures taken in Ireland to implement the IHL treaties to which Ireland has become a party, including the Red Cross Acts, 1938–98, the Geneva Conventions Acts 1962 and 1998, the International Criminal Court Act 2006 and the Cluster Munitions and

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Anti-Personnel Mines Act 2008. The presentations were followed by a question and answer session with the speakers. the fourth annual se á n lester lecture:on the law of peace – 28 o ctober 2008 The Society’s Fourth Annual Seán Lester Lecture, On the Law of Peace was delivered by Christine Bell, Professor of International Law and Co-Director of the Transitional Justice Institute at the University of Ulster, on 28 October 2008. Prof Bell argued that there is a new lex pacificatoria or ‘law of the peacemakers’ emerging from the practice of peacemaking through peace agreements. This trend is reshaping both international law and domestic constitutional law, and their inter-relationship. The Lecture was followed by the launch of Prof Bell’s book, On the Law of Peace: Peace Agreements and the Lex Pacificatoria, which is reviewed in this edition of the Irish Yearbook of International Law. The event was chaired by Prof John Jackson, Dean of School of Law, University College Dublin and was held at the headquarters of the Law Society of Ireland at Blackhall Place. university college dublin third annual legal research – 5–6 december 2008 On 5 and 6 December 2008, the School of Law at University College Dublin held its third annual conference for postgraduate students engaged in legal research. The theme of the conference was Legal Processes Beyond the State. The Society presented a prize for the best presentation to Deborah Horowitz of the University of Oxford. annual general meeting – 8 december 2008 On 8 December 2008, the Society held its annual general meeting at the School of Law of University College Dublin. Colin Smith was elected Chairman of the Society. Joanne Nic Liam was elected Secretary and Deputy Chairman. The outgoing Chairman, Patrick O’Brien, was elected Treasurer. The following members were elected to the Committee: Donal Casey, Kanstanstin Dzehtsiarou, Gavin Elliot, Carl Grainger, Sarah Jane Hillery, Lauren Kierans and Pippa Matthews.

The European Union and its Constitution: From the Rome to Lisbon Treaties by Laurent Pech, Dublin & Clarus Press, 2008, 266 pp, Pbk €45. ISBN 978-1-905536-13-9. and Dividing Lines between the European Union and its Member States: The Impact of the Treaty of Lisbon by Stephen Sieberson, The Hague, TCM Asser Press, 2008, 320 pp, Hbk £50. ISBN 978-90-6704-284-0. These books represent two of the first substantial monographs to reach the market analysing the changes to the EU which would be brought about by the Treaty of Lisbon, signed in December 2007. The Treaty of Lisbon was the result of an inter­ governmental conference of EU Member States following a self-imposed ‘period of reflection’ in the wake of the rejection of the Treaty Establishing a Constitution for Europe (Constitutional Treaty) by the French and the Dutch in referenda in 2005. Rather than replacing the current EU and EC Treaties with a new document, the Treaty of Lisbon reverted to the previous technique of simply amending (and re-­ numbering) existing Treaty articles, making the Treaty of Lisbon itself a complex and less than pretty document. As is well-known, Ireland was the only Member State to hold a referendum on the Treaty of Lisbon, considering itself bound so to do for constitutional reasons.1 The result was a rejection of the Treaty of Lisbon by the Irish people in a June 2008 referendum, which is to be followed by a further referendum in or around autumn 2009. One of the most glaring features of the June 2008 campaign was the continued prevalence of a variety of misconceptions about the EU in the Irish media and public, which led to much scaremongering about the EU and its role. The need for accurate information about the EU is greater than ever. These books are to be welcomed as contributing to this effort. In The European Union and its Constitution: From the Rome to Lisbon Treaties, Laurent Pech of the National University of Ireland, Galway analyses the current EU treaties, the Constitutional Treaty and the Treaty of Lisbon through the optic of three assertions commonly made in popular discourse concerning the EU – particularly by Eurosceptics – with a particular view to the Irish context. In so doing, Dr Pech aims to dismantle some popular myths about the EU. Published in March 2008, the book came just months before the Irish referendum of June 2008. The first myth which Pech targets is the assertion that the European Union has, over the course of its 50 plus years of existence, morphed into a ‘superstate’, with all the implications that such status carries for loss of sovereignty on the part of Member States. Pech attacks this assertion convincingly and methodically, beginning by identifying what he considers to be the conventional classic hallmarks of statehood. These are (at 19): the cumulative presence of a ‘People or Nation; a territory; and a sovereign capacity of action both internally and externally’. He moves on to discuss the extent to which the EU in its present form exhibits each of these characteristics, and whether the Treaty of Lisbon would change matters, concluding that none of these characteristics are made out at present or would be under the Treaty. To begin, Pech argues, the EU cannot yet be said to have its own ‘people’ – a point emphasised in carefully chosen references to the ‘peoples’ of Europe in the preambles  See Crotty v An Taoiseach [1987] IR 713.

1

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to the current version of the EC Treaty and to the Constitutional Treaty. Nor, Pech argues, does the EU possess its own ‘territory’ as such, relying (at 21–24) on the indeterminacy of the notion of a ‘European’ State. In this, he is on shakier ground: although it is, admittedly, impossible to be certain about where the borders of the EU will lie in the future (following future accessions), it is nonetheless clear what the EU’s territory comprises at present. One would surely not deny the title of statehood to the United Kingdom, for instance, by virtue of the possibility that the Scots might one day vote for independence. Pech then moves on to consider whether the EU can be said to exhibit one of the key indicia of statehood: sovereignty. On the issue of internal sovereignty, Pech argues forcefully that neither the Constitutional Treaty nor the Treaty of Lisbon would change the fundamental nature of the relationship between the EU and Member States: the EU will continue to lack independent sovereignty. Although certain sovereign powers have been transferred to the EU, this has been done by gradual Treaty amendment requiring the approval of all Member States. In other words, the EU only has power to act in so far as the Member States have attributed such powers of action to it. Further, Pech notes correctly that the EU clearly fails to satisfy Max Weber’s definition of a state as a community claiming a monopoly over the legitimate use of physical force within a territory.2 Despite the aim of developing the EU as an area of ‘freedom, security and justice’, police forces remain national, and the Treaty of Lisbon expressly provides that national security remains ‘the sole responsibility of each Member State’ (Art 3a(2) TEU, Treaty of Lisbon version). The matter is even clearer for Ireland and the United Kingdom, which have, under the Treaty of Lisbon, chosen to extend their right to opt out of provisions on police and judicial cooperation in criminal law within the EU. Similarly, Pech concludes that the EU at present, and in the form it would take under the Treaty of Lisbon, lacks external sovereignty. In particular, the EU’s powers in security and defence under the EU’s Common Foreign and Security Policy (CFSP), currently the second pillar of the EU edifice, remain a long way from giving the EU independent competence in security and defence matters. All substantive CFSP decisions are subject to unanimity of voting by Member States, meaning that every Member State has the power to veto such decisions. Further, under the Treaty of Lisbon, the EU would be obliged to act with respect for the specific character of national security and defence policies – a safeguard aimed at reassuring traditionally neutral Member States and in the negotiation of which Ireland played a large part. In fact, recent Irish governments have voluntarily chosen to be part of a variety of EU humanitarian and peacekeeping tasks, most notably by choosing to contribute to the EU’s Nordic Battlegroup intended to respond rapidly to humanitarian crises or to an urgent United Nations’ request. Nonetheless, the issue of compulsory militarisation – in the face of Ireland’s traditional attachment to issues of neutrality – against Ireland’s will constituted a major plank of the ‘No’ campaign leading up to the June 2008 referendum and would seem to have played a not insignificant role in the Treaty’s rejection3 – a prime example of the widespread confusion that reigned in the voting public as to the Treaty of Lisbon’s actual content. 2   See his 1919 lecture Politik als Beruf (Politics as a Vocation), available in English translation in Max Weber, The Vocation Lectures (Hackett, 2004). 3   See, for instance, Millward Brown, Post-Referendum Research Findings, September 2008, available at www.dfa.ie.

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The final component of Pech’s attack on the superstate argument is his treatment of the federal question. Pech allies himself here to the classic argument that the EU is, as a political entity, sui generis, amounting to neither a typical federation nor confederation. In so concluding, Pech revisits a variety of features of the EU’s constitutional settlement, especially the European Court of Justice’s (ECJ) long-held doctrine of the supremacy of EC law over national law and its reception by national constitutional courts. Here he shoots down the popular misconception that the EU will force Ireland to legalise abortion by recalling the important Grogan4 judgment in which the ECJ declined to rule on the compatibility of the Irish prohibition on abortion with the EC freedom to receive services. Other classic features of the EU’s constitutional settlement dealt with here include the doctrine of subsidiarity and the Treaty of Lisbon’s insertion, for the first time, of an exit clause which would allow Member States to withdraw from the EU. The second myth that Pech attacks is that of the EU’s famed ‘democratic deficit’, a term which, although ubiquitous, is unhelpfully opaque in meaning. The first element of the deficit argument he considers is the perceived lack of parliamentary control over EU affairs: the European Parliament still lacks the powers of a genuine parliament, while national parliaments do not yet properly hold their governments accountable for their activities at EU level. The latter point certainly rings true in Ireland, where parliamentary scrutiny of European legislation has to date been unsatisfactory.5 There is also much truth in Pech’s conclusion that the ‘real obstacle to effective national parliamentary control is not the alleged lack of transparency within the Council . . . but the lack of enthusiasm from national governments and – somewhat surprisingly – from the parliaments themselves’ (at 103). Nonetheless, this remains an area where knowledge of best practices of national parliamentary supervision of EU activities remains relatively undispersed (with the exception of the ‘Danish model’, requiring a prior mandate from a parliamentary committee before Council meetings). The EU surely has an interest in remedying this information deficit. Pech moves on to parry criticism of the EU’s democratic deficit by pointing to deficiencies in the functioning of national democracies (for instance, by the increase in power of national executives and national technocratic agencies). This technique is less persuasive: pointing to others’ problems has never been, it might be thought, an especially convincing way of denying one’s own. Nonetheless, his proposals for a refined democratic model suitable for a ‘non-State and non-nation’ polity, such as the EU are insightful. Pech rightfully follows commentators, such as Majone in observing that certain hallmarks of national democracies, such as majoritarianism, would in fact undermine the EU’s legitimacy, allowing the wishes of smaller Member States to be too easily overridden.6 Further, although no European demos can accurately be said to exist at present, this does not preclude the existence of European citizenship as a complement to, rather than a substitute for, national citizenship. In this regard, Pech correctly draws attention to the Treaty of Lisbon’s insertion into the EU Treaty of a new title on democratic principles of the Union, which emphasises the centrality of participatory democracy in the EU model with the inclusion, for instance, of the   Case C-159/90 SPUC v Grogan [1991] ECR I-4685.   See, for instance, the recommendations of the Report of the Oireachtas Sub-Committee on Ireland’s Future in the European Union of November 2008, Chapter 4, available at www.oireachtas.ie. 6  See, for instance, Giandomenico Majone ‘Europe’s Democratic Deficit: A Question of Standards’ (2002) 4 European Law Journal 5. 4 5

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‘citizens’ initiative’ by which one million European citizens coming from a significant number of Member States have the power to ‘invite’ the Commission to submit a legislative proposal. Although the EU has much work to do to improve and strengthen such participation, this alternative to pure representative democracy holds much potential as a basis for an EU-tailored democratic model. With his third category of EU myth, Pech moves away from the institutional to the substantive, tackling the criticism from the left that the EU has a ‘neoliberal’ agenda, as well as the criticism from the right that the EU has a ‘socialist’ agenda. As became obvious in the June 2008 referendum campaign, the former view is particularly prevalent in Ireland. In targeting this criticism, Pech observes correctly that the traditional economic focus of the EU’s policies can be attributed to the fact that it has, for a substantial portion of its existence, been an organisation to which its Member States gave predominantly economic aims – most notably, establishing an internal market. This has changed considerably with subsequent revisions to the 1957 Treaty of Rome – for instance, with the insertion of a title on social policy into the EC Treaty by the 1986 Single European Act, which has formed the basis for the EU’s considerable legislation on working conditions and sex equality. Pech moves on to dismiss the prospect of a deregulatory ‘race to the bottom’ prompted by the internal market, arguing that ‘re-regulation’ in the form of EU legislation may be adopted to restrict regulatory competition. While this is certainly true, Pech underplays the at times major difficulties which may be encountered in reaching agreement on such EU legislation. In the absence of such legislation, the ECJ has little choice but to apply EC internal market law, even in situations of, for example, social and industrial conflict. This point was crucial in the ECJ’s controversial judgments in Viking and Laval applying internal market law to restrictions on trade union activity, which judgments played a major role in the debate leading up to the June 2008 referendum.7 Overall, this book is a comprehensive, thoughtful and well-written debunking of some common misconceptions about the EU. Due to its broad nature, tackling and describing many of the basic elements of the EU legal and political order, the primary audience for this book is likely to be interested readers who lack specialist knowledge about the detailed workings of the EU, especially those confused by the many contradictory messages they may be receiving from the media. Nonetheless, the book also contains material which will be of great interest to EU specialists, such as Pech’s use of comparisons with a variety of national constitutional systems (such as France, Germany and the United States) in the first part of the book. Though the author’s consistently pro-EU stance and argumentative style of writing adds to the interest and fluency of the book, it may potentially put off readers who would approach the book from a Eurosceptic or neutral position. In Dividing Lines between the European Union and its Member States: the Impact of the Treaty of Lisbon, Stephen C Sieberson of Creighton University School of Law tackles similar issues as to the identity and function of the EU, but this time through the lens of the division of powers between the Member States and the EU, and how this would be affected by the Treaty of Lisbon. Sieberson divides his analysis into four main parts. In the first part, he begins by considering the nature of the EU, returning once again to the debate over whether the EU is best characterised as an intergovernmental 7

  Case C-438/05 Viking [2007] ECR I-10779 and Case C-341/05 Laval [2007] ECR I-11767.

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organisation or as a nascent federal entity and concluding (at 15, and in a similar manner to Pech) that the EU is a ‘blended entity’. Sieberson follows this with an accurate and comprehensive description of the genesis of the Constitutional Treaty and the Treaty of Lisbon as well as a summary of the principal changes which the Treaty of Lisbon would bring to the structure of the current treaties. In the second part, Sieberson explores the character of the EU from a number of perspectives, examining the Union’s values and aims, as well as its approach to human rights. In this regard, the Treaty of Lisbon’s attribution to the EU’s Charter of Fundamental Rights of a legal status equivalent to treaty provisions is, Sieberson argues (at 85), ‘among the new treaty’s most significant proposals’, although he notes correctly that the ECJ will be required to resolve any ‘inconsistencies’ between the Charter, the European Convention of Human Rights, and its own doctrine of fundamental rights as a general principle of Community law. In this regard, it would have been interesting to know Sieberson’s own view as to the proper course for the ECJ in resolving such inconsistencies. Continuing in his exploration of the EU’s character, Sieberson next looks at the EU as a democracy. In his view, a (modified) form of democracy is indeed necessary in the EU, and the Treaty of Lisbon’s expansion of democratic principles constitutes another of its most significant innovations – and one which may potentially increase the popularity of the Union. Sieberson finishes this part with an examination of the Treaty of Lisbon’s innovations in adding provisions on withdrawal from the Union and simplified Treaty amendment, as well as in increasing the role of national parliaments in enforcing the principle of subsidiarity and clarifying the division of legislative competences between the EU and its Member States. In the third part, Sieberson turns to the institutions and decision-making processes of the EU, and how these would be affected by the Treaty of Lisbon. In particular, Sieberson rightly (at 180) draws attention to the significant change in the ECJ’s jurisdiction which would occur under the Treaty. While, in the current version of the EU Treaty, the ECJ has no jurisdiction over the sensitive second pillar CFSP area, the Treaty of Lisbon would extend its jurisdiction to include ensuring that the Union’s general competences did not affect the CFSP and vice versa, as well as review of ‘the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council’.8 The latter provision is certainly to be welcomed, having the potential to greatly increase the rule of law and protection of rights in an area in which judicial review was previously (and shockingly, in a Union supposedly founded on respect for human rights) excluded. A further significant change would be the extension of the ECJ’s jurisdiction to formerly ‘third pillar’ activities (ie activities in the area of police and judicial cooperation in criminal matters) – although, as noted above, Ireland and the United Kingdom have opted out of this extension. Sieberson finishes this part with a description of the areas in which, under the Treaty of Lisbon, qualified majority voting would replace unanimity of voting in the Council. In the fourth part, Sieberson examines the substantive areas of the EU’s activity, and the extent to which the Treaty of Lisbon would change these. His main focus is, correctly, the Treaty’s changes to the Area of Freedom, Security and Justice which, at present, is split between the first (Community) pillar (as regards asylum, immigration   See Arts 1(27)(a)(1) and 2(223)(240a) of the Treaty of Lisbon.

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and judicial cooperation in civil matters) and the third pillar (as regards police and judicial cooperation in criminal matters). The Treaty of Lisbon would, in scrapping the EU’s ‘three pillar’ structure, merge these two elements into one, reducing the areas in which unanimity of voting is required and getting rid of the special set of legislative instruments which has up to now existed for the third pillar. Sieberson finishes by providing an overview of the principal substantive changes to other EU policy areas which the Treaty of Lisbon would bring about. Overall, his conclusion is that most of the changes in the Treaty of Lisbon would ‘not entail any shift of competence or power to the Union [. . .] the United States of Europe is not about to be born’ (at 245, 253). In this he is surely right. The irony of the rejection of the Treaty of Lisbon by the Irish people in the June 2008 referendum is that, of all the treaty amendments since the 1957 Treaty of Rome, the Treaty of Lisbon represents the least significant in terms of concrete substantive changes. Although Sieberson’s book includes comprehensive reviews of US and EU literature on certain theoretical issues (for instance, on the democratic deficit issue), it does not contain, nor does it purport to contain, substantial original theoretical analysis. However, the book provides a very useful, well laid-out and clear reference point for those looking for an objective, factual and accurate account of the changes which the Treaty of Lisbon would bring about for the EU project. Each of these books succeeds in translating the dense text of the Treaty of Lisbon (and a variety of previous Treaty changes) into more easily digestible form – which in itself is no mean feat. In this, they should serve as useful tools in the ongoing battle to improve understanding of the EU. Dr Suzanne Kingston University College, Dublin Documents on Irish Foreign Policy, Volume VI, 1939–1941. Edited by Catriona Crowe, Ronan Fanning, Michael Kennedy, Dermot Keogh and Eunan O’Halpin. Dublin, Royal Irish Academy, 2008, 566 pp, Hbk €45. ISBN: 978-1-904890-51-5. In 1996 the Department of Foreign Affairs initiated Documents on Irish Foreign Policy, seeking to ‘make available in an organised and accessible way’ relevant documents which were ‘considered important or useful for an understanding of Irish foreign policy’. This sixth volume is a splendid addition to a splendid series.9 It covers the period from the outbreak of the Second World War to the end of January 1941, ‘seventeen months of grave crisis for Irish policy makers’ (p xi) during which the neutrality of the independent Irish state was both asserted and applied – arguably the most definitive expression of sovereignty in the life of the state so far – and a period when the very survival of the state was believed to be in jeopardy. The very first document (of 417 in total) in this selection (dated 1 September 1939) is one of a number of lucid and thoughtful memoranda by Michael Rynne, Legal Adviser to the Department of External Affairs, addressing the subject of ‘Irish neutrality in practice’. Rynne realistically observed that there was a cost to neutrality, not just in 9   See also Keith Jeffery, Book Review: Documents on Irish Foreign Policy (five Volumes, 1919–39) 1998– 2006, Irish Yearbook of International Law, Volume 1, 2008, pp 349–54.



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diplomatic terms. Its enforcement could not be achieved ‘without severe inconvenience and financial loss’. The policy, moreover, would have to be ‘rigorously administered by every branch of the State service in order to avoid at any cost civil disorder and [the] tragic consequences to our future as a nation of a slip into belligerency on either side’. Drawing on the provisions of the 1907 Hague Convention, Rynne summarised the duties of neutrality, which included ‘the most complete impartiality in our relations with the two belligerents’. Ireland would especially have to adhere to ‘the rule that a neutral State must not permit its ports, harbours or coastal waters to be used as bases of the ships of a belligerent State’ (pp 1–2). In fact, ‘complete impartiality’ was not possible, and from the start the Taoiseach, Eamon de Valera, understood that, because of the particular history of Anglo-Irish relations and the geopolitical realities of the situation, a ‘certain consideration’ would have to apply towards Britain. Shortly after the outbreak of war, the Secretary of the Department of External Affairs, Joseph P Walsh, went to London and told the British Dominions Secretary, Anthony Eden, that Ireland would ‘go as far as possible to assist Great Britain while maintaining the essentials of neutrality’ (p 15). So it was to be, and documents in this volume chart the extent to which Ireland leaned more favourably towards the United Kingdom than Germany (although despite great pressure, especially from Winston Churchill, Dublin refused to concede on the matter of providing naval facilities). During the summer of 1940 – the most sensitive and dangerous period of the war – there were talks with British defence staff representatives on 23 and 24 May, planning against the widely anticipated possibility of a German invasion. So real were these fears that on 25 May a large number of External Affairs documents dealing with Anglo-Irish relations dating from 1938 to 1940 were destroyed on de Valera’s orders lest they might fall into German hands. Thus the vicissitudes of war (even – perhaps especially – for a neutral state) affected the historical record and the raw material for this publication. ‘It is clear from the title and chronological scope of the destroyed files’, remark the editors, ‘that they often contained extremely important material and material which is irreplaceable for the historian of Irish foreign policy’ (p 459). As with the previous volumes in this series the formal diplomatic and legal exchanges are leavened with flashes of personal experience. Even comparatively early in the war, in January 1940, William Warnock reported shortages in Berlin: ‘Coffee and tea (and substitutes for them) are becoming very scarce, and in this respect the members of the Diplomatic Corps are beginning to feel the pinch’ (p 134). Hard times indeed, and presumably the ordinary inhabitants of the city were worse off than the diplomats. There is a detailed account of Seán Murphy’s withdrawal from Paris with his staff, and their journey on refugee-clogged roads to Biarritz in June 1940 (pp 244–49). We find, too, John W Dulanty, the Irish representative in London, observing civilian morale during the Blitz in October 1940. Of his 25-mile commute by train to work, he reported that ‘in the ordinary way the journey takes forty minutes. It is fortunate if the same journey is achieved in three hours. Tired, hungry and worried, the people show miraculous calm – cheerful acceptance of things which they are powerless to alter’ (p 369). This handsome volume is a fine addition to the series, very well produced and (again) meticulously edited. Prof Keith Jeffery Queen’s University, Belfast

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On the Law of Peace – Peace Agreements and the Lex Pacificatoria by Christine Bell, Oxford, Oxford University Press, 2008, 383 pp, Hbk £60, ISBN: 978-0-19-922683-2. Christine Bell’s monograph On the Law of Peace – Peace Agreements and the Lex Pacificatoria begins with an intriguing invitation. We are welcomed to a borderland. The book positions itself on the limit between various discourses. It will, Bell tells us, trace ‘the border between law and politics; the border between international and domestic law; and the border between public law and private law’ (pp 23–24). These disciplinary and intra-disciplinary divisions however are brought forth to expose a starker threshold: one that lies between the state of peace and violent conflict. It is at this interface that the book seeks to examine what Bell claims is the newly emergent law of peace-making. This complex and engaged book does not merely put the transitionary character of peace agreements into play; rather, at this border of peace and violence we begin to see the emergence of Law itself. Conflict has changed radically in modernity. We have moved far from the top-down king-sovereign who declared and waged war. This king could make war as he saw fit, marshalling troops and marching across borders until resolution or stalemate. When it came to peace, the king declared and agreed, promulgating orders down the hierarchical line until the last weapon was set down. Philosophically, the structure of this peace-making was primarily transcendent, with the legitimation coming from the top down: the King has signed the peace. However, increasingly the legitimation of warfare has altered, the organisational principle changed from the transcendent to the immanent. The end of this shift is effectuated with guerrilla warfare, which builds its violence around an idea held in the mind of each participant. The idea and not the king fixes the destiny of the conflict. There may be a leader directly organising operations or there may be a more cellular organisation; either way the transcendent King-sovereign is vitiated. The result of this shift is that when peace is finally declared, the risk of splinter and faction is far greater. These splinter groups claim to remain true to the idea that everyone else has betrayed. While the king was the physical manifestation of the reason for war, it was relatively difficult to stand against his decision for peace. However, when an idea demands war, then who are those in command to sign a peace deal? The shift from transcendence to immanence in the structuring of the conflict itself therefore requires a reconceptualisation of peace declarations themselves. There are no longer simply orders from on high. Versailles was perhaps the last gasp of the transcendent sovereign making peace. Now a peace agreement must include and bring with it the people. Bell’s book masterfully engages with the norms of peace agreements in this new context. The book itself is divided in three. The first section charts the rise of the peace agreement. From the first substantive chapter Bell brings the necessity and urgency of this study to the reader. Since 1990, half of all civil wars ended with peace agreements, as opposed to only one in five of the same conflicts in the previous two centuries. Thus, while peace agreements are not new, they are becoming increasingly significant. Furthermore, their practice is becoming more complex, with many conflicts gaining layer upon layer of agreement, as the settlement is renewed, reworked and revised. The first section of the book therefore, explores and explicates both the historical emergence of peace agreements along with the contemporary practice in their creation and content. It takes a very broad approach to what constitutes a ‘peace agreement’

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analysing ‘final status agreements,’ new constitutions, etc. The second section of the book deals with the role of law in peace making processes. Here Bell steers a fine course between the simplifications and reductions necessary for analysis and theor­ ising regarding the multiplicity of peace making processes. She does not resort to easy reductions of the sheer diversity of practices, but equally there are no stock answers regarding the purpose, role or nature of law in peace agreements. The final section of the book attempts to draw together the analysis with a theorisation of the emerging norms of peace making, alongside the development of an argument for a new emerging law of peace making. Early in the book Bell draws out three crucial strategies employed in peace agreements; state redefinition, disaggregation of power, and the dislocation of power. This threefold structure provides the basis for Bell’s analysis. ‘State redefinition’ describes the symbolic process of redefinition of the narrative of the state. ‘At the level of symbolism and rhetoric, peace agreements provide for a fundamental redefinition of the state, to enable the inclusion of the state’s dissenters and so respond to their allegations of state illegitimacy’ (p 106). Conflict is thus understood as being centred on the recognition and position of a particular grouping within the state (or in the case of secessionist conflicts, outside the state). The peace agreement here works on a symbolic level, to rework the narrative of the state allowing for the inclusion of the excluded. Bell sees that this is a crucial affective aspect of any peace process. The second aspect of peace agreements is the disaggregation of power: ‘At the level of institutional detail, peace agreements disaggregate power by re-conceptualizing state governance and jurisdiction as capable of being aggregated into a wide variety of territorial, functional, and identitybased institutional innovations, so as to accommodate competing group demands for effective participation’ (p 106). This is the material application of the symbolic change of state redefinition: ‘While state redefinition reconfigures the conceptualization of the relationship between state and power, disaggregating power involves re-configuring the states institutional formations, in an attempt to give effect to the redefinition’ (p 106). Finally, peace agreements dislocate power. That is, they ‘tamper with the notion of a state [. . .] having an automatic sovereignty and a unitary people tied up with its territorial integrity’ (p 106). Peace agreements dislocate power through bi/multinationalism and international supervision which includes cross-border governance, devolution, dual citizenship and major roles for international institutions and actors. Redefinition, disaggregation and dislocation are three modes of reconceptualisation which are undertaken by states. Peace agreements reconfigure states. Thus we can begin to see the significance of the borderland that Bell initially introduces us to: the peace agreement signifies the border between peace and violence where the authority or the legitimacy of law, that is usually taken for granted, is radically in question. Peace agreements must reconstitute society’s relation to law, because conflict has been immanent to that very society itself. The state (qua the monopoly on violence) has been challenged to its very core, violent societal conflict disputes the government and the state’s right to rule, or what Foucault calls Public Right.10 To develop this analysis of state reconfiguration in peace agreements, Bell looks to the same event in constitutional theory. The democratic state establishes its authority by transforming the constituent power of the people into the new constituted order.   Michel Foucault, Society Must Be Defended (London, Picador, 2003).

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This order then claims the allegiance of people. Loughlin tells us that constituent power ‘helps us locate the source of modern political authority, and [. . .] identify the base upon which the structure of the legal authority rests.’11 Tracing this analysis, a violent conflict is a disagreement over the very form or nature of the state. We might go further along this line than Bell does, and say that violent political conflict is ultimately a form of constituent power which has not succeeded in bringing the people along with it and has therefore failed to constitute a new state itself. Although interesting, an in-depth exegesis of this constitutionalist debate is not required for Bell’s analysis of state reconfiguration in peace agreements. The move to link peace agreements with constitutionalism is crucial. First, as Bell says, this analysis opens her peace agreements to the many paradoxes of constitutionalism (pp 202–04). Particularly, the paradox that the constitution creates the community that created the constitution.12 This manifests itself in peace negotiations by the fact that very often the groups have no authority to act in anyone else’s name, and that those they claim to represent have never been constituted as groups. Second, and perhaps more importantly, Bell’s link to constitutionalism begins to show us the true nature of peace agreements and the conflicts which underlie them. Peace agreements are not some sort of exotic events which occur in distant and ‘inhuman’ zones of gross human rights violation; rather they are related to the legal forms of the ‘civilised’ world – constitutions. The secret which Bell does not mention is that constituent power lies at the heart of every democracy. Milton puts it well: [S]ince the King or Magistrate holds his authoritie of the people, both originally and naturally for their good in the first place, and not his own, then may the people as oft as they shall judge it for the best, either choose him or reject him, retaine him or depose him though no Tyrant, meerly by the liberty or right of free born Men, to be govern’d as seems to them best.13

The sovereign power of the people is not exhausted in elections, or any other democratic form. In fact, the sovereignty of the people may never be exhausted or restrained by any given state. Schmitt tells us that within democracy ‘the people are superior to every formation and normative framework’.14 This is because the constitution of a democratic state relies upon the enactment of the people. Thus, democracy inscribes the possibility of the return of violent conflict in the name of overthrowing a once democratic state that has become tyrannous. Peace agreements are a continuation of the long history of political settlements. They are a hybrid of hard fought out domestic constitutions and the distant international peace negotiations of the great powers. Hybridity is a concept that is deployed throughout the book. Bell highlights a number of ‘beautiful tricks’ of the peace agreement which demonstrate this hybridity. We need not set them all out, but the first beautiful trick is their ambiguity over whether ‘internal or external self-determination is being delivered, the peace agreement simultaneously delivers both and therefore neither one alone. The old state both continues to exist and is replaced’ (p 207). A second trick mixes new processes and substantive changes   Martin Loughlin, The Idea of Public Law (Oxford, Oxford University Press, 2004) at 99.   See Martin Loughlin & Neil Walker (eds), Paradox of Constitutionalism (Oxford, Oxford University Press, 2007). 13   John Milton, ‘The Tenure of Kings and Magistrates’ in The Major Works (Oxford, Oxford University Press, 2008) at 281. 14   Carl Schmitt, Constitutional Theory (Durham, Duke University Press, 2008) at 131. 11 12

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together, thereby bringing about ‘a new constitutional order that is at once a new settlement and no settlement at all, and capable therefore of demanding the allegiance of all’ (p 209). Bell shows us that the peace agreement is not a final stable text. Its hybridity is designed to ‘reconcile the irreconcilable differences over the questions of territory, demos, and polis, in a constitutional meta-bargain, that accommodates the metaconflict’ (p 204). The peace agreement then does not simply put an end to the conflict. Rather it transposes the conflict from sporadic acts of violence and more sustained non-engagement, to a sustained and peaceful political antagonism. This peaceful antagonism is constitutive of the political itself.15 Thus, the peace agreement is both very specific, and full of holes, uncertainties and possibilities. It often defers many of the most important decisions, appointing monitors and broader bodies to decide specific issues. It may suspend referenda concerning secession or other major issues. In this the conflict is reframed as an intra-state antagonism. This is the possibility inherent to peace agreements. They form meta-bargains regarding the narrative of the state which accommodate the conflict in a peaceful political mode. However, this means leaving open the most important questions which are then to be resolved within the political. This openness is crucial as it preserves the fundamental antagonisms while altering the spaces and modes through which this may be expressed. Bell’s book attempts to steer a path between the openness of the agreements and a prescriptive attempt to set out the emerging norms of peace agreement formation. It is at this point that one might object, although not too strenuously, that Bell goes too far in finding a law of peace-making. An objection might be raised because what is at stake in peace agreements is precisely the form of state. We know only too well from history that the form of state is not something which becomes a constant. There is no ‘end of history’ where neo-liberal democratic capitalism establishes itself in perpetuity.16 Peace agreement formation cannot be calcified into static law because it must, by its nature, be an open process. If there is a conflict between two factions of communism, say a Maoist and Stalinist community, or if two Islamic factions fight it out over the nature of law, then surely there can be no suggestion that they must settle, by (international) law, on a participatory/representative democracy. To find a law of peace-making then risks being prescriptive about what must come about in a peace agreements. The danger of setting a law of peace-making is that the process is enclosed and its ends are pre-set within given boundaries (both telos and therefore finis). The constructive ambiguity that Bell traces throughout the book lies at the very heart of peace agreements. However, this is not simply a textual slight of hand; uncertainty runs to the heart of both peace agreements and constitutional documents. Peace agreements ultimately give few answers (what Bell calls ‘substantive’ resolutions) and only provide peaceful spaces (or perhaps Bell’s ‘processes’) whereby the antagonisms can be retained not resolved. This is a critique then, but only partially. The law that Bell suggests emerges in current peace-making is not the stricture of ‘international law’. She says: ‘I have termed the emerging new mutations of a “new law” of the peacemakers, to dramatize and explore the state of development of the lex pacifatoria and its current legal effects. But in essence what I will attempt to demonstrate can be   See Chantal Mouffe, On the Political (London, Routledge, 2005).   As per Francis Fukuyama’s classic book The End of History and the Last Man (New York, Harper Perennial, 1993). 15 16

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understood as “developing law” or a set of “normative expectations”, as in a set of expectations that are taking on a normative force’ (p 219). By bringing together peace agreement practice and a theoretical constitutionalism Bell hopes to create a narrative which binds elections, minority rights and participation into what is considered normal for peace agreements. While this is commendable in itself, it is also a dangerous route because it may feed into neo-imperialistic discourses such as particular instantiations of just war theory.17 A law of peace-making which places state reconfiguration in line with a liberal democratic schema as the key to solving internal conflicts is only a short step from the position that an external power may start a war in order to institute state reconfiguration. That human rights could be used to justify the widespread death and destruction which is wrought in warfare seems to go against the very idea of the absolute protection claimed of certain rights. However, this is a very different debate, it is controversial and it would need more than this mere review to do justice to it. To conclude then, as the book’s back cover asserts, Bell’s monograph does indeed ‘provide a comprehensive analysis of peace agreements from a legal perspective’. It provides an excellent introduction, analysis and engagement with the emerging law and practice of peace agreements. However, there is also something more in this text which all too often is relegated to jurisprudence textbooks. On the Law of Peace engages with the nature and role of law in itself. While focusing on the limit-event of the peace agreement, the book draws out the question of the creation of a new authority, a new legitimacy which is fundamental to law itself. Bell’s book is well written and thoroughly developed. Its insights are incisive and useful. The book is distinct from, but builds upon her earlier work Peace Agreements and Human Rights and will be of use to student, researcher and practitioner alike. Dr Illan rua Wall Oxford Brookes University The Prohibition of Propaganda for War in International Law by Michael G Kearney, Oxford and New York, Oxford University Press, 2007, 300 pp, Hbk £65. ISBN: 9780-19-923245-1. In the ‘International Bill of Rights’, which comprises the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the substantive provisions are almost invariably phrased in terms of the rights and freedoms accruing to individual persons. Article 20(1) of the Covenant on Civil and Political Rights is a marked departure from this standard, stating plainly as it does that ‘[a]ny propaganda for war shall be prohibited by law’. One might wonder whether this provision would have been more at home in the Charter of the United Nations itself, given that treaty’s concern with the maintenance of international peace and security. How did such a prohibition find its way into a human rights treaty? And while the obligation in Article 20(1) lies with States parties, is it only States themselves who can engage in propaganda 17   For a history of just war theory and its relation to neo-imperialism see Costas Douzinas, Human Rights and Empire (London, Routledge, 2007).



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for war? Furthermore, given the proximity of the prohibition to Article 19 on freedom of expression, what does this say about the nature of that freedom? Is it a right which a State itself may enjoy? Answers to these intriguing questions can be found in Michael Kearney’s original and engaging study on the prohibition of propaganda for war in international law. The book comprises five main chapters, analysing the meaning, scope, development and application of the prohibition of propaganda in international law. Part of the author’s motivation for the study, mentioned at the outset, is that ‘despite the exponen­ tial growth in the study of international law, the prohibition of propaganda for war has languished as a footnote in the academic literature’ (p 2). Moreover, recent events such as the invasion of Iraq and the human rights violations associated with the ‘war on terror’, spurred this comprehensive study of the prohibition of propaganda for war. While international human rights law takes centre-stage in this work, in-depth consideration is also given to international criminal law and to various other branches of public international law. The fraught question of the relationship between freedom of speech and propaganda is addressed in the introductory chapter after a brief discussion of some definitional issues and techniques of propaganda. The author refers to the ‘insistent reliance’ of States on freedom of speech as a justification for rejecting the prohibition of propaganda for war (p 8). He points to freedom of speech and ‘freedom from fear’, spoken about by Franklin Roosevelt’s in his 1941 ‘four freedoms’ address, and contends that: It is clear that he did not consider the former to extend to propaganda in violation of the latter; nurturing fear with the aim of initiating aggression is a crucial aspect of propaganda for war, and it cannot be compatible with the protection of the right to freedom of expression (p 8).

Michael Kearney rightly points out that freedom of expression is a right of individuals, and that it is the propaganda produced by States that is the concern. He argues that the reliance on freedom of expression is a smokescreen by States to facilitate the use of propaganda for war in a legal vacuum. Proper enforcement of the prohibition of the nefarious practice of propaganda for war, the author contends, ‘is likely in fact to be a boon to the effective exercise and enjoyment of freedom of speech’ (p 9). Although recent practice demonstrates a willingness of States to curtail this freedom, States are less willing to restrict their own speech in the context of propaganda for war. A discussion of the historical use of ‘revolutionary’ and ‘subversive’ propaganda and of the shift in focus from foreign to domestic audiences by States seeking popular support for their war efforts serves to contextualise the legislative attempts regarding propaganda made after the First World War. chapter 1, ‘The Roots of the Prohibition of Propaganda for War in International Law’, considers the role played by the League of Nations, non-governmental organisations and States themselves, by way of bilateral treaties, in regulating international propaganda. League of Nations’ efforts in the area of disarmament came up against much Western hostility, with States viewing proposals to regulate propaganda as tantamount to censorship (p 28). The League enjoyed a degree of success with the 1936 Convention Concerning The Use of Broadcasting in the Cause of Peace. Kearney notes that Article 2 of this Convention ‘represented a significant development insofar as it does not distinguish between the speech of the state or of private individuals, nor does it limit the application of the prohibition to

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either domestic or foreign audiences’ (p 29). Nonetheless, the Convention had little impact on the conduct of the Second World War and was not considered in any of the international or domestic post-war trials, which the remainder of the chapter surveys. The trials in the aftermath of the Second World War highlighted the centrality of propaganda to the Axis war effort. It was considered by the International Military Tribunal at Nuremberg in the context of crimes against peace in particular, and the role of several defendants in the development and employment of propaganda contributed to findings of their guilt on that charge (p 38). The author looks at the important cases against Streicher and Fritzsche before the Nuremberg Tribunal, both charged with crimes on the basis of their speech and media influence, noting the significance of the finding of guilt against the former for crimes against humanity ‘solely on account of his propaganda inciting to violence’ (p 42). No such finding, however, was made for the charges of crimes against peace against Fritzsche. Kearney writes: Fritzsche was not held to have been responsible for direct incitement to war, but rather for a broader, less specific form of propaganda by which the conspiracy and acts of aggression were facilitated. This latter distinction, between propaganda directly inciting to a specific act of aggression and propaganda which rather creates a general warlike atmosphere, was subsequently to be the cause of significant dissonance during the drafting of the International Covenant on Civil and Political Rights, prohibition of propaganda for war (p 43).

Before turning to the drafting of the Covenant in chapter 3, the author first gives consideration to United Nations efforts during the Cold War regarding propaganda for war and to various treaty and other condemnations of the practice in chapter 2, ‘Propaganda for War at the United Nations General Assembly’. He notes the surprise of John Whitton that the drafters of the United Nations Charter failed to address propaganda for war (p 55), but does not undertake an assessment as to why. We discover, however, that the impetus for addressing propaganda by way of international human rights law seems to have come from the USSR attempt, ultimately unsuccessful, to include a prohibition of racist propaganda and incitement to war or violence in the Universal Declaration of Human Rights (p 56). Leaving that issue aside temporarily, the author goes on to note how the Security Council has never passed a resolution condemning propaganda for war, an approach which stands in stark contrast with the number of resolutions of the General Assembly. The in-depth examination of the Assembly’s endeavours reveals the varying stances of the United Nations membership on the subjects of propaganda, access to information, freedom of expression and press freedom. The condemnation of ‘propaganda for wars of aggression’ in the 1970 Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States demonstrates that it is States themselves that are the purveyors of propaganda and its prohibition is not a restriction on individual rights. The author concludes chapter two by noting the coming to an end of the adoption of General Assembly resolutions regarding propaganda for war following the adoption of the International Covenant on Civil and Political Rights, which, he feels, suggests ‘that many in the Assembly considered the Covenant and international human rights law as providing an adequate means of dealing with the issue’ (p 79). To get to the point where propaganda for war was addressed by a treaty of international human rights law required ‘prolonged debate’, partly due to it being something of ‘an alien element’ in the system of the Covenant, as Manfred Nowak has



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said (p 81).18 A rigorous review and analysis of the drafting of the Covenant is provided in chapter three, ‘The Travaux Préparatoires of Article 20(1) of the International Covenant on Civil and Political Rights’. In this chapter, Kearney seeks to provide an answer to the difficult questions which remain regarding the meaning of ‘propaganda for war’. He surveys the work of the Commission on Human Rights and the Third Committee of the General Assembly which addressed the matter within the context of limitations on freedom of expression and a proposed prohibition on incitement to hatred and violence, bringing out the difficulties of negotiating a contentious issue against the backdrop of Cold War politics. The USSR, to give a prime example, ‘would repeatedly charge the USA with opposing proposals that freedom of expression be limited in order to prevent propaganda for war on the ground that the USA itself wanted a free rein to continue engaging in such propaganda against communist states’ (p 96). The deadlock was broken by the participation of newly independent states which took a less confrontational approach and linked the issue of propaganda for war with the overall aims and purposes of the United Nations Charter (pp 114–15). Debate became more productive at the Third Committee, leading to the adoption of the provision that ‘[a]ny propaganda for war shall be prohibited by law’. The author reveals that the interpretation to be given to ‘propaganda for war’ was broader than the more restrictive understanding of ‘incitement to war’, extending also to the deliberate creation of a climate conducive to war (pp 130–32). This chapter would have benefited from a clear statement by the author on the customary law status of the prohibition of propaganda for war, something which is not forthcoming until the end of the book. The adoption of a legal standard is significant, but remains only the first step in seeking effective international legal regulation of a particular practice. In chapter four, ‘The Prohibition of Propaganda for War in International Human Rights Treaties’, Michael Kearney considers the other components: adoption of treaties, reservations and declarations, domestic incorporation and interpretation by treaty bodies. He observes that an ‘overriding emphasis on the restriction of the speech of individuals and the corresponding neglect of the responsibility of government and state actors for propaganda for war has prevailed since the entry into force of the Covenant’ (p 134). Many States have enacted legislation relating to propaganda for war, although several have claimed that their general commitment to peace satisfies Article 20(1). The author demonstrates in this chapter that any such legislation must be directed against the propaganda activities of private persons, non-State actors and, without question, government officials and the State itself. He also exposes the obstacles presented by misinterpretation of the meaning of ‘war’ and the high number of reservations by Western liberal democracies, a matter which has been addressed by the Human Rights Committee. That body has tended to limit its observations to the question of implementing legislation, and is accordingly criticised by Kearney for not taking the matter further, given that ‘no State party has been rebuked by the Committee for engaging in propaganda for war’ (p 172). The second shorter section of the chapter demonstrates the considerable neglect of propaganda for war by regional human rights mechanisms. The growth of international criminal law and institutions in recent years presents an additional avenue for addressing propaganda for war and in chapter five, ‘From 18   Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn (Strasbourg, NP Engel, 2005) 468.

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Nuremberg to the Hague: Towards an International Crime of Incitement to Aggression’, the reader is provided with an assessment of the potential for this relatively new branch of international law to deal with the practice. In light of the consideration to be given to the possible crime of direct and public incitement to aggression by the Assembly of States Parties of the International Criminal Court, this chapter provides a timely review of related efforts regarding incitement and international crimes by the International Law Commission and the ad hoc tribunals for Rwanda and the Former Yugoslavia. The discussion navigates the complex issues surrounding the crime of aggression itself, the question of inchoate crimes and various modes of participation. Jurisprudence from the ICTR in the so-called Media trial on direct and public incitement to genocide is shown to be a valuable resource in this context.19 The author’s dissatisfaction with the work of the International Law Commission and the drafters of the Rome Statute could be tempered if one considers the particularities of incitement in the context of aggression when compared with genocide, crimes against humanity and war crimes: the latter would generally involve a few persons of influence inciting larger numbers to commit the crimes, whereas incitement to aggression would seem to amount to one or more persons provoking that very limited number of State officials who are actually in a position to launch a war of aggression. This prompts the question as to who can incite such persons. A similarly limited group no doubt, and likely not even involving any public pronunciations at all. However, the advantage of an inchoate offence in this context, as Michael Kearney points out, is that it would cover ‘warmongers’ even if aggression did not take place – if an aggressive war had been launched, then such persons could be prosecuted under principles of accomplice liability. What the chapter also serves to emphasise, perhaps unintentionally, is that the far narrower nature of a potential crime of incitement to aggression does not capture the essence of the broader concept of propaganda for war. The Prohibition of Propaganda for War in International Law is a comprehensive and rigorously researched treatise on a subject that has suffered neglect at the hands of both scholars and human rights advocates. Michael Kearney has demonstrated excellent scholarship throughout, achieving a good balance between primary sources, particularly United Nations documents, and secondary sources, taking care to revisit commentary by contemporary authors. In his concluding chapter, he observes that: propaganda for war has had a grievous impact upon the peace and security of mankind in the age of democracy, and there is little to suggest that in future its exercise will be muted. The challenge remains, therefore, to draw upon both existent and developing provisions of the international law framework in order to reduce and eliminate its impact (p 243).

This book is undoubtedly an arrow in the quiver of those who wish to take up that challenge, be they international lawyers, diplomats, judges, scholars, members of civil society or concerned citizens. The author has expertly countered the argument of States, the principal marketers of propaganda for war, that the concept lacks a clear meaning or that it is protected by freedoms of speech or expression. Dr Shane Darcy National University of Ireland, Galway 19

  Prosecutor v Nahimana et al, Case No ICTR-99-52-T, Judgment and Sentence, 3 December 2003.



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Optimal Protection of International Law: Navigating between European Absolutism and American Voluntarism by Joost Pauwelyn. Cambridge, Cambridge University Press, 2008, 266 pp, Hbk £40. ISBN-13: 9780521516822 In Optimal Protection of International Law Joost Pauwelyn seeks to answer several fundamental issues underlying the international legal system. The book addresses three questions. First, how easy should it be to create and change international law? Second, should states always be required to perform their international obligations or should they have the choice of paying compensation rather than performing an international obligation? Third, what kind of sanctions should be imposed where a state breaches an international obligation? In exploring these questions Pauwelyn does not engage in any extended doctrinal analysis of the present state of international law or consider the gradual progressive development of the law on state responsibility. Instead, this book is more concerned with what form legal regimes ought to take. The book uses a methodology that is increasingly common in certain areas of international law scholarship, namely the use of analytical techniques derived from economics to the analysis of the international legal system.20 Through the use of such techniques Pauwelyn seeks to develop a deeper understanding of why states comply with international law or take measures to enforce its rules against others, and conversely why states often fail to do either of these two things. Pauwelyn uses the conclusions which he draws from this analysis to explore ways in which international law could be designed so that legal principles receive an ‘optimal’ level of protection. Borrowing ideas from the field of law and economics developed by Guido Calabresi and Douglas Melamed in the domestic context,21 Pauwelyn outlines three different forms of variable protection which he argues should be applied in international law. The highest level of protection is to treat certain rules in international law as inalienable, in other words, as rights or entitlements which cannot be modified or changed even with the consent of the holder of the right or entitlement. The second level of protection relates to principles which are best protected by a ‘property rule’, under which a principle can be modified or rendered inapplicable with the consent of the holder of the right or entitlement. Third are those principles which are best protected by a ‘liability rule’. Under this a principle may be ignored subject to the payment of full compensation to the holder of the right or entitlement. Key to Pauwelyn’s overall thesis is the argument that ‘optimal’ protection is not necessarily the strongest level of protection. He points out that in domestic legal systems the level and extent of protection applied to different rules or legal regimes is variable. He contends that given the diversity of subject matter which international law now regulates the levels and types of international law protection are ‘surprisingly uniform’. The purpose of variable protection is to take ‘the normativity of international law seriously and calibrate it to achieve maximum welfare and effectiveness at the lowest cost to contractual freedom and legitimacy’ (p 3). 20   See, eg Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford, Oxford University Press, 2005). 21   Guido Calabresi and Douglas Melamed, ‘Property Rules, Liability Rules and Inalienability: One View of the Cathedral’ (1972) 85 Harvard Law Review 1089.

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It is not necessary or desirable, he contends, for all rules of international law to receive the strongest level of protection, that is, to be treated as inalienable. He argues that in some instances compliance with international obligations should be voluntary, in the sense that a state that does not wish to perform an obligation should be able to ‘pay its way out’ of performance irrespective of whether it receives the consent of the beneficiary state(s) for so doing. A number of examples of situations where this would be desirable are given. One example, is where a state party to a multilateral treaty wishes to renegotiate its tariff commitments under that treaty in exchange for some form of compensation to other states (perhaps in the form of tariff concessions in other areas). To renegotiate such a commitment the agreement of all states would be required. The problem with renegotiating the rules in this way, however, is that a small minority of states could use the disproportionate power they possess to extract an unreasonably high price for the concession. The probability that the same concession would have to be given to all other states is likely to be sufficient to scupper a renegotiation, even if it is overwhelmingly in the interests of all of the state parties. Pauwelyn argues that in such circumstances a system which permitted breach of the rule in question with a right to compensation for the injured state would be a more efficient mechanism for protecting and enforcing international law. In the course of the book Pauwelyn considers all three types of variable protection offering explanations as to their scope and examples, such as that set out above, of the kind of rules and regimes in international law where application of each form of protection would be useful. The style of writing is clear and the author generally avoids the use of economic jargon. This is certainly a strength of the work, making it accessible to a much wider audience. In addition, Pauwelyn draws on practical ‘real-world’ examples to develop his points. In particular these are drawn from the context of international economic law and the World Trade Organization, where he was a legal officer from 1996 to 2002. Although the work could have been enhanced by drawing more deeply on a wider range of international legal regimes, these practical examples do add to the persuasiveness of the thesis and depth of the analysis. Pauwelyn’s argument that increased reliance on market-based protection could enhance the capacity of international law to maximise the various ‘welfare’ goals it pursues is at its strongest when applied to areas of international law where a value can most readily be placed on a benefit such as the regulation of trade, pollution, and overseas investment. Indeed, as Pauwelyn acknowledges, these market-based approaches to the regulation of certain areas of human activity have already tentatively been adopted in some treaty regimes, most notably emissions trading pursuant to the Kyoto Protocol to the United Nations Framework Convention on Climate Change.22 The analytical framework of variable protection which Pauwelyn fleshes out and elaborates will undoubtedly provide policy makers contemplating the creation or development of such regimes with valuable food for thought. In the context of international rules with a strong normative content, most notably, jus cogens norms, it is respectfully submitted that the argument Pauwelyn presents is more questionable. In analysing the enforcement of jus cogens obligations in international law Pauwelyn seeks to explain an important paradox in international 22

  Kyoto Protocol to the United Nations Framework Convention on Climate Change, 2303 UNTS 148.



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law, namely that those rules of international law to which the greatest importance is attached, in particular jus cogens obligations, are often the most poorly complied with and enforced. Pauwelyn argues that this is because the cost of failing to comply with peremptory obligations is lower than it is in respect of obligations which do not have a peremptory character. Pauwelyn bases this analysis on three propositions. First, he argues that unlike most other international obligations, the inalienable character of jus cogens obligations means that states are denied the opportunity to resort to reciprocal countermeasures where such obligations have been violated by another state and that, as a result, ‘the cost of defection [. . .] decreases’ (p 189). However, this conclusion is questionable since a state which is injured by a violation of a jus cogens obligation (or indeed any other obligation) can respond with countermeasures by suspending performance of a wide range of other obligations owed to the responsible state.23 Indeed, it seems quite plausible that the targeted and proportionate suspension of obligations by an injured state, for example, in the area of commerce, may be more significant in inducing compliance with a jus cogens norm than engaging in tu quoque with regard such violations. A second proposition on which Pauwelyn bases his argument is that in so far as peremptory obligations are concerned ‘under current international law [. . .] unless [a state] is specifically injured [. . .] [it] does not have the right to take individual countermeasures’ (p 192). This proposition would be uncontroversial in the context of obligations which are not of a peremptory character. However, Pauwelyn also treats the analysis as applying to all erga omnes obligations. There is an important distinction, however, to be made between erga omnes obligations and jus cogens obligations per se. While it is certainly the case that there is a degree of overlap between peremptory norms and obligations erga omnes, the two concepts are not identical. For example, many obligations in international humanitarian law, such as those enshrined in the Geneva Conventions of 1949, are owed erga omnes. It is far from the case, however, that all such obligations amount to peremptory norms. This is an important distinction. In the context of violations of non-peremptory international obligations it is evident from state practice and the International Law Commission’s Articles of State Responsibility24 that only an ‘injured state’ is entitled to take countermeasures and that remedies in the case of breaches of erga omnes obligations by non-injured states are generally limited to cessation, guarantees of non-repetition and reparation. However, this is not necessarily the case in the context of peremptory norms. The Articles on State Responsibility leave open the question of the limits that apply to the enforcement of peremptory norms. Article 41 sets out the consequences of a ‘serious breach’ of such a norm. It is clearly stipulated in Article 41(3) that ‘[t]his article is without prejudice to [. . .] such further consequences that a breach to which this chapter applies may entail under international law’. Moreover, although there is no space here for any kind of proper analysis of state practice on this question, the fact that some states clearly advocate the lawfulness of countermeasures, indeed even the use of force in exceptional situations where systematic 23   See Article 49, Articles on Responsibility of States for Internationally Wrongful Acts [‘Articles on State Responsibility’] annexed to General Assembly Resolution 56/83, 22 January 2002, A/Res/56/83 See further commentary to Article 49, especially para 6, in The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002) 285. 24   Article 48, Articles on State Responsibility, ibid.

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and egregious human rights atrocities occur, indicates that the kind of measures which states may take in the narrow context of serious violations of peremptory norms is more complex than Pauwelyn’s analysis allows. Developing his broader analysis on the basis of a narrow interpretation of the legal position in such a controversial and uncertain area of the law does, to some extent, undermine the overall argument which is advanced. The most convincing explanation which Pauwelyn advances for the weakness of compliance with peremptory norms is the collective action problem. The fact that the violation of a peremptory norm often does not cause injury to any state in particular, even if it causes harm to a wider community interest, means that each state tends not to shoulder its share of the burden of addressing the problem. Pauwelyn draws three relatively straightforward conclusions from this analysis as to how international law could address these problems. The first is to match community obligations with robust community enforcement systems. The second is to give direct standing to private parties (to obviate problems caused by the collective action problem) and the third is to enable international proceedings ‘directly against individuals’ (p 196). In addition, Pauwelyn highlights the increasingly important role of domestic legal systems in the enforcement of international law. Of course, to some extent, as Pauwelyn acknowledges, these proposals can already be found in a variety of forms in existing international legal regimes. Nevertheless, Pauwelyn rightly identifies them as important ways in which compliance with peremptory norms could be enhanced. In some ways, however, the central problem in securing compliance with peremptory norms lies not in identifying what mechanisms or powers would enhance compliance with international rules (for as Pauwleyn’s conclusions indicate these are often fairly self-evident). In the context of human rights atrocities or other jus cogens violations, the unfortunate reality is that states very often do have the necessary legal power under the law of state responsibility to take measures against a State responsible for violating peremptory norms but simply decide not to. The really difficult question therefore, is not so much what mechanisms could be used to enhance compliance with the fundamental rules of international law, but rather why States do not use the powers and mechanisms already available to them. There are limits on the extent to which law can be used to address this problem; ultimately, in the field of human rights protection, the ‘answer’ to this question (to the extent that one is available) lies in the realm of international politics as much, if not more so, than it does in international law. In light of this, the most important contribution of Optimal Protection is probably in respect of areas of regulation such as trade, investment and the environment, rather than in field of human rights protection. Nevertheless, in its rigorous analysis of factors influencing state behaviour, Optimal Protection makes a substantial contribution to the developing body of scholarship concerning compliance with international law. It is an original and timely work, of interest well beyond the legal academy. Conor McCarthy Jesus College, Cambridge

Department of Foreign Affairs Annual Report – 2008 mission statement The Mission of the Department of Foreign Affairs is to advance Ireland’s values and interests within Europe and in a changing world; to promote peace, human rights, the rule of law and sustainable development internationally; to protect our citizens abroad; and to support lasting reconciliation on this island. Contents Foreword by the Minister for Foreign Affairs Introduction by the Secretary General 2008: Summary of Developments and Achievements Northern Ireland and Anglo-Irish Relations Ireland’s Role in the World The European Union Promoting Ireland Abroad Irish Aid Consular and Passport Services Support Services Appendices

foreword by the minister for foreign affairs I am delighted to accept the Annual Report for 2008, which has been prepared in line with the provisions of the Public Service Management Act 1997. 2008 was a momentous year for Ireland and the world. The major changes that have taken place in the national and global economic landscape have presented many challenges. As the world’s leaders attempt to find solutions to the global economic crisis and as we, in Ireland, confront our own significant challenges at home, the work of the Department of Foreign Affairs will be crucial in seeking out opportunities to support Ireland’s economic recovery and in re-affirming our reputation on the world stage. As economic diplomacy and the promotion of Irish foreign earnings are increasingly at the heart of Irish foreign policy, my Department has placed an ever-greater priority on the promotion of Ireland abroad. During 2008, we successfully combined our Bilateral Economic Relations Division with our Cultural and Information Section to create the Promoting Ireland Abroad Division. In so doing, we aim to harness our unique cultural heritage to raise awareness of Ireland and to promote trade and investment. All officers going abroad on posting received specialised training to ensure that economic and trade issues are to the fore in our bilateral relations. The Department plays an important role in securing market access for Irish goods and services; an

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example of the importance of this role can be seen in the work undertaken, together with other Departments, in response to the 2008 pig meat crisis, which attempted to minimise its negative impact on our overseas markets. Looking North, 2008 saw the further consolidation of the power-sharing institutions and the deepening of our relationships with the Northern Ireland Assembly and the Executive. It is a reflection of the enduring power of the Peace Process and the Northern Ireland Institutions that, notwithstanding the difficulties involved, the parties were able in late 2008 to reach agreement on a way forward for the devolution of policing and justice powers. Against a background of heartening progress on the political front, the Government have also actively promoted closer cooperation in the economic area, including participation by the Taoiseach and myself in the US Investment Conference in Belfast last May. Recognising the need to build community support for the new arrangements, initiatives such as the Anti-Sectarianism Fund, which was launched in 2008, will be vital in strengthening reconciliation at grass-roots level. The recent murderous attacks in Antrim and in Craigavon brought in to sharp relief the remarkable progress made in the Northern Ireland peace process in recent years. The united response of the Northern Ireland Assembly in condemning the murders is a testament to the strength of the North’s political institutions. In international affairs, Ireland continued to support efforts to resolve the difficult humanitarian, human rights and political situations in Sudan, Chad, Burma and Zimbabwe. Ireland engaged robustly in international discussions on the Middle East, and I undertook a fruitful visit to Egypt, Israel and the Occupied Palestinian Territories in July. I also travelled to Georgia in the aftermath of last autumn’s conflict to underscore Ireland’s financial support for reconstruction and humanitarian work there. One of the undoubted highlights of the year, in which Ireland can justly take pride, was the agreement reached on a Convention on Cluster Munitions in Dublin in May 2008. Like the 1968 Treaty on Non-Proliferation – which Ireland proposed – it is a fine example of the capacity of small countries to effect meaningful change. The work of the Conflict Resolution Unit is also gathering pace, with the appointment of Ms Nuala O’Loan as Ireland’s Special Envoy for Conflict Resolution in TimorLeste, and the development of a cross-learning initiative between Ireland, North and South, Timor-Leste and Liberia on UN Security Council Resolution 1325 on Women, Peace and Security. The Treaty of Lisbon ratification process presented an undoubted challenge for the Department in 2008. On the basis of independent research commissioned by the Department, and drawing on the findings of an all-party Oireachtas Sub-Committee on Ireland’s Future in the European Union, the Government was able to chart a way forward that fully respected the opinion expressed by the people in the referendum of 12 June. I am confident that the package of measures secured by the Taoiseach at the December 2008 EU Council will serve the best interests of Ireland and the EU. The EU achieved a landmark deal on Climate Change in 2008, one in which I am satisfied that Ireland’s interests were successfully accommodated. As the global financial crisis deepened in 2008, our close cooperation with EU partners was a welcome bulwark in difficult times. In 2008, Ireland’s Official Development Assistance amounted to €918mn, or 0.58 per cent of GNP, placing Ireland as the sixth largest aid donor in the world in per



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capita terms. Ireland has built up an effective and internationally recognised aid programme, which is firmly focused on helping the world’s most vulnerable people. While we have had to take difficult decisions to reduce funding to the programme, these steps are vital to ensure our long-term economic sustainability, and the growth and sustainability of the Irish Aid programme in the longer term. In the meantime, the Department is committed to enhancing the effectiveness of Ireland’s aid. We will make every cent count; my colleague, Minister of State Peter Power, played an active role in the High Level Forum on Aid Effectiveness in Accra, Ghana in September 2008. The Report of the Hunger Task Force, launched by the Taoiseach in September, places the eradication of hunger at the heart of our aid policy, and Ireland will continue to take a leadership role internationally on tackling the root causes of hunger. The Consular and Passport Service provided by my Department is the service with which the public will be most familiar. As the number of Irish people travelling overseas continues to rise, our new Cabhair database, installed in 2008, will allow us to better manage the increasing number of consular cases and crisis situations with which we are faced. In 2008, we continued to provide support to Irish communities’ abroad, distributing grants of more than €15mn through our Emigrant Support Programme. In addition, I was delighted to sign a reciprocal Working Holiday Agreement with the US, which will enable thousands of young Irish people to gain valuable work experience and to travel in the US for up to 12 months. 2008 was a year of considerable achievement for the Department of Foreign Affairs, in spite of the significant challenges presented, such as the Lisbon Treaty ratification process and the operation of tighter financial constraints. Ireland’s leadership on the Convention on Cluster Munitions, our assistance to the world’s most vulnerable people, and our principled position on the situations in Zimbabwe and Burma are just some examples of the Department’s work in advancing Ireland’s values and interests in the world. I would like to express my thanks to my colleagues, Minister of State Dick Roche and Minister of State Peter Power, for their hard work in their respective areas of European Affairs and Overseas Development. I also wish to acknowledge the work of the staff of the Department and, in particular, the dedication of Mr Dermot Gallagher, who retired in January 2009, having served as Secretary-General, in this Department and the Department of the Taoiseach, for almost nine years. Micheál Martin TD. Minister for Foreign Affairs

introduction I am delighted to present this Annual Report for 2008 to the Minister for Foreign Affairs, Mr Micheál Martin TD. As the Minister has emphasised, the Department intensified its focus on the promotion of trade and investment during the course of 2008. We used the opportunity provided by high-level visits, both inward and outward, to promote Irish business abroad, and to attract inward investment to Ireland. As well as supporting visits by President

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McAleese to Britain, France, Romania, Norway and the USA, the Department ensured that the Taoiseach’s visits to China, South Africa and Saudi Arabia, as well as the 36 St Patrick’s Day Ministerial visits, were used to promote Ireland’s economic interests. Our Embassies and Consulates in the field, often the public face of Ireland overseas, are also continuing to prioritise economic objectives, working in close cooperation with the various State Agencies. Resources are also being reallocated as part of the priority attached to the economic work of overseas missions. For example, at the beginning of 2009 the Government decided to open a resident Embassy in the United Arab Emirates, in particular to support the engagement of Irish business with the Gulf Region. The adoption by 100 States of an international convention banning the use of cluster munitions at the Dublin Diplomatic Conference in Croke Park in May 2008 was a landmark achievement for the Department. It was the culmination of many years of behind-the-scenes work by its staff, and places Ireland in a strong position to continue to exercise leadership on disarmament issues in the run-up to the 2010 Review Conference of the Nuclear Non-Proliferation Treaty. 2008 was a year for strengthening and developing relationships on this island. Building on important progress in terms of the political institutions, there was recognition of the need to tackle divisions at community level. The Department’s Reconciliation Fund supported projects and organisations engaged in vital work to break down old barriers and attitudes. Meanwhile North/South cooperation in areas such as health, infrastructure and energy benefited people across the island, particularly those in the border regions. 2008 was also a year of progress and consolidation for Ireland’s overseas aid programme. New country strategy papers, with a strong focus on aid effectiveness and results-based management, were put in place for Ethiopia and Lesotho, as well as an interim country strategy for Timor-Leste to support the vulnerable population of this fragile state. We also increased the number of Non-Governmental Organisations (NGOs) which will receive multi-annual block grant funding from 6 to 24. This will enhance the ability of NGOs to plan for the future. We have placed greater emphasis on the role of the private sector in encouraging development by initiating a programme of support to the private sector in Mozambique, and through our new programme of funding to the Irish Fair-trade Network, which supports East African farmers in accessing Irish and global markets. The Department successfully completed the decentralisation of the Development Cooperation Directorate in 2008 when some 130 staff took up their posts in the new Irish Aid headquarters in Limerick City. While our achievements in foreign policy have been substantial, our commitment to providing a quality consular and passport service to the Irish public is equally important. In 2008, over 570 000 passports were issued to Irish citizens. Our new online Travel Registration facility will provide an added sense of security to Irish people travelling overseas. We continue to enhance our capacity to respond rapidly to emergency situations abroad in which Irish citizens are at risk, as demonstrated recently by the activation of our established crisis centre in response to terrorist attacks in Mumbai. The Department is also constructively engaged in providing a variety of other services. These include the work of Protocol Division in arranging outward and inward State and other high-level visits and in supporting and managing relations with the growing number of foreign missions accredited to Ireland; the Press Office which



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provides an effective media service to the Department at headquarters and abroad; our Legal Division which offers valuable advice on many key legal issues; and our Corporate Services Division which ensures effective management of the Department’s human and financial resources. This report is the first to be presented in the context of the Strategy Statement for 2008–10. I am confident that the Department is making real progress towards achieving the high-level goals as set out in the Strategy. Our achievements are largely due to the outstanding dedication and commitment of staff, both on the front line in Embassies and Consulates overseas and in Headquarters, operating under the political leadership of the Minister and Ministers of State. Having taken up the post of Secretary General in January 2009, I look forward to building on this Department’s strong record of achievement in foreign policy and in the provision of quality services to Irish citizens. The years ahead will be challenging ones for the Department, as they will be for the country, as we work towards economic renewal. The Department’s budget has been significantly reduced over the last 12 months and further budgetary challenges lie ahead. This Department will play its part in improving efficiency and maximising value for money to operate within the reduced allocations, while protecting the important frontline services we provide to citizens and to businesses overseas. I am grateful to all colleagues for their cooperation with these efforts. I wish to express my sincere appreciation to the Minister and Ministers of State for their political leadership and commitment throughout 2008. Finally, I would like to thank my predecessor as Secretary General of the Department, Mr Dermot Gallagher, for his many years of distinguished public service. David Cooney Secretary General

our strategy The Department of Foreign Affairs’ Statement of Strategy 2008–10 defined the Department’s priorities for the period covered by this report. The Statement of Strategy 2008–10, together with other documents referred to below, such as the White Paper on Irish Aid and the St Andrews Agreement, are 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 Divisions in the Department. The Department currently comprises 10 Divisions at headquarters (HQ) and a total of 75 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.

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HQ Divisions Anglo-Irish Division Corporate Services Division Development Cooperation Division, European Union Division Inspection Unit Legal Division Passport and Consular Division Political Division Promoting Ireland Abroad Division (PIAD) Protocol Division external environment The environment in which the Department of Foreign Affairs operates is by nature complex and ever-changing, liable to sudden transformation by unexpected events, and constantly shaped by factors beyond the control of national governments. The realisation of objectives depends, therefore, not just on the efforts of the Department but also on the behaviour of other States and entities. Given the unpredictable nature of our external environment, it is vital that the Department’s resources are used to optimum effect. We cannot and do not work in isolation. The Department cooperates closely with other Government Departments that have external responsibilities, in order to work towards the attainment of the goals arising from the Programme for Government and other strategic priorities. high level goals 2008–2010 The Department’s high level goals for the period 2008–10, as identified in the Strategy Statement, are: Northern Ireland and Anglo-Irish Relations

Promote the full implementation of the Good Friday Agreement by supporting the effective operation of its institutions, strengthening North/South cooperation and working for lasting reconciliation.

Ireland’s Role in the World

Contribute to international peace and security, promote conflict resolution, respect for human rights and the rule of law, and support effective common strategies to address global challenges.

The European Union

Secure Ireland’s interests in the EU and contribute fully to the Union’s future development.

Promoting Ireland Abroad

Promote Ireland, its bilateral relations with other countries, advance our economic interests and enhance our cultural profile overseas.

Irish Aid

Deliver on the commitments in the White Paper on Irish Aid through reducing poverty, supporting sustainable development and promoting development cooperation as an integral part of Ireland’s foreign policy.

Consular and Passport Provide a high quality passport and consular service to all Irish Services citizens and actively engage with our Diaspora.



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2008: summary of developments and achievements Northern Ireland and Anglo-Irish Relations

•  Consolidation of the power-sharing institutions. •  Strengthening of our relationship with NI Executive and Assembly (including through regular contact with the parties and party leaders). •  Achievement of agreement on way forward for devolution of policing and justice. •  North/South Ministerial Council Plenary Meeting in Dundalk and 12 meetings of the NSMC in sectoral format. •  All island cooperation on areas including infrastructure, health and energy. •  Meetings of the British Irish Council in Dublin (February) and Edinburgh (September). •  Plenary Sessions of the British Irish Parliamentary Assembly held in Wexford (April) and in Newcastle-upon-Tyne (October). •  Establishment of the Anti Sectarianism Fund. •  Reconciliation Networking Forum hosted by Minister for Foreign Affairs in April. •  Meetings between the Taoiseach and First Minister, including at the opening of the Battle of the Boyne Heritage Site. •  Address by the Taoiseach to US Joint Houses of Congress.

Ireland’s Role in the World

•  Continued leading role in disarmament and non-proliferation, including successful negotiation of the Convention on Cluster Munitions, which was agreed at a diplomatic conference in Dublin in May 2008 under an Irish Presidency. •  Assumed the Chairmanship of the Human Security Network and adopted ‘Gender-Based Violence’ as the priority theme. •  Engaged closely in efforts to bring about peaceful political resolutions to international crises, including in Kenya, Zimbabwe, Georgia and Burma, making a strong contribution to the development of effective EU policies. •  Supported Irish participation in international civilian and military peace-keeping and crisis management operations, of which the deployments to EUFOR Chad and KFOR in Kosovo were the most significant. •  Worked to ensure a strong, balanced EU approach in its efforts to promote a peace agreement in the Middle East. Ireland’s efforts included a joint initiative with Cyprus aimed at strengthening EU relations with the Palestinian Authority. •  Strong engagement with international partners in 2008 included the Taoiseach’s visits to South Africa, Tanzania, Kosovo and China and ministerial visits to Kenya, Argentina, the UN, Georgia, Timor-Leste, Egypt, Israel and the occupied Palestinian territories.

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Ireland’s Role in the World (cont)

•  Ireland’s commitment to Conflict Resolution was advanced through engagement in Timor-Leste, the appointment of Nuala O’Loan as Ireland’s first roving Ambassador for conflict resolution, initiatives promoting the role of women in conflict resolution and peacemaking, and the awarding of scholarships for doctoral study in conflict resolution. •  Continuation of strong Irish engagement with international partners in 2008 included the President’s visits to Germany, Britain, France, Romania, Norway and the United States and the Taoiseach’s visits to South Africa, Tanzania, Kosovo, the United States and China. The Minister for Foreign Affairs also undertook a number of high level visits overseas.

The European Union

•  At the December European Council, the Taoiseach set out the concerns of the Irish people concerning the Lisbon Treaty as reflected in the outcome of the June referendum. The Council agreed a package of measures to meet Irish concerns, including retention of a Commissioner, and a series of legal guarantees on taxation, neutrality and the provisions of the Irish Constitution in relation to the right to life, education and the family. •  The climate change package was agreed at the European Council in December 2008. •  The European Economic Recovery Plan agreed in December provides a coherent framework for action to be taken by the Union.

Promoting Ireland Abroad

•  Supported Taoiseach’s visits to South Africa and China, and coordin­ ated a range of incoming trade visits. •  Ensured St Patrick’s Day visits were used to promote Ireland’s key economic interests (coordinated 36 visits in 2008). •  Continued support for the Government’s Asia Strategy by facilitating economic linkages and administering the Asia Strategy Funds through liaison with missions in the region. •  Participated in efforts to re-open markets to Irish goods and services, including beef (markets in Saudi Arabia and South Africa were re-opened to Irish beef in October and November 2008, respectively). •  Worked closely with missions abroad, Government Departments and State Agencies to resolve the impact of the December pig meat crisis overseas and ensure markets would continue to be open to pigmeat products. •  Facilitated the promotion of Ireland’s diverse cultural heritage. •  Effectively merged Bilateral Economic Relations Division, Cultural Division and Information Section, forming Promoting Ireland Abroad Division (PIAD).

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Irish Aid

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•  Total Overseas Development Assistance (ODA in 2008 amounted to €918mn, or 0.58 per cent of GNP). •  The decentralisation of the Development Cooperation Directorate to Limerick was successfully completed in 2008. •  The Inter-Departmental Committee for Development presented its first Annual Report to the Minister for Foreign Affairs in June 2008. •  The Irish Aid Volunteering and Information Centre was opened by the Taoiseach in January 2008. •  Continued to provide timely and effective funding to humanitarian emergencies through established UN, Red Cross and NGO partners. •  twenty-seven deployments from the Rapid Response Corps to humanitarian emergencies in 14 countries, and Ireland’s stockpiles of humanitarian supplies were dispatched on 9 occasions from stores in Brindisi and the Curragh to emergencies worldwide. •  The report of the Hunger Task Force was submitted to the Taoiseach at UN headquarters, New York, in the presence of the UN SecretaryGeneral, Mr Ban Ki-Moon. •  Ireland successfully co-hosted the 4th Global Partners Forum on Children affected by HIV and AIDS and negotiated agreement on key policy priorities for children. •  The target of spending €100mn on HIV and AIDS and other communicable diseases across the Irish aid programme was met, with 20 per cent of additional resources spent on programmes to benefit children. •  Ireland played an active role in the 3rd High Level Forum on Aid Effectiveness in Ghana in September 2008 and contributed to the drafting of the Accra Agenda for Action. •  New Country Strategy Papers were put in place for Ethiopia and Lesotho, as well as an interim country strategy for Timor-Leste to support basic needs in this fragile post-conflict state. •  Irish Aid continued to prioritise the reform of the UN development system and led discussions among UN Member States on the recommendations of the High-Level Panel on System Wide Coherence. •  Engaged actively, through financial support and policy input, with the country-level UN reform programmes in Vietnam, Tanzania and Malawi. •  Approved an agreement for funding of €15mn over the period 2008– 12 for the Irish Fairtrade Network (IFTN) to support over 435,000 East African coffee farmers in accessing Irish, EU and global markets. •  In line with the commitment in the White paper to further develop the funding mechanisms for NGOs, the number of organisations who receive multi-annual block grant funding has been increased from 6 in 2007 to 24 at the end of 2008.

 Consular and Passport Services

the irish yearbook of international law 2008 •  Effectively responded to a large volume of consular cases including over 200 deaths abroad and provided comprehensive consular support for major sporting fixtures abroad. •  Published a Consular Services Charter, Travel Safely-Slán Abhaile. •  Launched the (voluntary) On-line Travel Registration. •  Installed a new computerised database (Cabhair) to more efficiently manage consular cases. •  Renewed contact with partners in the travel, health, insurance industries, Defence Forces, Garda Síochána, HSE and Department of Social and Family Affairs to further develop services to assist citizens abroad. •  Took measures to implement the recommendations of the Report on Irish Prisoners Abroad. •  New visa system (AVATS) rolled out to 54 Missions, applicants in 175 countries can now use on-line application form. •  Information systems in standing Crisis Centre upgraded to improve department’s response to consular emergency abroad. •  Passports Act 2008 enacted and commenced. Associated regulations on periods of validity and appeals were also finalised. •  Issued more than 570,000 passports and published a comprehensive value for money review of the passport service. •  Emigrant Support Programme grants totalling €15,183mn allocated to projects supporting Irish emigrants abroad through 189 organisations and projects across nine countries. •  Working Holiday Agreement agreed and signed with the United States.

northern ireland and anglo-irish relations High Level Goal, 2008–2010: To promote the full implementation of the Good Friday Agreement by supporting the effective operation of its institutions, strengthening North/South cooperation and working for lasting reconciliation. 2008 in Review 2008 was a year of consolidation for the Peace Process in Northern Ireland following the restoration of devolved government in May 2007. In January, the Executive reached agreement on, and the Assembly passed, the Budget, Programme for Government and Investment Strategy for Northern Ireland. The resignation of Dr Ian Paisley as DUP party leader and First Minister in May 2008 prompted a re-shuffle of DUP members of the Executive. Peter Robinson was appointed First Minister, and Martin McGuinness re-appointed deputy First Minister, in June. The past year was also one in which the power-sharing Institutions were tested, when policy disagreements between the two larger parties resulted in the Executive



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failing to meet for five months between May and November. This disrupted its work and that of other institutions of the Good Friday Agreement, including the North South Ministerial Council. Meetings of the Executive resumed in November following agreement between the DUP and Sinn Féin on a way forward for the devolution of policing and justice powers to the NI Assembly. Throughout negotiations, the two Governments provided support and assistance to the parties to find a sustainable solution. This agreement represents a key milestone in achieving full implementation of the Good Friday and St Andrews Agreements. The Taoiseach and Minister for Foreign Affairs attended the US Investment Conference in Belfast in May, in support of the Executive’s objective of attracting US investment to Northern Ireland. The sixth plenary meeting of the North/South Ministerial Council (NSMC) was hosted by the Government at the Dundalk Institute of Technology in February 2008, as well as 12 meetings in sectoral format. The Taoiseach hosted a summit meeting of the British Irish Council in Dublin in February, followed by the 11th BIC summit in Edinburgh in September. In February, the Minister for Foreign Affairs launched the Anti-Sectarianism Fund to assist projects in interface areas designed specifically to address the root cause of sectarianism and to diffuse tension. 13 Department of Foreign Affairs Annual Report 2008.

2008 developments and achievements Consolidation of the Institutions The Department continued to support the work of the Executive and the Assembly in the first full year of devolved government since the restoration of power to the Assembly in 2007. A Programme for Government and Investment Strategy for Northern Ireland, along with the Budget, were passed by the Assembly in January. During 2008, the Executive also addressed a number of key policy areas, including higher education, planning policies and the impact on Northern Ireland of the growing global economic crisis. However, the Executive faced a number of challenging issues in its work programme and failed to meet for five months between May and November. This disrupted its work and that of other institutions of the Good Friday Agreement, particularly the North South Ministerial Council. The Government offered support and assistance to the parties as they worked to find a solution to their difficulties and remained in close contact with the British government throughout the period. A deal on the devolution of policing and justice was reached between the largest parties in November and the Executive then resumed work. This was a significant development in terms of completing the process of devolution and offered renewed assurance for the sustainability of the power-sharing arrangements at Stormont. In May, on the first anniversary of the restoration of power-sharing, the Executive hosted the US Investment Conference in Belfast, in support of its objective of attracting major US investment to Northern Ireland. The Taoiseach and Minister for Foreign Affairs attended this event, together with the British Prime Minister and Secretary of State for Northern Ireland. In June, US President Bush visited Northern Ireland.

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the irish yearbook of international law 2008

Towards the end of the year, and following the resumption of Executive meetings, the First Minister and deputy First Minister visited the United States in a bid to attract foreign direct investment to Northern Ireland. Devolution of Policing and Justice In November, the First and Deputy First Ministers announced that they had reached agreement on a process leading to the devolution of policing and justice powers to the Assembly. This agreement sets out a series of steps to be taken by the Assembly and Westminster leading up to the transfer of policing and justice powers. It also includes a methodology for the election of a Justice Minister, by a majority of designated nationalist and unionists in the Assembly. These arrangements will last until May 2012. The Government will continue to support progress in this area. Security Environment The 2008 Parades Season passed off relatively peacefully. The Department continued to consult with key stakeholders on this issue, including in the context of the Strategic Review of Parading. The Chair of the Review, Paddy Ashdown, published an interim consultation report in April, and publication of the full report is expected take place later in 2009. The Independent Monitoring Commission (IMC) published three reports in 2008. In its September report, the IMC confirmed the Provisional IRA was fully committed to the political path, that its ‘Army Council’ was no longer operational or functional, and that the organisation was being allowed wither away. In its November report, the IMC drew attention to increased levels of dissident paramilitary activity. North-South Ministerial Council and North/South Cooperation The sixth plenary meeting of the North–South Ministerial Council was hosted by the Government at the Dundalk Institute of Technology on 7 February 2008, with Government and Executive Ministers discussing progress in developing North/South cooperation. During 2008, 12 sectoral Meetings of the NSMC took place, taking forward work to develop and promote cooperation in areas such as health and education, agriculture, tourism and transport. 2008 saw ongoing cooperation between Government Departments and their Northern Ireland counterparts on the achievement of priorities in the National Development Plan (2007–2013) and the Comprehensive Study on an All Island Economy. Key achievements in 2008 include: •  Preliminary route corridor assessment for A5 road upgrade completed •  €4.3mn of Funding for upgrading works at Derry City Airport •  Technical study for bridge at Narrow Water completed •  Interreg funding of €30mn secured for Project Kelvin (designed to improve broadband services in the North-West) •  Spatial Planning Framework for North-West finalised •  Ongoing programmes to allow access to GP and radiotherapy services on a cross border basis •  Cross border banking information on charges now available on the cross-border mobility website www.borderpeople.info.



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Work was also taken forward in 2008 on the St Andrew’s Review of the North/South Implementation Bodies and Areas for Co-operation. British-Irish Council and British-Irish Parliamentary Assembly The Department continues to pursue the effective operation of the British Irish Council. The Taoiseach hosted the 10th BIC Summit in Dublin in February. At this meeting, a range of issues, including drugs misuse and the future effectiveness of the Council, was discussed. The 11th Summit, addressing such issues as demography and energy, was held in Edinburgh in September. The Department continued to assist in the development and strengthening of East/ West parliamentary relations through the British–Irish Inter Parliamentary Body. The Body – which was re-named the British Irish Parliamentary Assembly in 2008 – met twice during the year, in Wexford and in Newcastle-upon-Tyne. Representatives of the Ulster Unionist Party and Democratic Unionist Party attended the October meeting in Newcastle for the first time as full members of the body. Promoting Reconciliation and Targeting Sectarianism The Anti-Sectarianism Fund was launched by the then Minister for Foreign Affairs during a visit to Belfast in February. The aim of this fund, which will be administered by the Department alongside the Reconciliation Fund, is to support projects which seek to combat sectarianism and its causes and to help ease tensions at contentious interfaces across Northern Ireland. In 2008, the two Funds distributed funding of €3mn to 109 groups working actively to promote reconciliation and address sectarianism. The third annual Reconciliation Networking Forum was held in Dublin Castle in April. The Forum brought together groups working on reconciliation issues from across the island and provided a unique opportunity for reflection on lessons learnt and an opportunity to meet other groups working on similar issues. The International Fund for Ireland, whose administration is supported by the Department, provided funding of €47.15mn for projects aimed at fostering reconciliation and encouraging economic and social development within the most marginalised and disadvantaged communities in Northern Ireland and the southern border counties. This was made possible by the generous support of the European Union and the governments of the United States, Canada, Australia and New Zealand. Addressing the Legacy of the Conflict The Department works closely with the Commission for Victims and Survivors, established by Office of the First Minister and deputy First Minister in 2008, including raising welfare issues arising from the conflict. Throughout the year, the Department continued to liaise closely with the Consultative Group on the Past, established by the British Government in June 2007 and which published its report in January 2009. The Department also continues to support and monitor the work of public inquiries underway in the North and to promote the full implementation of the recommendations agreed at Weston Park.

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the irish yearbook of international law 2008 ireland’s role in the world

High Level Goal 2008–2010 To contribute to international peace and security, promote conflict resolution, respect for human rights and the rule of law, and support effective common strategies to address global challenges. 2008 in Review Throughout 2008, the Department engaged in activities in furtherance of this high level goal. As an active participant in all facets of the EU’s Common Foreign and Security Policy, through our high profile at the UN, the Organisation for Security and Cooperation in Europe (OSCE), the Council of Europe and other international organisations, and in our relations with other States we continued to make a strong contribution to international peace and security. In the course of 2008, Ireland has been to the fore on a range of issues including: •  Supporting efforts to stabilise the situation in Sudan and in Chad; •  Developing the EU’s strategic relationship with Latin America, including implementation of EU strategic partnerships with Brazil and Mexico; •  Playing a leading role in efforts to improve the UN’s internal coherence and its delivery of development assistance; •  Contributing to the EU’s successful role in halting the conflict in Georgia by contributing personnel to the EU monitoring mission deployed there; •  Calling for an end to the isolation of the people of Gaza and the reopening of the territory’s border crossings; •  Continuing strong commitment to address human rights concerns including in Burma and Zimbabwe; •  Recognising Kosovo’s independence. A major achievement in 2008 was the successful conclusion of a Convention banning the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions. Ireland was a member of the core group of countries driving this ‘Oslo Process’. Our efforts culminated in the hosting of a conference in Dublin in May 2008 at which agreement was reached on a Convention on Cluster Munitions. Events in the Middle East continued to be prominent in the international agenda in 2008 and Ireland played an active role including through Minister Martin’s successful visit to Egypt, Israel and the Occupied Palestinian Territories in July. Elsewhere, Ireland provided funding for the reconstruction and humanitarian efforts in Georgia and Minister Martin visited the country in November and met with political leaders.

2008: developments and achievements Africa Ireland continued its strong engagement to support the resolution of political and humanitarian crises in Africa, according particular priority to the situations in the eastern DRC, Somalia, Sudan and Chad, where members of the Irish Defence Forces



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are deployed as part of the EU’s EUFOR Chad mission. The then Minister for Foreign Affairs, Mr Dermot Ahern TD, visited Kenya in April and Ireland provided financial support for the successful mediation efforts of the former UN Secretary-General Kofi Annan in Kenya which led to the formation of a government of national unity. Ireland urged Zimbabwe’s neighbours to exert pressure on the Mugabe regime to respect human rights and the rule of law. Ireland also worked to shape an appropriate EU response to the worsening situation in the country. Political relationships with African countries were enhanced by the visits of the Taoiseach to South Africa and Tanzania in January. Minister of State Power’s visit to Malawi in June cemented the strong relationship initiated by the opening of a new Irish Embassy in Lilongwe in late 2007, and provided an opportunity to underline the importance Ireland attaches to good political governance in a development context. Middle East 2008 saw some positive political developments in the Middle East Peace Process. Direct Israeli – Palestinian Authority talks under the Annapolis Process made some progress in discussing final status issues, although the target of an overall settlement by year’s end was not reached. It was also revealed that Israel and Syria were engaged in proximity talks hosted by Turkey, renewing a negotiating track that had been stalled since 2000. However, increasing Israeli settlement construction in the West Bank and the continued isolation of Gaza remained serious obstacles to peace. The outbreak of the conflict in Gaza at the very end of the year threatened to undo the progress made. Ireland was to the fore in shaping the EU response to developments in the region. The Minister for Foreign Affairs, Mr Micheál Martin TD, met with Egyptian President Hosni Mubarak, Israeli Foreign Tzipi Livni, Palestinian President Mahmoud Abbas, Palestinian Prime Minister Salam Fayyad, and Iranian Foreign Minister Manouchehr Mottaki. In these meetings the Minister outlined the role the Government is playing, directly and in cooperation with our EU partners, in promoting a lasting and just settlement to the conflict. The Minister also made a successful visit to the region in July. Ireland was to the fore in calling for the reopening of border crossings in Gaza. Asia The situation in Burma continued to be a cause of serious concern. Ireland upheld a forward position on the serious human rights situation there and Minister Martin outlined Ireland’s concerns in his address to the UN General Assembly in September, renewing in particular the call for the immediate release of Aung San Suu Kyi and her fellow political prisoners and regretting that the ruling military junta had not engaged seriously with the Good Offices Mission of the UN Secretary-General. Ireland also actively engaged in the renewal of the EU Common Position comprising a range of sanctions and restrictive measures on Burma. Ireland continued to develop its political relations with Asian countries and regional organisations. In October 2008, the Taoiseach met with Asian leaders at the Asia-Europe Meeting (ASEM) in Beijing and undertook an important bilateral visit to China. Americas 2008 saw the election of Barack Obama as President of the United States. In addition to regular visits to the US by Government Ministers, the then Minister for Foreign

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the irish yearbook of international law 2008

Affairs visited Argentina in March and Minister Power travelled to the EU-LAC Summit in May. Ireland pursued the Human Rights agenda in Latin America, including through active participation in the Universal Peer Review process at the Human Rights Council. Europe In addition to supporting the EU monitoring mission in Georgia, Ireland advanced €2mn towards the cost of reconstruction and humanitarian aid. Ireland also concluded a bilateral international agreement with Belarus in December which enabled holiday visits to Ireland by children from Chernobyl to continue. Ireland recognised Kosovo’s independence and contributed to the successful international donor conference for Kosovo. Over 230 members of the Defence Forces continued to serve with KFOR and members of An Garda Síochána were appointed to the ESDP Mission there. The Taoiseach and Minister for Defence visited Kosovo on 22 December and met with Irish KFOR and ESDP personnel and the President and Prime Minister of Kosovo. Human Rights At the Human Rights Council in Geneva, Ireland worked with EU partners to ensure strong and consensus outcomes including the convening of special sessions on the Occupied Palestinian Territories and the Democratic Republic of Congo. Ireland led negotiations on behalf of the EU for the successful renewal of the mandate of the Special Rapporteur on Human Rights Defenders and at the UN General Assembly Ireland led negotiations on behalf of the EU for the resolution on the Right to Food. Reflecting the high regard in which Ireland is held internationally, Ireland’s nominee, Professor Michael O’Flaherty, was successfully re-elected to the UN Human Rights Committee, receiving the highest number of votes of any candidate. The UN Human Rights Committee examined Ireland’s Third Report under the International Covenant on Civil and Political Rights in July. United Nations Ireland engaged closely with the full range of UN issues and maintained our strong engagement on the UN Reform agenda. This included a leading role in efforts to improve the UN’s internal coherence and its delivery of development assistance. Ireland’s Permanent Representative to the UN in New York completed his appointment as Co-Chair of the General Assembly Working Group on System-wide Coherence, submitting a report to the President of the General Assembly in July. In September, the General Assembly welcomed the report and agreed to move forward on the four priority areas identified in it. Disarmament and Non-Proliferation In addition to the leading role Ireland played in securing an international ban on cluster munitions, Ireland also continued to actively participate in the preparatory work aimed at securing a positive outcome to the 2010 Review Conference of the Nuclear Non-Proliferation Treaty. In March 2008, the Government hosted the fifth meeting of the Article 6 Forum of the Middle Powers Initiative entitled NPT: Pathfinder to a Nuclear-Free World, which brought together prominent Government and NGO representatives.



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Conflict Resolution The then Minister for Foreign Affairs Mr Dermot Ahern visited Timor-Leste in February and announced the appointment of Ms Nuala O’Loan as Ireland’s first Roving Ambassador with the role of Special Envoy for Conflict Resolution in TimorLeste. Ms O’Loan visited Timor-Leste twice in 2008, meeting the President, Prime Minister and other senior political figures and UN representatives. Projects supported in Timor-Leste include a programme of Peace, Remembrance and Reconciliation activities coordinated by Trócaire, the development of an early-warning and response system and support for high-level dialogue on the part of Timorese leaders. A number of initiatives have been advanced in support of UN Security Council Resolution 1325 on Women, Peace and Security, and a cross learning process involving Ireland, North and South, Liberia and Timor-Leste was launched. Relationships have been developed with key international organisations including the UN and EU, and NGOs. A scheme of fourth-level scholarships in the area of conflict resolution was established in conjunction with the Irish Research Council for the Humanities and Social Sciences and the first two scholarships were awarded. International Security and Defence The deployment of over 400 troops to the UN mandated EU military mission EUFOR Tchad/RCA, under the operational command of Lt General Pat Nash, represented a significant commitment of resources for Ireland. Members of the Defence Forces, along with troops from Finland, Norway, Estonia and Sweden, took part in the Nordic Battlegroup which was on standby for deployment in the first half of 2008. 2008 also saw a significant increase in Ireland’s participation in civilian ESDP missions. Nine personnel, including eight members of An Garda Síochána, were deployed to EULEX Kosovo, the EU’s rule of law mission in Kosovo. In September 2008 in response to the crisis in Georgia, a national contingent of four monitors, funded by Irish Aid, were deployed to take part in the EU Monitoring Mission in Georgia (EUMM Georgia).

the european union High Level Goal 2008–2010 Secure Ireland’s interests in the EU and contribute fully to the Union’s future development 2008 in Review The Department’s European Union (EU) Division continued to work closely with other Government Departments to ensure a strategic and coordinated response across a wide range of EU issues in pursuit of Ireland’s interests at EU level. Following the people’s decision on 12 June not to permit the State to ratify the Treaty of Lisbon, the Government commissioned an independent research project designed to identify the concerns underpinning this decision. These concerns were further examined by an Oireachtas Sub-Committee on Ireland’s Future in the European Union, which reported at the end of November.

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In December, the European Council offered to provide Ireland with a package of legal guarantees covering the key areas of identified concern, namely taxation, neutrality and the provisions of the Irish Constitution in relation to the right to life, education and the family. In addition, it was agreed to maintain the principle of one Commissioner per Member State in the case that the Treaty of Lisbon enters force. The Government agreed to arrange a second referendum on the Lisbon Treaty in 2009 provided that the guarantees were satisfactorily forthcoming from the European Council. Negotiations on EU accession continued with Croatia and Turkey in 2008, while Montenegro applied for membership of the EU. The Climate Change Package was agreed at the European Council in December 2008. Ireland was satisfied that its concerns were taken into account and several new elements relevant to Ireland were included in the package put forward in January 2008. The financial crisis which developed in the latter half of 2008 highlighted the importance for EU countries of working together and brought home the benefits of eurozone membership. Following close contact with Irish officials, in October 2008, the European Commission approved the Irish scheme designed to stabilise the financial markets by providing guarantees on deposits and debt to eligible banks in the Irish market. The European Economic Recovery Plan (EERP) agreed in December provides a coherent framework for action to be taken by the Union. The current round of global trade negotiations being conducted under the aegis of the World Trade Organization continued in 2008. While progress was achieved in some areas covered, no breakthrough proved possible in the important areas of modalities in agriculture and non-agricultural market access (NAMA).

2008: developments and achievements The Lisbon Treaty On 12 June, the Treaty of Lisbon was submitted to the people in a referendum. Ratification of the Treaty was defeated by 53.2 per cent to 46.4 per cent. While fully respecting the outcome of the referendum, the Government undertook a detailed analysis aimed at identifying the concerns underlying the vote, and the means by which they could be addressed. Independent research suggested that retention of an Irish Commissioner at all times, tax, defence/neutrality, and ethical issues, including abortion, were key issues for voters. This was confirmed by an all-party Oireachtas Sub-Committee on Ireland’s Future in the European Union. The Sub-Committee’s report, published at the end of November, also stated clearly that ‘Ireland’s best interest is served by being at the heart of Europe’. Believing that it is very much in Ireland’s interest to remain an active and engaged Member State of the EU, and that the Treaty of Lisbon is important to the Union’s future development, the Government then sought to find an agreed basis on which to move forward with its EU partners. Following intensive negotiations, agreement was reached at the December meeting of the European Council that Ireland would receive a package of legal guarantees covering the areas of concern to the Irish people, as identified above, and that, if Lisbon enters into force, each Member State will retain the right to nominate a Commissioner.



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It was agreed that the guarantees should be finalised by mid-2009. The Government said that if it was satisfied with the outcome of this work, it was prepared to seek ratification by the end of October 2009. By the end of 2008, Ireland was one of only four Member States not to have ratified the Treaty, the others being the Czech Republic, Germany and Poland. Visits 2008 saw a number of important incoming and outgoing visits which enhanced Ireland’s relations with key EU partners. The Taoiseach undertook a visit to Slovenia, Austria and Poland where he met the Presidents and Prime Ministers of the three Member States. In advance of the December European Council, he visited Paris, Berlin, Brussels, London, Luxembourg, Stockholm and Helsinki for discussions with his colleagues there. In July, President Sarkozy visited Ireland to have discussions with the Taoiseach, which reaffirmed our close partnership with France on issues of vital interest, particularly in defence of Irish agriculture. The Taoiseach also had meetings in Dublin with the German Chancellor, Angela Merkel and President Barroso of the European Commission. During the period covered by this report, the Taoiseach, the Minister for Foreign Affairs and the Minister of State for European Affairs engaged in extensive consultations with European partners and the European Institutions to ensure the broadest possible support for Ireland’s position and to identify a way forward following the Referendum result. The Minister for Foreign Affairs met with several of his EU colleagues as well as the President of the European Parliament, Mr Hans-Gert Pottering, and the SecretaryGeneral of the Commission, Ms Catherine Day, following the outcome of the Lisbon Treaty. In February, President McAleese paid a State Visit to Germany where she held talks with President Köhler and Chancellor Merkel. In September, the President paid a State Visit to Romania and met with President Basescu and Prime Minister Tariceanu. There were also State Visits to Ireland during the year by the Presidents of Estonia and the Czech Republic. Climate Change/Renewable Energy and European Economic Recovery Plan The European Council in December 2008 agreed the climate change package put forward earlier that year. The Department of Foreign Affairs worked closely with other Government Departments to secure the inclusion of new elements in the package to take account of our national interests. These new elements include a range of flexibilities in the effort-sharing proposal that will reduce the cost of reaching Ireland’s –20 per cent target. Ireland will also benefit from the inclusion of forestry activities in Ireland’s effort-sharing target under, or in the absence of, a future international climate agreement. The European Economic Recovery Plan (EERP) agreed in December 2008 now includes Ireland’s East West electricity Inter-connector with Wales, with EU funding of €110mn subsequently granted in 2009.

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the irish yearbook of international law 2008

WTO This Department continued to work in close cooperation with the Departments of Enterprise, Trade and Employment and Agriculture, Fisheries and Food to advance and protect Ireland’s interests in the current round of global trade negotiations, the Doha Development Agenda. A WTO ministerial meeting was held in Geneva in July. While progress was achieved in some areas, the meeting ended inconclusively. WTO Director General Pascal Lamy had hoped to convene a further ministerial meeting before the end of 2008 but, in circumstances where it appeared that no breakthrough could be made, it was decided not to hold the meeting. Enlargement During the course of 2008, negotiations on accession continued with Croatia and Turkey. Six further negotiating chapters were opened with Croatia, and five closed in 2008. Four negotiating chapters were opened with Turkey. The Former Yugoslav Republic of Macedonia remained a candidate for membership, but no date was set for the opening of negotiations. An application for membership was submitted by the government of Montenegro to the Presidency on 15 December. The Department of Foreign Affairs continued to provide training and assistance to the new Member States of the EU and to Candidate countries through its Bilateral Assistance Programme. European Neighbourhood Policy The ENP deepened its southern dimension in 2008 with the launch of the Union for the Mediterranean (UfM). The UfM formally replaced the Euro-Mediterranean Partnership, formerly known as the Barcelona Process, at the Marseille Ministerial in November. 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. Communicating Europe The Communicating Europe Initiative (CEI) supported, among other activities, a programme of events to mark Europe Day on 9 May. Following publication in September of the IMS Millward Brown research into the outcome of the Lisbon Treaty Referendum, a project was undertaken aimed at refocusing the Department’s priorities in relation to Communicating Europe.

promoting ireland abroad High Level Goal 2008–2010 To promote Ireland, its bilateral relations with other countries, advance our economic interests and enhance our cultural profile overseas.



department of foreign affairs annual report 2008

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2008 in Review The Department’s Promoting Ireland Abroad Division (PIAD) worked closely with missions abroad, State agencies and the private sector to increase awareness of opportunities for Irish companies in emerging markets, and to attract foreign direct investment into Ireland. This work involved the coordination of high level official visits, the facilitation of trade missions, and advancing bilateral agreements. For example, PIAD coordinated the Taoiseach’s trade visit to China in October. Work continued on implementing the guidelines outlined in the policy document on the economic work of missions (2007) and missions also focused on economic and cultural objectives. A detailed training programme on economic and trade issues was held in May/June for officers going abroad on postings in 2008: areas covered included foreign direct investment, exports, competitiveness, the role of state agencies, and sectors of particular importance to the Irish economy. The Department continued its support for the Government’s Asia Strategy through facilitating economic linkages, participating in High Level Group meetings, engaging in follow-up activities, and administering the Asia Strategy Funds through liaison with missions in the region. Also, during 2008, the Department reviewed the effectiveness of expenditure under the Asia Strategy funding in 2006 and 2007. Promoting Ireland Abroad Division continued to provide support to cultural events promoting Ireland’s cultural heritage abroad through our network of missions. These mission initiatives also provide our missions with opportunities for public and media access to address the promotion of business interests. The Division also maintained close cooperation with the Department of Art, Sport and Tourism and other cultural bodies such as Culture Ireland and the Irish Film Institute. 2008: Developments and Achievements As well as a range of incoming trade visits, the Department (Protocol Division, in collaboration with the relevant ‘Lead Unit’ Division and other stakeholders) organised several visits abroad by the President and a number of inward high level visits to Ireland by Heads of State [noted previously]. The Department also coordinated 36 St Patrick’s Day visits and ensured that they were used to promote Ireland’s key economic interests. During 2008 the Department’s Bilateral Economic Relations Division, Cultural Division and Information Section of the Department were brought together to form the Promoting Ireland Abroad Division. This amalgamation takes advantage of the Department’s position, including through Missions abroad, to promote trade and investment both directly and through cultural activities and the raising of awareness of Ireland in other countries. This is in line with an increasing Government emphasis on the importance of developing and deepening Ireland’s economic links with other countries. A detailed and specialised training programme on economic and trade issues was developed for officers going abroad on posting in 2008. The Department participated in efforts to re-open markets to Irish goods and services, including beef (markets in Saudi Arabia and South Africa were re-opened to Irish beef in October and November 2008, respectively), and worked closely with relevant missions, Government Departments and State agencies, to resolve the impact of the December pig meat crisis overseas.

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the irish yearbook of international law 2008

Missions produced cultural plans for the year to project a high cultural profile, centred on artistic innovation, for the country abroad. Missions were provided with small, dedicated budgets to allow them plan and implement cultural activities. As part of our role to provide accurate and relevant information on Ireland, the Ireland in Brief booklet was revised and updated in 2008, and translated into 13 languages, for circulation by our network of Embassies and Consulates overseas.

irish aid High Level Goal 2008–2010 Deliver on the commitments in the White Paper on Irish Aid through reducing poverty, supporting sustainable development and promoting development cooperation as an integral part of Ireland’s foreign policy. 2008 in Review Total Overseas Development Assistance (ODA) in 2008 amounted to €918mn, or 0.58 per cent of GNP. The decentralisation of the Development Cooperation Division was successfully completed in 2008 when staff moved into new headquarters in Limerick City and the Irish Aid Volunteering and Information Centre was opened in Dublin in January 2008. The Report of the Hunger Task Force was submitted to the Taoiseach at UN Headquarters, New York, in the presence of the UN Secretary-General, Mr Ban kiMoon and the UN Secretary-General for Humanitarian Affairs, Mr John Holmes. The Rapid Response Initiative – enabling the rapid dispatch humanitarian relief supplies and deployment of members of a Rapid Response Corps to emergency situations – became an increasingly important element in Ireland’s humanitarian response. Ireland, represented by Minister of State for Overseas Aid, Mr Peter Power TD, played an active role in the third High Level Forum on Aid Effectiveness in Ghana in September 2008 and contributed to the drafting of the Accra Agenda for Action. Ireland successfully co-hosted the fourth Global Partners Forum on Children affected by HIV and AIDS and negotiated agreement on key policy priorities for children. New Country Strategy Papers were put in place for Ethiopia and Lesotho, along with an interim country strategy for Timor-Leste, a fragile post-conflict state. Irish Aid continued to prioritise the reform of the UN development system and engaged actively, through financial support and policy input, with the country-level UN reform programmes in Vietnam, Tanzania and Malawi. In line with the commitment in the White Paper to further develop the funding mechanisms for NGOs, Irish Aid increased the number of organisations which receive multi-annual block grant funding from 6 in 2007 to 24 at the end of 2008. 2008: developments and achievements Total ODA in 2008 amounted to €918mn, or 0.58 per cent of GNP. The decentralisation of the Development Cooperation Division, which operates externally as Irish Aid, was successfully completed in 2008 when staff moved into new headquarters in Limerick City.



department of foreign affairs annual report 2008

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The Inter-Departmental Committee for Development, established in 2007, met four times in 2008. The Committee presented its first Annual Report to the Minister for Foreign Affairs in June. The Report outlines the role and activities of the Committee since its establishment and makes recommendations seeking to promote a coherent approach to development across Government Departments. The Irish Aid Volunteering and Information Centre was opened by the then Taoiseach, Mr Bertie Ahern TD, on 22 January 2008. The Centre has a dual-purpose: to provide information on the work of Irish Aid and on development issues more generally; and to provide an information service to individuals and organisations wishing to volunteer for development work. During its first year, the Centre hosted 179 development related events, including volunteering functions, ran an education programme for 144 schools and hosted 18 temporary exhibitions. In 2008, Ireland continued to provide timely and effective funding to international humanitarian emergencies through established UN, Red Cross and NGO partners. Ireland provided funding to the UN-managed Central Emergency Response Fund (CERF) and Common Humanitarian Funds (CHF). A two year funding partnership for 2008/09 was agreed with the International Federation of Red Cross and Red Crescent Societies (IFRC). Ireland was also invited to become a member of the UN Relief and Works Agency (UNRWA) Advisory Commission in 2008. In addition, Irish Aid began a new partnership with its main NGO partners in the area of humanitarian funding for protracted emergencies. The Rapid Response Initiative has become an increasingly important element of Ireland’s international humanitarian response efforts. In 2008, there were 27 deployments from the Rapid Response Corps to 14 countries, including Sudan, the Democratic Republic of Congo (DRC), the Democratic People’s Republic of Korea, Sri Lanka, Kenya and Somalia. With the addition of the UN Children’s Fund (UNICEF) the number of UN standby partners was increased from three to four. The size of the Rapid Response Corps volunteer roster rose to almost 100 trained members. Essential relief supplies were dispatched in nine consignments from Ireland’s pre-positioned stores in Brindisi, Italy and at the Curragh Camp to emergencies in Mozambique, DRC, Kenya, Burma/Myanmar, China, Iraq, Togo and Zimbabwe. The Report of the Hunger Task Force was submitted to the Taoiseach in September 2008 at UN Headquarters, New York in the presence of the UN Secretary-General, Mr Ban Ki-moon and the UN Secretary-General for Humanitarian Affairs, Mr John Holmes. The report, which has received considerable international attention, focuses on three thematic areas to address the food security crisis: increasing smallholder agricultural productivity in Africa; targeting maternal and infant under-nutrition; and prioritising hunger at the national and international levels to ensure that donor and recipient governments fulfil their commitments to its eradication. The report provides a framework which will guide our response to global hunger and food insecurity into the future. Ireland will take a strong leadership and advocacy role internationally in order to tackle the root causes of hunger. In February 2008, Irish Aid launched its Education Policy, Building Sustainable Education Systems for Poverty Reduction. The policy highlights the important contribution of education to Irish Aid’s overall goals and builds on Ireland’s long-standing commitment to promote and support education in developing countries.

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the irish yearbook of international law 2008

In October 2008, Ireland successfully co-hosted the fourth Global Partners Forum on Children affected by HIV and AIDS and negotiated agreement on key policy priorities for children. The target of spending €100mn on HIV and AIDS and other communicable diseases across the Irish Aid programme was met, with 20 per cent of additional resources being spent on programmes to benefit children. Ireland became the first bilateral donor to develop a three-year strategy for funding and engagement with the Global Fund to Fight AIDS, TB and Malaria. There was a significant increase in numbers of people accessing HIV prevention, treatment and care services as a result of Irish Aid investment in country, global and regional initiatives. Ireland, represented by Minister of State for Overseas Aid, Mr Peter Power TD, played an active role in the third High Level Forum on Aid Effectiveness in Accra, Ghana, in September 2008. Ireland contributed to the drafting of the Accra Agenda for Action, promoting in particular actions on mutual accountability, gender equality and country ownership. Irish Aid has maintained its strong focus on gender mainstreaming during 2008 and has been active in promoting it in its programme countries, particularly in Mozambique and Uganda. In Mozambique, as president of the donor troika, Irish Aid has sought to raise awareness of gender equality. In Uganda, we supported the Ministry of Finance to conduct two gender studies which will inform dialogue and policy making. New Country Strategy Papers were put in place for Ethiopia and Lesotho in 2008, during the development of which new guidelines for the preparation of Country Strategies were piloted. These new guidelines have a strong focus on aid effectiveness and include modules on strategic planning and results-based management. These Strategy Papers provide the framework for Irish Aid support, and detail how assistance is to be targeted. In the case of Ethiopia, Irish Aid bilateral support has been in place since 1994. Bilateral aid to Ethiopia amounted to €36mn in 2008, marking the start of a new Country Strategy Programme that will continue until 2012. The new programme deepens Ireland’s focus on extreme hunger, poverty and vulnerability and supports the Ethiopian Government’s own plans for poverty reduction. More than €13.5mn was provided to Lesotho in 2008 under the new Irish Aid bilateral programme, including €4mn from Irish Aid HIV/AIDS funding for a partnership with the Clinton Foundation and Ministry of Health. Malawi is Ireland’s ninth programme country and a new Irish Embassy was established in Lilongwe at the end of 2007. During the course of 2008, the Embassy successfully managed and implemented an interim bilateral aid programme which focused on the areas of governance and food security. A five-year country strategy paper will now be prepared which will deepen the focus on food security consistent with the needs of the country and the recommendations of the Hunger Task Force. In 2008, the implementation of the Country Strategies for Tanzania, Vietnam, Uganda, Zambia and Mozambique continued. These strategies are focused on the reduction of poverty and support national poverty reduction plans. The impact of this development support is evidenced by the reduction in poverty in Tanzania, where poverty has reduced from 40.8 per cent in 1991 to 33.3 per cent in 2008. An interim country strategy for Timor-Leste was put in place to support basic needs in this fragile post-conflict state. Work has begun in developing a longer-term strategy of support which will be aligned with and provide support to the national poverty reduction plan scheduled for 2010.



department of foreign affairs annual report 2008

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In recognition of the role of the private sector in economic growth and poverty reduction, we launched a programme of support to the private sector in Mozambique in 2008 and we worked on developing similar initiatives for Tanzania and Uganda. In 2008, Irish Aid approved a five year agreement for funding of €15mn over the period 2008–12 for the Irish Fairtrade Network (IFTN) to support over 435 000 poor East African coffee farmers in accessing Irish, EU and global markets. This programme supports fair and ethical trading systems, focusing on four countries in East Africa – Kenya, Uganda, Tanzania and Ethiopia. Irish Aid continued to build its relationship with the UN Funds and Programmes, in particular with those designated as Priority Partners: the UN Development Programme (UNDP), UNICEF, the UN High Commission for Refugees (UNHCR), the UN Population Fund (UNFPA) and the World Health Organisation (WHO). Irish Aid also continued to prioritise the reform of the UN development system. Between January and August 2008, Ireland and Tanzania led discussions among UN Member States on the recommendations of the High-Level Panel on System-Wide Coherence (SWC), which seek to improve the UN’s ability to deliver development assistance at country level in an efficient manner. Irish Aid engaged actively, through financial support and policy input, with the country-level UN reform programmes in Vietnam, Tanzania and Malawi. Irish Aid’s Civil Society Policy was launched in 2008 and commits Irish Aid to: (i) creating an enabling environment for NGOs to organise and engage with their own broader constituencies; and (ii) supporting the role of NGOs in promoting participation and good governance, pro-poor service delivery and growth and building a constituency for development, human rights, and social justice. In line with the White Paper commitment to further develop the funding mechanisms for NGOs, Irish Aid has increased the number of organisations who receive multi-annual block grant funding from 6 in 2007 to 24 at the end of 2008. The decision to approve funding followed a comprehensive assessment of each of the organisations to assess the scale of the agencies’ capacity to operate within the multi-annual block grant. The process has resulted in a more informed and strategic relationship with the NGOs concerned. consular and passp ort services High Level Goal 2008–2010 Provide a high quality passport and consular service to all Irish citizens and actively engage with our Diaspora. 2008 in Review In 2008, 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. These situations have included deaths, arrests, repatriation, hospitalisations and the rapid response to international crises where Irish citizens were involved. 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.

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the irish yearbook of international law 2008

The Department’s Consular Services Charter and an on–line Travel Registration facility was launched by the then Minister in January 2008. The Charter has been distributed widely to Travel Agents, libraries, Garda Stations and citizen’s information centres. The on–line Travel Registration is available to citizens who wish to register their contact details with the Department before they travel, should it be necessary to contact them the event of an emergency or a family crisis. The new Cabhair computerised database has been installed to manage more effectively our response to consular cases and crisis situations, and the roll-out to all Missions will continue in 2009. In addition, we continue with measures to implement the recommendations of The Report on Irish Prisoners Overseas by Mr Chris Flood. The new Automated Visa Application and Tracking System (AVATS) has been successfully rolled out to 54 Missions abroad, with visa applicants in 175 countries now able to fill in their visa application forms on-line. The Passport Offices issued more than 570 000 passports in 2008, reflecting a small decline (4 per cent) in demand on 2007. The Passports Act completed its passage through the Oireachtas and came into effect in November 2008. The Act provides a comprehensive legislative basis for the issuing and regulation of passports. A value for money review of the passport service was published in 2008. The review makes a number of recommendations designed to enhance the efficiency and effectiveness of the service. Work has already been undertaken on some of these recommendations and this will continue in 2009. In 2008, Emigrant Support Programme grants totalling €15.183mn were allocated to support Irish communities abroad and to strengthen links between these communities and home. In addition, further progress was made in the Government’s ongoing efforts to reform existing visa and immigration arrangements with the US, notably with the reciprocal Working Holiday Agreement, which was signed by the Minister for Foreign Affairs in September. The importance of finding a solution for the undocumented Irish also continued to receive priority attention in Government contact with the US Administration and Congress. 2008: developments and achievements Protecting and Supporting Irish Citizens Throughout 2008, 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 including crisis situations. During the year, the Department dealt with the deaths of over 200 Irish people abroad and provided effective assistance to our citizens in other difficult and tragic situations, including repatriation, hospitalisation, victims of crime and detention abroad. Consular facilities were also provided for Irish citizens attending major sporting events such as the Olympics Games in Beijing. 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 particular countries. It is based on 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.



department of foreign affairs annual report 2008

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Contact was renewed 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, which is of international standard and is fully equipped to provide a modern emergency response to a consular crisis abroad, remains on standby to deal with large-scale emergencies, crises and disasters, whether natural or man-made, involving Irish citizens abroad. The Centre, which would be staffed by trained volunteers from within the Department in the event of a crisis, is capable of linking up with Crisis Centres in other EU capitals to share information and risk assessments. 2008 saw the upgrading of the Crisis Database which would be used in the Crisis Centre to track the cases of individuals affected and cases of concern raised over the Crisis Hotline by members of the public. In 2008, the Crisis Centre was activated in response to the civil unrest in Bangkok, which affected large numbers of Irish holiday makers following the closure of the airports, and in response to the terrorist bombings in Mumbai.

Emergency Consular Assistance Teams These dedicated teams, comprising specifically trained officers from the Department, remain ready to be deployed, with support from trained professionals if necessary, in the immediate aftermath of a consular crisis affecting Irish citizens anywhere in the world. Passport Service The Passports Act 2008 completed its passage through the Oireachtas and came into force on 1 November 2008. The Act sets out for the first time a specific legislative basis for the regulation and issuing of passports The Act provides a statutory right for an Irish citizen to apply for a passport, regulates the application process and outlines the limited circumstances in which a passport may be refused or cancelled. It outlines the procedure in relation to matters such as lost or stolen passports, emergency travel facilities, names in which passports may be issued and the issuing of passports to children. The Act strengthens efforts to combat fraud by introducing a range of passport specific offences under Section 20. These include fraudulent applications, sale or attempted sale of a passport and making a false passport. Maximum penalties for the more serious offences are up to 10 years imprisonment and/or an unlimited fine. A Value for Money Review of the passport service by independent consultants KPMG was published in 2008. The review found that the Department has provided a high level of customer service and compares very favourably with the other countries looked at for comparative purposes. It also noted that the Passport Office has been responding to international challenges and, in recent years, there have been major advances in the service such as the roll-out of the automated production system and the production of e-passports. It also makes a number of recommendations designed to enhance the efficiency and effectiveness of the service. Work has already been undertaken on some of these recommendations and will continue in 2009.

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the irish yearbook of international law 2008

Irish Abroad In 2008, Emigrant Support Programme grants totalling €15.183mn were allocated to 190 organisations and projects for the support of Irish communities abroad, with over 90 per cent of the overall allocation directed to Britain (€10.22 million) and the US (€3.52 million), where the vast majority of Irish people living overseas are located. As in previous years, the focus of this funding was on supporting frontline welfare services, including outreach, counselling and advisory services, targeted at the most vulnerable members of our overseas communities, in particular the elderly. As part of the Government’s approach to strengthening Ireland’s relationship with the Diaspora, support was also extended to a range of community and heritage projects, including large-scale community developments in the US, Britain and Canada. The Irish Abroad Unit implemented key recommendations of the Goodbody Value for Money and Policy Review of the Emigrant Support Programme, most notably the development of an online grant application process. This initiative has enhanced the Unit’s capacity to focus programme funding and monitoring, ensuring that the funding allocated continues to reach the most vulnerable Irish people abroad. A Working Holiday Agreement with the US was signed by the Minister for Foreign Affairs in Washington in September 2008. The Agreement was welcomed by the Irish community in the US, and will further strengthen the links between that community and Ireland, while also helping to foster the growth of new and lasting contacts between Ireland and the US. Its signing marks the first success in the Government’s three pronged approach to reforming our overall immigration arrangements with the US, which also includes the negotiation of bilateral-long term working visas, and a solution for our undocumented.

supp ort services Building Internal Capability The Department of Foreign Affairs must ensure that it maintains and continues to develop the internal capacity required to deliver on the foreign policy objectives of the Government. 2008 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 2008, 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.



department of foreign affairs annual report 2008

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visits during 2008 Visits by the President to: •  Germany •  Britain (Liverpool, London) •  France (Lourdes) •  Romania •  Norway •  United States of America (California, Oregon and Arizona) In January 2008 the Division co-ordinated the arrangements for the Taoiseach’s visit to South Africa and Tanzania. Inward High Level Visits to Ireland organised by the Department included: •  The President of Estonia •  The President of the Palestinian Authority •  The President of the Czech Republic •  The President of the European Parliament •  The President of Latvia •  The Prime Minister of Vietnam •  The President of France •  The Deputy President of South Africa •  The Prime Minister of Croatia •  The British Foreign Secretary •  The Finnish Foreign Minister •  The Russian Foreign Minister •  The Chancellor of the Federal Republic of Germany •  The President of the European Commission •  The Deputy Prime Minister of the Czech Republic The Division also assisted with the organisation of the British-Irish Council Summit in February and the Cluster Munitions Conference in May 2008. Protocol Division continued to manage the privileges and immunities of 59 resident and 68 non-resident missions accredited to Ireland. It arranged the presentation of credentials to the President by 33 Ambassadors in 2008, as well as a number of largescale events at which the Diplomatic Corps participated. Protocol Division assisted in the timely accreditation of Irish Ambassadors and representatives of the State to 19 countries abroad. The Division also facilitated permissions for overflights and landings by Irish (3166) and foreign (584) Government aircraft and for visits abroad by Irish naval vessels (9) and foreign naval vessels (64) visiting Irish ports in 2008. Press Office The Press Office provides an effective media service to the Minister, Ministers of State and the Department, including Divisions at HQ and Missions abroad. During 2008, it dealt efficiently and effectively with an increased number of queries covering the entire range of issues handled by the Department, from national and local

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the irish yearbook of international law 2008

newspapers, from the broadcast and online media and from representatives of wire agencies based in Ireland and abroad. 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 several incoming high level visits in 2008, including two State Visits. The Press Office also provided media and communications support at the Dublin Diplomatic Conference on Cluster Munitions which was held in May in Croke Park. The Press Office monitored domestic and international media and published all speeches/ press releases by the Minister for Foreign Affairs and the Minister of State at the Department on the Departmental website and Intranet, also distributing them widely 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 and the St Andrews Agreement, including in relation to the North–South Implementation Bodies, NSMC procedures, devolution of policing and justice, the Consultative Group on the Past and the Strategic Review of Parading in Northern Ireland.

Foreign Policy

Ensured an integrated legal and policy approach to foreign relations in accordance with the Constitution and the UN Charter. Advised on the enforcement of UN and EU sanctions and the concept of ‘Responsibility to Protect’. Contributed to the negotiation and adoption of a new international instrument on cluster munitions at the Dublin Diplomatic Conference in May and prepared the necessary implementing legislation. Progressed the State’s extended continental shelf claims. Ensured appropriate extradition arrangements. Enabled making of the Extradition Act 1965 (Application of Part II) (Amendment) Order 2009, to give effect to the extradition agreement made with Hong Kong and to update multilateral extradition arrangements. Participated in Council of Europe discussions on the reform of the European Court of Human Rights and acted as agent in cases before the Court. Laid all international agreements to which Ireland became a party in 2007 before the Dáil and published them in the Irish Treaty Series.

The European Union

Advised on EU legal matters, with particular emphasis on the ongoing process relating to the proposed ratification of the Treaty of Lisbon and matters relating to EU external relations.

Trade and culture

Advised on international agreements on bilateral economic and cultural matters.

Irish Aid

Advised Irish Aid on its work, including development of a Guide to Agreements and Contracts governing the transfer and use of Irish Aid funding to partner organisations.

department of foreign affairs annual report 2008

Consular, Passport

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Advised on Passports Act 2008 and its commencement, including development of passport appeals procedure. Advised on consular protection of the rights of Irish citizens abroad.

Inspection Unit The Inspection Unit reviews the work of Missions abroad to support them in contributing as effectively as possible to the Department’s High Level Goals and making the best use of their resources. Twelve Missions were inspected in 2008 as set out below. Missions Inspected in 2008 •  Berlin (Embassy) •  Lisbon (Embassy) •  Berne (Embassy) •  Lusaka (Embassy) •  Cairo (Embassy) •  Madrid (Embassy) •  Dar es Salaam (Embassy) •  Ottawa (Embassy) •  Geneva (Permanent Mission to the UN) •  Riyadh (Embassy) •  Holy See (Embassy) •  Rome (Embassy) Corporate Services Corporate Services Division is responsible for the overall management of the financial and human resources and infrastructure of the Department, ensuring coherent operation across its various Divisions at Headquarters and throughout its 75 Missions overseas. As required under the Public Service Management Act 1997, the Department prepared, and submitted to the Department of the Taoiseach a new Statement of Strategy (2008–10) in July 2008. The Department recognises that the quality of its staff represents its biggest asset. With more than 1500 staff at Headquarters and around the world, the Department’s policies and practices are constantly reviewed in order to optimise the performance and professional fulfilment of its staff. During 2008 the Department continued to work in partnership with staff and union representatives, both bilaterally and within the context of the Departmental Council, towards the achievement of mutual objectives. The Department complied with its obligations under successive Partnership Agreements, with commitments arising from the various initiatives under the Strategic Management Initiative and with best-practice employment standards in use throughout the Civil Service. The Department met and exceeded the 3 per cent target for employment of people with disabilities as set out in part 5 of the Disability Act 2005. At the end of 2008, people with disabilities accounted for 3.5 per cent of the Department’s staff. The Department continued to take a proactive approach to ensuring equality of opportunity and treatment, both in its approach to customer service and through

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the irish yearbook of international law 2008

training and other human resources initiatives. In 2008, as in previous years, the Department operated a number of family-friendly policies such as term-time, worksharing, flexi-time and e-working. The Department’s promotions policy incorporates gender equality targets; at the end of 2008, the staff gender balance was 56 per cent female employees to 44 per cent male employees. Under the Government’s decentralisation programme, the Development Cooperation Division of the Department of Foreign Affairs, which is the Headquarters of Irish Aid, was transferred to Limerick. Irish Aid’s new permanent offices in Limerick opened in mid-November and, by the end of December 2008, 124 out of a total of 138 staff designated to move had already been relocated. 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 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 10 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 2008 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 (2008). The Evaluation and Audit Unit of the Department further expanded its role in 2008, carrying out evaluations of the Timor Leste Country Programme and of the International Partnership for Microbicides (a joint evaluation led by Ireland). A systematic programme of audit of Irish Aid’s expenditure in partner countries was undertaken and was expanded to include NGO partners funded under the Multi-Annual Programme Scheme (MAPS). Other significant achievements and developments during 2008 included: —The purchase of one Residence abroad in Pretoria and the completion in 2008 of refurbishment projects in Canberra, Edinburgh, Helsinki, London and New York. Having purchased a site in Addis Ababa, we have now initiated the process for inviting tenders for constructing a new Embassy building; and —The continued implementation of the ICT Strategy (2007–10) with particular focus on the following areas •  Launch of a new Departmental Intranet •  Development of a two year Knowledge Management Plan in consultation with colleagues across the Department •  Launch of Cabhair, the Consular Management System

department of foreign affairs annual report 2008



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•  Roll out of Mission websites based on a standard template •  The roll out of Video Conferencing facilities across the Department, at HQ and Missions abroad —The Department has achieved significant reductions in administrative expenditure across many different areas of the Department while protecting frontline services to the public. These efforts will continue in 2009, in view of the continuing pressures on the public finances.

appendices Appendix 1. Vote 28 (Foreign Affairs) Estimates and Provisional Outturn for 2008 Appendix 2. Vote 29 (International Cooperation) Estimates and Provisional Outturn for 2008 Appendix 3. Prompt Payment of Accounts Act 1997 Appendix 4. Status Report on Value for Money Reviews Appendix 5. Report on Regulatory Impact Analysis and Legislative Programme 2008 39 Department of Foreign Affairs Annual Report 2008 appendix 1.  vote 28 (foreign affairs) estimates and

provisional outturn for 2008 Service

Estimate provision €000

Provisional outturn €000

104,237

98,599

Administration A.1.

Salaries and allowances

A.2.

Travel and subsistence

8,517

7,324

A.3.

Incidental expenses

5,943

6,507

A.4.

Postal and telecommunications services

8,432

10,238

A.5.

Office machinery and other office supplies

29,573

25,739

A.6.

Office premises expenses

35,863

34,555

A.7.

Consultancy services

470

244

A.8

Value-for-money and Policy Review

100

36

79

36

Other Services B.1.

Repatriation and maintenance of distressed Irish persons abroad

C.1.

Support for Irish immigrant groups

15,183

15,183

D.1.

Information services

578

648

E.1.

Contributions to bodies in Ireland for the furtherance of international relations (Grants-inAid)

320

307

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the irish yearbook of international law 2008

Service (cont)

Estimate provision €000

Provisional outturn €000

891

854

28

13

44,480

38,103

Other Services (cont) G.1

Cultural relations with other countries

H.1

Irish–American Economic Advisory Board

I.1

Contributions to international organisations

J.1

Title V of the Treaty on European Union

K.1

Assistance to EU candidate countries

L.1

582

582

1,715

1,193

Atlantic Corridor Project

250

250

M.1

Asia strategy

200

182

N.1.

Support for Ireland funds

2,000

0

O.1

Referendum on EU Reform Treaty

5,800

5,738

272,436

255,609

–39,000

–38,166

233,436

217,443

Gross Total Deduct: – P.1

Appropriations-in-aid

Net Total

appendix 2. vote 29 (international co operation)

estimates and provisional outturn for 2008 Service

Estimate provision €000

Provisional outturn €000

Administration A.1.

Salaries, wages and allowances

18,890

18,838

A.2.

Travel and subsistence

3,050

2,966

A.3.

Incidental expenses

2,292

2,347

A.4.

Postal and telecommunications services

3,205

2,129

A.5.

Office machinery and other office supplies

1,363

1,418

A.6.

Office premises expenses

3,580

3,356

A.7.

Consultancy services

3,120

3,839

A.8.

Value-for-money and Policy Reviews

200

190

559,100

529,150

Other Services B.

Payment to grant-in-aid fund for bilateral aid and other cooperation (grant-in-aid)

C.

Emergency humanitarian assistance

90,000

87,000

D.

Payments to international funds for the benefit of developing countries

36,000

30,993

department of foreign affairs annual report 2008

E.

Contributions to United Nations and other development agencies

Gross total



93,400

86,349

814,200

768,574

Deduct: – F.

Appropriations-in-aid

Net Total

150

997

814,050

767,578

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 2008 (Vote 28) was €392 in respect of 14 cases. In addition, a total of €2022 was paid in penalty interest on late payments under Vote 29 (International Cooperation) in respect of four cases.

appendix 4.  status rep ort on value-for-money reviews Vote 28 – Foreign Affairs Value-for-Money review

Purpose of review

Target date

Current status

Support for Irish emigrant groups

To evaluate the value for money achieved with the Department’s support for Irish Emigrant Groups Abroad

12/2006

report com­ pleted and published

Automated Passport Project

To evaluate the efficiency and effectiveness 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.

12/2007

report completed and published

Vote 29 – International Cooperation Value-for-Money review

Purpose of Review

Target date

Current status

Development cooperation Ireland’s emergency humanitarian assistance for a specific disaster (tsunami)

To analyse what has been achieved with Irish aid support for the tsunami-affected countries.

12/2006

report completed and published

to evaluate the relevance, effectiveness, efficiency, sustainability, attentiveness to crosscutting issues and management of Irish Aid’s tsunami response programme.

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the irish yearbook of international law 2008

Vote 29 – International Cooperation (cont): Value-for-Money review

Purpose of Review

Target date

Current status

HIV/AIDS budget line

To (i)  inform Irish Aid and the Irish Oireachtas on:

12/2008

report due to be published by mid2009

the overall quality of Irish Aid’s HIV/AIDS response; the management of Irish Aid’s2000–06 HIV/ AIDS 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

appendix 5  rep ort on regulatory impact assessment Legislative Programme 2008 Passports Act 2008 – No 4 of 2008 The new Passports Act completed its passage through the Houses of the Oireachtas and was enacted in March 2008. The Act, which came into operation on 1 November 2008, provides a comprehensive legislative basis for the regulation and issuance of Irish passports by the Minister for Foreign Affairs. Two subsections of the Act (Sections 14(8) and 14(9)) will come into effect in 2009. 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. Cluster Munitions and Anti–Personnel Mines Act 2008 – No 20 of 2008 The principal purpose of the Cluster Munitions and Anti-Personnel Mines Act 2008 is to make it a criminal offence – subject to certain exceptions – to use, develop, produce, acquire, possess, stockpile or transfer cluster munitions, explosive bomblets or anti-­personnel mines, or to assist, encourage or induce any person to do so, and to provide for appropriate penalties, as required by the Convention on Cluster Munitions and the Anti-Personnel Mine Ban Convention. The Convention on Cluster Munitions was adopted at a diplomatic conference hosted by the Government of Ireland in Dublin from 19 to 30 May 2008. The Act also makes provision in relation to the investment abroad of public monies in companies that produce cluster munitions or anti-personnel mines. As the purpose of the Act is to implement the two international conventions concerned, no Regulatory Impact Assessment was necessary.



department of foreign affairs annual report 2008

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Note on Lisbon Treaty Legislation The 28th Amendment of the Constitution Bill was published on 4 March 2008. The Bill contained the text of the proposed amendments to the Constitution to allow the State to ratify the Treaty of Lisbon. The Bill was initiated in the Dáil on 6 March 2008. It was debated between 6 March and 7 May and adopted by both houses of the Oireachtas. The referendum took place on 12 June when the proposed amendment was rejected, ending the legislative process. An RIA was not required for this Bill. SIs Prepared by the Department in 2008 No 412 of 2008 The Passports Act 2008 (Commencement) Order 2008 No 413 of 2008 The Passports (Appeals) Regulations 2008 No 414 of 2008 The Passports (Periods of Validity) Regulations 2008 A regulatory impact assessment had previously been undertaken on the Passports Bill and the purpose of the associated regulations was to bring the legislation into effect and to address associated matters of minor detail and procedure. Accordingly, it was not necessary to undertake a further regulatory impact analysis on these statutory instruments. No 220 of 2008 Child Abduction and Enforcement of Custody Orders Act 1991 (Section 4) (Hague Convention) Order 2008 The statutory instrument related to the Hague Convention was not deemed to be significant for the purposes of triggering a regulatory impact assessment, as it does not involve any costs, and its purpose, is, in fact, to facilitate a more efficient application of the said Convention within Ireland.

Department of Foreign Affairs Statement of Strategy 2008–10 mission statement The Mission of the Department of Foreign Affairs is to advance Ireland’s values and interests within Europe and in a changing world; to promote peace, human rights, the rule of law and sustainable development internationally; to protect our citizens abroad; and to support lasting reconciliation on this island. Contents Foreword by the Minister for Foreign Affairs Introduction by the Secretary-General of the Department of Foreign Affairs High Level Goals Part 1: Introduction Part 2: Objectives, Strategies and Performance Indicators Part 3: Implementation/Delivery Annex: Cross Departmental Issues

foreword by the minister for foreign affairs, mr micheál martin, td This Statement of Strategy sets out the high Level Goals for the Department of Foreign Affairs, as well as the strategies we will employ to make progress towards those goals. The text is, I think, both clear and readable. By setting out clearly what we will do, we are well placed to work with and on behalf of Irish citizens. Such accessibility to citizens is essential to the proper functioning of any Government Department. The environment in which the Department works is constantly changing. We are influenced by external factors perhaps more than any other Department and we must adapt to that changing environment, in order that we continue to serve the interests of Irish citizens and Irish business. In such a fast changing environment, we must stay true to the core fundamentals of our foreign policy: the promotion and protection of human rights, the peaceful settlement of disputes and the promotion of the rule of law. As a small country, we can make the biggest impact in these areas by working through the United Nations and the European Union. We want to see a strong United Nations, supported by its members in fulfilling the tasks it has been set by those same members. While we have seen some progress in UN reform in recent years, it is still a work in progress. Ireland will continue to play a lead role in the reform process.

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the irish yearbook of international law 2008

Ireland’s position within the European Union is changing, both as a result of our own success and because of the changed dynamics of the enlarged Union. An effective and well-functioning Union remains critical to achieving our goals both at home and on the international stage. My Ministerial colleagues and I argued strongly for a Yes vote in the Lisbon Treaty referendum. We must now, of course, respect the outcome. We must also work for a way forward that keeps Ireland at the heart of Europe and thus protects our essential interests. The Department of Foreign Affairs will have a critical role to play in this regard. In a globalised international environment, the Department of Foreign Affairs has an essential role to play in raising awareness of Ireland as a location for inward investment and seeking out markets for Irish goods and services. We will be vigorous in our pursuit of these interests, including through our network of diplomatic missions and through organising high-level inward and outward visits. Consolidating peace on our island and continuing to strengthen relationships between North and South, and as well as between communities, remains a core objective for the Department. With the enormous progress of recent year, there are new opportunities for cooperation which will benefit both parts of this island. However, significant challenges remain, such as continuing sectarianism and the legacy of the past. The Good Friday Agreement will guide our work in all of these areas. We have begun to develop a distinctive Irish contribution to conflict resolution, in part drawing on our own experiences on this island. I know that to achieve lasting results will require time and the investment of resources. We will build up our capabilities in this area, making use of the full range of instruments available to us, including diplomatic and aid instruments. Earlier this year, in Dublin, agreement was reached on the first ever international instrument to ban cluster munitions. The challenge now is to build on this landmark achievement, by ensuring the early ratification and implementation of the Convention. The Irish Aid programme is an integral part of Ireland’s foreign policy. In September 2006, we published a White Paper on Irish Aid, which sets out our priorities and provides a yardstick against which our efforts can be measured. We will ensure that the Irish Aid programme maintains its reputation as one of the best official aid programmes in the world. In addition, in response to concerns we heard during the public consultation on the White Paper, we will redouble our efforts to inform the Irish public of the good work that is being done in their name, and with their money. Support for, and the protection of, Irish citizens abroad remains a particular priority for me. In July 2006, the Department organised the evacuation of Irish citizens from a crisis situation in Lebanon. We have now put in place the systems and structures to guarantee a similarly effective response to other consular crises in the future. On a day-to-day basis we will constantly review and update our processes so that we can continue to provide a first-class service to the travelling public. In a constantly changing international environment, we, as a Department and as a State, must remain flexible and agile, in order to respond to new challenges and grasp new opportunities. It is important that we challenge ourselves in this way so that we can continue to provide the best possible service to the Irish taxpayer. Mar Aire Gnóthaí Eachtracha, tá fúm an dul chun cinn atá déanta againn a neartú i ngach dóigh, chomh fada agus is féidir. Cheana féin, d’éirigh linn aontú a bhaint amach faoin gcéad ionstraim idirnáisiúnta chun lón cogaidh chnuasbhuamaí, nó



department of foreign affairs statement of strategy 2008–10 

cluster bombs i mBéarla, a chosc ag cruinniú i bPáirc an Chrócaigh a bhailigh breis is céad tír le chéile. Ba mhaith liom an dul chun cinn céanna a fheiceáil i ngnéithe eile de bheartas eachtrach an phobail, agus déanfaidh mé mo dhícheall pearsanta, le cuidiú ó Dick Roche, Peter Power agus ón Roinn anseo, é seo a chur i gcrích. Mar a dúirt mé i nGaeilge thuas, I look forward together with my Ministerial colleagues Dick Roche TD, Minister of State for European Affairs, and Peter Power TD, Minister of State for Development Cooperation, to working with the staff of the Department to deliver the challenging, but realistic, agenda of work we have set out in this document. introduction by the secretary-general of the deparment of foreign affairs, dermot gallagher Our Statement of Strategy is a guide to our work programme for the next three years for citizens and for external observers. It is also a guide for those of us working in the Department; in it we set clear targets for our work and outline the paths we will take to achieve those targets. In some respects, three years is a very short time in the life of a Government Department. However, with ambition and effort, much can be achieved. Significant achievements for the Department over the last three years include: •  Advancing political progress in Northern Ireland, which paved the way for the restoration of the institutions of the Good Friday Agreement. •  Publishing a White Paper on Irish Aid. •  The development of one of the most advanced passports in the world, as part of our ongoing efforts to improve services to Irish citizens travelling abroad. •  The establishment of a Conflict Resolution Unit in the Department. In addition to delivering on these planned activities, we have also had to react to the unexpected. For example, our response to the Asian Tsunami, both in terms of support to Irish citizens and our aid to those in need, was swift and effective. It also precipitated the development of an enhanced capability to respond to major humanitarian emergencies. In dealing with both the expected and the unexpected, our achievements have paved the way for us to tackle new challenges and make further progress in the future. This Statement of Strategy sets out our plans in this regard. It is important to stress that we do not work in isolation. We work with other Government Departments, State Agencies and non-governmental organisations. Our network of missions abroad is a resource for the Government as a whole, as well as for Irish citizens The Statement of Strategy sets out a challenging programme of work for the coming years. We will ensure that the people and systems are in place to deliver on that programme, ensuring the effective and efficient use of the resources available to us. The Department’s most valuable resource is its people and we will support the members of our team in developing their skills for the benefit of our customers, the people of Ireland. The preparation of the Statement of Strategy was a collaborative exercise, bringing together people from all parts of the Department and I want to thank them for their hard work.

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the irish yearbook of international law 2008

I look forward to working with all of my colleagues, and with our partners both inside and outside the Government system, in advancing the six high-level goals we have set for the years ahead.

high level goals 2008–10 In the context of implementing the commitments outlined in the Agreed Programme for Government (June 2007), the Department’s High Level Goals for the period 2008– 10 are to: Contribute to international peace and security, promote conflict resolution, respect for human rights and the rule of law, and support effective common strategies to address global challenges.

Promote the full implementation of the Good Friday Agreement by supporting the effective operation of its institutions, strengthening North/South cooperation and working for lasting reconciliation.

Deliver on the commitments in the White Paper on Irish Aid through reducing poverty, supporting sustainable development and promoting development cooperation as an integral part of Ireland’s foreign policy.

Promote Ireland and its bilateral relations with other countries; advance our economic interests and enhance our cultural profile overseas

Secure Ireland’s interests in the EU and contribute fully to the Union’s future development.

Provide a high quality passport and consular service to all Irish citizens and actively engage with our Diaspora.

part 1 introduction structure of statement This Statement of Strategy sets out the Department of Foreign Affairs’ strategic priorities over the next three years, building on the commitments contained in the Agreed Programme for Government. •  Part (1) describes our role and how the Department is organised and structured. •  Part (2) presents our six High Level Goals (HLGs) for the period 2008–10, taking close account of the Agreed Programme for Government. Each HLG is reviewed in terms of the environment within which we operate and the known challenges and opportunities facing the Department over the period ahead. Under each HLG, specific objectives and the supporting strategies are defined, as well as specific performance indicators to facilitate reviews of progress achieved. •  Part (3) of this Statement describes how the Department will manage its resources and develop its capabilities over this period to support the implementation and delivery of our stated objectives. The Role of the Department The Department advises the Minister for Foreign Affairs, the Minister of State for European Affairs, the Minister of State for Development Cooperation, and the



department of foreign affairs statement of strategy 2008–10 

Government on all aspects of foreign policy. It formulates and coordinates Ireland’s EU policies and its response to international developments; provides advice and support on all issues relating to Northern Ireland, to cooperation between North and South on the island, and to enhancing Ireland’s relationship with Britain; and administers the Government’s programme of development assistance. The Department also has responsibility for providing passport services and consular assistance to Irish citizens abroad. Organisation 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 (Development Cooperation). The SecretaryGeneral is supported by a Management Advisory Committee (MAC) comprising the Heads of the main Divisions in the Department. The Department currently comprises 10 Divisions at headquarters (HQ) and a total of 75 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. The Department has its Headquarters in Iveagh House, St Stephen’s Green, Dublin. The Development Cooperation Directorate is, however, in the process of decentralising to Limerick, while certain other Divisions of the Department are based in other locations in central Dublin. Our Passport Offices are located in Dublin, Balbriggan and Cork. The Department currently has a staffing complement of approximately 1260 staff, of which approximately 900 are based in Ireland and approximately 360 are based at our Missions abroad at any one time. We also employ approximately 300 members of locally recruited staff at our Missions abroad. The Department Abroad Ireland’s diplomatic missions and consular offices are dedicated to the pursuit of Ireland’s interests abroad and to enhancing its international profile. They are the external offices of the State, promoting Government policies and participating in the work of international organisations. Diplomatic relations are maintained with a total of 167 countries, through either resident or non-resident Ambassadors. We currently have a network of 75 resident diplomatic and consular missions abroad comprising: •  57 Embassies •  Six multilateral Missions (to the EU, the UN in New York and Geneva, the OSCE, the OECD and UNESCO, the Council of Europe) •  Eight Consulates General and four other offices. In addition, we have an extensive network of Honorary Consuls General (21) and Honorary Consuls (67) who provide assistance to Irish citizens in 59 countries, together with an Honorary Consular Agent in Bahrain. The Department’s network of diplomatic and consular missions is uniquely placed to perform a diverse range of representational, promotional and reporting functions. They: •  Present and advance Ireland’s interests in multilateral fora and organisations, including the EU and UN;



the irish yearbook of international law 2008

•  deepen Ireland’s relations with host governments and advance our international priorities and objectives; •  report on political, economic, legal, commercial and, as appropriate, EU developments; •  advance Ireland’s economic interests through working with others in the public and private sectors to expand trade and tourism, and to highlight the benefits of inward investment in Ireland; •  oversee the implementation of programmes in developing countries funded by the Government’s overseas development programme Irish Aid; •  provide assistance to Irish citizens abroad and strengthen contact with local Irish communities; and •  promote Irish culture and disseminate information on Ireland. Further information about the structure and work of the Department, including contact details for Irish Embassies and Consulates, can be found on our website: www.dfa.ie. Detailed information about the Irish Aid programme, which is managed by the Department of Foreign Affairs, is available on www.irishaid.gov.ie. part 2 – objectives, strategies and performance indicators 2008–10 High Level Goal 2008–10 To contribute to international peace and security, promote conflict resolution, respect for human rights and the rule of law, and support effective common strategies to address global challenges. Context and Environment Irish foreign policy is based on the core principles of promoting human rights, the rule of law, the peaceful settlement of disputes, and disarmament and non-proliferation. These mutually reinforcing pillars will continue to guide our work and our relations with key partners over the years ahead. However, we are also subject to influence from external factors. We must continue to evaluate and develop our foreign policy, so that we can respond effectively to this constantly changing environment. Ireland’s tradition of neutrality is itself a resource. It gives us a standing and a credibility in our dealings with partners and international organisations. We will make that credibility count. Over the three years covered by this Statement of Strategy, Ireland, together with our EU partners and the wider international community, will be presented with increasingly complex global challenges. Unfortunately, some of these challenges, such as the ongoing humanitarian and political crisis in Darfur and the situation in the Middle East, are all too well known and will remain prominent on both the EU and international agenda. However, as an integral part of a coherent and comprehensive foreign policy, we must also develop an effective response to new twenty-first century challenges which threaten international peace and security, including international terrorism, energy



department of foreign affairs statement of strategy 2008–10 

Organisation Chart Mr Dick Roche TD

Organisation Chart Minister for European Affairs Mr Dick Roche TD Minister for European Affairs

Mr Michéal Martin TD Minister for Foreign Affairs Mr Michéal Martin TD Minister for Foreign Affairs Mr Dermot Gallagher Secretary-General

Mr Peter Power TD Minister for Overseas Development Mr Peter Power TD Minister for Overseas Development

Mr Dermot Gallagher Secretary-General Development Cooperation Anglo-Irish Division Corporate Services Division Division Director- General Head of Corporate Services: Director- General: Mr Patrick Hennessy Mr Adrian O’Neill Development Mr RonanCooperation Murphy Anglo-Irish Division Corporate Services Division Division Director- General Head of Corporate Services: Director- General: Mr Patrick Hennessy Mr Adrian O’Neill Inspection Unit Mr Ronan Murphy Legal Division European Union Division DirectorGeneral: Legal Adviser: Director- General: Mr John Neary Ms Patricia O’Brien Mr Dan Mulhall Inspection Unit Legal Division European Union Division Director- General: Legal Adviser: Director- General: Mr John Neary Ms Patricia O’Brien Mr Dan Mulhall Passport and Consular Political Division Division (including the DirectorGeneral: Irish Abroad Unit) Mr Rory Montgomery Passport and Consular Director- General Political Division Division (including Ray Bassett the Director- General: Irish Abroad Unit) Mr Rory Montgomery Director- General Promoting Ireland Ray Bassett Protocol Division Abroad Division Chief of Protocol: Director- General: Ms Kathleen White Promoting Ireland Ms Mary Whelan Protocol Division Abroad Division Chief of Protocol: DirectorGeneral:global public health and pandemics such as HIV/AIDS or avian security, migration, Ms Kathleen White Ms Mary Whelan influenza. We will do so through our membership of the EU and by working to enhance

the effectiveness of our contribution to international and regional organisations of which we are members. Active involvement in the UN remains a cornerstone of Ireland’s foreign policy. The central role of the UN system in safeguarding international peace and security, and leading the effort to overcome poverty and under-development, remains clear. The UN also has a leading role to play in developing an effective international approach to global challenges such as combating climate change. However, important institutional

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the irish yearbook of international law 2008

and organisational issues, including the reform of the Security Council, remain unresolved and the effectiveness of the recently established Human Rights Council and Peace-building Commission remain to be demonstrated. Strengthening the UN to ensure that it has the capacity to fulfil its responsibilities and to act effectively will continue to be a leading Irish priority for the period ahead. The promotion of disarmament and non-proliferation will remain a core activity for the UN and a priority for Ireland. One of the main challenges in the period ahead will be to achieve progress in the lead up to the Review Conference of the Nuclear Non-Proliferation Treaty in 2010. Ireland’s foreign policy objectives are also advanced through our active partici­ pation in the EUs Common Foreign and Security Policy (CFSP). We will continue to promote EU engagement in efforts by the international community to secure lasting and peaceful resolutions to the ongoing crises in the Middle East, Africa and elsewhere. In this context, we expect the period ahead to see strengthened cooperation between the EU, the UN and regional organisations, such as the African Union, who have an increasingly important political and peace-keeping role to play throughout the world. 2008–10: Objectives, Strategies and Performance Indicators Objectives

Strategies

Work to make the United Nations and other multilateral institutions more effective in facing global, regional and development challenges.

Uphold the primary responsibility of the United Nations Security Council for the maintenance of international peace and security. Coordinate closely with other Government Departments and relevant actors to ensure an active, positive and coherent Irish contribution to the work of the UN, the OSCE and the Council of Europe. Support effective implementation of recent reforms of the UN system, and envisaged further reforms. Support the work of regional organisations, such as the African Union. Support efforts to ensure improved coherence and effectiveness in UN development activity, in particular at country level.

Contribute to effective action through the EU Common Foreign and Security Policy (CFSP) in promoting international peace and security.

Ensure that the EU remains actively engaged in furthering the search for lasting peace and stability in areas of conflict and instability including Burma, Iran, the Middle East, Sudan/Darfur, Western Balkans, and Zimbabwe.

Develop a distinctive Irish contribution to international conflict resolution and peacebuilding.

Increase Ireland’s profile through enhanced support for international efforts to promote conflict resolution, including initiatives of the UN, EU and African Union (AU). Strengthen Irish resources for engagement in conflict resolution.



department of foreign affairs statement of strategy 2008–10  In coordination with the Department of Defence, seek to ensure that Ireland continues to make a significant contribution to international peace and security through UN-mandated peace support operations. Promote respect for and protection of human rights and the rule of law.

Participate actively in the work of the UN Human Rights Council, the Third Committee of the General Assembly and the Assembly of States parties to the International Criminal Court. Continue to support the UN High Commissioner for Human Rights and international criminal justice initiatives. Contribute to the activities of the Council of Europe and OSCE, with particular reference to setting and monitoring human rights standards in Europe and supporting the consolidation of democracy in the OSCE area. Represent Ireland effectively before the European Court of Human Rights in legal proceedings and before the Treaty Monitoring Bodies under the UN Human Rights Conventions in individual complaints mechanisms. Strengthen the relationship between the Department and civil society organisations working in this area, in particular through the Joint Standing Committee on Human Rights. In our development cooperation programme, we will provide support to strengthen democracy, human rights and good governance, working with both governments and civil society, in developing countries.

Promote disarmament and non-proliferation.

Work to achieve a positive outcome to the 2010 Review Conference of the Nuclear Non-Proliferation Treaty and to promote the New Agenda for a nuclearweapons-free world. Work for universalisation and implementation of international conventions on chemical and biological weapons. Work for early entry into force and universalisation of Convention on Cluster Munitions agreed in Dublin in May 2008.

Key Performance Indicators •  Extent to which Ireland’s foreign policy is reflected in the outcomes of our participation in international and regional fora. •  Active EU engagement with the wider international community in efforts to secure lasting peace and stability in areas of conflict and crisis. •  Enhanced support and Irish resources for international conflict resolution efforts. •  Irish contribution to UN-mandated peace support operations.

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the irish yearbook of international law 2008

•  Enhanced liaison and coordination arrangements with our Missions abroad, other Departments, State Agencies and other relevant bodies, to ensure Ireland’s interests are well represented in international bodies. •  Timely and accurate reports to Treaty Monitoring Bodies under the Human Rights Conventions. •  Effective representation of Ireland’s position before the European Court of Human Rights and Treaty Monitoring Bodies. •  Strengthened relationship with civil society through the Joint Standing Committee on Human Rights and other outreach initiatives. •  Ratification and implementation of Cluster Munitions Convention agreed in Dublin in May 2008.

high level goal 2008–10 To deliver on the commitments in the White Paper on Irish Aid through reducing poverty, supporting sustainable development and promoting development cooperation as an integral part of Ireland’s foreign policy. Context and Environment The Irish Aid programme is clearly focused on poverty reduction, with the aim of reducing vulnerability and increasing opportunity for the world’s poorest people. The size and scale of the programme is currently expanding at a rapid rate, in line with the Government’s commitment to reaching the United Nations target of spending 0.7 per cent of Gross National Product (GNP) on Official Development Assistance (ODA) by 2012, and will reach 0.54 per cent in 2008. The growth of the programme is taking place against a background of consensus on international aid goals, commitments and measurable benchmarks. We strive to achieve our operating objectives in a number of different geographical locations but have a particular focus on Africa, which is the continent with the most resilient and enduring poverty. Our traditional areas of activity, such as the provision of basic healthcare and education, and swift effective response to emergencies will be maintained in the period ahead. However, the new resources available to the programme will allow us to explore new areas of activity, such as increased funding for fragile states and states recovering from conflict and exploring the role of information and communications technology (ICT) and the private sector in promoting growth and reducing poverty in developing countries. Development cooperation is a whole of Government matter and our policies and actions must reflect and be reflected in the work of all Government Departments. Ensuring this coherence of approach, nationally and internationally, is a challenge for the Department. In the wider context, a particular challenge for the UN, the international community and the Governments of the developing world, in the period ahead, will be to accelerate progress towards achievement of the Millennium Development Goals (MDGs). These Goals provide the benchmark against which the international community, the Governments of the developing world and development agencies can be judged in relation to their commitment and drive to reduce poverty and inequality in the world.



department of foreign affairs statement of strategy 2008–10 

The White Paper on Irish Aid, published in September 2006, provides an overview of the principles that underpin the aid programme. It clearly sets forth the vision of the expansion of the programme, provides a framework to guide future expenditure and offers a clear benchmark against which our performance can be measured. The expansion of the Irish Aid programme presents enormous opportunities to make a real difference to the lives of millions of poor. However, it also presents significant challenges. Careful planning is essential to ensure optimal impact, value for money and accountability. A fundamental Management Review of the programme is underway, examining the organisational, structural, financial and administrative systems of Irish Aid in the context of anticipated growth of the programme. The review will be completed in the summer of 2008. 2008–10: Objectives, Strategies and Performance Indicators Objectives

Strategies

Increase level of Official Development Assistance (ODA) to 0.7 per cent of Gross National Product (GNP) by 2012 and maximise the effectiveness of the Irish Aid programme.

Continued progress in increasing the budget incrementally towards the 0.7 per cent of GNP target. Strengthened planning, implementation and review processes to ensure effective use of resources, optimal impact and value for money.

Work with governments and other partners to reduce poverty and enhance opportunity in the developing world, with a particular focus on Africa and in line with the Millennium Development Goals.

In our Programme Countries, we will ensure that our Country Strategy Papers, negotiated and approved with partner governments and donor partners, have a clear focus on the reduction of poverty. We will work closely with Non-Governmental Organisations (NGOs) and other international development agencies in their efforts to reduce global poverty, with a particular focus on Africa. We will increase the number of Programme Countries from the present nine to a minimum of ten.

In line with best international practice, work to prevent and respond effectively to humanitarian emergencies.

We will provide flexible and timely funding to local, Irish and international organisations that demonstrate a clear capacity to provide effective humanitarian assistance in a manner that is responsive to local needs and adheres to humanitarian principles. We will ensure the effective operation of the Rapid Response Initiative (RRI), including the timely deployment of members of the Rapid Response Corp and the pre-positioning of humanitarian supplies for delivery to disaster areas.

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the irish yearbook of international law 2008

Particular attention will be paid to HIV/AIDS, and also to the other issues of gender, environment and governance in the planning, implementation and evaluation of all of our policy interventions.

Provide funding of €100mn per year to reduce the impact of HIV/AIDS and other communicable diseases in the developing world, with the overall aim of reducing poverty and vulnerability. We will actively contribute to the global response to HIV/AIDS and other communicable diseases, working at international, national and local levels.

Increase public awareness and ownership of the Irish Aid programme and provide improved information on volunteering options to members of the public.

We opened Irish Aid’s first Public Information and Volunteering Centre in O’Connell Street, Dublin in January 2008. We will work on ensuring that the Centre will have a national reach by encouraging school visits and by promoting it as a space for development related events. The Irish Aid website will be expanded and publications will be developed in relation to exhibitions at the Centre. We will explore options on opening Centres in other locations. The experience of the Dublin Centre will inform our approach in this regard.

Key Performance Indicators •  Level of ODA at 0.6 per cent of GNP by 2010 and at 0.7 per cent of GNP by 2012. The annual Budget Statement will report on progress to date. •  Strong evaluation and lesson learning culture through regular audit and review of Irish Aid and its partners. •  Country Strategy Papers developed for all programme countries with clear focus on poverty reduction and strong partnerships in place with NGOs, civil society and other international organisations, including the UN. •  Progress in Millennium Development Goal indicators. •  Tenth Programme Country chosen. •  Timely and flexible funding provided to key humanitarian partners. •  Humanitarian supplies pre-positioned at the Curragh and Brindisi, Italy and transported when required to disaster areas. Rapid deployment of the Rapid Response s to affected areas. •  Effective allocation of resources for the fight against HIV/AIDS and other communicable diseases and the effective integration of these concerns in interventions in other areas such as health and education. •  Growing engagement in relation to food security and economic growth. •  Increased public awareness of the Irish Aid programme and volunteering opportunities. •  Publication of an Irish Aid ‘Operational Strategy’ based on this Statement and the White Paper on Irish Aid. •  Completion of Management Review and steps taken to ensure the continued effective management of the programme thereby ensuring a world class programme into the future.



department of foreign affairs statement of strategy 2008–10 

high level goal 2008–10 To secure Ireland’s interests in the EU and to contribute fully to the EUs future development. Context and Environment The period covered by this Statement of Strategy is likely to be one of significant change for the European Union of 27 Member States in an era of globalisation. It will be necessary to deal with the implications for Ireland and the EU of our referendum on the Lisbon Treaty. The result of the referendum of 12 June 2008 has created a complex and uncertain environment for Ireland’s EU policy. This new environment poses great challenges in the pursuit of our High Level Goal of securing Ireland’s best interests in a changing European Union. In the immediate term, the task facing the Department is to manage relations with our EU partners as we seek an agreed way forward. In the search for a way forward, it will be necessary to deepen our understanding of the factors that shaped the outcome of the referendum and to identify in particular: •  the factors that shaped voting decisions and the outcome of the referendum; •  other EU-related issues that are of concern to the Irish electorate; and •  the public attitude to the EU and Ireland’s future role within the Union The Department has commissioned a research project in order to understand better the current state of national opinion about the EU, including about the future direction of the Union. The project will also analyse the factors driving public attitudes and how these concerns can be addressed, including through new approaches to promoting awareness of, and information about, the EU. This work will provide a platform from which to devise a strategy capable of keeping Ireland at the heart of the EU in the years ahead. It should be recalled that there is broad public acceptance of the extent to which Ireland has benefited from our membership of the Union. The Union’s achievements in providing economic stability, reinforcing cultural, social and environmental development, and contributing to securing peace in Northern Ireland are also widely acknowledged. At national level, good coordination and information sharing both within the Department and with other lead Departments on cross-cutting issues will be essential. In the coming years, the EU increasingly will be required to develop responses to complex global challenges, including climate change, international terrorism, energy security, migration, global public health and pandemics. We will need to enhance our dialogue with all relevant stakeholders and to incorporate these issues into our diplomatic activities at a European and wider international level. A critical priority will be to ensure that the Department of Foreign Affairs continues to feed into the national policy formation process relevant information from Ireland’s network of diplomatic Missions. The coming years will also require concerted support from Headquarters for the work of our EU-based Embassies, and of the Irish Permanent Representation to the EU in Brussels, in their vital efforts to represent Ireland’s interests effectively vis-a-vis our EU partners and the EU institutions.

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the irish yearbook of international law 2008

2008–10: Objectives, Strategies and Performance Indicators Objectives

Strategies

To advance Ireland’s overall position, and particularly our major interests, within the European Union.

Continue to represent Ireland’s interests within the EU, including on issues arising from the referendum on the Lisbon Treaty. Respond to, key policy developments in Member States and within the EU institutions, particularly in relation to major issues such as, Common Agricultural Policy (CAP), taxation, climate change, and the future financing of the Union. Work with other Departments to ensure coherent approaches on major issues at EU level and quality communications about key issues at home. Contribute fully to EU discussions on WTO, enlargement policy and coordinate our national positions.

To deepen public understanding of the EU and to maximise public support for Ireland’s role in the Union.

Commission comprehensive research to understand better the reasons underlying the electorate’s rejection of the proposed constitutional amendment to permit ratification of the Lisbon Treaty, as well as trends in the public’s perceptions of Ireland’s EU membership. Integrate key findings from this study into on-going communications with our citizens about Ireland’s role within the European Union. Reinforce Communicating Europe scheme to better highlight Ireland’s role in the EU and the EU’s continued relevance to Ireland’s future development. Support the work of the National Forum on Europe and other bodies in encouraging public interest in, and engagement with, European issues.

Contribute to the development of coherent and effective EU external policies.

Cooperate closely with other relevant actors to ensure a positive, active and coherent Irish contribution to the further development of EU Common and Foreign Security Policy (CFSP). Contribute actively to the development of the European Security and Defence Policy (ESDP), in cooperation, particularly, with the other nonmilitarily aligned Member States.

To ensure that the EU’s response to emerging global challenges is effective and aligned with Irish interests.

Work with other stakeholders to ensure coherent Irish approaches to EU discussions on emerging issues including climate change, migration, terrorism, energy security, sustainable development, Trade Policy, and that Irish interests in these issues are taken into account in EU action at an international level.



department of foreign affairs statement of strategy 2008–10 

Key Performance Indicators •  Research carried out to establish reasons underlying the result of the referendum on the Lisbon Treaty ratification and conclusions drawn from this analysis •  Increased public awareness of Ireland’s role in the EU. •  Production and dissemination of informational material on EU issues. •  Irish policies advocated effectively at all levels within the EU – from Summits of EU leaders to meetings of national delegates. •  The provision of quality reports from our EU Missions and properly-focused briefs to Taoiseach, Ministers and Government. •  Completion of a satisfactory programme of high level meetings with European partners. •  Regular interdepartmental coordination, contact and meetings. Focused and effective follow-up by the Department and Missions. high level goal 2008–10 To promote the full implementation of the Good Friday Agreement by supporting the effective operation of its institutions, strengthening North/South cooperation and working for lasting reconciliation. Context and Environment The restoration of the institutions of the Good Friday Agreement in May 2007, after more than four years in suspension, has unlocked new opportunities for the development of relations on our island. Our primary objective for the period of this Statement of Strategy is to deliver on the full potential offered by this welcome progress. This will be achieved by supporting the stable and effective operation of its institutions, strengthening North/South cooperation and working for lasting reconciliation between the two main traditions on this island. A priority will be to ensure the successful transfer of policing and justice powers from Westminster to the devolved institutions. Consolidation of support for policing and justice, particularly at the local level, will underpin long-term stability and public confidence. The opportunity now exists to further develop trust and enhance partnership and cooperation, including through the North–South Ministerial Council, with a view to delivering practical benefits to people on both sides of the border. The National Development Plan sets out an ambitious programme of North/South cooperation. The task now is to ensure all stakeholders, North and South, can shape a shared agenda and enjoy the benefits of closer cooperation. The years ahead also offer new scope to build lasting reconciliation. Moving forward on issues arising from the difficult legacy of the conflict, including those related to victims, parades, sectarianism, continued security normalisation and tackling residual paramilitarism will be a priority. Dealing with the particular social and economic needs of border communities, in partnership with relevant Departments and agencies and through the framework of international funding instruments, will be an important aspect of our work over the years ahead. We will also work to build on a British-Irish relationship which has been deepened and strengthened in the joint pursuit of a peaceful and stable society in Northern Ireland.

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the irish yearbook of international law 2008

The political and economic support of the wider international community – including the United States and the European Union – will continue to be important in consolidating the new dispensation and promoting economic development and opportunity. In turn, this is an appropriate moment for us to seek to capture our own experience of the peace process in a way that allows us to contribute to the growing body of expertise in conflict resolution internationally. Our efforts will benefit from the establishment of the new Joint Committee of the Oireachtas to engage with and consider ongoing developments in the implementation of the Good Friday Agreement. 2008–10: Objectives, Strategies and Performance Indicators Objectives

Strategies

Support the stability and effective operation of all the institutions of the Good Friday Agreement and ensure the successful devolution of policing and justice powers.

Monitor and support progress within Northern Ireland, and maintain a comprehensive network of contacts in order to achieve maximum understanding of our respective viewpoints and policies. Support the work of the institutions through active participation in the North South Ministerial Council and British Irish Council and through the Secretariat of the British Irish InterGovernmental Conference in Belfast, in coordination with the Department of the Taoiseach and the Department of Justice, Equality and Law Reform. Promote agreement on the devolution of policing and justice powers.

Promote a strong partnership between North and South and contribute to prosperity for all the people of the island through developing the all-island economy and advancing North/South cooperation.

Enhance North/South cooperation including through the full and effective operation of the North–South Ministerial Council, and support progress on the establishment of the North–South Parliamentary Forum and the North-South Consultative Forum. Work with Government Departments to implement the all-island aspects of the National Development Plan 2007–13, and to deliver on agreed North/South investment projects.

Foster lasting reconciliation and mutual understanding, including through addressing post-conflict issues, combating sectarianism and tackling the particular social and economic needs of border communities.

Encourage and support reconciliation and cross-community initiatives, through the Reconciliation Fund, and the new Anti-Sectarianism Fund including with a focus on isolated border communities. Work with relevant parties, including the British Government and the devolved institutions in support of confidence-building in the communities most affected by the conflict. Enhance cross-border mobility, improve infrastructure links and strengthen policy cooperation, including through the North-West Gateway Initiative. Continue to support the work of the International Fund for Ireland and EU Peace III in encouraging contact, dialogue and reconciliation on the island of Ireland.



department of foreign affairs statement of strategy 2008–10  Continue to strengthen and broaden the British-Irish relationship, while building on the sustained support of our international partners as well as engaging effectively in sharing lessons learned.

Work to further enhance British-Irish relations, developing new levels of cooperation in areas of shared interest, and promoting bilateral contacts at all levels, including through the activities of the Irish Embassy in London and the Consulates General in Cardiff and Edinburgh. Active engagement in and support for the British Irish Council to advance relations between these islands Foster relationships with international partners, in particular the US and the EU, in continued support of the devolved institutions and reconciliation and prosperity on the island of Ireland, as well as in lesson-sharing internationally.

Key Performance Indicators •  Enhanced relationships with representatives of all traditions in Northern Ireland and effective role in support of the devolved institutions. •  Successful and timely completion of St Andrews and British Irish Council (BIC) Reviews. •  Stable transfer of justice and policing powers from Westminster to the devolved institutions. •  Regular and effective meetings of the North/South Ministerial Council. •  Successful British Irish Council summits and meetings. •  Constructive engagement with international partners. •  Implementation of all-island aspects of National Development Plan. •  Delivery of effective funding support to projects fostering lasting reconciliation and mutual understanding. •  Delivery of practical measures in support of cross-border economic activity. •  Development of ‘lessons learned’ documents.

high level goal 2008–10 Promote Ireland and its bilateral relations with other countries; advance our economic interests and enhance our cultural profile overseas. Context and Environment Ireland’s continued prosperity depends on a stable international environment and strong bilateral relations. Enhancing political, economic and cultural links with our partners in the EU and the wider international community is central to our future development. In addition to multilateral cooperation, we need to pursue our foreign policy objectives and economic interests through strengthened bilateral relations with key partners. The United States will remain Ireland’s and the EU’s closest partner, both in terms of political and economic cooperation, and we will work to deepen this relationship in the period ahead. However, globalisation has resulted in the emergence of major new players on the international stage such as China and India. Russia has also re-emerged as a significant player. It will be important to strengthen engagement

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the irish yearbook of international law 2008

with these and other countries with a view to developing strategic partnerships based on shared values and goals. The Irish economy is one of the most open in the world. Increasing access to markets and attracting inward investment has been crucial to Ireland’s economic progress. Internationally traded services such as financial and computer services are increasingly important for both indigenous and foreign owned operations in Ireland. Today, market competition is becoming more intense as new technology fuels global trading and the development of new business models. To sustain our economic prosperity in this demanding environment, Ireland must make optimal use of its resources to meet the challenges and seize the opportunities presented by globalisation. We will continue to support the Government’s trade and investment objectives, and raise awareness of Ireland and its business potential abroad. The Government’s Asia Strategy has been a particularly successful instrument in delivering on these objectives in this region. We will now seek to mirror this success with the development of a strategic approach to our relations in the Gulf region. In cooperation with other Departments, State Agencies and the private sector, we will continue to promote Ireland as a preferred business partner and a world-class location for investment, scientific research and development. Ireland’s network of Embassies and Consulates is uniquely placed to advance our political and economic interests in developed and emerging markets and to raise our cultural profile overseas. Our diplomatic network is well-positioned to provide advance warning of regulatory trends in our major markets, and is a valuable source of contacts and market intelligence for Irish business entering the global marketplace. In developed markets, Embassies and Consulates assist in dealing with business environment and market access-related issues. In non-OECD countries, and especially in emerging economies where the State continues to play an important role in key sectors, the support and visible presence of a diplomatic Mission can have an appreciable impact in resolving problems and growing business. Irish culture enjoys a high profile internationally, which is further enhanced by the cultural activities of our Missions abroad. Cultural promotion will be an important catalyst in strengthening bilateral relations and increasing awareness of Ireland. 2008–10: Objectives, Strategies and Performance Indicators Objectives

Strategies

Develop Ireland’s bilateral relations – both within and outside the EU.

Organise high quality and targeted visits abroad by the President, the Taoiseach and Government Ministers, and visits to Ireland at Head of State and Government level with programmes which advance Ireland’s relations with the countries concerned. Represent Ireland’s interests in active bilateral dialogue with our EU partners through a systematic programme of regular contacts and visits by Irish Ministers to EU partners.



department of foreign affairs statement of strategy 2008–10  Promote Ireland’s economic and cultural interests overseas through focused use of all our resources, including in particular our network of diplomatic and consular missions abroad.

Raise awareness of Ireland as a business partner and as a worldclass location for investment, scientific research and development, education, and high technology, in cooperation with the relevant Government Departments and State Agencies. Implement the Department’s Guidelines on the economic and promotional work of our Missions abroad. Maximise the economic dimension of all relevant high-level inward and outward visits; in particular use the unique opportunity of Saint Patrick’s Day to raise awareness of Ireland overseas and enhance Ireland’s economic and cultural profile. Facilitate the conclusion of agreements of an economic nature in response to Irish business needs. Clearly establish Irish sovereign rights on the extended continental shelf by working to resolve maritime boundary issues with neighbouring states. Strengthen cooperation on cultural promotion with other relevant departments and agencies, notably Culture Ireland. Assist Missions abroad in the development of cultural programmes, including optimising the potential of the Irish College in Paris. Improve the effectiveness and impact of the operation of the Fulbright Exchange Programme. Promote the development of ‘Irish Studies’ in overseas third level institutions. Improve the information resources of Missions abroad by carrying out an information needs assessment and developing a strategic and integrated approach towards the supply of information materials.

Facilitate the development of trade and investment in emerging markets.

Implement the government’s Asia Strategy as it relates to the work of the Department of Foreign Affairs and our Missions in Asia and develop a strategic approach for the Gulf region. Develop Ireland’s trade and investment relationship with other emerging markets, in cooperation

Key Performance Indicators •  The number and quality of high level visits organised. •  The prioritisation within Business Plans of Embassies and Consulates of Ireland’s political and economic objectives. •  Efficient and effective coordination with all relevant stakeholders; positive feedback on the Department’s contribution to promoting Ireland’s economic and cultural interests overseas. •  Conclusion of international agreements of value to Irish business, eg Double Taxation Agreements, Air Transport Agreements, etc. •  Effective contribution to maintaining and extending access for Irish manufactured goods, services and food products. •  Continued support for the Government’s Asia Strategy through the facilitation of increased economic linkages. •  Effective contribution to further developing trade relations with the Gulf region and other emerging markets, particularly in relation to ICT and education.

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the irish yearbook of international law 2008

•  Effective contribution to the governance of the Irish College and of the Irish Cultural Centre in Paris. •  Improved operation of the Fulbright Programme in Ireland. •  Improved information resources for Missions abroad.

high level goal 2008–10 To provide a high quality passport and consular service to all Irish citizens and actively engage with our Diaspora. Context and Environment Irish people are travelling abroad in ever greater numbers to a wider variety of destinations, for both leisure and business purposes. In 2007 alone, Irish residents made almost eight million trips abroad. Continued affluence, strengthened business links abroad and ease of foreign travel means that this trend can be expected to continue for the foreseeable future. We will continue to provide a first class passport and consular service to Irish citizens and, where required, will further improve this service in the period ahead. The current Irish passport is internationally recognised as one of the most technically advanced and secure passports in use. The implementation of specific passport legislation during the lifetime of this Statement will give even greater certainty to the passport service and reduce the risk of passport theft and fraud. The increasing number of Irish citizens travelling abroad brings an inevitable increase in the demand for consular assistance and in the complexity of consular cases which we address. In addition to providing routine consular assistance, we need to be able to react efficiently and effectively to major international crises abroad involving large numbers of Irish citizens. The lessons learnt from our successful response to and management of the 9/11 tragedy, the Asian Tsunami and the 2006 war in Lebanon have helped us to establish a crisis planning system in line with best international practice. In the period ahead, we will work to further enhance our engagement with the Irish Diaspora. Our emigrants’ groups programme remains essential to addressing urgent needs among Irish emigrants. While the primary focus of the programme has been to support frontline information and welfare services for vulnerable Irish emigrants, increased resources have enabled the programme to expand to include a number of capital projects, as well as projects that foster a greater sense of community abroad, including support for social, sporting and heritage activities. Recent years have seen a rapid rise in the number of foreign nationals, requiring visas, who wish to visit and work in Ireland. Against this background, the risks posed by visa fraud will continue to present a key challenge for our diplomatic and consular Missions abroad. We will continue to work closely with the Department of Justice, Equality and Law Reform to assist them in providing a secure, fair and user-friendly visa system through our Missions abroad.



department of foreign affairs statement of strategy 2008–10  2008–10: Objectives, Strategies and Performance Indicators Objectives

Strategies

To provide an efficient, high quality and secure passport service to the public.

Continuously review and improve our service and productivity, taking account of customer feedback. Consider the recommendations of an independent Value For Money and Policy Review of the passport service. Codify and strengthen the legal framework for the passport service. Combat passport fraud.

To ensure that Irish citizens receive timely, courteous and effective consular assistance and service when required.

Improve quality and efficiency of the consular service provided, including at Irish Missions abroad. Increase public awareness of service available. Ensure that our crisis planning arrangements continue to be in line with international best practice.

To assist the Department of Justice, Equality and Law Reform in implementing a fair and secure immigration system.

Effective liaison with the Department of Justice, Equality and Law Reform. Efficient processing of visa applications in our Missions abroad.

To coordinate support for Irish organisations providing welfare to vulnerable Irish emigrants, and to work with voluntary agencies at home and abroad that assist Irish emigrants, including those who wish to return to Ireland.

Implement the recommendations in the Value for Money and Policy Review of the Support for Irish Emigrant Groups carried out in 2007. Coordinate with government departments and agencies providing services which impact on emigrants. Continue to work to resolve the position of the undocumented Irish in the United States and to establish arrangements for future migration flow between Ireland and the US. Enhance the capacity of the voluntary agencies to engage effectively with central and local authorities in their host countries. Encourage closer cooperation between statutory and voluntary agencies in Ireland and abroad. Ensure that funding is directed to organisations that reach the most vulnerable Irish people abroad, in particular the elderly.

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the irish yearbook of international law 2008

Key Performance Indicators •  Successful implementation of (voluntary) on-line registration for Irish citizens travelling or living overseas. •  Widespread distribution and public awareness of the Consular Charter. •  Roll-out of the Consular Database and Prisoners Database to be well advanced by end 2008. •  Rapid deployment of Emergency Consular Assistance Teams when required. •  Roll out of ‘Automated Visa Application Tracking System’ (AVATS) to Missions abroad by end -2008. •  Meet standards set out in the Department’s customer charter and its guaranteed passport service levels. •  Implementation of new Passports Act. •  Cooperation with the General Registrar’s Office and other State Agencies to strengthen safeguards against passport fraud. •  Ensure that the Irish passport continues to meet all International Civil Aviation Organization standards. •  Timely consideration of the recommendations of both the Value for Money and Policy Reviews of the Support for Irish Emigrant Groups and of the Passport Service.

part 3 implementation / delivery Critical Success Factors Successful delivery of our objectives is critically dependent upon the effective management of the Department’s resources and our ability to adapt and manage change. The major challenge over the three years ahead will be to maintain and improve upon existing levels of service within the limit of the resources available to the Department. Effective resource management encompasses a broad range of disciplines and tools: •  Human Resource Management •  Value for Money •  Information and Communications Technology •  Customer Service The Capacity to Deliver In a globalised world where events and contexts are constantly changing, it has never been more critical that the Department’s structures at Headquarters are fully appropriate to the tasks in hand; that its capabilities, at home and abroad, are sufficiently robust yet flexible to respond rapidly and effectively to the challenges and opportunities that arise; and that it has the right resources, in the right place and at the right time to deliver positive outcomes for the Government and for our citizens. In this regard, the Department constantly reviews and evaluates specific areas of its work with the objective of ensuring that the Department makes optimum use of its resources, both financial and human, in delivering its goals, objectives and priorities. Arising from the White Paper on Irish Aid, a Management Review of the systems and structures to deliver our aid programme is being completed this summer. Its outcome will be crucial to ensuring that the Department has the necessary structures, systems and resources to effectively manage the expanding aid programme in the years to come.



department of foreign affairs statement of strategy 2008–10 

Both the business planning arrangements and the performance management and development (PMDS) systems in the Department are important tools in ensuring that the organisation, at all levels, is fully focused on the achievement and delivery of the goals and objectives outlined in this Statement. Senior management is, therefore, committed to further enhancing the operation of these arrangements and procedures in the Department over the next three years. Enhanced coordination with all relevant Government Departments and State Agencies on cross-cutting issues is also essential to ensuring a strategic ‘whole of Government’ perspective to advancing Irish interests. Annex 1 identifies those issues where other Departments and/or agencies have a role to play and details the action required by us to ensure a joined-up approach. Human Resource Management In discharging its human resource management responsibilities, the Department recognises that the quality of its staff represents a major asset. We seek 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 1200 staff distributed across the world, we will continue to review and refine our Human Resource Management Strategy, policies and practices to optimise the performance and professional fulfilment of our staff. As part of continuing efforts to enhance staff development and performance, we will build on existing training programmes focused on our main business objectives. In addition, following renewed training of staff on the Performance Management and Development System, PMDS will be integrated fully into our human resource management and applied systematically across the Department. Under the guidance of the Management Advisory Committee, various components of Human Resource policy will continue to be developed in consultation with staff. Decentralisation Under the Government’s decentralisation programme, the Development Cooperation Directorate of the Department of Foreign Affairs, which is Irish Aid’s Headquarters, is decentralising to Limerick. In line with sanction from the Department of Finance, the total number of posts decentralising to Limerick is set at 138. Good progress has been made and personnel have either been assigned to, or identified for, 112 posts or approximately 81 per cent of the 138 posts scheduled to transfer to Limerick. The remaining 26 posts largely comprise the Development Specialist grades. An advance party moved to interim office premises in Limerick in 2007, with 60 officers currently in place. It is expected that the remaining staff of Irish Aid will transfer to Limerick in autumn 2008, on completion and fit-out of the new permanent offices. Strategies are in place to ensure continued operational effectiveness and service delivery during this period of change, including after decentralisation has been completed. Value for Money Our goal is to use the Department’s financial resources efficiently and effectively in pursuit of our strategic goals, ensuring value for money in both programme

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the irish yearbook of international law 2008

and administrative expenditure. The geographical reach of the Department, often resulting in relatively small expenditure at a large number of locations around the world, presents particular challenges in this regard, but they are challenges we can meet. The active pursuit of value for money will increasingly inform the work of the Department on a day-to-day basis. To this end, the Department has established a Procurement Management Unit, responsible for promoting a strategic approach to the achievement of value for money by integrating value for money principles within the Department’s management processes; developing and implementing an annual Corporate Procurement Plan; and, promoting best procurement and project management practices throughout the Department. We will continue to make use of specific Value for Money Reviews in areas of significant expenditure. Two such reviews – on the Passport Service and on expenditure in the fight against HIV/AIDS in developing countries – will be completed and published early in the period covered by this Statement of Strategy. Value for Money Reviews, and other independent evaluations, contribute both to accountability and lesson learning. In 2008, we will identify further areas of expenditure, across both of the Department’s Votes, which will be subject to further such reviews in the coming years. These exercises, including an Efficiency Review conducted in early 2008, will be used to continue to improve policy and business outcomes in the Department and to ensure that the work of the Department is benchmarked against best practice in the Public Service and internationally. In addition, an extensive programme of audit visits to our Missions abroad will continue to be undertaken annually. Considerable audit work will also be carried out with partners in receipt of development aid funding. The work of the Department’s Evaluation and Audit Unit will continue to be overseen by an independent Audit Committee. With 75 offices spread across the world, a major challenge for the Department is to maintain coherence and effectiveness across the organisation. Our internal inspection process will continue to play an important part in meeting this challenge. Over the lifetime of this Statement of Strategy, the Department will maintain a programme of regular and systematic inspection visits to Missions abroad to help ensure that their work contributes as effectively as possible to the achievement of the Department’s goals and objectives, that their resources are adequate for the task, and that their management systems and procedures are robust and efficient. Under the Management Information Framework (MIF), the Department has implemented a range of measures to ensure more efficient financial transactions and more effective use of resources, as well as to assist decision-making about resource allocation. With the implementation of the remaining objectives in the MIF Project Plan, we will make further progress in all of these areas. At the same time as working to achieve value for money, we must ensure that we can deliver on the Government’s policy priorities. This Statement of Strategy, by setting out performance indicators against which progress in achieving our goals can be measured, combined with the Department’s Annual Output Statement, will enhance the alignment of resource allocations to business priorities over the coming years.



department of foreign affairs statement of strategy 2008–10 

Customer Service The Department of Foreign Affairs has a diverse range of internal and external customers: •  Citizens at home and abroad •  Passport holders •  Irish business •  Government Departments •  State Agencies •  Other Governments •  Diplomatic Corp accredited to Ireland •  International Organisations •  NGOs We remain committed to providing the highest standard of service to all our customers, at home and abroad, in accordance with the principles of Quality 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 10 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. In line with Government policy of promoting evidence-based policy making, we will undertake Regulatory Impact Analysis (RIA) and make use of our statistical data in the preparation of all proposed primary legislation and significant statutory instruments. Together with the Government’s Better Regulation Unit, we will implement a strategy aimed at improving RIA awareness carried out in respect of the formulation of legislation and policies at an EU level. ICT The strategic deployment of information and communications technologies across the Department’s network of offices is an essential enabler in the achievement of business objectives. Recent years have seen significant investment in, and development of, the Department’s ICT infrastructure. The Department’s ICT Strategy 2007–2010 has identified the challenges and opportunities facing the Department. Work in the coming period will focus primarily on addressing the issues of effective information management and mobility requirements. Over the next three years, we will also seek to maximise the potential of our website as a primary public source of information on Irish foreign policy, Ireland’s treaty relations, services to Irish citizens and citizens of other countries interested in Ireland.

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the irish yearbook of international law 2008 annex

Cross Departmental Issues Issue

Other Departments/ Agencies Involved

Action required by DFA

International Relations

All relevant government departments, in particular D/Defence; D/Justice, Equality and Law Reform (D/JELR); D/Finance; the Office of the Attorney General

Develop Ireland’s contribution to international peacekeeping efforts Coordinate Ireland’s participation in humanitarian and peacekeeping operations subject to UN authorisation, government decision and Dáil approval Develop a coordinated approach to cross cutting issues arising in UN fora Coordinate ratification of UN conventions and implementation of UN Security Council Resolutions across departments Ensure that Ireland’s human rights commitments are implemented

International Peace and Security Conflict Resolution Rule of Law Global Challenges Human Rights

All departments, in particular D/JELR; National Consultative Committee on Racism and inter-culturalism; Irish Human Rights Commission

International Development and Cooperation Poverty Reduction

D/Agriculture, Fisheries and Food; D/ Environment, Heritage and Local Government; D/Health and Children; D/Enterprise, Trade and Employment

Continue to work towards the achievement of the Millennium Development Goals, in conjunction with other relevant departments

Sustainable Development

D/Environment, Heritage and Local Government

Promote sustainable development in national and international policy

Response to humanitarian emergencies

D/Defence and other relevant government departments

Effective operation of the Rapid Response Initiative (RPI), including the deployment of members of the Rapid Response s and the pre-positioning of humanitarian supplies

Promote Irish Aid and Development Issues

D/education and science

Coordinate material

All departments

Work with other Departments to ensure effective and coherent approaches within the EU

European Union Advance Ireland’s interests in the EU



department of foreign affairs statement of strategy 2008–10  Deepen public understanding of the EU

All departments, National Forum on Europe

Support the work of the National Forum on Europe and other bodies in encouraging public interest in, and engagement with, European issues

Northern Ireland and Anglo-Irish relations

All government departments, in particular D/ Taoiseach and D/JELR, and other relevant agencies; Joint Committee on the Implementation of the Good Friday Agreement

Actively participate in the North South Ministerial Council, BritishIrish Council and British-Irish Intergovernmental Conference

Strengthened North/South cooperation

All relevant departments

Work with government departments to implement the all-island aspects of the National Development Plan 2007–13, and to deliver on agreed North/South investment projects

Promote Ireland and its bilateral relations with other countries; advance our economic interests and enhance our cultural profile overseas

Aras an Uachtaráin, all government departments, Offices and State Agencies

Organise high quality and targeted visits abroad by the President, the Taoiseach and other Ministers, and visits to Ireland at Head of State and government level Maximise the economic dimension of visits Develop a systematic programme of regular contacts and visits by Irish Ministers to EU partners and other countries of key political, economic and cultural interest Participate actively in the Asia Strategy High Level Group and the Interdepartmental Group on Market Access for Food and Beverages

Services for Emigrants; Consular Services Coordinate support for Irish organisations providing welfare to vulnerable Irish emigrants and work with voluntary agencies that assist Irish emigrants

Various Departments

Coordinate with all relevant departments and agencies providing services which impact on emigrants

Visa Issues

D/JELR; D/ET&E

Ensure effective cooperation in relation to visa and work visa/authorisation matters

Statement by Mr Micheál Martin TD, Minister for Foreign Affairs to the 63rd Session of the General Assembly, United Nations Headquarters, New York, 29 September 2008 Mr President, Let me begin by warmly congratulating you on your election. You have my very best wishes for a successful term in office. Distinguished delegates, This is my first opportunity to address the General Assembly as Ireland’s Foreign Minister. It is a great honour and privilege to do so. Ireland believes strongly in the purposes, principles and potential of the United Nations. Formed in the shadows of global war, the United Nations embodies the idea of our common humanity. We have a shared interest as well as a moral obligation to act on that common humanity in the world. In this new century, when we speak of the ‘International Community’, it cannot be as a vague platitude or as a faceless scapegoat. Global challenges confront is-climate change, economic turbulence, food and energy prices, HIV/AIDS and terrorism among them. We can either be an international community passively divided and at the mercy of these forces, or we can be a community in the true sense of justice, our common desire for a better and peaceful future and a shared commitment to international law and to the human rights of all. The United Nations is the indispensable framework for realising the potential of that community, as it has shown again and again. Ireland is proud to have played its distinctive part in that history and we are absolutely committed to playing a full part in its future. And let us be clear, the challenges we face have intensified in the past year. Over the past period, we have witnesses the potential fall-out from the financial crisis for all countries, and not least of course, for the developing countries. The Depth of their concerns has been heard from this podium. We have all failed, as yet, to reach agreement on a balanced world trade deal. Rising fuel and food prices have exacted a particular toll on the world’s most vulnerable and poor. The effects of climate change, likewise, are placing a disproportionate burden on those least equipped to cope. More than half-way towards the 2015 target date for the Millennium Development Goals and despite significant progress in some areas, we have not made enough headway towards meeting them.

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The United Nations must continue to take the lead in this effort, while each of us, as political leaders, must recognise our duty to take effective action in support of goals that are only increasing in relevance and urgency.

un reform The world needs a strong and effective United Nations. That is why, as a committed Member State, Ireland has long supported efforts to reform and improve its operation. I very much welcome and appreciate the priority that Secretary-General Ban has attached to this task. As he said when he took up office, ‘the true measure of the success of the united Nations is not how much we promise, but how much we deliver for those who need us most’. Every Member State must play its part in ensuring that it can fulfil its role. Ireland is, therefore, proud of the contribution it has made to the reform process. Most recently, we were pleased to work closely with our good friends and colleagues from Tanzania, in facilitating consultation on greater System-wide Coherence in the United Nations, a vitally important part of the reform agenda. I would like to take the opportunity to express my deep appreciation of the constructive spirit in which Member States and UN agencies and staff approached the consultation process, chaired by Ambassadors Kavanagh and Mahiga. Their report was welcomed in the consensus resolution adopted by the General Assembly on 15 September. A lot, of course, remains to be done. We should not shy away from issues just because they are difficult to tackle.

peace and security Taking forward the reform agenda does not of course mean losing sight of the real strengths and achievements of the United Nations, especially in peace-keeping. This year marks the fiftieth anniversary of the first occasion on which personnel of the Irish Defence Forces wore the blue beret. In the five decades since, they have worn it with pride and distinction. I would like to take this opportunity to offer them, and those with whom they have served, my deepest personal gratitude. Of course, as the world continues to evolve, so will our approach to peace-keeping. Regional organisations, such as the European Union, can and should be expected to play an increasingly prominent role in undertaking Security Council-mandated operations. I am particularly pleased that one such mission, EUFOR in Chad, is under the very effective leadership of an Irish man, Lieutenant General Pat Nash.

conflict resolution Last year my predecessor expressed the hope that, after almost 40 years, it would no longer be necessary for Irish Ministers to brief this Assembly on the search for peace on the island of Ireland.



statement by mr micheál martin, 29th september 2008

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I am pleased to confirm that the task we now confront in Ireland is no longer building peace, but securing and underpinning it for the generations to come. Our history has, however, made us particularly conscious of the huge human cost of conflict, and the moral obligation we carry to prevent and to resolve it. We in Ireland owe a debt of gratitude to all in the International community who lent their support to our search for peace. In that search, we were genuinely part of a community-concentric circles of other Nations and international actors who provided goodwill and momentum, moral support, concrete assistance, independent mediation and facilitation when needed. Anchoring the process was a central partnership between the British and Irish Governments. So we know the good that can be done, and now feel a special duty to try to repay some of that debt in kind. That is why my government has established a Conflict Resolution Unit, within my Ministry, as a channel through which we can make our contribution. Its aim is to complement the work of others, especially that of the United Nations. It will, in part, draw on the lessons we have learned from our own experiences. As part of this work, Nuala O’Loan, formerly the Police Ombudsman in Northern Ireland – who played a significant personal role in building confidence in the new policing arrangements there – is now serving as our Special Envoy to Timor Leste. DisarmamentIreland’s commitment to peace-keeping, peace-building and conflict resolution extends to removing not only the causes of conflict, but also the means. Creating a secure and stable world demands effective arms control and disarmament, and the elimination of nuclear weapons. Ireland was very proud last May to host the Diplomatic Conference that delivered the ‘Cluster Munitions Convention’, a historic agreement to ban the production and use of these pernicious instruments of war. The Convention is strong and ambitious. Each state party undertakes never, in any circumstances, to use, develop, produce, acquire, stockpile, retain or transfer cluster munitions, or to assist any other party in doing so. It is comprehensive and it provides for no exceptions. It sets new standards for assistance to victims and also, importantly, for clearing affected areas. I would, once again, like to express the deep gratification of my Government for the constructive approach taken by Member States. Without it, such a significant step forward could not have been taken. The Convention will open for signature in Oslo in December, and Ireland will be among the first signatories. I strongly urge all Governments to do likewise.

human rights Peace and security must be accompanied by a firm commitment to the protection and promotion of human rights. This remains at the very core of the United Nations’ mandate. In this, the 60th anniversary year of the Universal Declaration, we must act with renewed determination to make its promises a living reality for all of our people.

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the irish yearbook of international law 2008

This means improving the United Nations’ capacity to tackle abuses effectively, whenever and wherever they arise, ensuring a strong and vigilant Human Rights Council. This is also the 10th anniversary of the adoption of the Rome Statute establishing the International Criminal Court. It has already carved out a vital role for itself in bringing an end to impunity, and in demanding that the rule of law be upheld. Ireland remains strongly supportive of the ICC and its mandate, and urges all Member States to cooperate fully with its work.

development Mr President, Eradicating world hunger and ending poverty is one of the most urgent tasks we face. Realising the vision of the Millennium Goals is a great challenge, but it can be met. I am very proud that Ireland is now the sixth largest aid donor in the world in terms of GNP percentage. It is, I believe, a reflection of our values of solidarity and respect for human dignity. As a committed Member State, I am also gratified that the European Union and its Member States continue to be the world’s leading donor, accounting for some 60 per cent of the world’s official development assistance. In support of our efforts to secure the Millennium Goals, Ireland established a Hunger Task Force to determine the most effective contribution we can make to tackle the root causes of hunger, particularly in Africa. Comprising 15 renowned international experts, its report was launched by our Prime Minister, Taoiseach Brian Cowen, last week with the participation of the Secretary-General, Ban Ki-Moon. The Report has highlighted three particular areas for focus. First, we need to improve small-holder productivity in Africa. The agricultural sector has been neglected for too long. Secondly, we need increased focus on maternal and infant under-nutrition. A bad start makes life an uphill struggle from day one. Thirdly, the report states clearly that we do not need new commitments, but rather the delivery on the ones we have already entered into. These important messages will guide our work in the period ahead.

middle east Distinguished delegates, Let me turn now to the situation in the Middle East. The first Irish peace-keepers 50 years ago were deployed to serve with the UN mission in Lebanon. It is, therefore, a particular source of sadness to me that, despite the great efforts that have been made down the years, we do not yet have lasting peace in the Middle East, especially between the Palestinian people and Israel. I commend the efforts of all those who are prepared to take the political risks necessary to turn this situation around. In particular, I welcome and support the dialogue that President Abbas and Prime Minister Olmert have engaged in under the auspices of the Annapolis process. I hope that what they have achieved together in their talks can be built upon in the immediate period ahead, and that it will result in what we all



statement by mr micheál martin, 29th september 2008

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wish to see-a just agreement, a lasting peace, and a more prosperous future for their people. Improving conditions on the ground in the Palestinian Territories, including very importantly the economic and social situation, would, I believe, make a significant and critical contribution to creating the right context for talks to succeed. I have, in this regard, called many times for an end to the construction of illegal settlements, not only because it is right to do so, but because it would also send a strong and welcome signal of good faith at a difficult and uncertain time. Israel needs urgently to listen to the voice – the concerned voice – of the international community on the settlement issue.

sudan/darfur The situation in Sudan, and the tragic suffering of the people of Darfur, urgently demands our attention. I strongly urge the Sudanese Government and the rebel groups to return to the negotiating table and to engage seriously with the Special Representative Ambassador Bassolé. UNAMID must be allowed to deploy, fully and speedily, and a secure environment must be created to allow the humanitarian community to carry out its important work. A culture of impunity cannot prevail. Those responsible for human rights abuses in Darfur must be brought to justice. The Government in Khartoum must face up to its responsibilities to protect its citizens, to provide security and to ensure justice is done.

zimbabwe In Zimbabwe, the recent agreement to form a power-sharing government is a moment of opportunity that must be seized. The people of Zimbabwe, who have suffered for far too long, deserve a new beginning and look to their leaders to provide it. Their leaders must not be found wanting. I look forward to the delivery of genuine power-sharing, of real political and economic reform and of the creation of a more open and free society.

burma/myanmar In Burma, we continue to stand with the people in their demand for greater democracy and human rights, and we renew in particular our call for the immediate release of Aung San Suu Kyi and her fellow political prisoners. It is gravely disappointing the ruling military junta has not engaged seriously with the Good Offices Mission of the Secretary-General, nor responded in any meaningful way to the concerns of the international community. International pressure must be maintained on Burma’s leaders, including and in particular by countries of the region.

georgia Ireland has watched with great distress the recent conflict in Georgia, including the evidence of the use of cluster munitions against civilian populations.

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the irish yearbook of international law 2008

We warmly applaud President Sarkozy and the French Presidency of the European Union for their efforts to secure a settlement. The EU is deploying a monitoring mission to Georgia, to work alongside United Nations observers, to which Ireland is proud to be contributing. We now need to see the full honouring of commitments entered into, including the full withdrawal of military forces by early October. I also urge Russia and Georgia to engage constructively and in good faith in the discussions scheduled to begin in Geneva on 15 October.

conclusion In closing, Mr President, I would like to return to where I began today. As Ireland’s Foreign Minister, I come here to reaffirm our strong attachment and loyalty to the United Nations. Whether we wish it or not, we are being united every day, more and more, by the common challenges we all face. The Principles and the work of the United Nations have never been needed more. Its principles give us a firm foundation. Continuing reform will give us even stronger tools. What remains to be proven is our collection will use them. The vision of all our peoples, of a peaceful and secure world, with justice, human rights and dignity for all, can be realised only in cooperation with others of like-mind. For Ireland’s part, we are determined not to be a passive member of this formal community of nations. With the support and the help of others, the foundations of a future of peace have, as I have reported, been laid on the island of Ireland. We are now determined to honour that debt, and continue a long tradition of active engagement in the world by contributing our energy and our initiative where we can make a difference. It is only by such a commitment, by each of us and through this body, that we can make this international community more than the sum of its parts, more than the sum of its fears, and instead make it what it was meant to be when the United Nations was established – the sum of all our hopes. Thank you.

Address by HE Mr Paul Kavanagh, Permanent Representative of Ireland to the United Nations, at the United Nations Security Council Debate on ‘Women, Peace and Security’ 19 June 2008 Madam Secretary, I am grateful to the Council for the opportunity to address it on the subject of Women, Peace and Security. My Government commends the United States delegation on the Security Council, under the able leadership of Ambassador Khalilzad, for the work it has invested in this important issue. We welcome you, Madam Secretary, back to United Nations Headquarters. Ireland aligns itself with the statement made earlier today by the distinguished Permanent Representative of Slovenia on behalf of the European Union. Eight years on from the adoption of Resolution 1325 by this Council, it is indeed time to assess progress towards achieving its major goals. The Resolution, adopted in the year 2000, has helped to promote the equal participation and full involvement of women in efforts to advance peace and security. It has also sought to protect women and girls from, and indeed to prevent gender based violence. However, it remains a challenge to ensure that the United Nations, both institutionally and through its individual member States, fully implements Resolution 1325. In October last, the Council regretted that acts such as ‘gender based violence, particularly rape, and other forms of sexual abuse . . . remain pervasive, and in some situations have become systematic, and have reached appalling levels of atrocity’. The horror has been highlighted by the media and indeed in frequent reports provided to this Council by Under-Secretary-General Holmes and others. Such a grave situation requires an urgent and effective response from the international community, in the first instance from the Security Council. Madam Secretary, The Irish Government for their part are actively engaged in promoting the role of women in conflict resolution and post-conflict recovery. The recent establishment of a major Conflict Resolution dimension within our Department of Foreign Affairs has opened further avenues for Ireland to support implementation of Resolution 1325 in conflict and post-conflict settings. Reflecting this commitment to strengthen the role of women in peace and security, earlier this year the Irish Government formally agreed that Resolution 1325 would be one of three crosscutting themes which guide the work of a new designated Conflict Resolution Unit. Specifically, women’s participation in the Northern Ireland peace process, together with the presence of a strong research and activist base, will permit tangible lessons to be drawn and shared internationally in helping advance and implement the 1325 agenda.

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the irish yearbook of international law 2008

The Beijing Platform for Action highlights the impact of violence against women in situations of armed conflict. In this context, as Chair of the Human Security Network (HSN) for the period through May 2009, Ireland will focus on the theme of Gender Based Violence. The Human Security Network is a cross-regional group of countries comprised of Austria, Canada, Chile, Costa Rica, Greece, Ireland, Jordan, Mali, Norway, Switzerland, Slovenia and Thailand, with South Africa as an observer. The Beijing Platform for Action also underlines that peace is inextricably linked to equality between women and men. The promotion of gender equality and elimination of gender based violence is a prominent feature of Ireland’s aid policy and activities overseas, and of our National Women’s Strategy at home. In 2004, in response to reports of high levels of gender based violence, particularly rape and sexual violence, being perpetrated in the conflict in Darfur, Ireland established a national Joint Consortium on Gender Based Violence. Mary Robinson, former President of Ireland and former UN High Commissioner for Human Rights has lent her valuable support as a patron. This unique body marks the first time in Ireland that human rights, development and humanitarian agencies have cooperated with government agencies, including those in uniform, to confront collectively the issue of gender based violence. More generally, training on gender equality and protection from gender based violence is provided to Irish peacekeepers at the Irish Defence Forces UN Training School, Ireland acknowledges and supports the leading role of the United Nations in ending violence against women, including through the new multiyear programme launched recently by the Secretary-General. We strongly support the Gender Equality work of the United Nations Development Programme (UNDP), including the Eight-Point Agenda for Women’s Empowerment and Gender Equality in Crisis Prevention and Recovery. Madam Secretary, I would like to turn now to the very useful Concept Paper drawn up by the US President of the Council in preparation for today’s debate. It correctly identifies three priority areas for consideration: understanding the problem; prevention and protection; and consequences for the perpetrators. As far as understanding the problem is concerned, Ireland encourages the Security Council to recognise that sexual and other forms of gender based violence in conflict situations has direct and significant relevance to the maintenance of international peace and security. Accordingly, the Council should ensure systematic monitoring and analysis of such violence and, where appropriate, take steps, measures and action to address it. We also encourage the Council to request the Secretary-General systematically to include comprehensive information on acts of gender-based violence, including sexual violence, against women and girls in all reports on conflict situations. Moreover, Ireland encourages the Council to request the Secretary-General to reflect on ways to improve the level and quality of such reporting, using benchmarks, indicators and monitoring mechanisms. On prevention and protection, Ireland would encourage the Council to request the Secretary-General to report to it on a heightened engagement of the United Nations in stopping gender-based violence in conflict situations. Such a report could draw on UN action already underway and on activities of non-governmental organisations and women’s groups at the local, national and international levels. Ireland supports the



address by he mr paul kavanagh, 19th june 2008

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call for the appointment of an independent expert to lead this study. We would also encourage the Council to ensure that women at the local level can actively participate in the design, implementation and evaluation of strategies and programmes to meet their security interests, needs and concerns. Ireland believes that there ought to be consequences for perpetrators. Accountability by state and non-state actors should be ensured, including through effective prosecution and punishment. Security sector reform and capacity-building for police and the judicial sector are also called for in this connection. The inclusion of sexual violence offences in the statutes of the ad hoc international criminal tribunals, and the considered jurisprudence of those tribunals, has, over a short space of time, progressively developed the law in this area in many important respects. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and other forms of sexual violence are now included within the definitions of war crimes and crimes against humanity found within the Rome Statute of the International Criminal Court. The Council can, of course, refer a situation for investigation by the Prosecutor of the Court – an institution which Ireland fully supports. There should be wider application of best practices for effective prevention and prosecution of sexual crimes committed in situations of armed conflict. Council mandates for conflict situations should provide that local commanders and their superiors in the military chain of command of armed parties to conflict can be held accountable. All too often, military commanders and other superiors fail to take necessary and reasonable steps within their control either to prevent sexual violence against civilians or to punish the perpetrators of such crimes. Military commanders and other superiors should be held accountable for such serious acts of omission on their part. Impunity can also be reduced by ensuring that women are involved to the greatest extent possible in peace negotiations and in any associated amnesty provisions. In conclusion, Madam Secretary, Ireland welcomes the intended adoption later today of a new Security Council resolution, which we are pleased to co-sponsor, on this important issue. We believe that the resolution should help to empower women to fully participate in the prevention, management and resolution of conflict. It must be effectively implemented to ensure that countless women and girls in conflict situations receive more adequate and effective protection from sexual violence. Adoption of today’s resolution will recognise that the use of sexual violence as a weapon of war is a threat to sustainable international peace and security. And under the law, principal responsibility for the maintenance of international peace and security rests here, in this Chamber. Ireland hopes therefore that the Security Council will act on its own analysis and promote with all necessary vigour wider respect for, and implementation of, its resolutions so as to halt and eliminate sexual violence against women and girls in situations of conflict. Thank you, Madam Secretary

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the irish yearbook of international law 2008 united nations security council resolution 1820 (2008) 19 June 2008

The Security Council, Reaffirming its commitment to the continuing and full implementation of resolution 1325 (2000), 1612 (2005) and 1674 (2006) and recalling the statements of its president of 31 October 2001 (Security Council/PRST/2001/31), 31 October 2002 (Security Council/PRST/2002/32), 28 October 2004 (Security Council/PRST/2004/40), 27 October 2005 (Security Council/PRST/2005/52), 8 November 2006 (Security Council/ PRST/2006/42), 7 March 2007 (Security Council/PRST/2007/5), and 24 October 2007 (Security Council/PRST/2007/40); Guided by the purposes and principles of the Charter of the United Nations, Reaffirming also the resolve expressed in the 2005 World Summit Outcome Document to eliminate all forms of violence against women and girls, including by ending impunity and by ensuring the protection of civilians, in particular women and girls, during and after armed conflicts, in accordance with the obligations States have undertaken under international humanitarian law and international human rights law; Recalling the commitments of the Beijing Declaration and Platform for Action (A/52/231) as well as those contained in the outcome document of the 23rd Special Session of the United Nations General Assembly entitled ‘Women 2000: Gender Equality, Development and Peace for the Twenty-first Century’ (A/S‑23/10/Rev.1), in particular those concerning sexual violence and women in situations of armed conflict; Reaffirming also the obligations of States Parties to the Convention on the Elimination of All Forms of Discrimination against Women, the Optional Protocol thereto, the Convention on the Rights of the Child and the Optional Protocols thereto, and urging states that have not yet done so to consider ratifying or acceding to them, Noting that civilians account for the vast majority of those adversely affected by armed conflict; that women and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instil fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group; and that sexual violence perpetrated in this manner may in some instances persist after the cessation of hostilities; Recalling its condemnation in the strongest terms of all sexual and other forms of violence committed against civilians in armed conflict, in particular women and children; Reiterating deep concern that, despite its repeated condemnation of violence against women and children in situations of armed conflict, including sexual violence in situations of armed conflict, and despite its calls addressed to all parties to armed conflict for the cessation of such acts with immediate effect, such acts continue to occur, and in some situations have become systematic and widespread, reaching appalling levels of brutality, Recalling the inclusion of a range of sexual violence offences in the Rome Statute of the International Criminal Court and the statutes of the ad hoc international criminal tribunals,



address by he mr paul kavanagh, 19th june 2008

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Reaffirming the important role of women in the prevention and resolution of conflicts and in peace-building, and stressing the importance of their equal participation and full involvement in all efforts for the maintenance and promotion of peace and security, and the need to increase their role in decision-making with regard to conflict prevention and resolution, Deeply concerned also about the persistent obstacles and challenges to women’s participation and full involvement in the prevention and resolution of conflicts as a result of violence, intimidation and discrimination, which erode women’s capacity and legitimacy to participate in post-conflict public life, and acknowledging the negative impact this has on durable peace, security and reconciliation, including post-conflict peacebuilding, Recognising that States bear primary responsibility to respect and ensure the human rights of their citizens, as well as all individuals within their territory as provided for by relevant international law, Reaffirming that parties to armed conflict bear the primary responsibility to take all feasible steps to ensure the protection of affected civilians, Welcoming the ongoing coordination of efforts within the United Nations system, marked by the inter-agency initiative “United Nations Action against Sexual Violence in Conflict,” to create awareness about sexual violence in armed conflicts and postconflict situations and, ultimately, to put an end to it, 1. Stresses that sexual violence, when used or commissioned as a tactic of war in order to deliberately target civilians or as a part of a widespread or systematic attack against civilian populations, can significantly exacerbate situations of armed conflict and may impede the restoration of international peace and security, affirms in this regard that effective steps to prevent and respond to such acts of sexual violence can significantly contribute to the maintenance of international peace and security, and expresses its readiness, when considering situations on the agenda of the Council, to, where necessary, adopt appropriate steps to address widespread or systematic sexual violence; 2. Demands the immediate and complete cessation by all parties to armed conflict of all acts of sexual violence against civilians with immediate effect; 3. Demands that all parties to armed conflict immediately take appropriate measures to protect civilians, including women and girls, from all forms of sexual violence, which could include, inter alia, enforcing appropriate military disciplinary measures and upholding the principle of command responsibility, training troops on the categorical prohibition of all forms of sexual violence against civilians, debunking myths that fuel sexual violence, vetting armed and security forces to take into account past actions of rape and other forms of sexual violence, and evacuation of women and children under imminent threat of sexual violence to safety; and requests the Secretary-General, where appropriate, to encourage dialogue to address this issue in the context of broader discussions of conflict resolution between appropriate UN officials and the parties to the conflict, taking into account, inter alia, the views expressed by women of affected local communities; 4. Notes that rape and other forms of sexual violence can constitute a war crime, a crime against humanity, or a constitutive act with respect to genocide, stresses the

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need for the exclusion of sexual violence crimes from amnesty provisions in the context of conflict resolution processes, and calls upon Member States to comply with their obligations for prosecuting persons responsible for such acts, to ensure that all victims of sexual violence, particularly women and girls, have equal protection under the law and equal access to justice, and stresses the importance of ending impunity for such acts as part of a comprehensive approach to seeking sustainable peace, justice, truth, and national reconciliation; 5.  Affirms its intention, when establishing and renewing state-specific sanctions regimes, to take into consideration the appropriateness of targeted and graduated measures against parties to situations of armed conflict who commit rape and other forms of sexual violence against women and girls in situations of armed conflict; 6.  Requests the Secretary-General, in consultation with the Security Council, the Special Committee on Peacekeeping Operations and its Working Group and relevant States, as appropriate, to develop and implement appropriate training programs for all peacekeeping and humanitarian personnel deployed by the United Nations in the context of missions as mandated by the Council to help them better prevent, recognise and respond to sexual violence and other forms of violence against civilians; 7.  Requests the Secretary-General to continue and strengthen efforts to implement the policy of zero tolerance of sexual exploitation and abuse in United Nations peacekeeping operations; and urges troop and police contributing countries to take appropriate preventative action, including pre-deployment and in-theatre awareness training, and other action to ensure full accountability in cases of such conduct involving their personnel; 8.  Encourages troop and police contributing countries, in consultation with the Secretary-General, to consider steps they could take to heighten awareness and the responsiveness of their personnel participating in United Nations peacekeeping operations to protect civilians, including women and children, and prevent sexual violence against women and girls in conflict and post-conflict situations, including wherever possible the deployment of a higher percentage of women peacekeepers or police; 9.  Requests the Secretary-General to develop effective guidelines and strategies to enhance the ability of relevant United Nations peacekeeping operations, consistent with their mandates, to protect civilians, including women and girls, from all forms of sexual violence and to systematically include in his written reports to the Council on conflict situations his observations concerning the protection of women and girls and recommendations in this regard; 10. Requests the Secretary-General and relevant United Nations agencies, inter alia, through consultation with women and women-led organisations as appropriate, to develop effective mechanisms for providing protection from violence, including in particular sexual violence, to women and girls in and around United Nations managed refugee and internally displaced persons camps, as well as in all disarmament, demobilisation, and reintegration processes, and in justice and security sector reform efforts assisted by the United Nations; 11. Stresses the important role the Peacebuilding Commission can play by including in its advice and recommendations for post-conflict peacebuilding strategies, where



address by he mr paul kavanagh, 19th june 2008

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appropriate, ways to address sexual violence committed during and in the aftermath of armed conflict, and in ensuring consultation and effective representation of women’s civil society in its country-specific configurations, as part of its wider approach to gender issues; 12. Urges the Secretary-General and his Special Envoys to invite women to participate in discussions pertinent to the prevention and resolution of conflict, the maintenance of peace and security, and post-conflict peacebuilding, and encourages all parties to such talks to facilitate the equal and full participation of women at decision-making levels; 13. Urges all parties concerned, including Member States, United Nations entities and financial institutions, to support the development and strengthening of the capacities of national institutions, in particular of judicial and health systems, and of local civil society networks in order to provide sustainable assistance to victims of sexual violence in armed conflict and post-conflict situations; 14. Urges appropriate regional and sub-regional bodies in particular to consider developing and implementing policies, activities, and advocacy for the benefit of women and girls affected by sexual violence in armed conflict; 15. Also requests the Secretary-General to submit a report to the Council by 30 June 2009 on the implementation of this resolution in the context of situations which are on the agenda of the Council, utilising information from available United Nations sources, including country teams, peacekeeping operations, and other United Nations personnel, which would include, inter alia, information on situations of armed conflict in which sexual violence has been widely or systematically employed against civilians; analysis of the prevalence and trends of sexual violence in situations of armed conflict; proposals for strategies to minimise the susceptibility of women and girls to such violence; benchmarks for measuring progress in preventing and addressing sexual violence; appropriate input from United Nations implementing partners in the field; information on his plans for facilitating the collection of timely, objective, accurate, and reliable information on the use of sexual violence in situations of armed conflict, including through improved coordination of United Nations activities on the ground and at Headquarters; and information on actions taken by parties to armed conflict to implement their responsibilities as described in this resolution, in particular by immediately and completely ceasing all acts of sexual violence and in taking appropriate measures to protect women and girls from all forms of sexual violence; 16. Decides to remain actively seized of the matter.

‘Responsibility to Protect: From Concept to Implementation’ Mr Peter Power, TD Minister of State for Overseas Development Annual Address to the Royal Irish Academy Conference on International Affairs November 2008 Chairman, distinguished guests, I am delighted to have the opportunity to participate in this discussion on what is one of the leading challenges of our time – implementing and giving effect to the responsibility to protect, one of the most significant conceptual developments in international law and practice since the promulgation of the United Nations Charter in 1945. In recent years, the failure of the international community to protect vulnerable populations from mass atrocities has provoked horror, shame and remorse. The development of the doctrine of responsibility to protect cannot atone for past failures. But it can ensure that every stakeholder – governments and their leaders, the international community and the Security Council – is aware of their roles, obligations and responsibilities when faced with the threat of the four specific crimes of genocide, war crimes, ethnic cleansing and crimes against humanity. If applied correctly, it can assist in prevention, facilitate a timely, coherent and effective international response if required, and ultimately act as deterrent to the perpetuation of these crimes. R2P [Responsibility to Protect] is firmly based on the evolving precepts of international humanitarian law, particularly the Genocide Convention and the Rome Statute of the International Criminal Court. Conceptually, it offers a new perspective on the relationship of the individual to the international order, formerly exclusively mediated by the state. Heads of State and Government at the 2005 World Summit held at the United Nations unanimously agreed that R2P rests on three pillars: 1. the responsibility of the State to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity; 2. the responsibility of the international community to assist States in meeting these obligations, including through capacity building; and 3. where States are manifestly failing to provide such protection, the responsibility of the international community to respond in a timely and decisive manner to ensure protection in accordance with international law and in particular with the UN Charter. As these three pillars demonstrate, R2P is not a licence for interventionism as is sometimes charged. It is a response which carefully places the primary responsibility on the state concerned in the first instance.

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The catalysts for R2P were the terrible events in Rwanda and Bosnia. These came as ominous reminders of the potential for crimes against humanity in areas of fragility, ethnic tension and unresolved conflicts. Any casual student of history would know this of course. The surprise lay in the ineffectiveness of the international response. There seemed to be a fatal weakness in the system when it came to giving effect to the postSecond World War imperative of ‘never again’. The weakness lay in the understandable deference toward the fundamental building block of the international order, the notion of the sovereignty of the nation-state. The question was how to balance this deference, quite legitimate for normal diplomatic relations, with the growing body of international and human rights law and its attendant imperatives. The terrible events of the 1990s, then, forced the international community to face up to the apparent, and I stress the word apparent, conflict between respecting sovereignty and preventing crimes against humanity, like genocide. In short, the international community had to reconceptualise a notion of unfettered national sovereignty, which had its roots in the Treaty of Westphalia in 1648. This process was of course complicated by the sensitivities of many decolonised states intent on guarding their new found sovereignty. It should be pointed out that many African countries are to the fore in advancing the debate on how to operationalise R2P. Indeed, the Constitutive Act of the African Union which predated the 2005 World Summit by three years expressly endorsed the concept of the right of the Union to intervene in a member state in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity. To those critics of R2P who argue that the concept fatally undermines sovereignty, the bedrock of international order in the modern era, I would make three points. Firstly we must ensure that the twenty first century does not repeat the catastrophies of the 20th. Secondly, if the body of international humanitarian law and associated rights is to have any meaning, its values must be supported and defended where they are most threatened. Developing the capacity of states to implement the human rights obligations that many of them have assumed by becoming parties to important human rights treaties, thereby extending these protections more widely to their populations, is no threat to sovereignty. We can work to address causes of conflict that, if left unchecked, could lead to the commission of serious crimes as well as human rights violations, without in any way undermining the role of the sovereign state. Thirdly, the need for collective security which informed the architects of the new international order in 1945 has been given added urgency by globalisation and our increasing mutual interdependence. R2P is a conceptual framework within which States, in the exercise of sovereignty, have a responsibility to protect their populations from the worst crimes and to prevent the commission of those crimes. All States have accepted that responsibility and have agreed to act in accordance with it. The international community as a whole has agreed to encourage and help States to exercise this responsibility and support the United Nations in establishing an



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early warning capability. In other words, we have now reached an understanding of sovereignty that has, as an inherent element of its exercise, the responsibility of the State to protect its citizens. And in circumstances where a State is unable to protect its people from the threat of genocide, war crimes, crimes against humanity or ethnic cleansing, it has a responsibility to seek assistance from others, so that it can honour its responsibility to protect them. Failing that call for assistance, the responsibility to protect falls on the international community, acting in accordance with international law, as the protector of last resort. By any measure, mass crime is a legitimate interest of the international community. Any action under these three pillars, including particularly the third pillar, can only be undertaken in full compliance with the UN Charter. Responsibility to Protect has prevention as its keystone. Bearing this in mind, those of us who support the doctrine perhaps need to do more to convince doubters that R2P is not a stalking-horse for military intervention or quasi-colonial adventures to be invoked at the whim of western nations. It is about ensuring that all states have the ability to protect their own people. It is about the responsibility of stronger nations to assist weak states develop their capacity to protect their populations. It is about the responsibility of the international community to show solidarity with its weaker members to ensure that men, women and children, regardless of where they call home, can be assured equal protection from the threat of genocide, war crimes, ethnic cleansing and crimes against humanity. Ultimately, of course, R2P implies that where a State manifestly fails to fulfil its responsibility to its people, there is provision for action under Chapter VII of the UN Charter. But it must be emphasised that this is not a carte blanche for military action. It does not in any way extend the circumstances in which the use of force is lawful under international law. Frankly, I think some rather loose talk about invoking the R2P principle – for example in the aftermath of Cyclone Nargis last spring – has not helped build wider acceptance of the concept. But equally it is worrying that some Members of the Security Council – both permanent and non-permanent – have continued to address issues such as Burma and Zimbabwe in ways which seem to suggest that sovereignty remains absolute, and to indicate a possible hostility on their part to acting on the basis of R2P even in the most extreme circumstances. The reality is that the true test of the solidity and meaningfulness of R2P will only come when the international community – and specifically the Security Council – is faced with a stark choice, when there is clear and incontrovertible evidence that a state is failing to protect its citizens from genocide or crimes against humanity. Pending that day, we must now do all we can to prepare. In the first instance, we must move from theory to concrete practical actions. In this regard, Ireland welcomes the UN Secretary-General Ban Ki-moon’s commitment to focus on this issue. In his recent address to the UN General Assembly, he reaffirmed that developing R2P in a practical and operational sense is one of his priorities. Building on the work started by Gareth Evans, who we are privileged to have here today, Edward Luck, Special Advisor to the UN Secretary-General, working with

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Mr Francis Deng, is preparing a report on how R2P might be operationalised. This Report will give direction and focus to the international community in strengthening the operation of this vital tool. Ireland will cooperate with the UN Secretary-General and support his efforts. Our Permanent Mission to the UN in New York is already active in this regard. We will continue to participate actively in developing the concept as the process of operationalising it unfolds at UN headquarters. A number of UN member states from all continents are strongly committed to advancing R2P. Ireland is one of them. It is important at the same time for the sake of building general acceptability, and legitimacy for an implementing framework for R2P, that the broad membership proceed together in this important endeavour. While we await the Report of the Special Advisor, States do not remain idle. They are active under the rubric of justice and security to develop mechanisms to give practical application to R2P. Ireland is playing its part in this regard. Irish foreign policy illustrates the strong attachment of successive Irish Governments to the concepts central to R2P. Committed to the international rule of law, Ireland has long been a strong supporter of international human rights bodies and monitoring mechanisms. These form an integral part of the existing early warning system for potential threats of genocide, war crimes, ethnic cleansing and crimes against humanity. Irish peacekeepers have served with distinction in UN peacekeeping operations, and have often paid the ultimate price, in protecting populations from threats to their security. Through the work of Irish Aid, Ireland has been actively developing the capacities of developing states to serve and protect their population. The establishment of a Conflict Resolution Unit (CRU) within the Department of Foreign Affairs will augment our determination to assist the international community’s efforts under R2P. The CRU is contributing to the R2P objective of assisting States develop their own capacity to protect their populations through, for example, early warning and conflict prevention. Of course in undertaking this new initiative, we are working with our multilateral partners, including the United Nations. We have focused particularly on peace making, peace building and lesson sharing. We have provided, for example, direct support to the UN’s Mediation Support Unit, the Peace Building Commission and the Bureau for Crisis Prevention and Recovery. Our pilot conflict resolution in Timor Leste illustrates how on a bi-lateral basis we support initiatives that are complementary to the existing Irish Aid development assistance programme there. Working closely with the Government of Timor-Leste and the UN, there is a strong emphasis on developing local capacity to track and respond to issues likely to give rise to conflict. Projects being supported by Ireland include the development of an early-warning system which will strengthen the capacity of civil society and the Government to understand sources of tension and respond appropriately. Indeed, developing conflict early-warning systems is one of the key elements pointed to in the 2005 World Summit Outcome Document. The Irish Government has appointed a Special Envoy to work with the Government of Timor-Leste and the UN in strengthening the capacity of the Government of Timor-



‘responsibility to protect: from concept to implementation’ 

Leste to serve and protect its own people. Work in this area includes strengthening gov­ ern­ance and the justice sector, enhancing the rule of law, and supporting the develop­ ment of an effective accountable police force. R2P envisions a wide spectrum of tools and instruments. These can only be effective through international and regional cooperation. Regionally for Ireland this means working with the European Union. We are actively exploring opportunities to work with the European Union and believe that scope exists in the area of mediation capacity building, for example, and expanding the kind of expertise we make available under the ESDP’s Civilian Headline Goal. Reflecting on the EU as an instrument for R2P brings us full circle, back to the origins of the current international order and the overarching imperative captured by the declaration ‘never again’ when the full horror of the holocaust became apparent. Europe was the scene of the greatest and most organised effort at genocide that the world has witnessed. It was made all the more grotesque by Europe’s standing as a leading centre of high art and civilisation. Out of this most egregious crime grew the initiative for one of the world’s most successful examples of international support and cooperation. The European Union is a manifestation of conflict prevention through social, economic and political cooperation. It was conceived as a way of avoiding further wars in Europe and rebuilding a continent ruined by conflict, it has promulgated laws and human rights to serve and protect the populations of its Member States. It has moreover, contributed significantly to international peace and security, acting coherently within the UN and offering overseas humanitarian and development assistance, making it the largest donor in the world. The pride of the EU in these achievements was severely shaken by the wars in the Balkans. The prevailing international response, the framework for collective action, fell fatally short. R2P now provides that framework. With the ongoing developments of CFSP and ESDP, through crisis management operations and capacity-building activities, the EU is bringing international support to countries to help ensure the protection of their populations. The EU is therefore making a robust contribution to the new vision of international security offered by the United Nations and a multiplicity of regional multilateral organisations. This vision is based on the notion of collective security governed by the rule of international law and guided by a formal normative framework encompassing an agreed canon of human rights which, under R2P, take precedence over traditional claims to the inviolability of state sovereignty. This is by any measure a paradigm shift. Of course, it is yet a fragile concept, untested so far. Its three pillars deserve full implementation, for each act in support of the other. It would be a fatal mistake, for example, to simply rely in extremis on the third pillar of international intervention. R2P is part of a matrix that includes not just international laws and institutions such as the Security Council and the International Criminal Court, but the strength of the judicial and security systems within states. These in turn depend on good governance which itself is grounded in social and economic development.

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For the international community now accepts Kofi Annan’s compelling thesis that rights, development and security are interlocking objectives, none sustainable without progress in the others. R2P represents a major step forward in assisting all States in developing and maintaining the rule of law and in promoting the role of human rights as a benchmark for international action. Armed with it, we have a new and powerful new instrument which can close a sorry chapter in human history when vowing ‘never again’ was not enough. Thank you.

Diplomatic Conference for the Adoption of a Convention on Cluster Munitions, Dublin 19–30 May 2008 CCM/78 30 May 2008 Final Document

contents Part I. Procedural Report of the Diplomatic Conference I. Introduction II. Organisation and work of the Conference Annex I. Agenda 7 Annex II. Rules of Procedure 8 Annex III. List of Documents of the Diplomatic Conference Annex IV. Documents of the Diplomatic Conference Annex V. List of Delegates Part II. Convention on Cluster Munitions Part III.  Summary Records of the Public Meetings of the Diplomatic Conference

part i. pro cedural rep ort of the diplomatic conference I. Introduction 1. At the Oslo Conference on Cluster Munitions (Oslo, 22–23 February 2007), a group of States, the United Nations, the International Committee of the Red Cross, the Cluster Munition Coalition and other humanitarian organisations recognised the grave consequences caused by the use of cluster munitions and the need for immediate action. States participating in the Oslo Conference committed themselves in the Oslo Declaration to: 1. Conclude by 2008 a legally binding international instrument that will: (i) prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, and (ii) establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation to survivors and their communities, clearance of contaminated areas, risk education and destruction of stockpiles of prohibited cluster munitions. 2. Consider taking steps at the national level to address these problems. 3. Continue to address the humanitarian challenges posed by cluster munitions within the framework of international humanitarian law and in all relevant fora.

2. Pursuant to the Oslo Declaration, further conferences were held in Peru (Lima, 23–25 May 2007), Austria (Vienna, 5–7 December 2007), and New Zealand (Wellington, 18–22 February 2008) with the objective of addressing effectively the

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humanitarian problems caused by cluster munitions and to prepare for negotiations at the Dublin Diplomatic Conference. 3. The Declaration adopted at the Wellington Conference on Cluster Munitions, inter alia: ‘welcome[d] the convening of a Diplomatic Conference by the Government of Ireland in Dublin on 19 May 2008 to negotiate and adopt a legally binding instrument prohibiting cluster munitions that cause unacceptable harm to civilians; also welcome[d] the important work done by participants engaged in the cluster munitions process on the text of a draft Cluster Munitions Convention, dated January 21 2008, which contains the essential elements identified above and decide[d] to forward it as the basic proposal for consideration at the Dublin Diplomatic Conference, together with other relevant proposals including those contained in the compendium attached to this Declaration and those which may be put forward there; affirme[d] their objective of concluding the negotiation of such an instrument prohibiting cluster munitions that cause unacceptable harm to civilians in Dublin in May 2008 . . .’ 4. Conferences in support of the Oslo Process on Cluster Munitions were also held as follows: •  Regional Forum in South-East Asia (Phnom Penh, Cambodia, 15 March 2007); •  Regional Conference (San José, Costa Rica, 4–5 September 2007); •  Belgrade Conference of the States Affected by Cluster Munitions (Belgrade, Serbia, 3–4 October 2007); •  European Regional Conference on Cluster Munitions (Brussels, Belgium, 20 October 2007); •  Livingstone Conference on Cluster Munitions (Livingstone, Zambia, 31 March – 1 April 2008); •  Latin American and Caribbean Conference on Cluster Munitions (Mexico City, Mexico, 16–17 April 2008). II.  Organisation and Work of the Dublin Diplomatic Conference 5. The Dublin Diplomatic Conference for the Adoption of a Convention on Cluster Munitions was held at Dublin from 19 to 30 May 2008. 6. On 19 May 2008, the Conference was opened by Mr Colm Ó Floinn, who was designated by the Government of Ireland to serve as Secretary-General of the Diplomatic Conference. The Secretary-General of the Conference was assisted by Mr Damien Cole as Executive Secretary of the Conference. 7. At the opening ceremony, the Conference was addressed by Mr Micheál Martin, TD, Minister for Foreign Affairs of Ireland; Mr Ad Melkert, United Nations Under-Secretary-General and Associate Administrator of the United Nations Development Programme; Dr Jakob Kellenberger, President of the International Committee of the Red Cross; and Mr Branislav Kapetanovic, Cluster Munition Coalition. 8.  In addition, Mr Ban Ki-Moon, Secretary-General of the United Nations, addressed the Conference by video message. 9. At its first plenary meeting, on 19 May 2008, the Conference elected by acclamation Ambassador Dáithí O’Ceallaigh, Permanent Representative of Ireland to the United Nations Office at Geneva, as President of the Conference.



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10. At the same plenary meeting, the Conference adopted its Agenda (attached at Annex 1 to this Report) and the Rules of Procedure (attached at Annex 2). 11. At the same plenary meeting, on the proposal of the President and pursuant to Rule 7 of the Rules of Procedure, the Conference unanimously elected the following eight Vice-Presidents: Ambassador Najla Riachi Assaker Lebanon Ambassador Jean-François Dobelle France Ambassador Juan Eduardo Eguiguren Chile Ambassador Mohamed Yaha Ould Sidi Haiba Mauritania Ambassador Steffen Kongstad Norway Ambassador Pablo Macedo Mexico Ms Sheila Mweemba Zambia Ambassador Sándor Rácz Hungary 12.  The following 107 States participated in the Conference: Albania, Argentina, Australia, Austria, Bahrain, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Chad, Chile, Comoros, Republic of the Congo, Cook Islands, Costa Rica, Côte d’Ivoire, Croatia, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Germany, Ghana, Guatemala, Guinea, Guinea-Bissau, Holy See, Honduras, Hungary, Iceland, Indonesia, Ireland, Italy, Jamaica, Japan, Kenya, Kyrgyzstan, Lao People’s Democratic Republic, Lebanon, Lesotho, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Mali, Malta, Mauritania, Mexico, Moldova, Montenegro, Morocco, Mozambique, the Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Portugal, Qatar, Samoa, San Marino, Sao Tome and Principe, Senegal, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sudan, Swaziland, Sweden, Switzerland, Tanzania, the former Yugoslav Republic of Macedonia, Timor-Leste, Togo, Uganda, United Kingdom of Great Britain and Northern Ireland, Uruguay, Vanuatu, Venezuela and Zambia. 13. The following 20 States attended the Conference as observers: Colombia, Cyprus, Egypt, Eritrea, Ethiopia, Greece, Iraq, Kazakhstan, Kuwait, Latvia, Libyan Arab Jamahiriya, Oman, Poland, Romania, Saudi Arabia, Singapore, Thailand, Turkey, Ukraine and Viet Nam. 14.  The representatives of the United Nations Children Fund (UNICEF), United Nations Development Programme (UNDP), United Nations High Commissioner for Refugees (UNHCR), United Nations Institute for Disarmament Research (UNIDIR), United Nations Mine Action Service (UNMAS), United Nations Office for the Coordination of Humanitarian Affairs (OCHA), United Nations Office for Disarmament Affairs (UNODA), United Nations Office of Legal Affairs (UNOLA), the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (IFRC), the European Commission, the Cluster Munition Coalition and the Geneva International Centre for Humanitarian Demining (GICHD) also attended the Conference as observers.

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15. The Conference held plenary meetings and meetings of the Committee of the Whole and considered the draft Convention on Cluster Munitions (document CCM/3), as well as other documents listed in Annex 3 and attached at Annex 4. 16. The Conference met in plenary on Wednesday 28 May and agreed to adopt the text. 17. The Conference met in plenary again on Friday 30 May at 10.00 am and adopted the text of the Convention on Cluster Munitions as set out in document CCM/77 (attached at Part II of the Final Document). 18. The Conference expressed deep gratitude to the chairpersons and co-chairs of all the conferences that have constituted the Oslo Process, the United Nations, the ICRC and the Cluster Munition Coalition for their efforts that led to the adoption of the Convention on Cluster Munitions. 19. The Conference invited the Secretary-General of the United Nations to prepare authentic Arabic, Chinese and Russian texts of the Convention on Cluster Munitions, as adopted at Dublin on 30 May 2008. Once the authentic Arabic, Chinese and Russian texts are prepared, the Conference agreed that they should be circulated to all States. The original Convention, in the six authentic languages, will be established by the Secretary-General of the United Nations, and the Secretary-General or his representative shall be invited by the Government of Norway to open the Convention for signature in Oslo on 3 December 2008. All costs related to the preparation of the authentic Arabic, Chinese and Russian texts shall be covered by the Government of Ireland. 20. The Conference invited all States to consider their adherence to the Convention on Cluster Munitions as a matter of priority. 21. The Conference adopted this Procedural Report and decided that the President shall report to the next session of the General Assembly of the United Nations on the outcome of the Conference.



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annex 1 agenda diplomatic conference for the ad option of a convention on cluster munitions dublin 19–30 may 2008 (as adopted at the first plenary meeting on 19 May 2008) CCM/51 19 May 2008 Agenda 1. Opening of the Conference by the Secretary-General 2. Election of the President 3. Adoption of the Agenda 4. Adoption of the Rules of Procedure 5. Election of Vice-Presidents 6. Organisation of work 7. Convention on Cluster Munitions 8. Closure of Conference

annex 2 rules of pro cedure diplomatic conference for the ad option of a convention on cluster munitions dublin 19–30 may 2008 (as adopted at the first plenary meeting on 19 May 2008) CCM/52 19 May 2008 CHAPTER I

participation Rule 1 Participation 1. States that have subscribed to the Wellington Declaration of 22 February 2008, on that date or subsequently, shall be invited to participate in the Conference. Other States that have been invited by the Government of Ireland may attend the Conference as observers.

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2. The Secretary-General of the United Nations, the International Committee of the Red Cross, the United Nations Development Programme and other relevant United Nations programmes and agencies, the International Federation of Red Cross and Red Crescent Societies, regional intergovernmental organisations and the Cluster Munition Coalition may attend the Conference as observers. 3. Other organisations that have been invited by the Government of Ireland may attend the Conference as observers. CHAPTER II

representation and credentials Rule 2 Composition of delegations The delegation of each State participating in the Conference shall consist of a head of delegation and such other accredited representatives, alternate representatives and advisers as may be required. Rule 3 Alternates and advisers The head of delegation may designate an alternate representative or an adviser to act as a representative. Rule 4 Submission of credentials The credentials of representatives and the names of alternate representatives and advisers shall be submitted early to the Executive Secretary of the Conference and, if possible, not later than 24 hours after the opening of the Conference. Any later change in the composition of delegations shall also be submitted to the Executive Secretary. The credentials shall be issued either by the Head of State or Government or by the Minister for Foreign Affairs. The Executive Secretary shall report to the Conference on the submission of credentials if it so requests. Rule 5 If an objection is raised against the participation of a delegation, such objection shall be considered by the General Committee, whose report thereon shall be submitted to the Conference. Rule 6 Pending a decision of the Conference regarding an objection against the participation of a delegation, the latter shall be entitled to participate provisionally in the Conference with the same rights as other participating delegations.



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CHAPTER III

officers Rule 7 Elections The Conference shall elect a President and eight Vice-Presidents. The Conference may also elect such other officers as it deems necessary for the performance of its functions. Rule 8 General Powers of the President 1. In addition to exercising the powers conferred upon him or her elsewhere by these rules, the President shall preside at the plenary meetings of the Conference, declare the opening and closing of each such meeting, direct the discussion, ensure observance of these rules, accord the right to speak, promote the achievement of general agreement, put questions to the vote and announce decisions. The President shall rule on points of order and, subject to these rules, shall have complete control of the proceedings and over the maintenance of order thereat. The President may propose to the Conference the closure of the list of speakers, a limitation on the time to be allowed to speakers and on the number of times each representative may speak on a question, the adjournment or the closure of the debate and the suspension or the adjournment of a meeting. 2. The President, in the exercise of his or her functions, remains under the authority of the Conference. Rule 9 Acting President 1. If the President finds it necessary to be absent from a meeting or any part thereof he or she shall designate a Vice-President to take his or her place. 2. A Vice-President acting as President shall have the powers and duties of the President. Rule 10 Replacement of the President If the President is unable to perform his or her functions a new President shall be elected. Rule 11 Voting Rights of the President The President, or a Vice-President acting as President, shall not vote in the Conference, but shall appoint another member of his or her delegation to vote in his or her place.

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CHAPTER IV

general committee Rule 12 Composition There shall be a General Committee consisting of the President and Vice-Presidents of the Conference. The President, or in his or her absence one of the Vice-Presidents designated by him or her, shall serve as Chairman of the General Committee. Rule 13 Substitute Members If the President or a Vice-President finds it necessary to be absent during a meeting of the General Committee, he or she may designate a member of his or her delegation to sit and vote in the Committee. Rule 14 Functions The General Committee shall assist the President in the general conduct of the business of the Conference and, subject to the decisions of the Conference, shall ensure the coordination of its work. It shall also exercise the powers conferred upon it by rule 36. CHAPTER V

secretariat Rule 15 Duties of the Secretary-General 1. The Secretary-General, designated by the Government of Ireland, shall act in that capacity in all meetings of the Conference and its subsidiary bodies. 2. The Secretary-General may designate a member of the Secretariat to act in his or her place at these meetings. 3.  The Secretary-General shall appoint an Executive Secretary of the Conference and shall provide and direct the staff required by the Conference and its subsidiary bodies.



diplomatic conference – convention on cluster munitions  Rule 16 Duties of the secretariat

The Secretariat of the Conference Shall, in Accordance with These Rules a. Interpret speeches made at meetings; b. Receive, translate, reproduce and distribute the documents of the Conference; c. Publish and circulate the official documents of the Conference; d. Prepare and circulate records of public meetings; e. Make and arrange for the keeping of sound recordings of meetings; f. Arrange for the custody and preservation of the documents of the Conference in the archives of the Government of Ireland; and g. Generally perform all other work that the Conference may require. Rule 17 Statements by the Secretariat The Secretary-General or any other member of the staff of the secretariat who may be designated for that purpose may, at any time, make either oral or written statements concerning any question under consideration. CHAPTER VI

opening of the conference Rule 18 Temporary President The Secretary-General shall open the first meeting of the Conference and preside until the Conference has elected its President. Rule 19 Decisions Concerning Organisation At its first meeting the Conference shall move to: a. Elect its President; b. Adopt its agenda, the draft of which shall, until such adoption, be the provisional agenda of the Conference; c. Adopt its rules of procedure, the draft of which shall, until such adoption, be the provisional rules of procedure of the Conference; d. Elect its other officers; and e. Decide on the organisation of its work.

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the irish yearbook of international law 2008

CHAPTER VII

conduct of business Rule 20 Quorum The presence of representatives of 25 participating States shall be required for any decision to be taken. Rule 21 Speeches No one may address the Conference without having previously obtained the permission of the President. Subject to rules 22, 23 and 26 to 28, the President shall call upon speakers in the order in which they signify their desire to speak. The secretariat shall be in charge of drawing up a list of speakers. The President may call a speaker to order if his or her remarks are not relevant to the subject under discussion. Rule 22 Precedence The chairman or an officer of a committee or the representative of a working group may be accorded precedence for the purpose of explaining the conclusions arrived at by that committee or working group. Rule 23 Points of Order During the discussion of any matter, a representative may at any time raise a point of order which shall be decided immediately by the President in accordance with these rules. A representative may appeal against the ruling of the President. The appeal shall be put to the vote immediately and the President’s ruling shall stand unless overruled by a majority of the representatives present and voting. A representative may not, in raising a point of order, speak on the substance of the matter under discussion. Rule 24 Closing of the List of Speakers During the course of a debate, the President may announce the list of speakers and, with the consent of the Conference, declare the list closed. Rule 25 Right of Reply Notwithstanding rule 24, the President may accord the right of reply to any representative who requests it.



diplomatic conference – convention on cluster munitions  Rule 26 Adjournment of Debate

A representative may at any time move the adjournment of the debate on the question under discussion. In addition to the proposer of the motion, two representatives may speak in favour of, and two against, the adjournment, after which the motion shall, subject to rule 29, be put immediately to the vote. Rule 27 Closure of Debate A representative may at any time move the closure of the debate on the question under discussion, whether or not any other representative has signified his or her wish to speak. Permission to speak on the motion shall be accorded only to two speakers opposing the closure, after which the motion shall, subject to rule 29, be put immediately to the vote. Rule 28 Suspension or Adjournment of the Meeting Subject to rule 40, a representative may at any time move the suspension or the adjournment of the meeting. Such motions shall not be debated, but shall, subject to rule 29, be put immediately to the vote. Rule 29 Order of Motions Subject to rule 23, the motions indicated below shall have precedence in the following order over all proposals or other motions before the meeting: a. to suspend the meeting; b. to adjourn the meeting; c. to adjourn the debate on the question under discussion; d. to close the debate on the question under discussion. Rule 30 Basic Proposal The draft Cluster Munitions Convention, dated 21 January 2008, shall constitute the basic proposal for consideration by the Conference. Rule 31 Other Proposals Other proposals shall normally be submitted in writing to the Executive Secretary, who shall circulate copies to all delegations. As a general rule, no proposal shall be considered at any meeting of the Conference unless copies of it have been circulated to all delegations not later than the day preceding the meeting. The President may, however, permit the consideration of amendments, even though these amendments have not been circulated or have only been circulated on the same day.

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the irish yearbook of international law 2008 Rule 32 Withdrawal of Proposals and Motions

A proposal or a motion may be withdrawn by its proposer at any time before a decision on it has been taken, provided that it has not been amended. A proposal or a motion that has thus been withdrawn may be reintroduced by any representative. Rule 33 Decisions on Competence Subject to rules 23 and 29, any motion calling for a decision on the competence of the Conference to discuss any matter or to adopt a proposal submitted to it shall be put to the vote before the matter is discussed or a decision is taken on the proposal in question. Rule 34 Reconsideration of Proposals When a proposal has been adopted or rejected it may not be reconsidered unless the Conference, by a two-thirds majority of the representatives present and voting, so decides. Permission to speak on a motion to reconsider shall be accorded only to two speakers opposing the motion, after which it shall be put immediately to the vote. Rule 35 Invitation to Technical Advisers The Conference may invite to one or more of its meetings any person whose technical advice it considers useful for its work. CHAPTER VIII

decision-making Rule 36 General Agreement 1. The Conference shall make its best endeavours to ensure that the work of the Conference is accomplished by general agreement. 2. If, in the consideration of any matter of substance, all feasible efforts to reach general agreement have failed, the President of the Conference shall consult the General Committee and recommend the steps to be taken, which may include the matter being put to the vote. Rule 37 Voting Rights Each State participating in the Conference shall have one vote.



diplomatic conference – convention on cluster munitions  Rule 38 Majority Required

1. Subject to rule 36, decisions of the Conference on all matters of substance shall be taken by a two-thirds majority of the representatives present and voting. 2. Decisions of the Conference on matters of procedure shall be taken by a majority of the representatives present and voting. 3. If the question arises whether a matter is one of procedure or of substance, the President shall rule on the question. An appeal against this ruling shall be put to the vote immediately and the President’s ruling shall stand unless overruled by a majority of the representatives present and voting. 4. If a vote is equally divided, the proposal or motion shall be regarded as rejected. Rule 39 Meaning of the Expression ‘Representatives Present and Voting’ For the purpose of these rules, the phrase ‘representatives present and voting’ means representatives present and casting an affirmative or negative vote. Representatives who abstain from voting shall be considered as not voting. Rule 40 Method of Voting Except as provided in rule 47, the Conference shall normally vote by show of hands or by standing, but any representative may request a roll-call. The roll-call shall be taken in the English alphabetical order of the names of the States participating in the Conference, beginning with the delegation whose name is drawn by lot by the President. The name of each State shall be called in all roll-calls and its representative shall reply ‘yes’, ‘no’ or ‘abstention’. Rule 41 Conduct During Voting The President shall announce the commencement of voting, after which no representative shall be permitted to intervene until the result of the vote has been announced, except on a point of order in connection with the process of voting. Rule 42 Explanation of Vote Representatives may make brief statements, consisting solely of explanations of their votes, before the voting has commenced or after the voting has been completed. The President may limit the time to be allowed for such explanations. The representative of a State sponsoring a proposal or motion shall not speak in explanation of vote thereon, except if it has been amended.

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the irish yearbook of international law 2008 Rule 43 Division of Proposals

A representative may move that parts of a proposal be decided on separately. If a representative objects, a decision shall be taken on the motion for division. Permission to speak on the motion shall be accorded only to two representatives in favour of and to two opposing the division. If the motion is carried, those parts of the proposal that are subsequently approved shall be put to the Conference for decision as a whole. If all operative parts of the proposal have been rejected, the proposal shall be considered to have been rejected as a whole. Rule 44 Amendments 1. A proposal is considered an amendment to another proposal if it merely adds to, deletes from or revises part of that proposal. 2. Unless specified otherwise, the word ‘proposal’ in these rules shall be considered as including amendments. Rule 45 Decisions on Amendments When an amendment is moved to a proposal, the amendment shall be decided on first. When two or more amendments are moved to a proposal, the Conference shall first decide on the amendment furthest removed in substance from the original proposal and then on the amendment next furthest removed therefrom and so on until all the amendments have been decided on. Where, however, the adoption of one amendment necessarily implies the rejection of another amendment, the latter amendment shall not be put to a decision. If one or more amendments are adopted, a decision shall then be taken on the amended proposal. Rule 46 Decisions on Proposals 1. If two or more proposals relate to the same question, the Conference shall, unless it decides otherwise, decide on the proposals in the order in which they were submitted. The Conference may, after each decision on a proposal, decide whether to take a decision on the next proposal. 2. Revised proposals shall be decided on in the order in which the original proposals were submitted, unless the revision substantially departs from the original proposal. In that case, the original proposal shall be considered as withdrawn and the revised proposal shall be treated as a new proposal. 3. A motion requiring that no decision be taken on a proposal shall be put to a decision before a decision is taken on the proposal in question.



diplomatic conference – convention on cluster munitions  Rule 47 Elections

All elections shall be held by secret ballot unless otherwise decided by the Conference. Rule 48 Elections – One Elective Place to Be Filled 1. If, when one person or one delegation is to be elected, no candidate obtains in the first ballot a majority of the representatives present and voting, a second ballot restricted to the two candidates obtaining the largest number of votes shall be taken. If in the second ballot the votes are equally divided, the President shall decide between the candidates by drawing lots. 2. In the case of a tie in the first ballot among three or more candidates obtaining the largest number of votes, a second ballot shall be held. If a tie results among more than two candidates, the number shall be reduced to two by lot and the balloting, restricted to them, shall continue in accordance with the preceding paragraph. Rule 49 Elections – Two or More Elective Places to Be Filled 1. When two or more elective places are to be filled at one time under the same conditions, those candidates, in a number not exceeding the number of such places, obtaining in the first ballot a majority of the votes of the representatives present and voting and the largest number of votes shall be elected. 2. If the number of candidates obtaining such majority is less than the number of places to be filled, additional ballots shall be held to fill the remaining places, the voting being restricted to the candidates obtaining the greatest number of votes in the previous ballot, to a number not more than twice the places remaining to be filled, provided that, after the third inconclusive ballot, votes may be cast for any eligible person or delegation. If three such unrestricted ballots are inconclusive, the next three ballots shall be restricted to candidates who obtained the greatest number of votes in the third unrestricted ballot, to a number not more than twice the places remaining to be filled, and the following three ballots thereafter shall be unrestricted, and so on until all the places have been filled. CHAPTER IX

subsidiary bodies Rule 50 Committee of the Whole The Conference shall establish a Committee of the Whole, the Chairman of which shall be the President of the Conference. If the Chairman finds it necessary to be

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absent from a meeting of the Committee or any part thereof he shall designate a VicePresident of the Conference to take his or her place. Rule 51 Other Subsidiary Bodies The Conference may establish such other committees and working groups as it considers necessary. Rule 52 Officers Except as otherwise provided in rule seven, each subsidiary body shall elect its own officers. Rule 53 Officers, Conduct of Business and Voting The Rules Contained in Chapters III, VII and VIII (Except Rule 36) Above Shall Be Applicable, Mutatis Mutandis, to the Proceedings of Subsidiary Bodies, Except That a.  The Chairman of the General Committee may exercise the right to vote; and b. Decisions shall be taken by a majority of the representatives present and voting, except that the reconsideration of a proposal shall require the majority established by rule 34. CHAPTER X

languages and records Rule 54 Languages of the Conference English, French and Spanish shall be the languages of the Conference. Rule 55 Interpretation 1. Speeches made in a language of the Conference at meetings of the Conference or of the Committee of the Whole shall be interpreted into the other such languages. 2. A representative may speak in a language other than a language of the Conference if the delegation concerned provides for interpretation into one such language. Rule 56 Languages of Official Documents Official documents of the Conference shall be made available in the languages of the Conference.



diplomatic conference – convention on cluster munitions  Rule 57 Sound Recordings of Meetings

The secretariat shall make sound recordings of meetings of the Conference and the Committee of the Whole. Such recordings shall be made of meetings of other committees when the committee concerned so decides. CHAPTER XI

public and private meetings Rule 58 Plenary Meetings and Meetings of the Committee of The Whole The plenary meetings of the Conference and the meetings of the Committee of the Whole shall be held in public unless the body concerned decides otherwise. All decisions taken by the plenary of the Conference at a private meeting shall be announced at an early public meeting of the plenary. Rule 59 Meetings of Other Subsidiary Bodies As a general rule, meetings of other subsidiary bodies shall be held in private. CHAPTER XII amendments to the rules of pro cedure Rule 60 Method of Amendment These Rules of Procedure may be amended by a decision of the Conference taken by a two-thirds majority of the representatives present and voting.

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the irish yearbook of international law 2008 annex 1ii list of d o cuments of the diplomatic conference diplomatic conference for the ad option of a convention on cluster munitions dublin 19–30 may 2008

Conference Documents Number [and] Title CCM/1 Draft Agenda CCM/2 Draft Rules of Procedure CCM/3 Draft Convention on Cluster Munitions CCM/4 Proposal by Ireland for the amendment of the Preamble CCM/5 Proposal by France for the amendment of the Preamble CCM/6 Proposal by the United Kingdom for the amendment of the Preamble CCM/7 Proposal by Lesotho for the amendment of the Preamble CCM/8 Proposal by Indonesia for the amendment of the Preamble CCM/9 Proposal by Mozambique for the amendment of the Preamble CCM/10 Proposal by Japan for the amendment of Article 1 CCM/11 Proposal by France for the amendment of Article 1 CCM/12 Proposal by Switzerland for the amendment of Article 1 CCM/13 Proposal by Germany, supported by Denmark, France, Italy, Slovakia, Spain, the Czech Republic and the United Kingdom, for the amendment of Article 1 CCM/14 Proposal by the United Kingdom for the amendment of Article 1 CCM/15 Proposal by Ireland for the amendment of Article 1 CCM/16 Proposal by France for the amendment of Article 1 CCM/17 Comments by Australia, Canada, Denmark, Finland, France, Germany, Italy, Japan, the Netherlands and the United Kingdom concerning elements for Definitions CCM/18 Proposal by Japan for the amendment of Article 2 CCM/19 Proposal by Germany for the amendment of Article 2 CCM/20 Proposal by France for the amendment of Article 2 CCM/21 Proposal by Switzerland for the amendment of Article 2 CCM/22 Proposal by France and Germany for the amendment of Article 2 CCM/23 Proposal by the United Kingdom for the amendment of Article 2 CCM/24 Proposal by Peru for the amendment of Article 2 CCM/25 Proposal by Ireland for the amendment of Article 2 CCM/26 Proposal by Sweden for the amendment of Article 2 CCM/27 Proposal by Indonesia for the amendment of Article 2 CCM/28 Proposal by Australia, Denmark, Finland, France, Germany, Italy, Japan, Slovakia, Sweden, Switzerland and the United Kingdom for the amendment of Article 3 CCM/29 Proposal by United Kingdom for the amendment of Article 3 CCM/30 Proposal by Peru for the amendment of Article 3 CCM/31 Proposal by Ireland for the amendment of Article 4 CCM/32 Proposal by France and Germany for the amendment of Article 4



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CCM/33 Proposal by the United Kingdom for the amendment of Article 4 CCM/34 Proposal by Italy for the amendment of Article 4 CCM/35 Proposal by Switzerland for the amendment of Article 5 CCM/36 Proposal by the United Kingdom for the amendment of Article 5 CCM/37 Proposal by Denmark, France, Germany and Sweden for the amendment of Article 6 CCM/38 Proposal by the United Kingdom for the amendment of Article 6 CCM/39 Proposal by Italy for the amendment of Article 6 CCM/40 Proposal by Australia, Denmark, France, Germany, Italy, Sweden; Switzerland and the United Kingdom for the amendment of Article 7 CCM/41 Proposal by the United Kingdom for the amendment of Article 7 CCM/42 Proposal by the United Kingdom for the amendment of Article 8 CCM/43 Proposal by the United Kingdom for the amendment of Article 10 CCM/44 Proposal by the United Kingdom for the amendment of Article 14 CCM/45 Proposal by the United Kingdom for amendment of Article 17 CCM/46 Proposal by Germany for the amendment of Article 18 CCM/47 Proposal by France and Germany for additional text CCM/48 Proposal by Australia, Denmark, Finland, France, Germany, Italy, Japan, the Netherlands and the United Kingdom for additional text CCM/48/Corr. Proposal by Australia, Denmark, Finland, France, Germany, Italy, Japan, the Netherlands and the United Kingdom for additional text CCM/49 Proposal by Canada for additional text – WITHDRAWN CCM/50 Proposal by Switzerland for additional text CCM/51 Agenda CCM/52 Rules of Procedure CCM/53 Proposal by Indonesia for the amendment of the Preamble CCM/54 Proposal by Indonesia for the amendment of Article 1 CCM/55 Proposal by Lao PDR for the amendment of Article 4(7) CCM/56 Proposal by Philippines for additional text to Article 1 CCM/57 Proposal by Philippines for the amendment of Article 2 CCM/58 Proposal by Philippines for the amendment of Article 5 CCM/59 Proposal by Philippines for the amendment of Article 6 CCM/60 Proposal by Philippines for the amendment of Article 9 CCM/61 Proposal by Philippines for the amendment of Article 13 CCM/62 Proposal by Hungary for the amendment of the title to the Convention CCM/63 Proposal by Slovakia for the amendment of Article 1 CCM/64 Proposal by Slovakia for the amendment of Article 2 CCM/65 Proposal by Slovakia for the amendment of Article 3 CCM/66 Proposal by Slovakia for additional text (Article 18bis) CCM/67 Proposal by Spain for the amendment of Article 2(f) CCM/68 Proposal by the Czech Republic for the amendment of Article 2 CCM/69 Proposal by Morocco, supported by Senegal and Mauritania, for the amendment of the Proposal by Germany, supported by Denmark, France, Italy, Slovakia, Spain, the Czech Republic and the United Kingdom for the amendment of Article 1 CCM/70 Proposal by Argentina, Ecuador, Guatemala, Uruguay, Dominican Republic, Mexico, Nicaragua, Panama, Peru, Costa Rica, Chile, Honduras, Zambia and Guinea for the amendment of Article 5

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CCM/71 Proposal by Argentina, Costa Rica, Ecuador, Guatemala, Lebanon, Mexico, Palau and Uruguay for the amendment of Article 2 CCM/72 Proposal by Norway for the amendment of Article 2 CCM/73 Proposal by Norway for the amendment of Article 2 CCM/74 Proposal by Canada for the amendment of Article 2 CCM/75 Proposal by the United Kingdom for the amendment of Article 2 CCM/76 Proposal by Spain for the amendment of Article 2 CCM/77 Convention on Cluster Munitions CCM/78 Final Document CCM/PT/1 Presidency Text – Article 11 CCM/PT/2 Presidency Text – Article 12 CCM/PT/3 Presidency Text – Article 13 CCM/PT/4 Presidency Text – Article 15 CCM/PT/5 Presidency Text – Article 16 CCM/PT/6 Presidency Text – Article 21 CCM/PT/7 Presidency Text – Article 22 CCM/PT/8 Presidency Text – Article 9 CCM/PT/9 Presidency Text – Article 10 CCM/PT/10 Presidency Text – Article 14 CCM/PT/11 Presidency Text – Article 20 CCM/PT/12 Presidency Text – Victim Assistance CCM/PT/13 Presidency Text – Article 3 CCM/PT/13/Corr Presidency Text – Article 3 CCM/PT/14 Presidency Text – Article 8 CCM/PT/15 Presidency Paper – draft Convention on Cluster Munitions CCM/INF/1 List of Delegates CCM/CRP/1 Paper by Ethiopia CCM/CRP/2 Statement by Iceland CCM/SR/1 Summary Records for the Plenary 19 May 2008, am. CCM/SR/2 Summary Records for the Plenary 19 May 2008, pm. CCM/SR/3 Summary Records for the Plenary 28 May 2008, pm. CCM/SR/4 Summary Records for the Plenary 30 May 2008, am. CCM/CW/SR/1 Summary Records for the Committee of the Whole, 19 May 2008, pm. CCM/CW/SR/2 Summary Records for the Committee of the Whole 20 May 2008, am. CCM/CW/SR/3 Summary Records for the Committee of the Whole 20 May 2008, pm. CCM/CW/SR/4 Summary Records for the Committee of the Whole 21 May 2008, am. CCM/CW/SR/5 Summary Records for the Committee of the Whole 21 May 2008, pm. CCM/CW/SR/6 Summary Records for the Committee of the Whole 22 May 2008, a.m. CCM/CW/SR/7 Summary Records for the Committee of the Whole 22 May 2008, pm. CCM/CW/SR/8 Summary Records for the Committee of the Whole 23 May 2008, a.m. CCM/CW/SR/9 Summary Records for the Committee of the Whole 23 May 2008, pm. CCM/CW/SR/10 Summary Records for the Committee of the Whole 26 May 2008, a.m. CCM/CW/SR/11 Summary Records for the Committee of the Whole 26 May 2008, pm. CCM/CW/SR/12 Summary Records for the Committee of the Whole 27 May 2008, a.m. CCM/CW/SR/13 Summary Records for the Committee of the Whole 27 May 2008, pm. CCM/CW/SR/14 Summary Records for the Committee of the Whole 27 May 2008, pm. CCM/CW/SR/15 Summary Records for the Committee of the Whole 28 May 2008, a.m.



diplomatic conference – convention on cluster munitions 

CCM/CW/SR/16 Summary Records for the Committee of the Whole 28 May 2008, pm. The above documents are available in the Archives of the Government of Ireland at: www.clustermunitionsdublin.ie.

annex 4 d o cuments of the diplomatic conference Annex 4 is not issued as a bound document as the conference documents are available at the archives of the Department of Foreign Affairs of Ireland and through the website of the Diplomatic Conference at www.clustermunitionsdublin.ie/documents.asp.

annex 5 list of delegates annex 5 is not issued as a bound document as the List of Delegates (CCM/INF/1) is available at the archives of the Department of Foreign Affairs of Ireland and through the website of the Diplomatic Conference at www.clustermunitionsdublin.ie/ documents.asp.

part ii convention on cluster munitions diplomatic conference for the ad option of a convention on cluster munitions dublin 19–30 may 2008 Original: English French Spanish

convention on cluster munitions The States Parties to this Convention Deeply concerned that civilian populations and individual civilians continue to bear the brunt of armed conflict. Determined to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned. Concerned that cluster munition remnants kill or maim civilians, including women and children, obstruct economic and social development, including through the loss of

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livelihood, impede post-conflict rehabilitation and reconstruction, delay or prevent the return of refugees and internally displaced persons, can negatively impact on national and international peace-building and humanitarian assistance efforts, and have other severe consequences that can persist for many years after use. Deeply concerned also at the dangers presented by the large national stockpiles of cluster munitions retained for operational use and determined to ensure their rapid destruction. Believing it necessary to contribute effectively in an efficient, coordinated manner to resolving the challenge of removing cluster munition remnants located throughout the world, and to ensure their destruction. Determined also to ensure the full realisation of the rights of all cluster munition victims and recognising their inherent dignity. Resolved to do their utmost in providing assistance to cluster munition victims including medical care, rehabilitation and psychological support, as well as providing for their social and economic inclusion. Recognising the need to provide age- and gender-sensitive assistance to cluster munition victims and to address the special needs of vulnerable groups. Bearing in mind the Convention on the Rights of Persons with Disabilities which. inter alia, requires that States Parties to that Convention undertake to ensure and promote the full realisation of all human rights and fundamental freedoms of all persons with disabilities without discrimination of any kind on the basis of disability. Mindful of the need to coordinate adequately efforts undertaken in various fora to address the rights and needs of victims of various types of weapons, and resolved to avoid discrimination among victims of various types of weapons. Reaffirming that in cases not covered by this Convention or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law, derived from established custom, from the principles of humanity and from the dictates of public conscience. Resolved also that armed groups distinct from the armed forces of a State shall not under any circumstances, be permitted to engage in any activity prohibited to a State Party to this Convention. Welcoming the very broad international support for the international norm prohibiting anti-personnel mines, enshrined in the 1997 Convention on the Prohibition of the Use Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction. Welcoming also the adoption of the Protocol on Explosive Remnants of War, annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate



diplomatic conference – convention on cluster munitions 

Effects, and its entry into force on 12 November 2006, and wishing to enhance the protection of civilians from the effects of cluster munition remnants in post-conflict environments. Bearing in mind also United Nations Security Council Resolution 1325 on women peace and security and United Nations Security Council Resolution 1612 on children in armed conflict. Welcoming further the steps taken nationally, regionally and globally in recent years aimed at prohibiting, restricting or suspending the use, stockpiling, production and transfer of cluster munitions. Stressing the role of public conscience in furthering the principles of humanity as evidenced by the global call for an end to civilian suffering caused by cluster munitions and recognising the efforts to that end undertaken by the United Nations the International Committee of the Red Cross, the Cluster Munition Coalition and numerous other non-governmental organisations around the world. Reaffirming the Declaration of the Oslo Conference on Cluster Munitions, by which inter alia, States recognised the grave consequences caused by the use of cluster munitions and committed themselves to conclude by 2008 a legally binding instrument that would prohibit the use, production, transfer and stockpiling of cluster munitions that cause unacceptable harm to civilians, and would establish a framework for cooperation and assistance that ensures adequate provision of care and rehabilitation for victims, clearance of contaminated areas, risk reduction education and destruction of stockpiles. Emphasising the desirability of attracting the adherence of all States to this Convention, and determined to work strenuously towards the promotion of its universalisation and its full implementation. Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited, and the rules that the parties to a conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly direct their operations against military objectives only, that in the conduct of military operations constant care shall be taken to spare the civilian population, civilians and civilian objects and that the civilian population and individual civilians enjoy general protection against dangers arising from military operations. HAVE AGREED as follows: Article 1 General Obligations and Scope of Application 1. Each State Party undertakes never under any circumstances to: a. Use cluster munitions;

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the irish yearbook of international law 2008

b. Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions; c. Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention. 2. Paragraph 1 of this Article applies, mutatis mutandis, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft. 3. This Convention does not apply to mines. Article 2 Definitions For the purposes of this Convention: 1. ‘Cluster munition victims’ means all persons who have been killed or suffered physical or psychological injury, economic loss, social marginalisation or substantial impairment of the realisation of their rights caused by the use of cluster munitions. They include those persons directly impacted by cluster munitions as well as their affected families and communities; 2. ‘Cluster munition’ means a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kg, and includes those explosive submunitions. It does not mean the following: a. A munition or submunition designed to dispense flares, smoke, pyrotechnics or chaff; or a munition designed exclusively for an air defence role; b. A munition or submunition designed to produce electrical or electronic effects; c. A munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:

i. Each munition contains fewer than 10 explosive submunitions; ii. Each explosive submunition weighs more than four kg; iii.  Each explosive submunition is designed to detect and engage a single target object; iv. Each explosive submunition is equipped with an electronic self-destruction mechanism; v. Each explosive submunition is equipped with an electronic self-deactivating feature;

3.  ‘Explosive submunition’ means a conventional munition that in order to perform its task is dispersed or released by a cluster munition and is designed to function by detonating an explosive charge prior to, on or after impact; 4. ‘Failed cluster munition’ means a cluster munition that has been fired, dropped, launched, projected or otherwise delivered and which should have dispersed or released its explosive submunitions but failed to do so; 5. ‘Unexploded submunition’ means an explosive submunition that has been dispersed or released by, or otherwise separated from, a cluster munition and has failed to explode as intended; 6. ‘Abandoned cluster munitions’ means cluster munitions or explosive submunitions that have not been used and that have been left behind or dumped, and that are no



diplomatic conference – convention on cluster munitions 

longer under the control of the party that left them behind or dumped them. They may or may not have been prepared for use; 7. ‘Cluster munition remnants’ means failed cluster munitions, abandoned cluster munitions, unexploded submunitions and unexploded bomblets; 8. ‘Transfer’ involves, in addition to the physical movement of cluster munitions into or from national territory, the transfer of title to and control over cluster munitions, but does not involve the transfer of territory containing cluster munition remnants; 9.  ‘Self-destruction mechanism’ means an incorporated automatically functioning mechanism which is in addition to the primary initiating mechanism of the munition and which secures the destruction of the munition into which it is incorporated; 10. ‘Self-deactivating’ means automatically rendering a munition inoperable by means of the irreversible exhaustion of a component, for example a battery, that is essential to the operation of the munition; 11. ‘Cluster munition contaminated area’ means an area known or suspected to contain cluster munition remnants; 12. ‘Mine’ means a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle; 13.  ‘Explosive bomblet’ means a conventional munition, weighing less than 20 kg, which is not self-propelled and which, in order to perform its task, is dispersed or released by a dispenser, and is designed to function by detonating an explosive charge prior to, on or after impact; 14. ‘Dispenser’ means a container that is designed to disperse or release explosive bomblets and which is affixed to an aircraft at the time of dispersal or release; 15.  ‘Unexploded bomblet’ means an explosive bomblet that has been dispersed, released or otherwise separated from a dispenser and has failed to explode as intended. Article 3 Storage and Stockpile Destruction 1.  Each State Party shall, in accordance with national regulations, separate all cluster munitions under its jurisdiction and control from munitions retained for operational use and mark them for the purpose of destruction. 2.  Each State Party undertakes to destroy or ensure the destruction of all cluster munitions referred to in paragraph 1 of this Article as soon as possible but not later than eight years after the entry into force of this Convention for that State Party. Each State Party undertakes to ensure that destruction methods comply with applicable international standards for protecting public health and the environment. 3. If a State Party believes that it will be unable to destroy or ensure the destruction of all cluster munitions referred to in paragraph 1 of this Article within eight years of entry into force of this Convention for that State Party it may submit a request to a Meeting of States Parties or a Review Conference for an extension of the deadline for completing the destruction of such cluster munitions by a period of up to four years. A State Party may, in exceptional circumstances, request additional extensions of up to four years. The requested extensions shall not exceed the number

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of years strictly necessary for that State Party to complete its obligations under paragraph 2 of this Article. 4.  Each request for an extension shall set out: a. The duration of the proposed extension; b. A detailed explanation of the proposed extension, including the financial and technical means available to or required by the State Party for the destruction of all cluster munitions referred to in 31 paragraph 1 of this Article and, where applicable, the exceptional circumstances justifying it; c. A plan for how and when stockpile destruction will be completed; d. The quantity and type of cluster munitions and explosive submunitions held at the entry into force of this Convention for that State Party and any additional cluster munitions or explosive submunitions discovered after such entry into force; e. The quantity and type of cluster munitions and explosive submunitions destroyed during the period referred to in paragraph 2 of this Article; and f. The quantity and type of cluster munitions and explosive submunitions remaining to be destroyed during the proposed extension and the annual destruction rate expected to be achieved. 5. The Meeting of States Parties or the Review Conference shall, taking into consideration the factors referred to in paragraph 4 of this Article, assess the request and decide by a majority of votes of States Parties present and voting whether to grant the request for an extension. The States Parties may decide to grant a shorter extension than that requested and may propose benchmarks for the extension, as appropriate. A request for an extension shall be submitted a minimum of nine months prior to the Meeting of States Parties or the Review Conference at which it is to be considered. 6. Notwithstanding the provisions of Article 1 of this Convention, the retention or acquisition of a limited number of cluster munitions and explosive submunitions for the development of and training in cluster munition and explosive submunition detection, clearance or destruction techniques, or for the development of cluster munition counter-measures, is permitted. The amount of explosive submunitions retained or acquired shall not exceed the minimum number absolutely necessary for these purposes. 7. Notwithstanding the provisions of Article 1 of this Convention, the transfer of cluster munitions to another State Party for the purpose of destruction, as well as for the purposes described in paragraph 6 of this Article, is permitted. 8. States Parties retaining, acquiring or transferring cluster munitions or explosive submunitions for the purposes described in paragraphs 6 and 7 of this Article shall submit a detailed report on the planned and actual use of these cluster munitions and explosive submunitions and their type, quantity and lot numbers. If cluster munitions or explosive submunitions are transferred to another State Party for these purposes, the report shall include reference to the receiving party. Such a report shall be prepared for each year during which a State Party retained, acquired or transferred cluster munitions or explosive submunitions and shall be submitted to the Secretary-General of the United Nations no later than 30 April of the following year.



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Article 4 Clearance and Destruction of Cluster Munition Remnants and Risk Reduction Education 1.  Each State Party undertakes to clear and destroy, or ensure the clearance and destruction of, cluster munition remnants located in cluster munition contaminated areas under its jurisdiction or control, as follows: a. Where cluster munition remnants are located in areas under its jurisdiction or control at the date of entry into force of this Convention for that State Party, such clearance and destruction shall be completed as soon as possible but not later than 10 years from that date; b. Where, after entry into force of this Convention for that State Party, cluster munitions have become cluster munition remnants located in areas under its jurisdiction or control, such clearance and destruction must be completed as soon as possible but not later than 10 years after the end of the active hostilities during which such cluster munitions became cluster munition remnants; and c. Upon fulfilling either of its obligations set out in subparagraphs a and b of this paragraph, that State Party shall make a declaration of compliance to the next Meeting of States Parties. 2. In fulfilling its obligations under paragraph 1 of this Article, each State Party shall take the following measures as soon as possible, taking into consideration the provisions of Article 6 of this Convention regarding international cooperation and assistance:





a. Survey, assess and record the threat posed by cluster munition remnants, making every effort to identify all cluster munition contaminated areas under its jurisdiction or control; b. Assess and prioritise needs in terms of marking, protection of civilians, clearance and destruction, and take steps to mobilise resources and develop a national plan to carry out these activities, building, where appropriate, upon existing structures, experiences and methodologies; c. Take all feasible steps to ensure that all cluster munition contaminated areas under its jurisdiction or control are perimeter-marked, monitored and protected by fencing or other means to ensure the effective exclusion of civilians. Warning signs based on methods of marking readily recognisable by the affected commun­ ity should be utilised in the marking of suspected hazardous areas. Signs and other hazardous area boundary markers should, as far as possible, be visible, legible, durable and resistant to environmental effects and should clearly identify which side of the marked boundary is considered to be within the cluster munition contaminated areas and which side is considered to be safe; d. Clear and destroy all cluster munition remnants located in areas under its jurisdiction or control; and e. Conduct risk reduction education to ensure awareness among civilians living in or around cluster munition contaminated areas of the risks posed by such remnants.

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3. In conducting the activities referred to in paragraph 2 of this Article, each State Party shall take into account international standards, including the International Mine Action Standards (IMAS). 4. This paragraph shall apply in cases in which cluster munitions have been used or abandoned by one State Party prior to entry into force of this Convention for that State Party and have become cluster munition remnants that are located in areas under the jurisdiction or control of another State Party at the time of entry into force of this Convention for the latter. a. In such cases, upon entry into force of this Convention for both States Parties, the former State Party is strongly encouraged to provide, inter alia, technical, financial, material or human resources assistance to the latter State Party, either bilaterally or through a mutually agreed third party, including through the United Nations system or other relevant organisations, to facilitate the marking, clearance and destruction of such cluster munition remnants. b. Such assistance shall include, where available, information on types and quantities of the cluster munitions used, precise locations of cluster munition strikes and areas in which cluster munition remnants are known to be located. 5. If a State Party believes that it will be unable to clear and destroy or ensure the clearance and destruction of all cluster munition remnants referred to in paragraph 1 of this Article within 10 years of the entry into force of this Convention for that State Party, it may submit a request to a Meeting of States Parties or a Review Conference for an extension of the deadline for completing the clearance and destruction of such cluster munition remnants by a period of up to five years. The requested extension shall not exceed the number of years strictly necessary for that State Party to complete its obligations under paragraph 1 of this Article. 6. A request for an extension shall be submitted to a Meeting of States Parties or a Review Conference prior to the expiry of the time period referred to in paragraph 1 of this Article for that State Party. Each request shall be submitted a minimum of nine months prior to the Meeting of States Parties or Review Conference at which it is to be considered. Each request shall set out: a. The duration of the proposed extension; b. A detailed explanation of the reasons for the proposed extension, including the financial and technical means available to and required by the State Party for the clearance and destruction of all cluster munition remnants during the proposed extension; c. The preparation of future work and the status of work already conducted under national clearance and demining programmes during the initial 10 year period referred to in paragraph 1 of this Article and any subsequent extensions; d. The total area containing cluster munition remnants at the time of entry into force of this Convention for that State Party and any additional areas containing cluster munition remnants discovered after such entry into force; e. The total area containing cluster munition remnants cleared since entry into force of this Convention; f. The total area containing cluster munition remnants remaining to be cleared during the proposed extension;



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g. The circumstances that have impeded the ability of the State Party to destroy all cluster munition remnants located in areas under its jurisdiction or control during the initial 10 year period referred to in paragraph 1 of this Article, and those that may impede this ability during the proposed extension; h. The humanitarian, social, economic and environmental implications of the proposed extension; and i. Any other information relevant to the request for the proposed extension. 7. The Meeting of States Parties or the Review Conference shall, taking into consideration the factors referred to in paragraph 6 of this Article, including, inter alia, the quantities of cluster munition remnants reported, assess the request and decide by a majority of votes of States Parties present and voting whether to grant the request for an extension. The States Parties may decide to grant a shorter extension than that requested and may propose benchmarks for the extension, as appropriate. 8. Such an extension may be renewed by a period of up to five years upon the submission of a new request, in accordance with paragraphs 5, 6 and 7 of this Article. In requesting a further extension a State Party shall submit relevant additional information on what has been undertaken during the previous extension granted pursuant to this Article. Article 5 Victim Assistance 1.  Each State Party with respect to cluster munition victims in areas under its jurisdiction or control shall, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion. Each State Party shall make every effort to collect reliable relevant data with respect to cluster munition victims. 2.  In fulfilling its obligations under paragraph 1 of this Article each State Party shall: a. Assess the needs of cluster munition victims; b. Develop, implement and enforce any necessary national laws and policies; c. Develop a national plan and budget, including timeframes to carry out these activities, with a view to incorporating them within the existing national disability, development and human rights frameworks and mechanisms, while respecting the specific role and contribution of relevant actors; d. Take steps to mobilise national and international resources; e. Not discriminate against or among cluster munition victims, or between cluster munition victims and those who have suffered injuries or disabilities from other causes; differences in treatment should be 35 based only on medical, rehabilitative, psychological or socio-economic needs; f. Closely consult with and actively involve cluster munition victims and their representative organisations; g. Designate a focal point within the government for coordination of matters relating to the implementation of this Article; and h. Strive to incorporate relevant guidelines and good practices including in the areas of medical care, rehabilitation and psychological support, as well as social and economic inclusion.

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the irish yearbook of international law 2008 Article 6 International Cooperation and Assistance

1. In fulfilling its obligations under this Convention each State Party has the right to seek and receive assistance. 2. Each State Party in a position to do so shall provide technical, material and financial assistance to States Parties affected by cluster munitions, aimed at the implementation of the obligations of this Convention. Such assistance may be provided, inter alia, through the United Nations system, international, regional or national organisations or institutions, non-governmental organisations or institutions, or on a bilateral basis. 3. Each State Party undertakes to facilitate and shall have the right to participate in the fullest possible exchange of equipment and scientific and technological inform­ ation concerning the implementation of this Convention. The States Parties shall not impose undue restrictions on the provision and receipt of clearance and other such equipment and related technological information for humanitarian purposes. 4. In addition to any obligations it may have pursuant to paragraph 4 of Article 4 of this Convention, each State Party in a position to do so shall provide assistance for clearance and destruction of cluster munition remnants and information concerning various means and technologies related to clearance of cluster munitions, as well as lists of experts, expert agencies or national points of contact on clearance and destruction of cluster munition remnants and related activities. 5. Each State Party in a position to do so shall provide assistance for the destruction of stockpiled cluster munitions, and shall also provide assistance to identify, assess and prioritise needs and practical measures in terms of marking, risk reduction education, protection of civilians and clearance and destruction as provided in Article 4 of this Convention. 6. Where, after entry into force of this Convention, cluster munitions have become cluster munition remnants located in areas under the jurisdiction or control of a State Party, each State Party in a position to do so shall urgently provide emergency assistance to the affected State Party. 7. Each State Party in a position to do so shall provide assistance for the implementation of the obligations referred to in Article 5 of this Convention to adequately provide age- and gender-sensitive assistance, including medical care, 36 rehabilitation and psychological support, as well as provide for social and economic inclusion of cluster munition victims. Such assistance may be provided, inter alia, through the United Nations system, international, regional or national organisations or institutions, the International Committee of the Red Cross, national Red Cross and Red Crescent Societies and their International Federation, non-governmental organisations or on a bilateral basis. 8. Each State Party in a position to do so shall provide assistance to contribute to the economic and social recovery needed as a result of cluster munition use in affected States Parties. 9. Each State Party in a position to do so may contribute to relevant trust funds in order to facilitate the provision of assistance under this Article. 10.  Each State Party that seeks and receives assistance shall take all appropriate measures in order to facilitate the timely and effective implementation of this



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Convention, including facilitation of the entry and exit of personnel, materiel and equipment, in a manner consistent with national laws and regulations, taking into consideration international best practices. 11.  Each State Party may, with the purpose of developing a national action plan, request the United Nations system, regional organisations, other States Parties or other competent intergovernmental or non-governmental institutions to assist its authorities to determine, inter alia: a. The nature and extent of cluster munition remnants located in areas under its jurisdiction or control; b. The financial, technological and human resources required for the implementation of the plan; c. The time estimated as necessary to clear and destroy all cluster munition remnants located in areas under its jurisdiction or control; d. Risk reduction education programmes and awareness activities to reduce the incidence of injuries or deaths caused by cluster munition remnants; e. Assistance to cluster munition victims; and f. The coordination relationship between the government of the State Party concerned and the relevant governmental, intergovernmental or non-governmental entities that will work in the implementation of the plan. 12. States Parties giving and receiving assistance under the provisions of this Article shall cooperate with a view to ensuring the full and prompt implementation of agreed assistance programmes Article 7 Transparency Measures 1. Each State Party shall report to the Secretary-General of the United Nations as soon as practicable, and in any event not later than 180 days after the entry into force of this Convention for that State Party, on: a. The national implementation measures referred to in Article 9 of this Convention; b. The total of all cluster munitions, including explosive submunitions, referred to in paragraph 1 of Article 3 of this Convention, to include a breakdown of their type, quantity and, if possible, lot numbers of each type; c.  The technical characteristics of each type of cluster munition produced by that State Party prior to entry into force of this Convention for it, to the extent known, and those currently owned or possessed by it, giving, where reasonably possible, such categories of information as may facilitate identification and clearance of cluster munitions; at a minimum, this information shall include the dimensions, fusing, explosive content, metallic content, colour photographs and other information that may facilitate the clearance of cluster munition remnants; d. The status and progress of programmes for the conversion or decommissioning of production facilities for cluster munitions; e. The status and progress of programmes for the destruction, in accordance with Article 3 of this Convention, of cluster munitions, including explosive submuni-

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tions, with details of the methods that will be used in destruction, the location of all destruction sites and the applicable safety and environmental standards to be observed; f. The types and quantities of cluster munitions, including explosive submunitions, destroyed in accordance with Article 3 of this Convention, including details of the methods of destruction used, the location of the destruction sites and the applicable safety and environmental standards observed; g. Stockpiles of cluster munitions, including explosive submunitions, discovered after reported completion of the programme referred to in subparagraph e of this paragraph, and plans for their destruction in accordance with Article 3 of this Convention; h. To the extent possible, the size and location of all cluster munition contaminated areas under its jurisdiction or control, to include as much detail as possible regarding the type and quantity of each type of cluster munition remnant in each such area and when they were used; i. The status and progress of programmes for the clearance and destruction of all types and quantities of cluster munition remnants cleared and destroyed in accordance with Article 4 of this Convention, to include the size and location of the cluster munition contaminated area cleared and a breakdown of the quantity of each type of cluster munition remnant cleared and destroyed; j. The measures taken to provide risk reduction education and, in particular, an immediate and effective warning to civilians living in cluster munition contaminated areas under its jurisdiction or control; k. The status and progress of implementation of its obligations under Article 5 of this Convention to adequately provide age-and-gender sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for social and economic inclusion of cluster munition victims and to collect reliable relevant data with respect to cluster munition victims; l. The name and contact details of the institutions mandated to provide information and to carry out the measures described in this paragraph; m. The amount of national resources, including financial, material or in kind, allocated to the implementation of Articles 3, 4 and 5 of this Convention; and n. The amounts, types and destinations of international cooperation and assistance provided under Article 6 of this Convention.

2. The information provided in accordance with paragraph 1 of this Article shall be updated by the States Parties annually, covering the previous calendar year, and reported to the Secretary-General of the United Nations not later than 30 April of each year. 3.  The Secretary-General of the United Nations shall transmit all such reports received to the States Parties. Article 8 Facilitation and Clarification of Compliance 1. The States Parties agree to consult and cooperate with each other regarding the implementation of the provisions of this Convention and to work together in a



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spirit of cooperation to facilitate compliance by States Parties with their obligations under this Convention. 2. If one or more States Parties wish to clarify and seek to resolve questions relating to a matter of compliance with the provisions of this Convention by another State Party, it may submit, through the Secretary-General of the United Nations, a Request for Clarification of that matter to that State Party. Such a request shall be accompanied by all appropriate information. Each State Party shall refrain from unfounded Requests for Clarification, care being taken to avoid abuse. A State Party that receives a Request for Clarification shall provide, through the SecretaryGeneral of the United Nations, within 28 days to the requesting State Party all information that would assist in clarifying the matter. 3. If the requesting State Party does not receive a response through the SecretaryGeneral of the United Nations within that time period, or deems the response to the Request for Clarification to be unsatisfactory, it may submit the matter through the Secretary-General of the United Nations to the next Meeting of States Parties. The Secretary-General of the United Nations shall transmit the submission, accompanied by all appropriate information pertaining to the Request for Clarification, to all States Parties. All such information shall be presented to the requested State Party which shall have the right to respond. 4. Pending the convening of any Meeting of States Parties, any of the States Parties concerned may request the Secretary-General of the United Nations to exercise his or her good offices to facilitate the clarification requested. 5. Where a matter has been submitted to it pursuant to paragraph 3 of this Article, the Meeting of States Parties shall first determine whether to consider that matter further, taking into account all information submitted by the States Parties concerned. If it does so determine, the Meeting of States Parties may suggest to the States Parties concerned ways and means further to clarify or resolve the matter under consideration, including the initiation of appropriate procedures in conformity with international law. In circumstances where the issue at hand is determined to be due to circumstances beyond the control of the requested State Party, the Meeting of States Parties may recommend appropriate measures, including the use of cooperative measures referred to in Article 6 of this Convention. 6. In addition to the procedures provided for in paragraphs 2–5 of this Article, the Meeting of States Parties may decide to adopt such other general procedures or specific mechanisms for clarification of compliance, including facts, and resolution of instances of non-compliance with the provisions of this Convention as it deems appropriate.

Article 9 National Implementation Measures Each State Party shall take all appropriate legal, administrative and other measures to implement this Convention, including the imposition of penal sanctions to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control.

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the irish yearbook of international law 2008 Article 10 Settlement of Disputes

1. When a dispute arises between two or more States Parties relating to the interpretation or application of this Convention, the States Parties concerned shall consult together with a view to the expeditious settlement of the dispute by negotiation or by other peaceful means of their choice, including recourse to the Meeting of States Parties and referral to the International Court of Justice in conformity with the Statute of the Court. 2. The Meeting of States Parties may contribute to the settlement of the dispute by whatever means it deems appropriate, including offering its good offices, calling upon the States Parties concerned to start the settlement procedure of their choice and recommending a time-limit for any agreed procedure. Article 11 Meetings of States Parties 1. The States Parties shall meet regularly in order to consider and, where necessary, take decisions in respect of any matter with regard to the application or implementation of this Convention, including: a. The operation and status of this Convention; b.  Matters arising from the reports submitted under the provisions of this Convention; c. International cooperation and assistance in accordance with Article 6 of this Convention; d. The development of technologies to clear cluster munition remnants; e. Submissions of States Parties under Articles 8 and 10 of this Convention; and f.  Submissions of States Parties as provided for in Articles 3 and 4 of this Convention. 2. The first Meeting of States Parties shall be convened by the Secretary-General of the United Nations within one year of entry into force of this Convention. The subsequent meetings shall be convened by the Secretary-General of the United Nations annually until the first Review Conference. 3. States not party to this Convention, as well as the United Nations, other relevant international organisations or institutions, regional organisations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organisations may be invited to attend these meetings as observers in accordance with the agreed rules of procedure. Article 12 Review Conferences 1. A Review Conference shall be convened by the Secretary-General of the United Nations five years after the entry into force of this Convention. Further Review Conferences shall be convened by the Secretary-General of the United Nations



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if so requested by one or more States Parties, provided that the interval between Review Conferences shall in no case be less than five years. All States Parties to this Convention shall be invited to each Review Conference. 2.  The purpose of the Review Conference shall be: a. to review the operation and status of this Convention; b. to consider the need for and the interval between further Meetings of States Parties referred to in paragraph 2 of Article 11 of this Convention; and c. to take decisions on submissions of States Parties as provided for in Articles 3 and 4 of this Convention. 3. States not party to this Convention, as well as the United Nations, other relevant international organisations or institutions, regional organisations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organisations may be invited to attend each Review Conference as observers in accordance with the agreed rules of procedure. Article 13 Amendments 1. At any time after its entry into force any State Party may propose amendments to this Convention. Any proposal for an amendment shall be communicated to the Secretary-General of the United Nations, who shall circulate it to all States Parties and shall seek their views on whether an Amendment Conference should be convened to consider the proposal. If a majority of the States Parties notify the Secretary-General of the United Nations no later than 90 days after its circulation that they support further consideration of the proposal, the Secretary-General of the United Nations shall convene an Amendment Conference to which all States Parties shall be invited. 2. States not party to this Convention, as well as the United Nations, other relevant international organisations or institutions, regional organisations, the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and relevant non-governmental organisations may be invited to attend each Amendment Conference as observers in accordance with the agreed rules of procedure. 3. The Amendment Conference shall be held immediately following a Meeting of States Parties or a Review Conference unless a majority of the States Parties request that it be held earlier. 4. Any amendment to this Convention shall be adopted by a majority of two-thirds of the States Parties present and voting at the Amendment Conference. The Depositary shall communicate any amendment so adopted to all States. 5. An amendment to this Convention shall enter into force for States Parties that have accepted the amendment on the date of deposit of acceptances by a majority of the States which were Parties at the date of adoption of the amendment. Thereafter it shall enter into force for any remaining State Party on the date of deposit of its instrument of acceptance.

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the irish yearbook of international law 2008 Article 14 Costs and Administrative Tasks

1. The costs of the Meetings of States Parties, the Review Conferences and the Amendment Conferences shall be borne by the States Parties and States not party to this Convention participating therein, in accordance with the United Nations scale of assessment adjusted appropriately. 2. The costs incurred by the Secretary-General of the United Nations under Articles 7 and 8 of this Convention shall be borne by the States Parties in accordance with the United Nations scale of assessment adjusted appropriately. 3. The performance by the Secretary-General of the United Nations of administrative tasks assigned to him or her under this Convention is subject to an appropriate United Nations mandate. Article 15 Signature This Convention, done at Dublin on 30 May 2008, shall be open for signature at Oslo by all States on 3 December 2008 and thereafter at United Nations Headquarters in New York until its entry into force. Article 16 Ratification, Acceptance, Approval or Accession 1.  This Convention is subject to ratification, acceptance or approval by the Signatories. 2.  It shall be open for accession by any State that has not signed the Convention. 3. The instruments of ratification, acceptance, approval or accession shall be deposited with the Depositary. Article 17 Entry into Force 1. This Convention shall enter into force on the first day of the sixth month after the month in which the thirtieth instrument of ratification, acceptance, approval or accession has been deposited. 2. For any State that deposits its instrument of ratification, acceptance, approval or accession after the date of the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force on the first day of the sixth month after the date on which that State has deposited its instrument of ratification, acceptance, approval or accession.



diplomatic conference – convention on cluster munitions  Article 18 Provisional Application

Any State may, at the time of its ratification, acceptance, approval or accession, declare that it will apply provisionally Article 1 of this Convention pending its entry into force for that State. Article 19 Reservations The Articles of this Convention shall not be subject to reservations. Article 20 Duration and Withdrawal 1.  This Convention shall be of unlimited duration. 2.  Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this Convention. It shall give notice of such withdrawal to all other States Parties, to the Depositary and to the United Nations Security Council. Such instrument of withdrawal shall include a full explanation of the reasons motivating withdrawal. 3. Such withdrawal shall only take effect six months after the receipt of the instrument of withdrawal by the Depositary. If, however, on the expiry of that six-month period, the withdrawing State Party is engaged in an armed conflict, the withdrawal shall not take effect before the end of the armed conflict. Article 21 Relations with States Not Party to This Convention 1.  Each State Party shall encourage States not party to this Convention to ratify, accept, approve or accede to this Convention, with the goal of attracting the adherence of all States to this Convention. 2.  Each State Party shall notify the governments of all States not party to this Convention, referred to in paragraph 3. of this Article, of its obligations under this Convention, shall promote the norms it establishes and shall make its best efforts to discourage States not party to this Convention from using cluster munitions. 3. Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party. 4. Nothing in Paragraph 3 of his Article shall authorise a State Party: a. to develop, produce or otherwise acquire cluster munitions; b. to itself stockpile or transfer cluster munitions; c. to itself use cluster munitions; or

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d. to expressly request the use of cluster munitions in cases where the choice of munitions used is within its exclusive control. Article 22 Depositary The Secretary-General of the United Nations is hereby designated as the Depositary of this Convention. Article 23 Authentic Texts The Arabic, Chinese, English, French, Russian and Spanish texts of this Convention shall be equally authentic.

part iii summary records of the public meetings of the diplomatic conference Part III is not issued as a bound document as all summary records are available at the archives of the Department of Foreign Affairs of Ireland and through the website of the Diplomatic Conference at www.clustermunitionsdublin.ie.

Hunger Task Force: Report to the Government of Ireland preface In September 2006, the Government announced its intention to establish a Task Force to examine the particular contribution that Ireland can make to tackling the root causes of hunger, especially in Africa. A group of very experienced and skilled people was assembled to undertake this work, and this short report is their response to that mandate. I would like to thank all the members of the Task Force, along with our secretariat and consultants, for their great dedication to our work. This report avoids duplication of previous analyses. It seeks to distil the most successful experiences in the fight against hunger and to identify why, despite these achievements, over 860 million people remain undernourished. It sets out a very focused programme of actions to address three priorities, which the Task Force believes can have the greatest impact in reducing, and ultimately eliminating, hunger: •  Increasing the productivity of smallholder, mainly women, farmers in Africa; •  Implementing programmes focused on maternal and infant undernutrition; and •  Ensuring real political commitment, at national and international levels, to give hunger the absolute priority it deserves. The members of the Task Force believe that Ireland, because of its history and commitment to development, can play a pivotal role in the global fight against hunger. The current renewed international focus on this issue, driven by recent food price increases, presents a particular opportunity to make a decisive and long-lasting difference. The challenge for us all in Ireland – Government, NGOs, civil Society, private sector and individuals – is to show the commitment and courage required to make this difference. Joe Walsh Chair of Hunger Task Force September 2008

executive summary The Scale of the Problem Over 860 million people are hungry1 – a denial of their fundamental human right to enough food. With continuing food price inflation, this figure is likely to rise even further and could soon reach a billion people. 1   The Declaration of the High-Level Conference on World Food Security: The Challenges of Climate Change and Bioenergy (Rome, June 2008) stated that ‘it is unacceptable that 862 million people are still undernourished in the world today’.

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This Report •  Reviews the nature and context of hunger in today’s world, drawing on a range of analyses undertaken in recent years; •  Highlights success stories where effective action has been taken; •  Explains particular challenges and constraints; •  Provides guidance as to where Ireland can make a real difference in tackling hunger; and •  Recommends key areas of necessary action. Today’s Hunger •  The first Millennium Development Goal (MDG) is to reduce by half the proportion of people suffering from hunger by 2015. There has been some progress, but it has been particularly slow in South Asia and sub-Saharan Africa. In both regions, the percentages show some reduction but, because of high population growth, the absolute numbers of hungry people continue to rise; •  The new challenge is food price inflation which, if unchecked, will push many more millions of already vulnerable people over the edge into starvation. The estimate is that an additional 100 million people are currently in danger; •  Climate change and depletion of natural resources are continuing to have a major negative impact on food production in vulnerable areas of sub-Saharan Africa. We Have All Made Promises and Commitments – But Have We Lived up to Them? The Short Answer is NO •  only five developed countries have reached the 0.7 per cent Gross National Income (GNI) target; •  the UN’s MDG hunger target is unlikely to be met in either sub-Saharan Africa or in South Asia; •  the more ambitious hunger target set by the World Food Summit of 1996 will not be met; •  the Official Development Assistance (ODA) commitments of the G8 Gleneagles Summit are unlikely to be met; •  only five African States have reached the target for agriculture spending adopted by the Maputo Conference of 2003. Why Is This So? It is Because of a Failure of Governance at both National and International Levels •  Despite these numerous commitments, there appears to be a willingness to live with the current extent of global hunger; •  Frequently in countries worst affected, there is not a single ministry or national authority dealing specifically with hunger, despite the scale of the problem; •  This is even more the case in respect of nutrition, which can only be described as an administrative and institutional orphan; •  Civil Society, with some exceptions, appears to be unable or unwilling to push global hunger to the top of global development priorities;



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•  Donor resources for support to small-scale agriculture have not been prioritised; •  Hungry people themselves – disproportionately consisting of poor women and children, many of them affected by conflicts, HIV/AIDS and other chronic illnesses – have little or no voice in policy-making. We should not, and need not, tolerate this continuing appalling level of deprivation. The problem can be solved. We Just Need to Decide to Do It Addressing hunger requires the kind of coherent response which governments sometimes find difficult to organise. Yet coherent multi-sectoral approaches are being adopted in relation to climate change, and in relation to HIV/AIDS. The excuse of the ‘technical complexity of the issue’ for not tackling world hunger does not stand up. Ultimately, it is a matter of political priorities. What Is to Be Done? Ireland’s Hunger Task Force Believes That There Are Three Critical Areas Which Need Priority to Achieve the Greatest and Most Lasting Impact 1. Increasing agricultural productivity in Africa – with a particular focus on women who account for up to 80 per cent of food production in most developing countries; 2. Targeting the prevention of maternal and infant undernutrition – the cause of 3.5 million child deaths annually, and the cause of irreversible damage for future physical and mental development in children; 3. Changes in governance and leadership priorities at both national and international levels to ensure that governments fulfil their commitments to reducing hunger and malnutrition. Regardless of the current international economic climate, without both developed and developing countries acting on their commitments, hunger will not be reduced. What Should Ireland Do? At a national level: •  Declare eradication of hunger a cornerstone of its development aid programme, and a key component of its foreign policy; •  Take a strong leadership and advocacy role internationally to ensure that the MDG hunger target is reached and, if possible, exceeded; •  Work towards an indicative target of 20 per cent of its ODA to actions to alleviate and eradicate hunger – this target to be achieved on a phased basis by 2012 in the context of Ireland’s commitment to reach the 0.7 per cent GNI target by that date; •  Appoint a Special Envoy for Hunger to ensure that these recommendations are implemented. The Special Envoy would engage across Government and with relevant Non-Governmental Organisations (NGOs) in Ireland, and could represent Ireland in important international fora.

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At an international level: •  Support reform of the international architecture to tackle world hunger, promoting coherence across the UN agencies and the entire international system; •  Promote robust international mechanisms to ensure that governments – both in developing and developed countries – honour their commitments and prioritise the reduction of hunger and malnutrition in their national development strategies and assistance programmes. (One possible suggestion put forward by some members of the Task Force would be for the Secretary-General of the United Nations to appoint a UN Commissioner for Hunger, and establish under that Commissioner an audit body which would report on individual countries’ actions in addressing global hunger, with the authority to hold governments to account where their actions are inadequate); •  Support the possible establishment of a Global Fund designed to deal with smallholder agriculture and long term nutrition, which would operate in a manner consistent with existing structures; •  Support new initiatives by the International Financial Institutions (IFIs) to direct more funds towards agriculture, food assistance and nutrition. As a donor in support of improved smallholder productivity, Irish Aid should: •  Support efforts to promote intensification of smallholder agriculture through programmes designed to maximise access by women and the poor to land and other critical inputs and services; •  Encourage developing country partners to establish an enabling environment for the promotion of sustainable and equitable input and output markets; •  Support agricultural interventions which encourage appropriate diversification among small-scale farmers; •  Support the international agricultural research system in a research programme that contributes to the elimination of hunger and the development of resilient food systems. In that context, Ireland should support initiatives to ensure that small-scale farmers can benefit from the research being undertaken by national, regional and international research bodies, and also support the strengthening of African agricultural research and extension/advisory services; •  Support strengthening of farmer organisations, particularly those which actively target poorer farmers and women as members – a critical governance issue; •  Support improved rural infrastructure, both at national and local levels. Poor rural roads, in particular, block access to markets and are one of the major constraints faced by small-scale farmers in trying to move from a subsistence basis to a more sustainable scale of production. As a donor in support of improving nutrition status, Irish Aid should: •  Support coherent and multi-sectoral nutrition strategies which: •  establish an appropriate institutional structure; •  p  rovide strong political and organisational leadership to ensure the necessary cross-sectoral actions take place; and •  increase the numbers of nutritional personnel at all levels •  notably community nutrition workers.



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•  Support programmes which encourage exclusive breastfeeding for the first six months; •  Support programmes which ensure improved maternal nutrition, including micronutrient fortification and supplementation; •  Continue to support the promotion of preventive measures against HIV/AIDS and other diseases, while also promoting the positive benefits of nutrition to mitigate their impact; •  Support programmes which provide targeted school feeding (a breakfast/lunch meal) – such programmes have proven to be critical for providing nourishment for children at school, allowing them to learn better, as well as increasing attendance and enrolment rates, with a particular focus on encouraging female children to stay in school; •  Support opportunities to link agriculture and nutrition in policies and programmes at all levels; •  Support the implementation of social protection programmes where they are most needed and promote the inclusion of specific mechanisms within such programmes which enhance nutrition; and •  Continue to encourage and support the development and scaling-up of Community Management of Severe Acute Malnutrition as an effective means of addressing acute malnutrition.

table of contents 1 Introduction: Eradicating hunger 2 The current status of world hunger 2.1  Overview of current hunger status 2.2 The UN Hunger Report 2.3 New and continuing challenges in addressing hunger 2.4 Existing commitments 2.5 Hunger is a failure of governance 3 What is being done: Some progress but not enough 3.1 Not enough is being done 3.2 Country success stories 3.3 A refocus on agriculture 3.4 Where is nutrition? 3.5 Social safety nets for the most vulnerable 3.6 New international initiatives 4 A three-pronged approach 4.1 A focus on smallholder farmers in Africa to increase agricultural productivity 4.2 A focus on maternal and infant undernutrition 4.3 A focus on governance 4.3.1 Increase the priority given to hunger at national level 4.3.2  Increase the priority given to hunger at international level

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5 A call to action: What Ireland can and should do 5.1 Principles 5.2 Actions 5.2.1 Support for reform of the international architecture to tackle world hunger 5.2.2 Support for actions to improve agricultural productivity and institutional innovation 5.2.3 Support for improving nutrition status 5.2.4 Support for specific Irish national policies and resource allocations 6  A national task Task Force Members Acronyms Figures [omitted]

1  introduction: eradicating hunger The global hunger crisis is the most critical issue facing the world today. The recent dramatic rise in world food prices – by 44 per cent in just the last 12 month period – and the occurrence of food riots in many developing countries have highlighted the urgency and scale of the world hunger problem. One hundred and sixty years ago, Ireland suffered first-hand the devastating effects of crop failures coupled with the failure of political response. Not enough seems to have changed in the world in the intervening period. •  Back then, and again today, we can produce enough food for everyone; •  However, back then, and again today, it is the poor, the most vulnerable, the voiceless who starve; •  Back then, and again today, there is an absence of political will to do away with hunger and starvation. Despite advances in food production, the extent of global hunger has remained almost unchanged. Today, at the beginning of the twenty-first century, more than 860 million people do not have access to enough food. With the current sharp increase in the price of food, this number could easily reach one billion of the world’s population. Almost 10 million children below the age of five die every year, and malnutrition is the underlying factor in one-third to one-half of these deaths. This is a denial of basic human rights as laid down in the 1948 Universal Declaration of Human Rights. The fundamental right of everyone to have access to safe and nutritious food was reiterated at the World Food Summit in 1996. However, over 860 million people are still being denied that right. The human costs of mass global hunger are enormous. Two billion people, mostly women and children, suffer from anaemia due to iron deficiency – a major cause of maternal deaths – while 40 per cent of all children in sub-Saharan Africa risk permanent physical and intellectual impairment because of malnutrition. Children, especially girls, do not go to school because of hunger.



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The economic costs of mass global hunger are also enormous. Economic losses from hunger can be up to 10 per cent of GDP. Until now, international leadership and action to eradicate the scourge of world hunger have been inadequate. The persistence of mass hunger despite the availability of technical solutions and repeated political commitments suggests a failure to translate commitments into effective action. The Government of Ireland is convinced of the need for a high profile, concerted and effective international effort to eradicate mass global hunger. At the United Nations, Summit in September 2005, Ireland made a commitment to reach the target of 0.7 per cent of GNI for ODA by 2012 and included within that commitment an increased effort to ‘tackle the root causes of hunger’. This commitment was given formal expression in the White Paper on Irish Aid launched in September 2006, which identified hunger and food security as fundamental elements of the global development challenge. The White Paper included the commitment to establish a Task Force on Hunger, the aim of which is ‘to identify the additional, appropriate and effective contributions that Ireland can make to international efforts to reduce hunger and thus achieve the first Millennium Development Goal of halving poverty and hunger by 2015’. This Report will: •  Review the nature and context of hunger in today’s world, drawing on a range of analyses undertaken in recent years; •  Highlight success stories where effective action has been taken; •  Explain particular challenges and constraints; •  Provide guidance as to where Ireland can make a real difference in tackling hunger; and •  Recommend key areas of necessary action.

2 the current status of world hunger 2.1.  Overview of Current Hunger Status The first MDG is to eradicate extreme poverty and hunger. To reach this goal, we must achieve two targets by 2015: 1. Reduce by half the proportion of people living on less than US$1 per day, and 2. Reduce by half the proportion of people who suffer from hunger. The second of these targets is the hunger target. To achieve this hunger target by 2015, we must: •  reduce by half the prevalence of underweight children under five years, and •  reduce by half the percentage of the world population below minimum levels of dietary energy consumption. Although some countries are on target to achieve or surpass the MDG hunger target by 2015, many others are lagging behind. Eastern Asia has already achieved the target thanks largely to nutritional advances in China, and there has also been some progress in Western Asia, Latin America and the Caribbean.

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However, progress has been very slow in two regions •  Southern Asia, where 46 per cent of children under five are underweight, down only seven percentage points since 1990; and •  Sub-Saharan Africa, which shows only a small reduction, with the percentage of children under five who are underweight falling from 33 to 29 per cent. Although in both these regions the percentages show some fall, the absolute numbers of hungry are continuing to rise because of increasing population. The reality is that even if the MDG target were to be met, this would still leave 585 million hungry people in the world in 2015. The impact of the recent food price rises will only add to this number. World population is expected to grow from current levels of 6.7 billion to 9.2 billion in 2050. Without a greater concerted focus on the hungry, their numbers will only increase. 2.2.  The UN Hunger Report The report of the 2005 UN Millennium Project Task Force on Hunger defines hunger as a condition in which people lack the basic food intake to provide them with the energy and nutrients for fully productive active lives. People go hungry due to an inability to obtain this basic food intake. This inability can arise from a number of causes including poverty, low food production, mothers’ and fathers’ lack of education, poor dietary diversity and hence low nutritional quality, poor water, sanitation and health facilities, and climatic shocks. This indicates the multi-dimensional nature of the hunger problem and of the solutions needed to reach the MDG. The vulnerability of hungry households is exacerbated by gender inequality, and the impact of HIV/AIDS and other major diseases. The extent and causes of hunger vary by region. War and HIV/AIDS have been hugely important factors causing undernutrition, particularly in sub-Saharan Africa. In Asia, the low status and consequent poor education of women has affected child malnutrition and mortality. Rapidly rising food prices are a new phenomenon which will exacerbate hunger particularly in net food-importing countries – including most of the poorest countries in sub-Saharan Africa. 2.3.  New and Continuing Challenges in Addressing Hunger i.  Entering a New Era of High Global Food Prices For most of the late twentieth century the problem of hunger was seen as one of better distribution of food resources. Developed countries engaged in expensive programmes to support their own farmers in what was seen as a world of plenty and farmers were paid to diversify or keep land idle. In the twenty-first century this has changed dramatically. Whereas food surpluses were once common, there is wide consensus that we are now living in a post food surplus disposal era. World food prices have dramatically escalated in recent years, and there have been food riots in many countries, including Haiti, Pakistan, Egypt, Burkina Faso, Senegal, Morocco and the Philippines. There is increasing evidence that the world is entering an era of long-term higher food prices as a result of increased demand for food commodities, particularly cereals. There are deep-seated causes which



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make it unlikely that food prices will come down soon. The positive development of income growth in some developing countries is generating a substantial increase in demand for cereals and, more crucially, for meat which is largely derived from grainfed animals. High energy prices are also having a significant effect on food prices by increasing the cost of agricultural inputs such as fertilisers; by increasing transport costs; and by increasing the demand for alternative energy sources – notably for biofuels such as ethanol. This has resulted in land normally used for food production being switched over to biofuel production. Rising food prices have created new, urgent challenges that are increasing hunger and humanitarian needs worldwide. These challenges hit the most vulnerable hardest. As a result of increased food prices, a new face of hunger has emerged, with an additional 130 million people joining the ranks of the urgently hungry who were not there just one year ago. The most vulnerable people are running out of coping strategies. For those living on less than US$2 a day, they have cut out health and education expenditures and have sold or eaten their livestock. For those living on less than US$1 a day, they have cut out protein and vegetables from their diet. For those living on less than 50 cents a day, which is more than 160 million people worldwide, they have cut out whole meals and sometimes go days without any meal. In response to this crisis, the UN Secretary-General established a High Level Task Force comprising the heads of the relevant UN agencies and Bretton Woods institutions. That Task Force, in addressing both immediate needs and longer term measures, outlined a number of key outcomes to be pursued, including: •  emergency food assistance, nutrition interventions and safety nets should be enhanced and made more accessible; •  smallholder farmer food production should be increased; •  social protection systems should be expanded; •  international food markets should be improved. Through its Comprehensive Framework for Action (CFA), the Task Force has called on governments to double ODA for food assistance, other types of nutritional support and safety net programmes, and to increase the percentage of ODA to be invested in food and agricultural development from the current 3 per cent to 10 per cent within 5 years (and beyond if needed) to reverse the historic under-investment in agriculture. Such increased allocations are recommended against a backdrop of progress towards achievement of the 0.7 per cent GNI target, and are to be additional to current funding levels. International agencies are responding to the crisis, in particular by providing food and nutrition assistance, and safety nets such as school feeding, food for work, food transfers, cash transfers and vouchers, to deal with the urgent hunger and increasing humanitarian needs. Substantial increases in resources for food and nutrition assist­ ance and safety net programmes are required for this food and hunger crisis response to be sustained. However, in addition to the critical immediate response, it is vital that longer term, well coordinated responses are also put in place to boost agricultural production and improve poor peoples’ access to reasonably priced food, containing enough of required

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nutrients. These responses should ensure that important gains against hunger are not lost, and build the long-term resilience that is critically required to achieve global food security. ii.  Climate Change Risks in agriculture have always been associated with climate, but recent evidence on climate change indicates that between 75 million and 250 million people in Africa may suffer increased water stress due to climate change. Water harvesting and water management systems will be increasingly important both for food production and for household use. Access to clean household water is vital for proper nutrition and health, especially in areas prone to waterborne pests and diseases. The size of the areas suitable for agriculture is expected to decrease, in particular along the margins of semi-arid and arid areas. In some countries, yields from rain-fed agriculture could fall by nearly 50 per cent. Africa, which is largely dependent on rainfed agriculture, is especially vulnerable to climate change. iii.  Depletion of Natural Resources Traditionally, in poor African countries soils are fragile and agricultural growth has been more dependent on increasing land under production rather than using inputs to intensify production of existing landholdings. As population continues to increase, this places increased pressure on access to natural resources such as land and water. Unequal or insecure access to natural resources perpetuates poverty and can be a contributing factor behind devastating conflicts, as in Darfur. The UN Food and Agriculture Organization (FAO) expects 80 per cent of increased global agricultural production to come from intensification, with only 20 per cent from area expansion, again the latter mainly in Africa. However, intensification does not come without its own challenges, in that, if poorly managed, intensification can result in greater soil erosion, pressure on surface and ground water, increased nitrate levels and salinisation. 2.4.  Existing Commitments Both developed and developing countries have made pledges in recent years to commit resources to address the issue of hunger. The lack of progress in delivery on these commitments is a clear reflection of the lack of priority afforded by governments to eradicating hunger. Commitment Developed countries are committed to reaching the UN target of development aid spending in the amount of 0.7 per cent of GNI. Progress Very few of the developed countries have reached the UN target. In 2007, only Denmark, Luxembourg, the Netherlands, Norway and Sweden had reached that figure. Other countries have set dates for reaching the UN target. Ireland intends to do so by 2012, with an interim target of 0.6 per cent in 2010.



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Commitment All governments are committed to the first UN Millennium Development Goal of reducing by half the proportion of people suffering from hunger by 2015. Progress: Target unlikely to be achieved in South Asia or in sub-Saharan Africa. Commitment The World Food Summit of 1996 set an even more ambitious target to reduce by half the number of undernourished people in the world by 2015. Progress Target will not be achieved. Commitment At the Gleneagles G8 Summit in 2005 a commitment was made to a doubling of ODA by 2010. Progress Most countries are not on target to meet this commitment. Commitment The Comprehensive Africa Agriculture Development Programme (CAADP), adopted in Maputo in 2003, commits African governments to increasing expenditure on agriculture to 10 per cent of their annual budget. This would imply significant increases from levels in 2002 of under 5 per cent. The aim of this target is to achieve a 6 per cent growth in agricultural production. Progress Indications are that progress is very slow. The latest progress report, in February 2008, indicates that although 11 countries have achieved the Maputo growth target of 6 per cent in agriculture, only five have achieved the budget target of 10 per cent. 2.5.  Hunger is a Failure of Governance The bare facts of global hunger are well known, and yet there has been much less global or national attention to addressing this crisis compared with other global problems, such as climate change, HIV/AIDS, poverty or developing country debt. There has been a collective failure at international and national levels to prioritise the eradication of global hunger. This amounts to a governance failure at many levels •  Despite numerous commitments, there appears to be a willingness among both the international community and national governments, to live with the current extent of global hunger; •  Frequently in those countries worst affected, there is not a single ministry or national authority dealing specifically with hunger, which is an issue which spans a wide array of competencies ranging from agriculture to health to education; •  This is even more the case in respect of nutrition which can only be described as an administrative and institutional orphan – both at national and international levels;

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•  Civil Society, with the exception of some NGOs, appears to be unable or unwilling to push global hunger to the top of global development priorities; •  Donor resources for support to small-scale agriculture have not been prioritised; and •  Most importantly, hungry people themselves – disproportionately consisting of poor women and children, many of them affected by conflicts, HIV/AIDS and other chronic illnesses – have little or no voice in policy-making and little or no power in local markets. Addressing hunger requires the kind of coherent multi-sectoral response from the international community which both national governments and donors sometimes find difficult to organise. Yet such multi-sectoral approaches are being adopted in relation to climate change and HIV/AIDS, and therefore the ‘technical complexity’ argument for not tackling world hunger does not stand up. Ultimately, it is a matter of political priorities. A comprehensive approach to tackling global hunger requires that these underlying political determinants be addressed. National governments and donors have made many commitments but, at a global level, there is no independent body which audits the implementation of these commitments. Neither is there an independent authority with the power and willingness to name and shame those who have failed to live up to their promises. Questions have arisen about the international architecture and structures in the areas of food and nutrition, and whether we have the right structures in place to deal with the challenges of hunger. Do we have the right mix in terms of international governance or are there too many agencies? Are their mandates clear, or is there some measure of overlap? Have they the resources to enable them to do the job we want them to do? Is There Clear Leadership at an International Level on the Issue of Hunger?

3 what is being d one: some pro gress but not enough 3.1.  Not Enough is Being Done We know what needs to be done. The comprehensive UN Task Force on Hunger Report made seven broad recommendations: i. Move from political commitment to action ii. Reform policies and create an enabling environment iii. Increase the agricultural productivity of food-insecure farmers iv. Improve nutrition for the chronically hungry and vulnerable v. Reduce vulnerability of the acutely hungry through productive safety nets vi. Increase incomes and make markets work for the poor vii.  Restore and conserve the natural resources essential for food security Each of these recommendations is important, but the bigger challenge is to develop effective and coherent actions which donors, national governments and civil society will buy into, and with considerably increased resources.



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3.2.  Country Success Stories Despite the failure to meet global targets, there have however been some significant success stories that show what can be achieved with sufficient political will and with focused action. The Task Force is of the view that we can learn useful lessons from these experiences. Ghana Ghana has more than halved its number of undernourished in a ten-year period, decreasing from 5.8 million in 1993 to 2.7 million in 2003. There have also been declines in the percentage of underweight children under five, and in the under-five mortality rate. Most analysts attribute this success to strong economic growth, particularly in the agricultural sector. Two factors in particular are identified as contributing to a stronger agricultural performance by Ghana: •  the success of agricultural research and •  the more general improvement in public sector services to agriculture New maize, yam, rice and cassava varieties have been introduced in Ghana since the 1980s, and there has been a 25 per cent increase in cropped area. Maize yields have increased by 36 per cent and cassava yields by over 50 per cent. A pest-resistant cassava variety has been introduced, and cassava contributes around a third of the country’s calorie intake. Growth in other sectors, including agricultural exports, has paid for increases in food imports, also increasing food availability. Market liberalisation appears to have had a positive impact, particularly for cocoa. However, chronic malnutrition is still relatively high and poverty is still highest amongst food crop farmers. Although Ghana is on track to meet the hunger MDG, it will be important to target interventions at particularly vulnerable groups. China China made progress towards the MDG target during the 1990s when the total number of hungry fell by 44 million to 150 million – a 22 per cent decrease. This was driven to a large extent by productivity growth in agriculture, which resulted in lower food prices and a stimulus to the non-farm sector. When production levels failed to respond to population growth, the collective farming system was broken up into individual farms. This led to rapid agricultural growth which in turn brought about poverty reduction. This institutional reform was responsible for 60 per cent of agricultural growth up until the mid-1980s. After that time, public investment took over as the main driver of agricultural growth and poverty reduction. Institutional capacity was key to China’s ability to increase the impact of markets, while avoiding negative impact on the poor. China’s food grain procurement system provided an anti-poverty lever, through variation in the procurement price. Over the last 20 years the rural economy has contributed most to reducing the number of poor in China. However, the slow rate of growth in agriculture relative to export-led manufacturing is a factor in the current slower rate of poverty reduction.

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Vietnam Vietnam has also made significant strides in addressing levels of hunger. In 1992, 40 per cent of the population was consuming below the required level of nutrition. By 2004 this figure had dropped to less than 10 per cent. Vietnam has reached the MDG hunger target. Here again the story is primarily one of success in the agriculture sector. In the late 1980s, Vietnam moved away from collective farming to individualised farms with longterm leases, and liberalised input and output markets. The Government supported these changes with the introduction of new crop varieties, improved access to credit extension and subsidised credit. The Government also increased investment in roads and irrigation in poorer areas, such as the north-western uplands. Malawi Malawi suffered from very severe food shortages in 2001–03 and again in 2005. These shortages were predictable, resulting from the combined effects of an impoverished and under-supported smallholder agricultural economy, a poor macro-economic situation, inappropriate policies, and the ravages of the HIV/AIDS pandemic. In the last 2 years, however, Malawi has experienced a dramatic turnaround with an increase in maize production from a low of 1.2 million tonnes in 2005, to 3.4 million tonnes in 2007. While favourable weather conditions played their part, the main cause of this production boost was the provision of quantity-limited subsidised fertiliser and seed to smallholder farmers. The number of Malawians who faced significant food shortages decreased dramatically from 5 million in late 2005 to 500,000 in late 2007. One of the major arguments against fertiliser subsidy is the fiscal burden on governments in very poor countries. However, the reality is that poor smallholders cannot afford to buy enough fertiliser to meet household needs at world market prices. Soil fertility had declined in Malawi and fertiliser was needed to replenish soil nutrients. Therefore, at least in the short term, an input subsidy, limited in quantity and targeted at smallholder farmers, proved to be an appropriate way to address Malawi’s food crisis. Brazil Brazil has recently made considerable progress in hunger reduction. A major factor has been the introduction of the Zero Hunger Strategy, aimed at ensuring the human right to adequate food. The government implemented a combined safety net programme based on a Single Social Assistance System with an annual budget of US$13bn. Included in this system is the Bolsa Familia, a conditional cash transfer programme targeted at 11.1 million poor families with monthly incomes below US$60 per capita. Monthly transfers average US$36 per family. Results of these combined programmes include improved incomes and nutrition amongst poor families. As a result, 14 million people were removed from poverty during 2003–06 and Brazil has already reached the poverty MDG These cases have demonstrated substantial progress. Ghana has highlighted the value of agricultural research when applied in a practical hands-on way to smallholder agriculture. China and Vietnam highlight the importance of institutional capacity. The case of Malawi demonstrates the benefits of affordable inputs, while Brazil’s Bolsa Familia has demonstrated the positive nutritional outcome of targeted cash transfers. All of these success stories were the result of an improved policy environment within

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the countries involved. They are proof that hunger can be effectively tackled when the will is there to do so. 3.3  A Refocus on Agriculture Agriculture has suffered decades of neglect from both national governments and donors. In the mid-1980s, 12.3 per cent of ODA was spent on agriculture. By 2006, this had fallen to just 3.1 per cent. Spending on long term measures to improve agricultural production had declined dramatically. At the same time, food aid deliveries decreased almost continuously since 1999 and in 2007 reached their lowest level since 1961.2 After such neglect, there is a need for a strong and renewed focus on food security and agriculture. It is the key in many of the poorest developing countries to reducing hunger, improving nutrition, promoting growth and reducing poverty. The reasons are clear: •  Despite growing urbanisation, the majority of poor households are still rural (70 per cent on average in the least developed countries) and a high percentage of these households are engaged in agriculture on small farm holdings; •  Agriculture is a key economic sector in most of the least developed countries, generally accounting for 20–30 per cent of GDP and about 67 per cent of the labour force; •  Agriculture is often the leading sector in stimulating broad-based development processes; •  Productivity gains in agriculture have a higher impact on poverty reduction than gains in other sectors; •  Increased agricultural output lowers food prices and benefits non-farm households; •  Women account for up to 80 per cent of food production in most developing countries and improved agricultural productivity in principle enhances women’s income and household food security. It is important to note that women smallholders have particular difficulty in accessing resources and, unless there is strong focus on their needs, aggregate increases in output may not translate into significant reductions in hunger. 3.4.  Where is Nutrition? Broad-based agricultural development is a necessary requirement to address chronic hunger. But it is not sufficient, nor is it likely to be realised fast enough to prevent a repetition of the many food crises already witnessed in the early years of the twentyfirst century, in Southern Africa, Horn of Africa, Niger, South Sudan and Darfur, among other regions. In these areas, highly vulnerable populations suffering acute and/ or chronic malnutrition have been tipped over the edge by severe food shortages and disease. A wide range of food assistance interventions and specific nutritional interventions are needed to reduce the vulnerability of such communities. Addressing malnutrition requires interventions beyond emergency feeding programmes which save lives. It is critically important to focus on prevention – to reach nutritionally vulnerable groups through nutritional interventions which have longterm positive effects. This means a particular focus on women and young children.   INTERFAIS ‘(International Food Aid Information System)’ WFP 2007 Food Aid Flows Report.

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A recent comprehensive review of maternal and child undernutrition published in The Lancet (January 2008) shows the stark facts in developing countries: •  Maternal and child undernutrition is the cause of 3.5 million (over one-third) child deaths annually and 35 per cent of the disease burden in children under five. Most of these deaths are preventable; •  There is a critical period for effective nutrition interventions: from pregnancy to two years of age. During that critical period, continued undernutrition causes irreversible damage for future physical and mental development; •  Maternal undernutrition is prevalent in many countries, especially in south-central Asia, and is critical in Bangladesh and India. Maternal undernutrition is a major risk factor during pregnancy, and is associated with poor growth in the uterus. Malnutrition can be inherited in the womb; •  In 2005, 32 per cent of children under five were stunted, with particularly high rates in eastern Africa (50 per cent) and central Africa (42 per cent); however India has the highest absolute number of stunted children (61 million); •  10 per cent of all children globally (55 million) are wasted. The highest rate is in south-central Asia (29 million); of these, 19 million children are severely wasted, a situation often needing emergency interventions, including therapeutic feeding; •  Micronutrient deficiencies, particularly of vitamin A, iron and iodine are major public health nutrition issues. Goitre, which results from a deficiency of iodine, affects 13 per cent of the world’s population, while as many as 30 per cent have iron deficiency anaemia. About 500 000 children go blind annually from vitamin A deficiency, and half of these will die within a year of losing their sight. Iron and iodine deficiencies in the first three years of life lead to permanent loss in cognitive function. The links between the undernourished status of women and the poor nutritional status of children are clear.3 When the importance of women in agricultural production is added to the picture, it is obvious that a strong focus on meeting women’s productive and nutritional needs must be a key component of any strategies to overcome hunger. The two-way links between HIV/AIDS and food insecurity are now more clearly understood. HIV/AIDS depletes household labour resources and contributes to a downward spiral into chronic food insecurity. Conversely, while Anti-Retroviral Treatment (ART) is essential to prevent deterioration of health among HIV infected people, it is recognised that improved nutrition can mitigate the side effects of ART, further support the body and strengthen the immune system. Despite the scale of the problem, government and donor commitment to directly combating chronic malnutrition has been weak. The World Bank in a recent report used the phrase ‘Repositioning Nutrition’ which implies that nutrition has fallen to a low level of priority. Three broad reasons are cited: •  Because malnutrition is often invisible, there is often poor community awareness of its threat to health and well-being; 3   Malnutrition is perpetuated throughout the life-cycle by a woman entering and continuing pregnancy in a malnourished state to give birth to a low birth-weight infant. This infant is disadvantaged right from the start and may continue in this state through childhood and adolescence if interventions are not undertaken to break this cycle. The malnourished female adolescent therefore enters womanhood and pregnancy still malnourished and giving birth to a low-birth weight infant – the vicious cycle of malnutrition can continue through generations.



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•  Governments have failed to recognise the pivotal role that malnutrition has on economic performance, affecting the attainment of a number of MDGs; •  Because there are multi-organisational stakeholders in nutrition, it often falls between the cracks of government – the partial responsibility of many, but the main responsibility of none. The World Bank report stresses that whereas a ‘one size fits all’ approach will not work, there are several avenues where special attention is needed. These include: •  Targeting pregnancy and maternal-child nutrition; •  Targeting micronutrient fortification programmes; •  Expanding community based nutrition programmes; •  Integration of nutrition-related actions into agriculture, rural development, water and sanitation, social protection, education, gender and community-driven development. 3.5.  Social Safety Nets for the Most Vulnerable Social protection programmes also play a role in reducing hunger among vulnerable households. Such programmes generally aim to achieve one or more of the following: •  Protecting incomes and consumption, eg through cash for work or food for work programmes •  Enhancing human development, eg through measures to ensure access to basic services, including food for education programmes, provision of nutritional supplements and fortification for children •  Promoting productive livelihoods, eg through direct support to agriculture (eg starter packs, microfinance) Social protection transfers need to be predictable and dependable in order to achieve a significant impact on chronic poverty and food insecurity. Such transfers can be positively targeted towards particular needs and specific vulnerable groups – for example, nutritional support programmes aimed at young children and pregnant women. The World Food Programme provides 20 million hungry children a year with school meals – a critical social safety net as high food prices put additional economic pressures on poor families. There is positive experience with cash transfer programmes such as the Bolsa Familia in Brazil and Progresa in Mexico. Safety net programmes using a combination of food and cash are being introduced in food deficit countries such as Ethiopia, Malawi and Zambia. In the case of Ethiopia, using a similar level of resources as would be required in a humanitarian intervention, the Productive Safety Net Programme is designed to avert the need for such a humanitarian intervention by meeting immediate food security needs, while at the same time contributing to longer-term rural transformation. Questions remain about the extent to which these programmes complement, or compete with, alternative approaches which focus more directly on increasing production and incomes of food-insecure households. While productive safety net programmes are one instrument to address chronic food insecurity and bridge the gap between emergency and development assistance, their design has to be carefully considered to maximise development effectiveness.

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3.6.  New International Initiatives The Current Food Crisis Has Prompted a Number of Responses, Including Inter Alia •  The UN Secretary-General established a special Task Force made up of the heads of relevant UN agencies and Bretton Woods institutions to produce recommendations on a coherent global response. That Task Force has recommended a Comprehensive Framework for Action (CFA) which aims to bridge the traditional divide between humanitarian and development assistance. The CFA includes a series of far-­reaching recommendations to encourage a well-coordinated response to the current crisis and to encourage substantially increased funding for agriculture, food assistance, nutrition and safety nets programmes; •  A high level conference on World Food Security was held at the FAO in Rome in June 2008 to address the challenges of climate change and bio-energy. The conference recommitted the participating governments to the Millennium Development Goals and recommended a series of immediate short-term measures as well as a series of medium and long-term measures; •  The European Union, at its Council meeting of 19–20 June 2008, announced a series of measures, including a possible new fund to support agriculture in developing countries; •  The G8, at its recent Hokkaido Summit, announced a series of measures in support of its decision to form a global partnership on agriculture and food; •  Key multilateral organisations, including the World Bank and FAO, have announced significantly enhanced efforts and increased funding towards addressing hunger; •  The World Food Programme (WFP) has established a specific Emergency Market Mitigation Account and mobilised more than one billion USD in additional resources which is being disbursed to some 60 nations to cover the gaps created by higher food and fuel prices in their existing operations, while at the same time continuing efforts to scale up their level of operations to meet higher levels of hunger and malnutrition; •  There have been a number of new initiatives including the Alliance for a Green Revolution in Africa (AGRA). In addition, there have been calls to set up a special Fund for an African Green Revolution to support longer-term investments in smallholder agriculture – to be called the Smallholder Agriculture Financing Mechanism (SAFM). This would build on the examples of the other Global Funds and provide quick access to funds for national level investment in improving smallholder productivity. Food security and agriculture are now firmly back on the international agenda, and development partners are looking closely at possibilities for social protection programmes in many African and Asian countries. However, similar initiatives do not appear to be underway in the area of nutrition.

4  a three-pronged approach Concerted and effective action is vital in order to move towards the hunger targets of the MDGs. Although hunger is a multi-faceted problem, Ireland’s Hunger Task Force believes that there are three critical areas which need priority to achieve the greatest and most lasting impact:



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1.  Increasing agricultural productivity in Africa – with a particular focus on women who account for up to 80 per cent of food production in most developing countries; 2. Targeting maternal and infant undernutrition; and 3. If efforts in these two areas are to be effective and sustainable, changes in governance and leadership priorities are needed at both national and international levels to hold both national governments and donors to their commitments, and address the needs of the hungry. 4.1 A Focus on Smallholder Farmers in Africa, to Increase Agricultural Productivity Many African economies are struggling to keep pace with population growth and a declining per capita growth in the production of staple foods. As a result, food imports are increasing. Rapidly rising food prices add to the vulnerability of populations in these countries. Africa has lagged behind Asia in transforming agriculture. In part this is because of different ecological potential but, more importantly, it is because of lack of access to key inputs. •  39 per cent of the crop area in South Asia is irrigated as compared with just 4 per cent in Africa. •  Modern varieties of cereal are planted on 80 per cent of land in South and East Asia, as opposed to 22 per cent in Africa. •  Chemical fertiliser use has expanded continuously in South and East Asia since the early 1960s, and now reaches between 100 and 190 kg per hectare. In Africa, fertiliser use has stagnated at 13 kg per hectare since 1982. There is clearly considerable scope for improvement. Africa’s smallholders are among the world’s poorest people. Improving their productivity and strengthening local markets will increase their own food supplies directly, increase their income and thereby access to food, while improving food availability in their countries. Women perform up to 80 per cent of farm work, but often have very limited control over the assets, including their own labour, necessary to achieve good returns in this sector. For them it will often be important to focus on food crops, as they often have less control over the proceeds from commercial and export crops. The needs of women farmers are often not properly addressed in policy and programmes. Women have multiple responsibilities in both production and social reproduction. In the last few decades, this ‘double burden’ has been added to by the HIV/ AIDS pandemic. Their greatest need could be for labour productivity-enhancing technologies, in addition to crops or technologies focused on increasing land productivity. In too many countries in Africa, women can be seen hoeing fields by hand for lack of any alternative viable technology. Legal systems, often incorporating traditional customs, can restrict the rights of married women to own land in their own right. When women are widowed, they sometimes can only continue to farm the family land by agreement with the husband’s family or their own male children. HIV/AIDS is making this situation more acute in some countries.

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Women also face unequal access to input and output markets, and to support services in agriculture. Agricultural advisory services are predominantly provided by male extension agents, and insufficient account is taken of the demands on women’s time when these are being planned. Access to formal financial services is often constrained by women’s lack of assets. Microfinance projects have in some cases provided small amounts of credit which have made a big difference, but these are generally insufficient to allow women to take the next step to operating their farms as businesses. Few smallholders rely entirely on their own output for food. The large majority both buy and sell agricultural products. Therefore, enabling them to use their assets more effectively will boost market activity, and gradually enable poor farmers to move either to a more commercial basis for production or, in some cases, enable them to build up sufficient assets to enter the non-farm economy on a more sustainable basis. Increasing agricultural productivity and the well being of small-scale farmers will require a comprehensive approach to the sector. This includes at the macro-level: i. The need to reverse under-investment in agriculture, while increasing the efficiency of investments; ii. The importance of the State in creating an enabling environment for the private sector to take the lead in expanding production and productivity. The private sector in this case is primarily comprised of millions of small producers; iii. Improve market access and address market failures – this implies a range of measures from investing in physical infrastructure, to promoting the improved functioning of local supply chains and marketing channels, particularly for the benefit of small producers; iv. Effectively target public spending, giving priority to public goods which maximise impacts on productivity growth and benefit the poor; focus on expenditures with proven returns, for example, pro-poor agricultural research, education and advisory services; v. Improve the management of, and access to, natural resources since these provide the base for sustainable agricultural production. Unequal or insecure access to natural resources perpetuates poverty and can underlie devastating conflicts; vi. Address the key role of water management in relation both to agricultural production and to household nutrition/health; vii. Address the global dimensions of agriculture and rural poverty reduction – this includes, but is not limited to, agricultural trade agreements (including between neighbouring countries); the debate over crops for biofuels or crops for food; broader issues relating to climate change, biodiversity and bio-safety; GM foods; the HIV/AIDS pandemic; viii.  Ensure that interventions address and support gender issues effectively, in particular unequal access to land and credit. 4.2 A Focus on Maternal and Infant Undernutrition Women and female children usually have lower nutritional intake than men and boys, especially in poor households. This partly reflects the nutrition hierarchy within households, and is partly a result of other disadvantages experienced by women, including lack of alternative livelihood opportunities and inferior wages compared with men. All of these factors have serious nutritional effects for women and their children.



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The rate of child undernutrition is considerably higher in South Asia compared with sub-Saharan Africa, because of the particularly low status of women in South Asia. Increases in women’s status in South Asia have a significant influence on the nutrition status of children in both the short and long term. Ultimately, women’s empowerment is at the heart of reducing the burden of malnutrition in South Asia, and there is strong evidence that investments in women’s education have a direct effect on reducing hunger. It is estimated that improvements in women’s education were responsible for 43 per cent of the reduction in child malnutrition that occurred between 1970 and 1995.4 Therefore, such long-term investments in girls’ education are as critical as short-term direct nutritional interventions in solving the hunger problem. Hunger is a major reason why children, particularly girls, cannot attend school or drop out after some time – food shortages drive them to working in the fields to meet essential family food needs. At the same time, lack of food prevents children from being able to learn, even if they are in the classroom. Therefore, investments in school feeding and take-home rations specifically targeted at girls as an incentive for enrolment and attendance also have a long-term payoff in promoting girls’ education and ultimately in better nutrition of the current and next generation. Even though interventions to prevent the lifelong effects of child undernutrition are particularly important during the age range 0–24 months, interventions at school age both underpin these earlier actions, and provide the long-term benefits described. Nutrition and agriculture are of course strongly linked: in many countries, the drive to reach self-sufficiency in the staple cereal crop has been at the expense of the greater nutritional value to be gained from more diverse crop production. Ironically, the current global food crisis may exacerbate this trend, given the record levels of cereal prices. When solving hunger is seen in terms of nutritional quality, and not just in terms of the aggregate quantity of calories available, then the importance of other agricultural products – vegetables, pulses, roots and tubers, livestock and livestock products – within the production system has to be taken into account. Poor nutrition makes people more susceptible to disease. Likewise, disease reduces people’s ability to absorb nutrients. Risks of HIV infection increase with poor nutrition; conversely, the transition from HIV to full-blown AIDS can be delayed through improved nutrition linked with ART. Micro-nutrient deficiencies are also chronic in many countries. There is a lot of evidence that large-scale nutritional interventions can substantially reduce the worst consequences of undernutrition. It is often observed during food crises that households shift their intake away from ‘quality’ foods which are micronutrient-rich to cheaper alternatives, but thereby expose themselves to greater disease risk. In recent food crises, nutritional deficiencies have shown up in increased mortality and morbidity related to vitamin A deficiency, anaemia (often due to iron deficiency), and other deficiencies such as vitamin C deficiency (scurvy), vitamin B1 deficiency (beriberi), vitamin B3 deficiency (pellagra). Key requirements to achieve significant reductions in undernutrition are to give nutrition high priority in national programmes, and to operate at scale. The persistence 4  Smith, L & Haddad, L, Explaining Child Malnutrition in Developing Countries; A Cross-Country Analysis (Washington DC, IFPRI 2000).

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of large-scale undernutrition in many countries reflects failures in both these respects. There are examples from countries in Asia and Latin America (Chile, Cuba, Costa Rica, and Thailand) of large-scale nutritional interventions which have had positive results. However, there are but few such examples in sub-Saharan Africa. Thirty-six countries account for 90 per cent of all stunted children worldwide, and 21 of these countries are in Africa. A notable feature of many nutritional interventions is their relatively low cost and high rates of return. However, they do require resources and sufficient capacity for implementation. Effective solutions are needed for complementary feeding to meet the nutritional requirements of a key vulnerable age group – children in the 6 months to 17 months age bracket. 4.3 A Focus on Governance This third element – governance – is an overarching one because action to overcome the obstacles facing the hungry requires not just improved technical approaches and enhanced commitments, but also accountability at both the national and international levels to ensure delivery on those commitments. The challenge is to build real political commitment to reducing hunger, to give the hungry more voice and build greater capacity at all levels of society to address hunger effectively and in a sustainable manner. Without both developed and developing countries acting on their commitments, hunger will not be reduced. This is the main message of this Report: •  The analysis is there; •  The commitments are there; •  But as long as we do not act on those commitments, we will never eradicate hunger and starvation from our world. 4.3.1.  Increase the Priority Given to Hunger at National Level Governments The recent food riots bear witness to the continuing vulnerability of political regimes if they are seen to have failed to provide a stable and low-priced food supply to the urban population. In the past, the rural poor have often suffered as a consequence of national policies designed to provide a supply of cheap food to the urban areas. Although the most direct approaches to addressing hunger involve measures by national governments to boost smallholder productivity and promote improved nutrition, these measures need to be informed by a longer-term vision of transformed societies with high levels of education, health and productivity. One factor which is clear is the critical importance in both sub-Saharan Africa and South Asia of promoting girls’ education and of improvements in per capita food availability. At a practical level there is a need for substantial increases in resources to tackle key capacity constraints. Enhanced capacity also requires effective structures and systems. These generally do not exist in relation to nutrition, while agricultural support structures have in many countries been run down through neglect and partial privatisation programmes. In addition, few countries have as yet mainstreamed structures to support social protection as a long-term strategy to deal with their most vulnerable communities.



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Civil Society As countries develop stronger democratic institutions, and governments have to account for themselves in robust electoral processes, then the opportunities increase for civil society to make their needs felt. However, it will be important that the rural population, who in many countries are the majority, are educated in their rights and encouraged to exercise them. The poor rural farmer tends to be badly organised. Even if there is a local farmer organisation, it may be difficult for her to find time to attend, and she may feel that there is little return for the effort to participate. Farmers are geographically scattered which makes it difficult for a national organisation to be representative, and interests may vary by type of production, gender and location. Until small-scale farmers have an organisation that can represent them in policy debates and engagement on public spending priorities, they will continue to lose out when national strategies are being determined and when public spending is being disbursed. Against that background, a powerful way for holding governments accountable to their citizens is through civil society advocacy. 4.3.2.  Increase the Priority Given to Hunger at International Level Reducing hunger has often been seen as a matter of delivering food aid to deal with emergency and humanitarian needs. Although this is clearly a vital tool in addressing hunger crises in the short term, it is important to use the opportunities created by the current food crisis to engage in a more robust debate on the causes of hunger, and with the key institutions on the need for a more coherent, effective and integrated approach to hunger reduction. There is no shortage of international agreements on hunger and the right to food. The problem is the lack of effective actions and inadequate resources to implement these agreements. A robust mechanism is required to hold countries to their pledges and commitments – at the very least a mechanism with the capacity to ‘name and shame’ those defaulting on earlier commitments.

5.  a call to action: what ireland can and should d o Ireland has suffered the traumatic experience of mass starvation and famine in its own history. This experience had a social, economic and psychological impact which continues to echo down through the generations. Now Ireland is a newly prosperous country with an outward-looking orientation, whose history has engendered a spirit of solidarity with poorer nations. The Hunger Task Force believes that it is appropriate, in view of its history and recent development experience, that Ireland should play a pivotal leadership role in the global fight against hunger. The following principles have been identified by the Hunger Task Force to guide Ireland’s actions in addressing hunger at different levels.

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5.1. Principles 1. Prevention Although provision of emergency assistance in response to crises will remain an important element of Ireland’s activities to address hunger, Ireland should recognise the greater effectiveness and efficiency of actions taken to prevent food and hunger crises. Ireland should therefore allocate a significant share of its expanded hunger-related budget to partners and programmes which reduce hunger through promoting greater food security in rural and urban areas, and which improve nutrition directly. 2.  Inclusion: Focus on Women and the Ultra-Poor Ireland should focus its resources on initiatives and programmes which explicitly include and target women and the very poor. 3. Accountability Ireland should only fund activities where there are clear lines of accountability and appropriate reporting mechanisms. At the same time, Ireland should also recognise its own need to be accountable, for example, by providing committed funds in a timely manner, keeping the recipient government informed of commitments and disbursements, and addressing key policy coherence issues. Where national accountability mechanisms are weak, Ireland should support strengthening civil society. International accountability is as important as domestic accountability. There are many failures both by developed countries (eg in failing to deliver on commitments made in numerous international fora) and by developing countries (eg by failing to take strong stances where there are blatant human rights and governance abuses which cause mass hunger and misery). Ireland should promote international accountability in relation to hunger through the UN system. 4. Partnership Ireland has always operated its development programme on the basis of genuine partnerships involving governments, civil society and the wider community. Ireland should continue to operate in a partnership mode and should promote wide involvement in the fight against hunger in the countries where Irish Aid and its partners work. 5.  Policy Coherence Ireland should promote policy coherence at different levels both in its own actions and in its collaborations with development partners. 6. Leadership Where and when appropriate, Ireland should take on a leadership role in the fight against hunger. 5.2. Actions The Hunger Task Force recommends the following measures as specific ways in which Ireland can fulfil a leadership role.



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5.2.1.  Support for Reform of the International Architecture to Tackle World Hunger The Hunger Task Force calls for Ireland to support a reformed global architecture which can respond effectively and coherently both to the immediate crisis and to the long-term causes of global hunger. ‘Business as usual’ is not an acceptable option but quick fixes are also not sufficient. Such a reformed architecture will need to promote coherence across the relevant UN agencies and the entire international system. The current global architecture is fragmented. We need to take a fresh look at the whole agenda ranging from crisis mitigation through research to recovery and development. Ireland should promote synergies among all of the key agencies engaged in the hunger agenda, in order to avoid any gaps opening up in the overall drive towards the shared objective of eliminating the scourge of global hunger. Ireland should encourage donor governments and international institutions to significantly increase funding in a strategic way to the key activities identified in this report – particularly in the areas of governance, smallholder agriculture and nutrition – which together would add up to a sustained assault on world hunger. Within the EU, Ireland should work towards promoting policy coherence in areas relevant to addressing global hunger. These include issues such as supporting the development of trading arrangements which deliver genuine benefits for the food-­insecure in developing countries, focusing on the biofuels ‘mandate’ of the Commission in terms of its effects on food security and other related issues. There has been no lack of pledges from the international community in recent years to combat world hunger, from the 1996 World Food Summit onwards. The major problem has been failure to honour those commitments. Robust international mechanisms are needed to ensure that governments – both in developing and developed countries – honour their commitments. One possible suggestion put forward by some members of the Task Force would be for the Secretary-General of the United Nations to: •  Appoint a UN Commissioner for Hunger; •  Establish under the UN Commissioner for Hunger an audit body which would report on individual countries’ actions in addressing global hunger. Such a body could make use of existing Peer Review mechanisms (eg in NEPAD and the DAC) where appropriate, but must have the authority to hold governments to account where their actions are inadequate. The Hunger Task Force is conscious of the need for coherence in the international architecture on hunger and is supportive of moves to address this shortcoming including, inter alia, the possible establishment of a Global Fund which would bring added value and would be consistent with existing structures. The Hunger Task Force proposes that Ireland considers contributing additional funding to any such appropriate international funding mechanisms, designed to deal with either or both of the two key elements highlighted in this report – smallholder agriculture and long term nutrition. In previous years, International Financial Institutions (IFIs) have often supported stringent fiscal constraints to maintain macroeconomic balance at the expense of expenditure on service provision. This stance is being relaxed a little according to country circumstances, but Ireland should be prepared to make the case for increased expenditure on agriculture and nutrition at IFI board meetings and in informal discussion, where it feels that the gains from such expenditure outweigh the risks associated with a more rigid

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fiscal stance. Equally Ireland should support new initiatives by the IFIs to direct more funds towards agriculture, food assistance and nutrition programmes with the objective of improving food security and reducing hunger. There are many multilateral organisations each playing a different role in addressing hunger. The Hunger Task Force recommends that the relevant Government Departments in Ireland dealing with multilateral organisations relevant to hunger (FAO, WFP, International Fund for Agricultural Development (IFAD), Consultative Group on International Agricultural Research (CGIAR), UNICEF and others) should adopt a strategic ‘whole of Government’ approach in supporting these agencies, in line with the priorities identified in this report. •  FAO (Food and Agriculture Organization of the United Nations): Ireland should support the importance of an effective FAO, particularly given the current food crisis and the critical importance of improving agricultural productivity in order to address hunger and food insecurity. Ireland should therefore call for the rapid implementation of the FAO reform programme. •  WFP (World Food Programme): Ireland should continue to support the WFP and consider expanding that support in the context of the urgent challenges presented by the global food crisis. In the context of a more coherent international infrastructure to address all the dimensions of hunger, Ireland should support innovative and sustainable hunger solutions, for example by leveraging the substantial local purchases by the WFP to promote smallholder agriculture in developing countries. •  IFAD (International Fund for Agricultural Development): Ireland provides funding for IFAD, the specialised UN agency with a particular focus on enhancing agricultural and rural development for smallholder households. Ireland should continue to support IFAD where appropriate and in the context of the closer working relationship among FAO, WFP and IFAD. •  CGIAR (Consultative Group on International Agricultural Research): Ireland currently provides core unrestricted funding to eight CGIAR research centres. The Hunger Task Force is of the view that research focused on hunger reduction has high returns, as the example of Ghana has shown. The Hunger Task Force therefore recommends that Ireland should continue to support the CGIAR system and its work in conducting research with particular relevance to increasing smallholder productivity. •  UNICEF (United Nations Children’s Fund): The Task Force recommends that Ireland should support closer linkages between UNICEF and the UN food agencies to promote a more integrated approach to addressing hunger, combining agricultural and nutritional interventions. There are increasing numbers of civil society organisations which are taking the lead either in more technical actions to address hunger or in addressing governance deficits in their own countries. Ireland should support and strengthen such organisations where they are seen to have a strong and coherent approach to addressing hunger. 5.2.2.  Support for Actions to Improve Agricultural Productivity and Institutional Innovation In order to improve productivity, Ireland should support efforts to promote intensifica­ tion of smallholder agriculture. It should help build capacity to develop and manage



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appropriate programmes, within the framework of the partner government’s agricultural sector strategy, and should engage in dialogue with government to ensure that such programmes are designed to maximise access by women and the poor to land and other critical inputs and services. Ireland should encourage developing country partners to establish an enabling envir­ onment for the promotion of sustainable and equitable input and output markets. Where appropriate, it should work with partners, including the private sector, to analyse constraints in market development, and devise innovative ways of overcoming them. Diversification is an appropriate way for small-scale farmers to mitigate risk, and can also contribute to a more nutritious diet if focused on food crops, including vegetables. Ireland should support agricultural interventions which encourage appropriate diversification among small-scale farmers. The international agricultural research system must be funded and charged with creating, in cooperation with universities and national research institutes, an explicit research agenda that contributes significantly to the elimination of hunger and the development of resilient food systems. Ireland should support adaptive research institutions and initiatives to ensure that small-scale farmers can benefit from the research being undertaken by national, regional and international research bodies. Ireland should support capacity-strengthening of African agricultural knowledge systems through assisting agricultural research, education and extension/advisory services. Ireland should support initiatives to strengthen farmer organisations, particularly those which actively target poorer farmers and women as members – a critical governance issue. Ireland should support initiatives to improve rural infrastructure, both at national and local levels. Poor rural infrastructure, including roads in particular, is one of the major constraints faced by small-scale farmers in trying to move from a subsistence basis to a more sustainable commercial scale of production. 5.2.3.  Support for Improving Nutrition Status Ireland should consider support to coherent and multi-sectoral nutrition strategies which address the key elements of capacity development including: •  establishing an appropriate institutional structure •  providing strong political and organisational leadership to ensure the necessary cross-sectoral actions take place, and •  increasing the numbers of nutritional personnel at all levels, including a significant investment in increasing community nutrition workers. Ireland should promote the scaling-up of known and cost-effective nutritional actions which address the various dimensions of the nutrition problem (acute, chronic, and ‘hidden hunger’). Some of these actions are outlined below. Ireland should continue to encourage and support the development and scaling-up of Community Management of Severe Acute Malnutrition5 as an effective means of addressing acute malnutrition. 5   Based on Community-based Therapeutic Care – an initiative pioneered by Concern Worldwide in association with Valid International.

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Ireland should support programmes which encourage exclusive breastfeeding for the first six months. Inappropriate infant feeding practices can result in increased child mortality, susceptibility to diseases and decreased mental development of children. Ireland should support programmes which ensure improved maternal nutrition, including micronutrient fortification and supplementation. Maternal nutrition is essential to protect and enhance the health of women and their children. Undernourished mothers give birth to undernourished babies, and this state, if it persists, will result in stunting and mental impairment. Micronutrient deficiencies, particularly with regard to iodine, vitamin A, iron deficiency anaemia, folate deficiency, and zinc, increase the risks of maternal and infant mortality. Ireland should continue to support the promotion of preventive measures against HIV/AIDS and other diseases, while also promoting the positive benefits of nutrition to mitigate their impact. Ireland should support targeted school feeding which has proven to be critical for providing nourishment for children at school, allowing them to learn better, as well as increasing attendance and enrolment rates, especially for girls. Ireland should support opportunities to link agriculture and nutrition in both policies and programmes at all levels. At community level this could include promoting a focus on the nutritional quality of particular foods in the production system, including crops more likely to be produced and controlled by women. Ireland should support the implementation of social protection programmes where they are most needed and promote the inclusion of specific mechanisms within such programmes which enhance nutrition – for example, cash transfers contingent on attendance at health clinics. 5.2.4.Support for Specific Irish National Policies and Resource Allocations Ireland should declare eradication of hunger a cornerstone of its development aid programme and a key component of its foreign policy. Ireland should take a strong leadership and advocacy role internationally to ensure that the MDG hunger target is reached and, if possible, exceeded. As a clear demonstration of intent, the Hunger Task Force recommends that Ireland aim to increase its own development resources to address the challenges in this area. In the context of an increasing allocation of resources to development cooperation in the period up to 2012, Ireland should seek to allocate a significant proportion of these increased resources to programmes designed to alleviate and eradicate hunger in the world. In that regard, it is the view of the Hunger Task Force that Ireland should adopt an indicative target for the level of such aid, and that an allocation of 20 per cent of its ODA to actions related to hunger reduction should be attainable by 2012, when Ireland will have reached the 0.7 per cent target.6 6   Irish Aid’s assistance to agriculture, food aid and nutrition has been estimated at 10 per cent of total ODA, which in 2008 is likely to amount to some €900mn overall. However, this does not take account of the full extent of Ireland’s comprehensive support for hunger reduction programmes as part of its bilateral and multilateral programmes of assistance, including its assistance to a range of UN Agencies, NGOs, International Financial Institutions, and through the EU. A full audit will be required to ascertain the complete picture of the current level of Irish Aid support through its entire range of programmes which contribute to the attainment of the key objective of the alleviation and eradication of hunger in the world. By 2012, when Ireland is set to reach the 0.7 per cent GNI target, overall Irish ODA could amount to €1.4bn. 20 percent of that figure – the amount which this Report recommends to be allocated to hunger – could therefore be of the order of €280mn per annum.



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Ireland should appoint a Special Envoy for Hunger to ensure that the recommendations of the Hunger Task Force are implemented. The Special Envoy would engage across government and with relevant NGOs in Ireland, and could represent Ireland in important international fora. Ireland should give formal recognition to the historic and symbolic importance of the Great Irish Famine and its link with Ireland’s contemporary commitment to addressing global hunger. This increased and sustained focus of Ireland’s development actions will require an appropriate level of resources to be deployed within Ireland’s development cooperation programme. 6  a national task While Government provides the lead, the proposed actions cannot be undertaken by a single agency in Ireland. The critical nature of the global hunger problem requires a response from all in Irish society. These include relevant branches of Government, NGOs, missionary organisations, higher education and research institutions, the private sector, and the citizens of Ireland who have so often responded with compassion to food crises in the developing world. The Hunger Task Force calls for creative and sustained efforts by all of these partners in Irish society, so that Ireland can show genuine leadership in making the global commitment to eradicate world hunger a reality. This is a shared task – dictated by present humanitarian imperatives, but also informed by our failures in the past to end the scourge of famine which has blighted the history of so many nations.

task force members Mr Joe Walsh Chair Former Minister for Agriculture and Food: Government of Ireland Ms Nancy Aburi Development Communications Specialist Dr Pamela Anderson Director General, International Potato Center, Lima, Peru Mr Tom Arnold Chief Executive, Concern Worldwide Bono U2 lead singer and activist Mr Kevin Farrell Former Country Director and Representative: WFP, Zimbabwe and WFP, Somalia

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Professor Michael Gibney College of Life Sciences, University College Dublin Professor Lawrence Haddad Director, UK Institute of Development Studies Mr Justin Kilcullen Director, Trócaire Professor Denis Lucey University College Cork and Chairman, Gorta Mr Aidan O’Driscoll Assistant Secretary-General: Department of Agriculture, Fisheries and Food Professor Jeffrey Sachs Director, Earth Institute, Columbia University and Special Adviser to the United Nations Secretary-General Ms Josette Sheeran Executive Director, WFP Ms Sheila Sisulu Deputy Executive Director, WFP Mr Brendan McMahon Secretary to Task Force Director, Emergency and Recovery Section, Irish Aid

acronyms AGRA Alliance for a Green Revolution in Africa AIDS acquired immunodeficiency syndrome ART anti-retroviral treatment CAADP Comprehensive Africa Agriculture Development Programme CFA comprehensive framework for action CGIAR Consultative Group on International Agricultural Research DAC Development Assistance Committee DECPG Development Prospects Group of the World Bank EU European Union FAO Food and Agriculture Organization of the United Nations GDP Gross domestic product GM genetically modified GNI Gross national income HIV human immunodeficiency virus IFAD International Fund for Agricultural Development IFI International Financial Institution IFPRI International Food Policy Research Institute



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INTERFAIS  International Food Aid Information System of the WFP MDG millennium development goal NEPAD new partnership for Africa’s development NGO Non Governmental Organisation ODA official development assistance SAFM smallholder agriculture financing mechanism UN United Nations UNICEF United Nations Children’s Fund USDA United States Department of Agriculture WFP World Food Programme Hunger Task Force 53

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Ireland’s future in the European Union: Challenges, Issues and Options foreword Houses of the Oireachtas Sub-Committee on Ireland’s Future in the European Union November 2008 On behalf of the Joint Committee on European Affairs I am pleased to present this report of the Sub-Committee on Ireland’s future in the European Union. The Sub-Committee was established by the Houses of the Oireachtas following the Lisbon Treaty Referendum result in order to assess the implications of the result and the challenges facing Ireland within the EU, and consider Ireland’s future in the Union. The Joint Committee on European Affairs has closely followed and monitored developments within the European Union since November 1997 and prior to that its forerunner the Joint Committee on Secondary EC Legislation performed similar tasks. The current Committee has produced a number of reports on the future of the EU and the reform of its institutions. Most recently, it published two reports on the Lisbon Treaty which followed a country wide tour prior to the referendum aimed at holding a public debate on the merits of the Treaty. The Joint Committee, in the course of its work, noted the potential to improve public understanding of the EU and its institutions. The Sub-Committee’s report proposes a number of measures in this area and makes recommendations to enhance the role of the Oireachtas and engage the public in EU issues. I wish to pay tribute to the Chairman of the Sub-Committee, Senator Paschal Donohoe, the other members of the Sub-Committee and the staff of the Oireachtas for their commitment and dedication to the production of this report in an extremely tight schedule. The Report is impressive in its content and scope and I am confident it will contribute immensely to the public debate and the substance and perception of European issues and this country’s role in the Europe of the future. Bernard J Durkan TD Chairman 27 November 2008 The Joint Committee on European Affairs Meeting of 27 November 2008 Decisions taken by the Joint Committee Report of the Sub-Committee on Ireland’s future in the European Union: Decisions taken by the Joint Committee at its meeting of 27 November 2008 At its meeting of 27 November 2007 the Joint Committee on European Affairs met to consider the Report of the Sub-Committee on Ireland’s future in the European Union. The Chairman of the Joint Committee, Deputy Bernard Durkan invited Senator Donohoe, Chairman of the Sub-Committee to present the report.

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1. Having considered the report of the Sub-Committee the Joint Committee agreed that the report and appendices, as presented, should be laid before both Houses of the Oireachtas. 2. It was agreed to print and publish the report and to circulate copies to all witnesses that had participated in the hearings of the Sub-Committee and contributed to its work. 3. With regard to a wider circulation of the report it was agreed to circulate copies of the report to all individuals and groups who made submissions to the sub-Committee. 4. In addition copies will be made available to MEPs, all EU information centres around Ireland and the EU institutions. 5. It was agreed to put a Motion on the Order Paper seeking a debate in Dáil Éireann and to issue a letter to the parliamentary party whips strongly recommending that such a debate take place in the week beginning 1 December 2008, (prior to the European Council). 6. Finally it was agreed to forward a copy of the report to Oireachtas Office Holders, Committee Chairmen, all Ministers and Ministers of State and the Attorney General for their observations. Bernard Durkan TD Chairman 27 November 2008 Sub – Committee on Ireland’s Future in the European Union List of Members Deputies: Thomas Byrne (FF) Joe Costello (Lab) Lucinda Creighton (FG) Timmy Dooley (FF) Beverley Flynn (FF) Michael McGrath (FF) Billy Timmins (FG) Senators: Déirdre de Búrca (GP) Pearse Doherty (SF) Paschal Donohoe (FG) (Chairman) Rónán Mullen (Ind) Phil Prendergast (Lab) contents Foreword Executive Summary Introduction Chapter One – After Lisbon: The Challenges Chapter Two – Ireland’s Future in the EU: Issues and Options



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Chapter Three – Beyond Lisbon: Public Understanding of the EU and Ireland’s Membership Chapter Four – Enhancing the Role of the Oireachtas in EU Affairs Annexes [omitted]

foreword On behalf of my colleagues, I am pleased to present the report of the Sub-Committee on Ireland’s Future in the European Union. Our report comes at a critical time in Ireland’s membership of the Union. The decision of the people on 12 June 2008 not to approve a constitutional amendment to enable the ratification of the Lisbon Treaty has initiated a need to assess Ireland’s future in Europe. There is no doubt that Ireland’s membership of the Union has greatly benefited our country. It has been a driving force for economic growth and social advancement in Ireland. These benefits have stemmed from Ireland’s commitment, since joining in 1973, to the ideals and objectives of the European Union, Ireland is seen by other Member States as a constructive and progressive partner in shaping the economic and political development of Europe. It is my strong belief that Ireland’s membership of the European Union has allowed the expression and flourishing of our political and economic sovereignty. Ireland’s policy of being a constructive member at the heart of the European Union to advance the interests of the country has been placed under the spotlight by the referendum result. A vital objective of this report, therefore, is to analyse the effect on the Irish national interest due to this vote. The report also seeks to address the key underlying factor informing people’s attitude to the European Union: a feeling of disconnect and an accountability deficit with regard to many European institutions. The Oireachtas must assume its responsibilities and assert itself in this regard. In doing this work our Sub-Committee has met over 110 witnesses from more than 40 different organisations. Their testimony was crucial in the preparation of this report and I wish to thank those who contributed. I also wish to thank UCD’s Dublin European Institute for their discussion paper, which made an invaluable contribution to the Sub-Committee’s work. I wish to pay particular tribute to my colleagues on the Sub-Committee as well as the Secretariat for their hard work and dedication. It is not within the Sub-Committee’s Orders of Reference to recommend a solution to the current situation which has developed since the Lisbon Treaty referendum result. The different roles of the Oireachtas and the Government are clear with regard to this. But I am certain that Ireland’s best interest is served by being at the heart of Europe. The challenge is to recognise, respect and act upon the wishes of the Irish people while keeping Ireland at the heart of Europe. Rising to this challenge will be a demanding test for Irish political leaders. However, we must do so, as the long term consequences of Ireland leaving the heart of Europe are simply disastrous. The decision of the people in the recent referendum, the starting point for the work of the Sub-Committee, has created a dilemma for Ireland and the European Union. The wish for reform of the Union, the underlying purpose of the Lisbon Treaty, remains. Ireland’s decision has cast a shadow over this wish for reform. Our European

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partners have committed themselves to working with Ireland in finding a common path forward. This report is a contribution to finding that path. Senator Paschal Donohoe Chairman

executive summary 1. The purpose of the Sub-Committee is to broadly consider Ireland’s membership of the Union and to examine our future engagement with the EU. It was asked to analyse the challenges facing Ireland within the European Union following the Lisbon Treaty referendum result and to consider Ireland’s future in the EU. The remit of the Sub-Committee was also to make recommendations on enhancing the role of the Oireachtas in EU affairs and to consider measures on improving public understanding of the EU and the fundamental importance of Ireland’s membership. After Lisbon: The Challenges 2. Irish sovereignty has flourished in the European Union, and Ireland’s role as a fully committed and engaged Member State has been vital to the advancement of the country’s national interests. It is imperative that Ireland’s position at the heart of Europe be maintained. 3. We must recognise, respect and address the concerns of the Irish people. It is clear to the Sub-Committee that the people were voting to reject the Lisbon Treaty and not the European Union. The immediate challenge facing Ireland is to develop a way forward which allows Ireland to remain at the heart of Europe, while taking account of the concerns of the Irish people. 4. Ireland’s standing and influence in the European Union have diminished following the people’s decision not to ratify the Lisbon Treaty. In immediate terms, this inhibits Ireland’s ability to promote and defend its national interests at a European level. This is likely to affect Ireland’s ability to influence key upcoming policy discussions within the Union. These include, but are not limited to, the development of the EU’s climate change package; the negotiations on the future shape of the EU budget beyond 2013 including provision of adequate resources for the Common Agricultural Policy; and responses to the global financial crisis. 5. It is legally possible for the Union to stand still and operate into the future on the basis of current treaties and institutional arrangements. However, given the overwhelming desire among Member States for reform of the Union’s structures in a manner such as that envisaged in the Lisbon Treaty, this is considered unlikely. It is more likely that a mechanism will be developed by other Member States which allows them to proceed with a process of further integration which excludes Ireland. This would lead to a two-tier Europe with Ireland on the political and economic periphery. Such a scenario would have a devastating effect on Ireland’s political influence, economic prospects and international standing. 6. Ireland’s decision not to ratify the Lisbon Treaty has made the country’s long-term position at the core of the European Union considerably less certain. Representatives of business interests have expressed the view that any dilution of Ireland’s relationship



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with the EU could seriously damage its competitiveness in attracting foreign direct investment. There is an assumption among the business community that problems surrounding the ratification of the Lisbon Treaty by Ireland will ultimately be overcome. This explains the lack of an immediate impact arising from the referendum result in relation to the attraction and maintaining of foreign investment. 7. Foreign investors have expressed some surprise about the result of the referendum. Some have called into question Ireland’s future commitment to the European Union. There is now a sense of uncertainty about Ireland’s future role in the EU. This uncertainty extends to questions such as Ireland’s future access to European markets, its future influence over EU policies in areas such as indirect taxation, and its participation in the setting of common product standards for manufactured goods in the future. 8. Ireland has had an image globally as a country which had a significant voice in the European Union. This perception has now been diminished, thereby reducing Ireland’s standing internationally. For example, the United Nations has come increasingly to rely on regional organisations such as the EU to provide resources for its work in the maintenance of international peace and security. As a result, the perception that Ireland is moving away from the core of Europe has the potential to affect its standing and credibility in its engagement with the United Nations. Ireland’s Future in the EU: Issues and Options Issues 9. It is clear that maintaining control over direct taxation policy is vital to Ireland’s national interests. With all issues considered, it is also clear to the Sub-Committee that Ireland’s control over its direct taxation policy, including its corporate tax rate, will not be affected at any level, including by the Lisbon Treaty. 10. The continual development and consolidation of a social market economy by the EU is important. Ireland should continue to work with its EU partners in pursuing an integrated approach to economic, social and employment policies. This integrated policy approach should have at its centre the protection of worker’s rights as well as sustainable economic growth. 11. The State’s role in ensuring the provision of public services and the means by which these services are delivered should continue to be a matter for each individual Member State. It is important that the protections that currently exist at EU level, and which are enhanced under the Lisbon Treaty, should be adhered to and respected. 12. The right of each Member State to decide its own policies in areas of social and ethical sensitivity should continue to be respected. To this end, a policy of subsidiarity should be carefully observed when developing and interpreting EU law. It would be important for EU institutions to work strictly within the competences which have been conferred on them under the EU Treaties. 13. It is clear that the Irish people have a great pride in the participation of the Irish Defence Forces in international peacekeeping. The Irish people have great pride in Ireland’s traditional policy of military neutrality and therefore it needs to be

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protected. Any practical measure that demonstrates that this traditional policy is and will continue to be protected and respected should be considered. 14. While it seems that the purpose of the Commission is sometimes misunderstood, it does appear that having a Commissioner nominated by the Government is a matter of national sensitivity. While this Commissioner would not represent the Irish Government within the Commission, he or she can act as a conduit for the Commission in understanding any sensitivities which are particular to Ireland. This serves both the Commission and Ireland. Having a Commissioner all the time would also offer legitimacy to the proposals made by the Commission. 15. It became clear to the Sub-Committee that influence is the key to promoting and protecting Ireland’s interests at the heart of the EU. The Sub-Committee notes the paradox that the current proposals for reform of the EU institutions may not affect Irish influence within the EU but by rejecting the Lisbon Treaty this influence could potentially be undermined. Ireland should work to retain this influence while recognising the need to bring greater efficiency to the institutions of the EU. Options 16. The Sub-Committee believes that ratification of the Lisbon Treaty by parliament alone is not a desirable option. Such a ratification procedure could be interpreted as an effort to circumvent the democratic will of the people. It is also not clear whether such an option is constitutionally possible. It could present significant, possibly insurmountable, legal difficulties. 17. The Sub-Committee has concerns about any options that may involve Ireland opting out of EU policy areas. In this respect, it would point to the Danish experience and the growing feeling there that its opt outs in the areas of Justice and Home affairs, the European Security and Defence Policy and the Euro has had a detrimental effect on Denmark’s national interests. Opt outs are not cost free. They can potentially mean Ireland losing its right to shape and influence key policy areas. The implications of choosing such a course of action should be thoroughly examined. 18. The Sub-Committee has strong concerns about any option that could potentially lead to Ireland finding itself on an outer or second tier of the EU. The option of Ireland leaving the EU and negotiating a new relationship with the EU is also unthinkable. These scenarios would be catastrophic for Ireland’s national interests, both economically and politically. 19. The Sub-Committee believes that a solution must be found that keeps Ireland at the heart of Europe while respecting the democratic will of the Irish people by arranging for these concerns to be accommodated by the other Member States. Beyond Lisbon: Public Understanding of the EU and Ireland’s Membership 20. It is the view of the Sub-Committee that European matters do not play as prominent a role as they should in Irish politics, media or public discourse. The Sub-Committee has analysed the reasons for this lack of engagement. Measures have been identified which could be taken at local, national and European levels to improve public, political and media understanding and engagement on European issues. 21. It is vital that more be done to encourage citizens to observe and engage with the decision-making processes of the European Union. Further emphasis should



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be placed on the use by citizens of the European Parliament’s petitions committee. Also, further efforts should be made to ensure that the Council of Ministers meets in public when legislating. It is notable that the need for public access to the Council has been recognised at a European level, and provisions to facilitate this access were included in the Lisbon Treaty. 22.  European treaties should be accompanied by clear explanatory documents, approved by the Member States, setting out in clear and comprehensible terms the intentions of the governments framing the treaty and the effect of each of the treaty provisions. In particular, such a document should be prepared in circumstances where citizens of a Member State are asked to vote on ratification of a treaty in a referendum. This document should be widely distributed during referendum campaigns. The Sub-Committee considers this to be of vital importance. 23. Strong and prominent coverage by Irish media organisations of the institutions of the European Union is vital to promote public understanding of the work of the institutions. The Government should consider measures to promote such coverage, in particular by incentivising the posting of Irish journalists on a full- or part-time basis to Brussels. 24. Assuming the introduction of an Oireachtas Digital Channel, debates in the Dáil plenary and the work of the EU committees should get priority billing. The development of a dedicated digital television channel dealing with the operation of the EU institutions, and EU affairs generally, should be examined. 25. Modern European history, in particular the history of European integration since the 1950s, should be accorded a more prominent place on the Irish school curriculum. Further emphasis should also be placed on making students familiar with the European Union and the importance of Ireland’s membership. Attention should also be paid to the operation of the EU institutions and how they relate to Ireland’s national institutions of government. Consideration might be given to the inclusion of European Studies as an examinable subject on the secondary school curriculum. 26. In order to promote engagement with Europe and with other Member States of the Union, the teaching of European languages should be introduced to the Irish primary school curriculum. 27. The Government should consider the establishment of a body, which would function independently, and build on the work of the National Forum on Europe, the Institute of International and European Affairs and the European Movement to assist public understanding of the European Union and act as an authoritative and impartial source of information about the Union’s work and Ireland’s place within it. 28. Consideration might also be given to the development of a cross-party foundation for the development of thought in relation to European issues, providing an opportunity for scholars and intellectuals from other Member States of the Union to contribute to Irish public life and to policy formation. Enhancing the Role of the Oireachtas in EU Affairs 29. The Sub-Committee recommends the implementation of a series of reforms to address the accountability deficit in EU decision making by enhancing the role of national parliaments. The Oireachtas needs scrutiny and oversight mechanisms

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which take account of our particular legal, political, social and economic characteristics. The core objective for the EU scrutiny system in Ireland is to influence Ministers and hold them to account; ensure that Oireachtas members are provided with all information available to the EU institutions and at the same time; and provide a source of information and analysis for the public. 30. A formal scrutiny reserve mechanism, in line with the model used in the UK Parliament, should be introduced. This will provide more influence for the Oireachtas in the negotiating positions adopted by Irish Ministers on draft EU legislation at Council meetings. The legal, resourcing, and logistical implications need to be examined further. 31. National Parliaments should have to be consulted formally about the European Commission’s annual policy strategy and legislative work programmes before they are finalised. This proposal should be pursued with our partners in other national parliaments in the Conference of European Affairs Committees (COSAC). 32. There should be a more structured arrangement for Oireachtas Committees to meet with Ministers before Council meetings to consider the Government’s negotiating positions on agenda items. Ministers should also report back in writing to the appropriate Oireachtas committee on the outcome of the discussions and on specific decisions made. 33. The European Affairs Committee should examine what measures could be put in place to enhance oversight of Statutory Instruments. The aim of such measures could include making sure that Ministers and Departments are strictly complying with EU decisions when bringing these decisions into effect in Ireland. 34. Regulatory Impact Assessments have to be prepared for significant EU Directives, regulations and secondary legislation as provided for in the Government’s guidelines. The Sub-Committee is concerned by the low rate of compliance by Departments with the existing guidelines. The Government should ensure that compliance with the Guidelines is addressed. From now on, RIAs should be forwarded to Oireachtas Committees for consideration when significant EU laws are being considered. 35. If Statutory Instruments are being used to give effect to an EU law, the text of the instrument, or at least the heads of the instrument, should be circulated to all Oireachtas members. This would mirror the current practice of distributing all texts of draft primary legislation. This will bring more transparency to the process of giving effect to EU law and enable the members to highlight any potential problems at an early stage. 36. The Sub-Committee recommends that a new panel be constituted in Seanad Éireann for a minimum of five Senators to be nominated on the basis of experience in EU affairs. Senators elected from this panel would participate in the Oireachtas European Committees. They should also build relations with the Irish MEPs as well as directly with the EU institutions. 37. The Standing Orders and procedures of Dáil Éireann and Seanad Éireann should be amended where necessary to implement these recommendations. The main issues to be addressed include regular debates on EU legislative proposals and developments; enhanced powers for Oireachtas Committees; provision for participation by MEPs in some debates; and informal monthly meetings between Irish MEPs and the European Committees in the Oireachtas. These meetings between



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the Irish MEPs and the European Committees should take place in the week per month when the MEPs are dealing with constituency work and therefore more likely to be in Ireland. 38. As part of an improved communication strategy the Oireachtas should establish its own EU Information Office. There is a clear need for easy access to neutral information on the EU decision making process, and Ireland’s role therein. 39. The current requirement in the triple lock for approval by a simple majority in Dáil Éireann should be strengthened. Dáil Éireann should be required to have a ‘supermajority’, where a two-thirds majority is needed for any proposal to send Irish troops overseas on peacekeeping missions. This would provide a stronger parliamentary mandate for such decisions and enhance the role of the Oireachtas in a key area of interest to the Irish people. 40. Some of the changes recommended above would involve amending existing Irish legislation. Some recommendations, in particular the changes proposed to the electoral system, would require changes to the Constitution. This would obviously involve a referendum. In general, the legal implications and constitutionality of the proposed recommendations will have to be examined carefully. 41. The Sub-Committee also acknowledges that the recommendations have considerable political implications. Difficult decisions will have to be made but the SubCommittee believes that these decisions are necessary to tackle the accountability deficit that currently exists when it comes to the EU and Ireland’s membership. These recommendations should help to facilitate and encourage greater political debate around EU issues. This is turn should lead to a higher level of public engagement in and understanding of the EU.

introduction 1.  The starting point for the Sub-Committee was the Irish people’s democratic decision on 12 June 2008 to reject a proposed constitutional amendment enabling ratification of the Lisbon Treaty by the Oireachtas. This decision has brought Ireland to a critical juncture in its membership of the European Union. The task of the Sub-Committee, in recognising the people’s decision, is to analyse the implications of the referendum result for our country and to consider Ireland’s future in the European Union. 2. Since joining the EEC in 1973, Ireland’s development has been inextricably linked to the well-being of the Union. Membership of the EU has driven economic growth and the modernisation of Irish society. Successive governments have attached particular importance to the EU’s objectives of driving economic and social progress, improving the living and working conditions of the Union’s citizens and promoting social and regional cohesion. 3.  The benefits of membership accrued through Ireland’s commitment to the Community’s fundamental ideal as enshrined in the Treaty of Rome: ‘an ever closer union among the peoples of Europe’. Ireland joined the EEC, following the overwhelming support of the people in the referendum of 1972, fully aware of the political ideals and aims of the Community. As stated in the 1972 White Paper on accession, Ireland committed itself to ‘participate fully in the work of shaping

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its future political development’. By not joining, it was realised that ‘outside the Community, we would be isolated from the movement for closer economic and political cooperation in Europe’. Therefore, there has been a conscious decision to place our country at the heart of the European Union. This has been the guiding principle of Ireland’s policy towards the European Community and the European Union for the past 35 years. 4. Ireland’s decision not to amend the Irish Constitution to enable ratification of the Lisbon Treaty has created a dilemma at the heart of the EU. It is clearly the wish of the Member State governments to reform the Union and therefore to bring into effect the Lisbon Treaty, a treaty which has been eight years in the making and represents a compromise between 27 sovereign states. It is clear that all the Member States want to work with Ireland in finding a solution to this dilemma. The European Council of 15–16 October 2008 agreed to return to considering this matter ‘with a view to defining the elements of a solution and a common path to be followed’. 5. The Lisbon Treaty is the product of prolonged and intensive negotiations between the Member States of the Union. It has its origins in the Laeken Declaration agreed by the Heads of State and Government in 2001. This declaration stressed the pressing need for the Union to become closer to its citizens and more responsive to their needs and expectations. It underlined the need for change so that the Member States could act more effectively and more democratically together in facing the challenges of an increasingly globalised world. The Lisbon Treaty is designed to be the fulfilment of this declaration, the objectives of which remain to be delivered. 6. The Member States believe that the Lisbon Treaty is required in order to provide a closer connection between the people of Europe and the EU institutions and to enhance democracy by strengthening the role of national parliaments and the European Parliament. They believe that it will benefit the people of Europe through reform of the institutions and decision making so that the Union can be more effective in dealing with the issues that are important to people’s everyday lives and by making the Charter of Fundamental Rights, designed to protect and promote people’s rights, part of EU law. 7. The purpose of the Sub-Committee is to consider broadly Ireland’s membership of the Union and to examine our future engagement with the EU. It is not the job of this Sub-Committee to produce a specific solution to the current impasse but to feed into the thinking on the issue. In fulfilling this purpose, the Sub-Committee was guided by its Orders of Reference as agreed by the Houses of the Oireachtas: to analyse the challenges facing Ireland in the EU following the Lisbon Treaty referendum result; – to consider Ireland’s future in the EU including in relation to economic and financial matters, social policy, defence and foreign policy and our influence within the European institutions; – to make recommendations to enhance the role of the Houses of the Oireachtas in EU affairs; and – to consider measures to improve understanding of the EU and its fundamental importance for Ireland’s future. 8. The Sub-Committee divided its work into four modules: I. the role of the Oireachtas in EU affairs; II the challenges facing Ireland and the implications of the Lisbon Treaty referendum result;



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III Ireland’s future approach to key EU policy areas of concern to Ireland and, more generally, Ireland’s future engagement in the EU; IV public understanding of the EU and Ireland’s membership of the Union.

9. These modules were addressed through gathering evidence from invited speakers, inviting submissions from the public and commissioning a discussion paper from academic experts. All the Sub-Committee’s hearings were held in public in the interests of openness and in an effort to encourage a full and frank public debate on Ireland’s future in the EU. Over the eight weeks of its work, the SubCommittee spoke to 114 people and organisations, consisting of practitioners, experts, academics and commentators representing a broad range of opinion, and received 94 submissions from the public. On the basis of the contributions from invited speakers and the submissions from the public and from UCD’s Dublin European Institute, the Sub-Committee has agreed this report. 10. Chapter one looks at the challenges facing Ireland within the EU and globally following the referendum result. It examines what it has meant for Ireland to be at the heart of the European Union. It sets out the immediate consequences and challenges facing the EU and Ireland. The short-term and medium-term implications for Ireland are also discussed. The long-term implications for Ireland are analysed in terms of Ireland’s influence within the EU, its ability to influence the EU’s foreign and external relations policies, its economic interests and the effect on Ireland’s global standing and international position. 11. Chapter two considers Ireland’s future approach to EU policies in the areas of economic and financial matters, social issues, defence and foreign policy and to Ireland’s influence within the EU institutions. Within these areas, it identifies six issues which are of most concern to Ireland in terms of its work within the EU. These are taxation; workers’ rights; public services; socio-ethical issues; defence and foreign policy, including Ireland’s traditional policy of military neutrality; and influence, particularly the proposed institutional reforms in respect of the Commission and the Council of Ministers. Finally, it examines the options in terms of Ireland’s future in the EU in the immediate aftermath of the Lisbon Treaty referendum result. A range of possible options and scenarios are outlined. 12. Chapter three looks beyond the Lisbon Treaty and considers public understanding of the EU. It is clear that the primary factor informing people’s attitudes towards the EU, including in the context of deciding on EU Treaties, is their level of understanding of and involvement with the EU. Therefore, the chapter examines the reasons for the level of public understanding of the EU and considers measures aimed at improving this understanding. 13. Chapter four considers the role of national parliaments, and specifically the Oireachtas, in the European Union. It assesses the current role of the Oireachtas in EU affairs and identifies the areas where improvements could be made. Recommendations are made on how to enhance the role of the Oireachtas in EU affairs in order to ensure that the accountability deficit at the level of the EU is addressed and that the public become more engaged with EU issues.

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1 after lisbon: the challenges Analyse the challenges facing Ireland in the European Union following the Lisbon Treaty referendum result The Sub-Committee examined the impact of the changed economic and political climate since the Lisbon Treaty referendum, and assessed the implications of the referendum result for Ireland in a number of areas, looking at both short-term impacts and potential long-term consequences.

our place at the heart of europe: what it has meant for ireland 1. Ireland’s membership of the European Union has transformed our nation. It has had a profound effect on our state, our government, our society and our economy. This transformation has been overwhelmingly positive. Irish membership of the EU has allowed the practical expression of our political and economic sovereignty. 2. The benefits Ireland derives from its place at the heart of the EU are immense. While it is acknowledged that membership of the EU has sometimes required Ireland, like all Member States, to make difficult choices, on balance the impact of membership has been overwhelmingly positive. The maintenance of our position at the heart of Europe has been a conscious objective of Ireland’s policy throughout our membership of the Union. We find ourselves at the centre of the world’s most significant economic bloc, with unrestricted access to its markets and the power to shape its policies and regulations. We are part of a political Union which promotes throughout the world ideals the Irish people hold in common with our partners across the continent – the values of freedom, democracy, human rights, respect for human dignity, equality and the rule of law. The Union amplifies, Ireland’s voice on the world stage, and gives us the ability to protect and promote our interests more effectively than would ever be possible were we to act alone.

the effect of the european union on the irish economy 3. Membership of the EU has been central to Ireland’s economic development. It is the fundamental basis for Ireland’s remarkable economic success since the early 1990s. The Sub-Committee notes that when Ireland joined the EEC in 1973, our GDP per capita was 58 per cent of the European average, and 54 per cent of our exports went to the United Kingdom, with only 21 per cent going to the rest of Europe. By the end of 2007, Irish GDP per capita had reached 144 per cent of the EU average. Only 18 per cent of our exports now go to the UK, compared with 45 per cent which go to the expanded European Union, Ireland’s membership of the EU and participation in the Single European Market has been the most significant factor in ending our country’s economic dependence on the United Kingdom. 4. Access to the Single European Market has greatly helped indigenous Irish companies to develop their export activities. Equally, it has helped Ireland to attract a vastly disproportionate share of foreign direct investment, particularly from US



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companies. Multinational companies have considered access to European markets as a key factor in making their investment decisions. Ireland, with only 1 per cent of the EU’s population, attracted 25 per cent of all new US investment in Europe in the decade up to 2005. Since the establishment of the Single European Market in 1993, the stock of foreign investment in Ireland has increased by more than 400 per cent. The importance of these investments to the Irish economy is emphasised by the fact that the companies involved spend approximately €16bn per annum in Ireland, have a payroll of approximately €6.7bn, and last year paid about €3bn to the exchequer in corporation tax. 85 per cent of goods manufactured in Ireland for export are the products of foreign direct investment companies. Membership of the EU has also given Irish enterprises access to multilingual and skilled workers from our European neighbours. 5. EU membership has been crucially important for Ireland’s agricultural sector. Since 1973, Ireland has received more than €41bn through the Common Agricultural Policy, supporting the livelihoods of thousands of farm families. The Sub-Committee was told, however, that there is frustration within the Irish fishing industry about the impact of the Common Fisheries Policy on coastal communities. 6. Membership of the EU allows Ireland to punch significantly above its weight in its foreign economic policy, and gives it a strong international influence on many economic issues, including when the rules which govern international trade are being shaped. Ireland exerts more influence as part of a united EU than would be possible as an individual small country acting alone.

the effect of the european union on irish so ciety 7.  Membership of the EU has caused much positive social change in Ireland. Membership required Ireland to introduce the principle of equal pay for men and women for equal work. The EU has also been the driver of the introduction of increased parental leave and protections for fixed-term and part-time workers. The Working Time Directive introduced limits to the maximum working week for employees. 8. Support from the EU was vital in creating the conditions for the success of the Northern Ireland peace process, and assisting the work of communities in building lasting peace on our island. The EU’s PEACE programmes played a key role in consolidating the peace and have allocated more than €1.2bn in EU funding to projects in Northern Ireland and border counties since 1994. The Single European Market helps to strengthen economic convergence between North and South and provides the basis for movement towards an all-Ireland economy.

ireland’s relationship with the european union and the world 9. Ireland, from the very earliest days of its membership of the EEC, has sought as far as possible to be fully involved in Europe and to play a full and committed part in its work. Ireland has always accepted the fundamental concepts of the European project and has worked to achieve them. As a small Member State, the key to Ireland’s success within the EU has been successful use of our influence and power. The

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source of much of this influence has been the goodwill of our European partners. The Union functions through negotiation and compromise, and Ireland has been influential within it. We have been seen by other Member States as a positive and constructive partner. This positive sentiment towards Ireland has allowed us to benefit accordingly. 10. Ireland and its people have historically wielded very considerable influence in the EU and its institutions. Many more Irish people have been successful in reaching the top levels of the EU’s political and organisational structures than its population alone would justify. It was pointed out to the Sub-Committee that of the five Secretaries-General of the European Commission since its foundation in 1957, two (the current office-holder and her predecessor) were Irish. Currently, three Directors-General at the Commission, three of 27 Commission Chefs de Cabinet, and the Head of the Commission Delegation to the United States are Irish nationals. 11. Irish ministers and public servants representing the country at a European level have been consistently regarded as influential in shaping the direction of the Union. Six Irish presidencies of the EU since 1973 have enhanced the image of Ireland as a country which can play a significant leadership role in the development of the Union. Ireland’s 1990 Presidency developed the approach to German reunification and guided the EU’s first steps towards bringing central and eastern European states into the Union. In 1996, Ireland’s Presidency made substantial progress on the negotiation of agreed revisions to the European Treaties which led to the Amsterdam Treaty of 1997. The 2004 Irish Presidency marked the historic moment when 10 new mainly Eastern European states joined the EU, bringing democracy where previously there was totalitarianism. Moreover the 2004 Irish Presidency was successful in negotiating agreement among Member States on a set of institutional reforms for the EU, embodied in the Lisbon Treaty, designed to adapt the Union’s structures to manage further enlargement and meet the policy challenges of the years ahead. 12. Recently, the relationship between Ireland and the Union’s new Member States in central and eastern Europe has been very strong. Ireland invested much time and expertise in helping these countries to prepare for EU membership. Ireland has been a role model for many of these new Member States. This is in part because Ireland is seen as a country which has benefited greatly from membership of the Union and has used its influence in Europe in a positive way to promote the interests of the nation and its people. Positive sentiment towards Ireland in other Member States was enhanced by the decision not to restrict the flow of migrants to Ireland from the new Member States which joined the Union in 2004. The day of welcomes for these Member States in 2004, when 27 Heads of State and Government from across Europe gathered at Áras an Úachtaráin to formally welcome 10 new countries to the Union, could be considered the high-point of Ireland’s membership of the EU and be seen to symbolise the pinnacle to date of its influence in Europe. 13. Ireland’s influence in the EU has achieved tangible benefits for the country. The allocation of structural and cohesion funds was a matter for negotiation. Ireland gained significantly in that negotiation from its good reputation and from the goodwill of other Member States. Structural and cohesion funding from the



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Community and Union since 1973 has amounted to over €17bn. Ireland enhanced its reputation by putting the funds received to good use in improving infrastructure, supporting regional development and enhancing competitiveness. The significant financial transfers to Ireland under the Common Agricultural Policy were the product of intense negotiation. The result was greatly influenced by goodwill towards Ireland among other Member States and its ability to build alliances within the Union. Ireland’s influence in the Union helped to encourage significant political and economic support from the EU for the Northern Ireland peace process. In addition, positive sentiment towards Ireland following a well conducted and successful Presidency of the European Union in 2004 helped to persuade other Member States to agree in 2005 to the recognition of Irish as the 21st official language of the EU.

the consequences of the referendum result Ireland’s Decision on the Lisbon Treaty: the Consequences for Europe 14. The direct consequence of the referendum result is that the Treaty of Lisbon, agreed by the governments of all 27 EU Member States, will not come into effect. The Union will continue to operate on the basis of the Treaty of Nice. The next European Commission must have fewer members than there are Member States (meaning not all Member States will have the right to nominate a member to the 2009–14 Commission. Ireland might not be among those countries nominating to that Commission). The changes to the European Parliament planned to give a more equitable distribution of seats on the basis of population will not now be introduced. This means that 11 Member States will have fewer MEPs than they had expected after next year’s European Parliament elections. 15. Following Ireland’s decision not to ratify the Lisbon Treaty, long-awaited institutional reform is halted. Discussion of institutional reform has occupied much of the EU’s time over the past decade. This has distracted the focus of the Union from its work in important policy areas and widened the division between the apparent concerns of the Union and those of its citizens. The Lisbon Treaty had been intended by Member States as a broadly acceptable compromise which would conclude this chapter in the Union’s history. Ireland’s Decision on the Lisbon Treaty: Short- and Medium-Term Implications for Ireland 16. Ireland’s positive reputation in the European Union and its history of constructive engagement have given rise to significant goodwill among European partners. This goodwill has been a vital negotiating resource. Now, there is a general view that Ireland’s image within the European Union has been affected in a negative way by the result of the Lisbon Treaty referendum. This has led to a perception that Ireland’s ability to influence events in the EU has diminished. 17. The issue of the Lisbon Treaty now dominates other Member States’ relationship with Ireland, and it is more difficult for Ireland to contribute positively to key policy discussions within the EU’s institutions. While Ireland had previously been

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seen as a constructive Member State which could negotiate agreed positions and build compromises among its European partners, its position in relation to the Lisbon Treaty now overshadows Ireland’s participation in the Union. This inhibits Ireland’s ability to promote and defend its interests on a wide range of important policy issues within the EU. 18. Ireland has a finite amount of negotiating power within the Union. Its decision not to ratify the Lisbon Treaty means that much of this capacity to negotiate and build alliances will have to be expended in seeking agreement on alternative ways forward for the Union. It may not be available to promote Ireland’s national interests in important policy areas. 19. The Sub-Committee is of the opinion that it is too early to make a definitive assessment of the short-term consequences of this loss of influence. Any loss of influence is likely to be subtle in its effect and to become significant over time, rather than having clear and immediate consequences on definite issues. However, some practical consequences have been suggested to us. 20. A speaker at the Sub-Committee suggested that the European Commission’s policy towards recent Irish banking difficulties was affected by the Lisbon Treaty referendum result. 21. It was suggested that the absence of Irish nationals from certain committees recently established by the EU to address significant policy questions was in part attributable to a decline in Ireland’s standing in the Union on foot of the referendum. The names of prominent Irish figures had been mentioned in connection with the Reflection Group on the Future of the European Union. This is the group established to consider the Union’s approach to significant challenges over the next 10 to 20 years. When the composition of the group was agreed by the European Council in October no Irish person was included. It was also noted that the European high-level group on cross-border financial supervision, set up by the European Commission in October in response to the banking crisis, included no member from Ireland – this despite having a member from the UK, which is outside the Euro area. 22. This loss of influence by Ireland is likely to have consequences for its ability to shape the economic plans being developed by the EU in response to the current financial crisis. Ireland has a very open economy, of which the financial services sector forms a significant part. Financial institutions employ almost 60 000 people in Ireland, with over 450 international financial services companies operating here, including half the world’s top 50 banks. Most financial institutions based here have significant operations across international borders. This means that new measures regulating international financial services will have immediate and direct effects on the Irish economy. For example, it is in Ireland’s interests that a pan-European supervisory culture for financial institutions develops in a way that safeguards Ireland’s interests, and the interests of financial institutions based in Ireland. At an international level, Irish influence in the EU facilitates input into the discussions of the G20 group of finance ministers, which is shaping the world’s response to the financial crisis. Any weakening of our influence may pose serious challenges for Ireland. Ireland’s economy will not recover from its current recession until the broader EU economy does, and as a consequence its success is of vital importance to this country.

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23. The Sub-Committee noted that a significant package of measures to deal with climate change issues is due to be decided on by the end of 2008, and that the measures could cost Ireland up to €1bn per annum in the years up to 2020. Effective Irish influence will be important to ensure that the package agreed takes account of Ireland’s national interests, particularly in relation to the agricultural sector, but also in setting appropriate emissions targets for industry that are fair to all Member States. In broader terms, Ireland’s ability to influence the EU’s position on climate change gives us a significant voice in international efforts to address the problem, which any decline in Ireland’s standing in the Union will tend to reduce. 24. Of further concern in relation to the agricultural sector is the level of Ireland’s influence over the EU’s Common Agricultural Policy, in the context of the forthcoming negotiations on the future shape of the EU budget beyond 2013. It is important to Ireland’s national interest that our agricultural sector not be disadvantaged in these negotiations. Ireland is acknowledged to have benefited considerably from the Common Agricultural Policy in the past, and any weakness in Ireland’s negotiating position could invite changes that disproportionately disadvantage Irish farmers. In addition to the Common Agricultural Policy, Ireland’s agricultural and food sectors are significantly affected by EU policies on climate change and emissions, sustainable consumption and waste, animal health, food safety and consumer information. While the World Trade Organization’s Doha round negotiations are currently suspended, the possibility of resumption remains open, and Ireland’s influence may be important in facilitating an agreement that safeguards the interests of the country’s agricultural sector. 25. The Sub-Committee notes fears that a continuation of the current uncertainty in relation to the EU’s way forward has the potential to significantly diminish Ireland’s influence. The view was advanced that if European leaders perceive that future treaty reforms are too complex or sensitive given the requirement for a referendum in Ireland, the likelihood of business being done on an intergovernmental basis between large Member States would increase. This might diminish the influence in Europe of Ireland and other small Member States. Ireland could then be left out of the mainstream of Europe, which would be seriously damaging to its vital national interests.

ireland’s decision on the lisbon treaty: long-term implications for ireland 26. It is vital to consider the long-term consequences that Ireland could face if a satisfactory resolution to the current situation cannot be found. Other Member States, while sympathetic to Ireland’s position and willing to take reasonable steps to accommodate its concerns, are committed to the implementation of the Lisbon Treaty, and regard it as the best possible compromise that equips the EU to face the challenges of the future. As of November 2008, 24 Member States have approved the Lisbon Treaty for ratification;1 it is likely that by the end of 2008, 26 Member States will have ratified the Treaty, with Ireland the only exception. The desire for reform of the Union’s structures will stay on the EU’s agenda, because reforms are   Ireland, Poland and the Czech Republic have not yet approved ratification of the Lisbon Treaty.

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considered necessary by Member States. Ireland’s future position in Europe will be determined not just by the choices of the Irish Government and people, but by the individual and collective decisions of its partners in the Union. 27. It is legally possible for the Union to stand still and operate into the future on the basis of current treaties and institutional arrangements. However, given the overwhelming desire among Member States for reform of the Union’s structures in a manner such as that envisaged in the Lisbon Treaty, this is considered unlikely. It is more likely that a mechanism will be developed by other Member States which allows them to proceed with a process of further integration which excludes Ireland. This would lead to a two-tier Europe with Ireland on the political and economic periphery. Such a scenario would have a devastating effect on Ireland’s political influence, economic prospects and international standing. Ireland’s Influence Within the European Union 28. Ireland’s deliberate approach of positioning ourselves at the heart of the EU has served the country well throughout our membership of the Union. Should Ireland move to the margins of the European Union, either by withdrawal from core involvement in major EU policy areas or through other Member States proceeding with further integration in which Ireland is not included, serious consequences for Ireland’s influence within the Union are likely. Ireland would no longer be regarded as a fully committed partner in the European project. The core of the Union would set the agenda for the EU’s work and define its broad policy direction. The jurisprudence of the European Court of Justice will follow the direction defined by the core of the Union. If Ireland does not play an active part in the framing of EU law, the law will develop without us and Ireland will not be in a position to shape it. Ireland’s Ability to Influence the EU’s Foreign and External Relations Policies 29. The Sub-Committee noted Ireland’s long tradition and the public’s pride in the Irish Defence Forces’ participation in international peacekeeping. Ireland continues to be deeply committed to peacekeeping which forms an integral part of Ireland’s foreign policy in terms of its support for the United Nations. This support for the United Nations translates into Ireland’s participation in the European Security and Defence Policy. Along with the other five neutral and non-aligned Member States, Ireland holds much influence over the other 22 Member States who are also members of NATO. The objectives of EU missions are not aggressive but crisis management and conflict resolution, usually under a UN mandate. The vast majority of such missions to date have been civilian rather than military, and included members of the Garda Síochána, the diplomatic service and the judiciary. Ireland’s participation in such operations is governed by the ‘Triple Lock’ whereby the mission must have a UN mandate and be authorised by a Government decision, and Dáil Éireann must give its approval. 30. The Sub-Committee heard that the result of the referendum had given rise to some uncertainty about Ireland’s future commitment to elements of the EU’s Common Foreign and Security Policy. In particular, this has the potential to reduce Ireland’s influence over the development of European Security and Defence Policy. The Sub-Committee notes that Ireland’s influence in this area stems from the fact that



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unanimity is required and therefore Ireland has a veto over all decisions. This would not change under the Lisbon Treaty. There are concerns among sections of the public, however, that Ireland’s participation in the European Security and Defence Policy is gradually undermining Ireland’s traditional policy of military neutrality (this is discussed further in chapter two). 31. Any reduction in Ireland’s standing within the EU may hinder its ability to influence common positions adopted by the EU Member States in international organisations and multilateral fora. Thus, the effectiveness of a significant channel for our interests and values to be promoted at a global level may be inhibited. Ireland’s Economic Interests 32. Foreign direct investment is of vital importance to the Irish economy. One hundred and fifty-two thousand people are employed in Ireland by foreign enterprises, and in total approximately 300 000 Irish jobs depend on foreign investment. Foreign owned companies account for 85 per cent of manufactured goods exported from Ireland. Our position at the core of an integrated Europe has been the central factor in attracting this foreign investment. 33. There is an assumption among the business community that problems surrounding the ratification of the Lisbon Treaty by Ireland will ultimately be overcome. This explains the lack of an immediate impact arising from the referendum result in relation to the attraction of foreign investment to Ireland or the business conditions for foreign-owned enterprises currently operating here. It is unlikely that any potential impact would be visible in the short term. If a perception develops among multi-national companies that the issues surrounding ratification of the Lisbon Treaty will not be overcome, this will have a significant effect on the very marginal decisions made by foreign enterprises in relation to overseas investment. 34. Ireland’s decision not to ratify the Lisbon Treaty has made its long-term position at the core of the European Union considerably less certain. Representatives of business interests have expressed the view that any dilution of Ireland’s relationship with the EU could seriously damage its competitiveness in attracting foreign direct investment. 35. Foreign investors have expressed some surprise about the result of the referendum. Some have called into question Ireland’s future commitment to the European Union. There is now a sense of uncertainty about Ireland’s future role in the EU. This uncertainty extends to questions such as Ireland’s future access to European markets, its future influence over EU policies in areas such as indirect taxation, and its participation in the setting of common product standards for manufactured goods in the future. 36. Certainty in relation to future business conditions is an important factor influencing the investment of mobile capital. It was pointed out that many investment decisions made by multi-national companies involved the commitment of signific­ ant resources in the long term. Companies will choose to make their investments in locations where there is no question over future conditions. 37. Uncertainty arising from Ireland’s decision on the Lisbon Treaty, whatever its justification, may be exploited by other countries competing for foreign direct investment. This is a particular concern in relation to competing states with lower

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cost bases for business than Ireland. States competing with Ireland for foreign direct investment sought to exploit Ireland’s decision not to ratify the Nice Treaty at the 2001 referendum in this manner. 38. The perception that Ireland was at the heart of EU policy making was very useful to Ireland in attracting foreign investment in the past. Investors were confident that Ireland was not only sympathetic in domestic law to business concerns, but had significant influence in Europe which could be mobilised to promote the interests of business in the formulation of EU laws and regulations. Any perceived diminution of Irish influence in Europe has the potential to eliminate this advantage. 39. There is broad agreement that any arrangement which results in the development of a two-tier Europe with Ireland at the periphery would be seriously injurious to Ireland’s ability to attract foreign investment, and detrimental to the interests of indigenous industry. 40. Of significant concern is the effect over the longer term that a progressive exclusion of Ireland from the European mainstream could have on the ability of Irish banks to raise funds on the international money markets. This could result in a considerably increased cost of borrowing in Ireland, and seriously inhibit the growth of our economy. 41. Ireland’s ability to maintain its corporation tax rate was discussed. Business representatives and tax experts informed the Sub-Committee that they were satisfied that the maintenance of Ireland’s tax rates was not threatened by the provisions of the Lisbon Treaty. Ireland’s Global Standing and International Position 42. Ireland has had an image globally as a country which had a significant voice in the European Union. This perception has now been diminished, thereby reducing Ireland’s standing internationally. For example, the United Nations has come increasingly to rely on regional organisations such as the EU to provide resources for its work in the maintenance of international peace and security. As a result, the perception that Ireland is moving away from the core of Europe has the potential to affect its standing and credibility in its engagement with the United Nations. 43. States seeking to join the European Union are concerned that Ireland’s decision not to ratify the Lisbon Treaty has made further enlargement of the Union less likely in the short term, while current institutional arrangements remain in place. This is not because of a legal impediment to enlargement under the current rules, but rather because a number of Member States have made clear their view that further enlargement is not practical without reform of the Union’s structures. This is a particular concern on the part of Croatia, which had hoped to become a Member State of the EU in 2010. This may result in a lessening of Ireland’s ability to build alliances with new Member States, which it has done successfully in the aftermath of previous enlargements of the Union.

conclusions 44. Irish sovereignty has flourished in the European Union, and its role as a fully committed and engaged Member State has been vital to the advancement of the



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country’s national interests. It is imperative that Ireland’s position at the heart of Europe be maintained. 45. We must recognise, respect and address the concerns of the Irish people. While it is difficult to fully understand all the concerns, it is clear to the Sub-Committee that the people were voting to reject ratification of the Lisbon Treaty and not the European Union. The immediate challenge facing Ireland is to develop a way forward which allows Ireland to remain at the heart of Europe, while taking account of the concerns of the Irish people. 46. There are 26 other Member States of the EU. Each of these Member States has its own views – some common, some different – on how to move forward with the desired reforms under the Lisbon Treaty. The challenge for Ireland is to work with its EU partners in finding a common way forward that is acceptable to all. 47. Ireland’s standing and influence in the European Union have diminished following its decision not to ratify the Lisbon Treaty. In immediate terms, this inhibits Ireland’s ability to promote and defend its national interests at a European level. This is likely to affect Ireland’s ability to influence key upcoming policy discussions within the Union. These include, but are not limited to, the development of the EU’s climate change package; the negotiations on the future shape of the EU budget beyond 2013 including provision of adequate resources for the Common Agricultural Policy; and responses to the global financial crisis. 48. There is now considerable uncertainty surrounding the specific position of Ireland in the European Union in the future. The continuation of this uncertainty has the potential to affect the country’s national interests very significantly in the long term. In particular, Ireland’s economic interests its attractiveness as a location for foreign direct investment are likely to be affected. 49. Globally, a perception that Ireland has separated itself from the mainstream of the EU has the potential to significantly affect its influence with major powers and at international fora such as the United Nations. The view that Ireland is delaying institutional reforms necessary for the expansion of the EU is likely to affect its relationship with candidate countries.

2 ireland’s future in the eu: issues & options 1. The delivery of this term of reference has been divided into two sections. The first section addresses Ireland’s future policy approach within the EU in respect of a number of policy areas. These policy areas are economic and financial policy, social policy, defence and foreign policy and Ireland’s influence within the EU institutions. The second section considers the options open to Ireland in terms of its future within the EU. There are a number of options and possibilities open to Ireland in terms of dealing with the current situation, each having potential implications for Ireland’s future in the EU.

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2. Through its consideration of the four policy areas defined by the Sub-Committee’s terms of reference, six distinct issues have emerged which the Sub-Committee believes are of most concern to Ireland in terms of its future in the EU. These issues are also the main areas of concern which certainly contributed to the Lisbon Treaty referendum result. The issues are taxation; workers’ rights; public services; socio-ethical issues; foreign and defence policy, including the protection of Ireland’s traditional policy of military neutrality; and Ireland’s influence within the EU. Taxation 3. The Sub-Committee discussed in detail the potential impact of developments in the EU on Ireland’s ability to control its direct taxation policy, in particular its corporate tax rate. Ireland’s low corporate tax rate of 12.5 per cent, together with our membership of EU’s single market, has been a key factor in attracting large amounts of foreign direct investment to Ireland. This has contributed immensely to Ireland’s economic and social progress. 4. The Irish Taxation Institute, in its evidence to the Sub-Committee, was very clear. The Lisbon Treaty would not affect Ireland’s sovereignty in relation to direct taxation policy. In terms of the changes to Article 48 of the Treaty on European Union relating to a simplified procedure for amending treaties, the Irish Taxation Institute confirmed that any decision to move from unanimity to Qualified Majority Voting with regard to taxation measures would need to be taken unanimously by all Member States, thus protecting Ireland’s veto. In addition, on being notified that the European Council is considering a change from unanimity to Qualified Majority Voting, any single national parliament can object within six months, thus also holding a veto over such a decision. The Institute also confirmed that the longstanding consideration by the Commission of a Common Consolidated Corporate Tax Base (CCCTB) and the Lisbon Treaty were entirely separate issues and should not be linked. Therefore, ratification of the Lisbon Treaty could not have led to the automatic introduction of the CCCTB. The CCCTB would seek to consolidate the income of corporations operating in the EU on which Member States can apply tax. This is very different from the concept of tax harmonisation which means one rate of tax across the EU. Ireland has a veto over proposals such as the CCCTB and this will not change. The Irish Taxation Institute clearly stated that Ireland’s 12.5 per cent corporation tax rate and other direct taxation measures were safe and that the Government would retain control over direct taxation policy. 5. It is clear that maintaining control over direct taxation policy is vital to Ireland’s national interests. With all issues considered, it is also clear to the Sub-Committee that Ireland’s control over its direct taxation policy, including its corporation tax rate, will not be affected at any level, including by the Lisbon Treaty. Workers’ Rights 6. The Sub-Committee considered Ireland’s future policy approach within the EU in the four areas referred to in its Orders of Reference in order to gain an understanding of all the possible issues of concern. With these issues in mind, the



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Sub-Committee also examined the options available to Ireland in terms of its future engagement with the EU and the implications of these options. 7. The EU has been a source of positive social legislation for Ireland. The vast majority of positive legislation in Ireland on worker’s rights, beginning with the equal pay legislation, was enacted on the basis of EU directives. Therefore, it is important to be at the heart of Europe when it comes to the issue of workers’ rights. It is also accepted that the Charter of Fundamental Rights is essential to the cause of progressing a social Europe which protects the rights of workers. The Charter would be given legal effect by the Lisbon Treaty and is addressed to the institutions of the Union as well as the Member States when they are applying EU law. The content of the Charter, agreed by the European Council in 2000, draws on the European Convention on Human Rights, the Council of Europe’s Social Charter and constitutional traditions common to the Member States. Article 52.3, Article 53 make clear that when there is a conflict between the Charter of Fundamental Rights on the one hand and the European Convention on Human Rights and international law on the other, the European Convention on Human Rights and international law take precedence. The Charter’s Article 28 asserting the legal right to collective bargaining is an example of its importance. In addition, the Lisbon Treaty specific­ally endorses the social market economy. 8. Following the European Court of Justice judgments, clarification is required from the EU, and in particular the European Commission, on the application of the principles contained in the Posting of Workers Directive. One suggestion put to the Sub-Committee is that the EU could agree to revisit the Posting of Workers Directive, in order to resolve any difficulties. It is clear that the entry into force of a legally binding Charter of Fundamental Rights is a key component for many in achieving the correct balance between economic and social policies within the EU. 9. It was also proposed to the Sub-Committee that the concerns about workers’ rights could be responded to through the introduction of a social progress clause or protocol to a future EU treaty. This would require that treaty provisions be interpreted as respecting fundamental rights, especially trade union rights to freedom of association, collective bargaining and collective action. This would guarantee that when a conflict between fundamental market freedoms and workers’ rights occurs, the rights of workers would be given priority in the interest of facilitating the development of the social market economy. It would also establish the rights of workers and their representatives to take collective action to improve their working and living conditions above minimum standards. Those who have proposed the development of an EU social progress clause, which include the European Trade Union Confederation and the Irish Congress of Trade Unions, accept that it would be extremely difficult to reopen the compromise contained in the Lisbon Treaty. They are instead seeking a commitment from the EU Member States to include such a clause in a future EU treaty. 10. An alternative to the proposed social progress clause has also been suggested to the Sub-Committee. This proposal would involve the wider use of the so-called ‘Monti clause’ in EU directives with relevance to workers’ rights. A similar clause was used in the Services Directive. The clause stipulates that the directive in question respects the exercise of fundamental rights applicable in the Member States and recognised in the Charter of Fundamental Rights. Those fundamental rights

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include the right to collective action and bargaining in accordance with national law and practices which respect Community law. 11. The continual development and consolidation of a social market economy by the EU is important. Ireland should continue to work with its EU partners in pursuing an integrated approach to economic, social and employment policies. This integrated policy approach should have at its centre the protection of workers’ rights as well as sustainable economic growth. Public Services 12. Concerns were expressed to the Sub-Committee that the Lisbon Treaty could adversely affect the ability of the Member States to provide public services. These concerns also related to interpretations of the provisions of the Lisbon Treaty in respect of international trade or the common commercial policy. 13. The Sub-Committee noted that the Lisbon Treaty contains at least four major provisions that relate to public services. First, it carries over the existing treaty provisions stating that the EU is neutral on the question of public versus private ownership. Second, in Article 16 it contains a new legal base providing for the adoption of EU legislation to enable public services to fulfil the tasks entrusted to them by public authorities. Third, it contains a new protocol setting down guidelines for future EU initiatives, which explicitly recognises the Member States’ prerogatives in this matter. Fourth, it gives legal effect to the Charter of Fundamental Rights, which among other things, states the citizen’s right to access public services. 14. With regard to trade policy and public services, the Lisbon Treaty contains a new clause stating that nothing done at EU level in the trade field will affect the delimitation of responsibilities between the EU and Member States or lead to the harmonisation of national laws where this is excluded by the Treaties. Examples of such delimitations and the exclusion of harmonisation include the Lisbon Treaty’s articles on education and public health. 15. There is also further protection due to the fact that the requirement for unanimity is retained for trade agreements referring to social, educational and health services where these risk ‘disturbing the national organisation of such services and risk prejudicing the responsibility of Member States to deliver them.’ Finally, the Lisbon Treaty clearly stipulates that the EU will act unanimously when an agreement covers a field for which unanimity is required for the adoption of an internal EU act. There needs to be greater clarity in this area. It has been proposed to the Sub-Committee that a political declaration could be agreed by the Member States offering this clarification. This declaration could make clear that all Member States must currently mandate and approve a trade deal between the EU and a third country, including the World Trade Organization, for it to come into effect and that this would not change under the Lisbon Treaty. The declaration could also point out that under the terms of the Lisbon Treaty, all trade agreements would also require the approval of the European Parliament, a change which considerably extends the powers of the European Parliament in the area of trade. 16. The state’s role in ensuring the provision of public services and the means by which these services are delivered should continue to be a matter for each individual



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Member State. It is important that the protections that currently exist at EU level, and which would be enhanced under the Lisbon Treaty, should be adhered to and respected. Socio-Ethical Issues 17. The Sub-Committee discussed extensively the concerns of some about the potential impact of EU law on Ireland’s position on sensitive socio-ethical issues such as abortion and the place of the family in society. These concerns as expressed to the Sub-Committee stem from policy decisions at EU level and the interpretation of EU law by the European Court of Justice. Some have argued that this signifies a ‘creeping’ by the EU into areas where it has no competence under the Treaties. A concern was also expressed that the Union does not fully take into account Europe’s Christian heritage when developing legislation and policies. 18. It should be borne in mind that the EU has no formal competences in relation to sensitive moral and ethical issues or family law. These competences firmly rest with the individual Member States and their national parliaments. In general terms, the Member States work on the basis of subsidiarity whereby Member States respect each others’ positions on moral and ethical issues. However, some have argued that subsidiarity is not always strictly observed by the institutions of the EU and that these concerns must be addressed. 19. Some pointed to the Lisbon Treaty as a means of allaying some of the concerns in the broad area of socio-ethical issues. For instance, the preamble of the Treaty refers to Europe drawing its inspiration from its religious heritage. The Treaty also includes a new article which states that the EU respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. This article also establishes a formal mechanism for dialogue between the EU and religious and humanist organisations and communities. 20. The Charter of Fundamental Rights includes a range of articles protecting the right to life, protecting the right of parents to educate their children in accordance with their religious convictions, protecting religious freedom and stating that the family will enjoy legal, economic and social protection. It was noted that many of the issues raised as concerns remained the competences of the Member States and that it is at the domestic level in Ireland that the debate should take place and legislation should be considered. 21. Notwithstanding these provisions of the Lisbon Treaty, proposals were made to the Sub-Committee which some believe could help to allay the concerns around socio-ethical issues. One proposal was to seek a declaration clarifying for the Irish people that the Protocol on Article 40.3.3 of the Irish Constitution (on the right to life of the unborn) continues to apply to the EU institutions and their actions as they affect Ireland. 22.  Another proposal suggested to the Sub-Committee was to amend the Irish Constitution in order to establish a type of ‘constitutional filter’ to guard against any unintentional or potential impact of EU law on fundamental rights as enshrined in the Constitution. In response to this proposal, the Sub-Committee noted concerns in relation to the possible implications for Community law. It was argued that the introduction of a constitutional filter by Ireland would involve a

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legislative rejection of the long-standing primacy of EU law in the areas of competence conferred on the Union by the Treaties. Such a proposal could serve to undermine the nature of EU law and deprive it of its character. The uniformity of the EU’s legal order could also be affected. In these circumstances, other Member States would be likely to have fundamental problems when it comes to the practice of this amendment. What is required is respect for fundamental rights at EU level. The Charter of Fundamental Rights was to fulfil this purpose. 23. The right of each Member State to decide its own policies in areas of social and ethical sensitivity should continue to be respected. To this end, a policy of subsidiarity should be carefully observed when developing and interpreting EU law. It would be important for EU institutions to work strictly within the competences which have been conferred on them under the EU Treaties. Defence and Foreign Policy 24. The EU’s Common Foreign and Security Policy, and in particular its European Security and Defence Policy, has been a consistent area of concern in terms of its potential impact on Ireland’s traditional policy of military neutrality. It was argued before the Sub-Committee that provisions of the Lisbon Treaty relating to the progressive establishment of a common EU defence, a mutual assistance clause and the enhancement of Member States’ military capabilities were steadily undermining Ireland’s tradition of military neutrality. Fears over the establishment of an EU army and conscription were an extreme manifestation of these concerns. It should be noted that no EU treaty, including the Lisbon Treaty, has ever referred to conscription or a European army. More generally, there are concerns about the future direction of the Common Foreign and Security Policy and the European Security and Defence Policy in terms of their objectives and instruments. 25. In respect of the objectives of the European Security and Defence Policy, it was explained to the Sub-Committee that it is in practice a crisis management policy, to prevent conflict and to re-build societies emerging from war. To undertake this work, the European Security and Defence Policy uses a mix of civilian and military resources. The United Nations has increasingly come to rely on the EU to undertake peacekeeping missions on its behalf. The EU is not a military alliance and decisions on defence matters remain sovereign decisions of the individual Member States. Moreover, the EU does not have a defence budget. Neither can the EU institutions tell Member States how much money they should spend on defence. The EU does not have its own army nor can it conscript any EU citizen. Each Member State retains full sovereignty over their armed forces and can choose to contribute (or not) to each military operation as they see fit. Each Member State has a veto over every single operation under the European Security and Defence Policy. 26. In terms of the specific provisions of the Lisbon Treaty, it was explained to the Sub-Committee that the mutual assistance clause includes significant caveats. It states that the specific character of the defence policy of certain Member States, neutral states of which there are six, shall not be affected by this provision. The provision, rather than being functional, is a political commitment to show solidarity in the unlikely event of an attack.



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27. It was explained to the Sub-Committee that Member States’ commitment to improve military capabilities was a reflection of the reality that the EU requires better resources to undertake its crisis management and peacekeeping missions – to allow Ireland’s defence forces to be better equipped and better trained to carry out such missions. This was also the justification behind the establishment of the European Defence Agency. 28. Notwithstanding the existing safeguards and assurances in terms of Ireland’s traditional policy of military neutrality, including Ireland’s veto, constitutional guarantee, the triple lock and the Seville Declarations, a number of proposals were put to the Sub-Committee on how these protections could be further enhanced. First, it was stated that the current protections need to be better communicated and perhaps the Seville Declarations of 2002 need to be revisited. Second, a proposal was put to the Sub-Committee that Ireland should seek an optout from the European Security and Defence Policy or certain aspects of the policy. In response to this proposal, it has been argued that this would be counterproductive and actually detrimental to Ireland’s foreign policy interests. If Ireland opted out, Ireland would lose its veto and its capacity to influence the European Security and Defence Policy, an integral part of Common Foreign and Security Policy. An opt out would work against Ireland’s foreign policy as the European Security and Defence Policy is about undertaking missions, such as peacekeeping, that are in line with Ireland’s foreign policy objectives. For instance, Ireland can offer so much more to the United Nations when Ireland is fully engaged in the European Security and Defence Policy. In addition, opting out would mean that the Irish Defence Forces could not take part in United Nations peacekeeping missions that were EU-led. Our Defence Forces would also no longer benefit from joint staff work, training and actual operations which currently define much of their professional profile. 29. Another proposal was to set limits to what kind of European Security and Defence operations Ireland could participate in – to restrict ourselves to peacekeeping, humanitarian aid missions and conflict resolution. This may be difficult to work in practice as many missions are mixed and tasks such as military advice which seeks to establish stable security sectors in post conflict countries, is a key component of conflict prevention. The result may be that Ireland would find itself opting out of most missions and therefore losing the capacity to influence the shape of these missions. It could mean a de facto opt out from the entire European Security and Defence Policy. 30. It is clear that the Irish people have a great pride in the participation of the Irish Defence Forces in international peacekeeping. The Irish people have great pride in Ireland’s traditional policy of military neutrality and therefore it needs to be protected. Any practical measure that demonstrates that this traditional policy is and will continue to be protected and respected should be considered.

influence 31. The Sub-Committee discussed in detail concerns held by some that by ratifying the Lisbon Treaty, Irish influence within the EU institutions would be reduced.

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It appears to the Sub-Committee that these concerns, whether real or perceived, are predicated on the proposed changes under the Lisbon Treaty to the European Commission and the voting weights within the Council of Ministers. 32. If the Lisbon Treaty were to enter into force, the size of the European Commission would be reduced from 2014 onwards. This would see the number of Commissioners equal to two-thirds of the Member States. A system of strict equal rotation between the number of Member States would be established. In effect, each Member State would be able to nominate a Commissioner for 10 out of every 15 years. The purpose of the reduction was to increase the efficiency of the Commission in a Union that had enlarged rapidly in the past decade from 15 to 27 Member States and that could enlarge further. However, the belief was expressed strongly to the Sub-Committee that such a system would mean that Ireland would not have a Commissioner at the table all the time and therefore our influence would be reduced. 33. It is important, in the context of this debate, to recall the purpose of the Commission. The Commission upholds the interests of the European Community. It must act as a neutral body, free from political influence and propose legislation that reflects the interests of the Union as a whole. This is to the advantage of small Member States like Ireland. A European Commissioner is forbidden to take instructions from or promote the interests of an individual Member State. The Commission does not take the decisions – this is a matter for the Council of Ministers, on which the governments are represented, and the European Parliament. 34. It should also be borne in mind that under the current arrangements laid down by the Nice Treaty, the Member States are legally obliged to reduce the number of Commissioners by November 2009. This reduction should be based on the principle of equality between Member States. However, while the Lisbon Treaty sets out how the reduction can be achieved, it also contains another clause which does not appear in the Nice Treaty stating that the European Council can decide, acting unanimously, to alter the number of Commissioners. Therefore, it may be possible for the European Council, working under the Lisbon Treaty, to decide to maintain the concept of one commissioner per Member State. 35. While it seems that the purpose of the Commission is sometimes misunderstood, it does appear that having a Commissioner nominated by the Government is a matter of national sensitivity. While this Commissioner would not represent the Irish Government within the Commission, he or she can act as a conduit for the Commission in understanding any sensitivities which are particular to Ireland. This serves both the Commission and Ireland. Having a Commissioner all the time would also offer legitimacy to the proposals made by the Commission. 36. With regard to the changes to the voting weights in the Council of Ministers, the nature of decision making within the Council must be understood. Votes are very rare and decisions are taken more often then not on the basis of consensus. The Member States are very keen not to alienate or isolate another Member State but reach a decision that is acceptable to all. In this respect, influence and goodwill with the other Member States are the keys to achieving decisions that protect Ireland’s interests. 37. It has also been argued that technically the switch from Qualified Majority Voting to Double Majority Voting, set to take place in 2014 if the Lisbon Treaty enters into force, would not reduce Ireland’s voting weight but would make no



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tangible difference and could in fact increase our influence. Under the existing system of Qualified Majority Voting, each Member State is assigned a number of votes weighted according to a scale which groups together Member States of similar population size. Currently, Ireland has seven votes out of three hundred and forty five. Two hundred and fifty-five votes are required to adopt a decision under Qualified Majority Voting. The Double Majority Vote means that 55 per cent of Member States comprising at least 15 countries and representing at least 65 per cent of the EU population is required to pass decisions. The 65 per cent population requirement is designed to protect the Member States with large populations and the 55 per cent of Member States requirement is designed to protect smaller states. What voting power Ireland loses under the population-based criterion, it gains under the principle of one vote per country. Under this principle Ireland would have the same voting weight as Germany or the UK. 38. There can also be a blocking minority which must include at least four states. This is designed to reassure small Member States that big Member States will not be able to block votes because of their population. The Sub-Committee again notes that it is not our voting power that gets results for Ireland, it is our influence. It is not about votes but about being at the table with our good standing and influence intact. 39. It became clear to the Sub-Committee that influence is the key to promoting and protecting Ireland’s interests at the heart of the EU. The Sub-Committee notes the paradox that the current proposals for reform of the EU institutions may not affect Irish influence within the EU but by rejecting the Lisbon Treaty this influence could potentially be undermined. Ireland should work to retain this influence while recognising the need to bring greater efficiency to the institutions of the EU. Ireland’s Future within the EU: Options2 40. There are two basic options available to Ireland in terms of its future within the EU: ratification and non-ratification of the Lisbon Treaty. Within these basic options there are a number of other options and scenarios. In terms of ratification there are three distinct options: i. A renewed attempt at ratification of the Lisbon Treaty by referendum with variations; ii. Ratification of the Lisbon Treaty by the Oireachtas; iii.  A referendum on membership of the EU. In Terms of Non-Ratification There Are Three Scenarios a. maintenance of the status quo (continue under the Nice Treaty arrangements); b. renegotiation of the Lisbon Treaty; c. the other Member States find an alternative way forward.

2  This section of the Sub-Committee’s Report draws from Ireland’s Future in Europe: Scenarios and Implications by UCD’s Dublin European Institute (Gavin Barrett, Brigid Laffan, Rodney Thom, Daniel C Thomas, Ben Tonra) which was commissioned by the Sub-Committee.

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There is a range of potential implications to each of the options and scenarios that need to be considered. Ratification i.  Renewed Attempt at Ratification of the Lisbon Treaty 41. No legal obstacle appears to exist to having a referendum either on precisely the same issue as that dealt with on 12 June or some variation thereof. Constitutionally it is a matter for the Oireachtas to determine whether such a referendum would be placed before the people. If a decision is made to hold another referendum, it would be expected that the Government would make an attempt to respond at both domestic and EU level to the range of concerns expressed during the referendum campaign, such as those outlined earlier in this chapter. 42. It may be possible to supplement the provisions of the Lisbon Treaty with declarations, decisions and protocols. 43. Protocols have the same status as treaty provisions and therefore their introduction represents a kind of mini renegotiation of the Treaty rather than a wholesale renegotiation. However, there are difficulties to a protocol based approach. As protocols have the same status as treaty provisions, each Member State would probably have to re-ratify the treaty. This would likely be strongly resisted by those Member States where the initial ratification process was a difficult one to begin with. Such an approach might also be rejected where such protocols would generate comparable demands in other Member States for unique treatment, thus leading to a wider unravelling of the Lisbon Treaty. 44. Declarations are formal statements by one or more of the Member States of their intentions or understanding in signing, and subsequently ratifying, a treaty. Declarations can range from simple statements of political intent to legally binding interpretations of Treaty provisions. Ireland secured a declaration for the Nice Treaty dealing with the protection of Ireland’s traditional policy of military neutrality. In the case of the Lisbon Treaty, a declaration by Ireland as well as by all Member States could be used as a way of clarifying some aspects of the Treaty and removing misunderstandings in regard to its provisions. 45.  A declaration could be the instrument used to deal with the issue of the Commissioner. A declaration from all the Member States as well as an Irish declaration, each reinforcing the other, could be agreed that would commit the Member States to trigger the clause in the Lisbon Treaty allowing for the retention of the right of every Member State, including Ireland, to nominate a Commissioner. This option is not without its difficulties and may prove to be politically unachievable. It presupposes a willingness on the part of the other Member States to abandon the decision to reduce the size of the Commission in the interests of solving the predicament created by the referendum result. Member States may be reluctant to pick out one aspect of a Treaty which they view as a carefully balanced package of reforms. 46. Decisions were first used after the Danish rejection of the Maastricht Treaty in 1992. They were agreed by the Heads of State and Government of the EU and the Danish Government and were regarded by many as having the same status as an international agreement or ‘mini-treaty’. They did not require the Member States



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to re-ratify the Maastricht Treaty but secured opt outs for Denmark in the areas of the euro, Justice and Home Affairs and European Security and Defence Policy. They were later formalised by a protocol to the Amsterdam Treaty in 1997. In the present context, protocols and legally binding decisions are likely to be alternatives to each other, rather than both being agreed. 47. Actions could also be taken at the domestic level by changes to domestic practices, national legislation or the Constitution. Such reforms could include those involving a greater role for the Oireachtas in EU affairs as discussed in chapter four. 48. Protocols or decisions could involve Ireland deciding to opt out of certain provisions of the Lisbon Treaty. It should be borne in mind, however, that opt outs are not cost free. By opting out of certain provisions, Ireland would lose its capa­ city to influence the relevant policy area and in areas such as European Security and Defence Policy, Ireland would lose its veto. The Danish precedent offers an insight into the real effects of opt outs. After the defeat of the Maastricht Treaty by referendum in 1992, Denmark secured four opt outs from the following areas: European Security and Defence Policy, the Justice and Home affairs area, EU citizenship and the euro. When before the Sub-Committee, the Danish Parliament’s European Affairs Committee noted that opt outs would not necessarily be the best way to proceed as they leave Denmark outside the decision making process in key policy areas of the Union. While the EU has moved on, the Danish opt outs have remained constant meaning that today the opt outs have completely different consequences for Denmark. Danish opt outs are considered to limit Danish freedom of action more than protect Danish autonomy. For these reasons, the Danish government is in fact considering holding a referendum to scrap the Danish opt outs. ii.  Ratification of the Lisbon Treaty by the Oireachtas 49. It is not clear whether ratification of the Lisbon Treaty by the Oireachtas is in fact legally possible. This option is shrouded in uncertainty. It is impossible to discuss definitively in the absence of a Supreme Court ruling dealing with the constitutionality of the Lisbon Treaty. There are also clear political considerations as an attempt to ratify the Treaty by parliament alone could be interpreted as circumventing the democratic decision of the people. However, it could be envisaged that a parliamentary vote might be held on those aspects of the Treaty which do not appear to require a Constitutional referendum in this State and yet are considered highly important to other Member States. Such a provision could be the fairer distribution of seats in the European Parliament. This process would involve taking elements of the Lisbon Treaty without renegotiation, agreeing them as a new mini-treaty and ratifying them. 50. An advantage of this option is that it would prove the State’s bona fides vis-àvis our EU partners. On the other hand, it could be seen by some as a deliberate attempt to circumvent the expressed will of the people and could provoke a legal challenge. In any case, it is not entirely clear that any such offer would be of interest to our EU partners, given that its acceptance would require the signature and ratification of a mini-treaty. This is likely to cause difficulty among the other Member States which – given that concessions were made to some of them to

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the irish yearbook of international law 2008 accept the institutional arrangements – might refuse to ratify a Treaty involving revised institutional arrangements without these concessions. The Lisbon Treaty is viewed as a package and unpicking this package could result in its complete collapse, which other Member States are not willing to let happen.

iii.  Referendum on membership of the EU 51. Another possible option would involve the Government organising a referendum on support for the Lisbon Treaty-version of the EU with the explicit commitment that in the event of a ‘no’ vote, the Government would then negotiate Ireland’s withdrawal from the Union and pursue either membership of the European Economic Area or some other special relationship with the Union. This would be a high-stakes strategy that could conceivably lead to Ireland leaving the EU. It would also not be reflective of the Millward Brown IMS survey which shows that a majority of Irish people wish for Ireland to stay at the heart of the EU. 52. This option raises the prospect of Ireland leaving the Union and becoming a member of the European Economic Area along with Norway, Liechtenstein and Iceland. This would have far-reaching consequences for Ireland. It would mean an end to Ireland’s participation in the Common Agricultural Policy and to any right to receive Regional, Social and Structural funds. Continuing participation in the euro would remain to be resolved. Full access to the internal EU market would be maintained but the right to participate in decision-making on directives and regulations would be ended. Ireland would become the taker rather then the maker of internal market and related legislation. Given that changes in EU law could have a negative impact on the economic welfare or social values of European Economic Area states, the significance of this lack of voice should not be under-estimated. In addition, even with no voice at the table, Ireland would still be expected to contribute funding to the EU’s cohesion policies. This could cost the exchequer up to €200mn per annum. 53. This option would also have an impact on Ireland’s ability to attract foreign direct investment. Investors make decisions to invest in Ireland based on certainty and low risk. While in the European Economic Area access to the internal market would be preserved, investors are likely to see this as a very negative development. Ireland would not have the capacity to influence regulations on the Internal Market which could have a negative impact on the way multinationals or even Irish companies do their business. These companies would have every incentive to relocate to another Member State which is a full member of the EU. 54. It should also be borne in mind that Ireland’s economy is very different from that of Norway, Liechtenstein or Iceland and cannot be compared. Norway has vast quantities of natural resources, Liechtenstein is dependent on Switzerland (a nonEU, Member State) and Iceland has shown no interest in EU membership but this may change in the aftermath of the island’s recent economic collapse. Non-Ratification 55. This option assumes that the Government may arrive at a final decision that Ireland is unable to ratify the Lisbon Treaty. If this occurs, the other Member States will be confronted for the first time in the history of the Union with the



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non-ratification of a Treaty which the vast majority of Member States want to see adopted. How the other Member States would react to this collectively is unclear. a.  Maintain the status-quo 56. The Member States may decide to abandon the Lisbon Treaty completely and carry on with the existing Treaties as the basis for the actions of the Union. Abandoning the Treaty would reflect the legal reality that it can only enter into force if it is ratified by all the Member States. Abandoning the Treaty, however, would not solve the institutional problems of the Union which many Member States feel need to be addressed, a perception that has been reinforced by the conflict in the Caucasus, the resurgence of Russia as well as the world economic and financial crisis. It would also raise the prospect of a block to further EU enlargement. A number of Member States have stated categorically that further enlargement cannot proceed without the Lisbon Treaty. This could have serious consequences for the Western Balkans as the prospect of EU membership is a big factor in encouraging reform in these countries and underpinning their stability. 57. There is no doubt that Ireland would be seen as the cause of this uncertainty and the block to enlargement for countries like Croatia. The good standing and influence which Ireland has built up and enjoyed throughout its membership of the Union, and which has played a huge part in its ability to negotiate successfully within the EU, would be severely damaged. It is also difficult to see how the other Member States would be prepared to retract the difficult compromises reached on the Lisbon Treaty over a protracted period of time. b.  Renegotiation of the Lisbon Treaty 58. At present, there is no indication from any Government that they might be willing to recommence negotiations on the existing Treaties or renegotiate the Lisbon Treaty. Eight years of negotiation rest behind the Lisbon Treaty; it represents a complex compromise. There is a real concern on the part of other Member States that re-opening negotiations again would unravel the hard fought package of reforms secured in the Lisbon Treaty. 59. There is a strong desire among the Member States to move on from institutional wrangling or ‘navel gazing’ and instead deal with the real issues affecting citizens’ lives. Furthermore, even it there was a willingness to renegotiate, there is no reason to expect it would result in a treaty different from the Lisbon Treaty or a better deal for Ireland. The negotiators, the issues to be addressed, the constellation of interests involved and the range of politically possible compromises are all largely the same now as they were when the Lisbon Treaty was agreed. Finally, any new Treaty would have to be ratified in all Member States and would probably mean another referendum in Ireland. 60. One group has suggested to the Sub-Committee that the Lisbon Treaty, and a Treaty based approach per se, should be abandoned and the Member States should negotiate a constitution for the EU of no more than 25 pages. Such a constitution would include provisions for a directly elected Commission and President of the European Council. The Sub-Committee considered the possible implications of such a proposal.

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61. It was argued that a document of only 25 pages in length, which would characterise the operational policies of an international organisation as complex as the EU, would give tremendous scope to the European Court of Justice to interpret in order to fill in the gaps left by such a constitution. One of the reasons the Lisbon Treaty and the EU Treaties in general are inevitably complex is in order to hinder judicial activism. The benefit of a detailed document laying out the rules of the EU and which is legally precise is that the European Court of Justice cannot become judicially active and lead to the creation of law by supranational judges. The idea of a directly elected Commission and President would clearly indicate a move towards a federal Europe as opposed to the current unique system of a mix of supranational and intergovernmental decision making which is known as the ‘Community Method’. c.  The other Member States seek an alternative way forward 62. It is a possibility that the other 26 Member States may define the current impasse on the Lisbon Treaty as a problem pertaining only to this country and thus decide to look at solutions which involve them proceeding further with European integration on the basis of the Lisbon Treaty and leaving Ireland behind to catch up if and when it wishes to do so. There are a number of possible legal mechanisms for doing so, such as denouncing the current Treaties and setting up a new EU without Ireland, but they are quite convoluted. More importantly, a decision of the other Member States to proceed without Ireland would also break with a core principle of the EU – solidarity – which could have unforeseen consequences for the Union. 63. However, what is of most concern to us is how such a decision by the other 26 Member States would impact on Ireland. One possibility is that Ireland could have no choice but to leave the EU and perhaps become a member of the European Economic Area. The implications of this are discussed in paragraphs 52–54. The other possibility is the development of a restructured EU in which some states build institutions for deepened integration while other remain in a ‘second tier’. This possibility has become known as a ‘two-tier’ or ‘two-speed’ Europe. Assuming that Ireland decides not to ratify the Lisbon Treaty, it is inevitable that Ireland would find itself in the ‘second tier’ or the ‘slow lane’. 64. If Ireland were to be part of the second tier of a ‘two-tier’ Europe, the economic consequences would be serious. Ireland’s full engagement with the EU has been an important badge of state identity and how Ireland positions itself in the world. It would send a potentially dangerous signal to many multi-national corporations located in Ireland and be a hindrance to our capacity to attract further investment. It would weaken Ireland’s influence in the European system and undermine our ability to mould the dynamic integration of Europe in a manner that suits Irish interests and values.

conclusions 65. The Sub-Committee believes that ratification of the Lisbon Treaty by parliament alone is not a desirable option. Such a ratification procedure could be interpreted as an effort to circumvent the democratic will of the people. It is also not clear



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whether such an option is constitutionally possible. It could present significant, possibly insurmountable, legal difficulties. 66. The Sub-Committee has concerns about any options that may involve Ireland opting out of EU policy areas. In this respect, it would point to the Danish experience and the growing feeling there that its opt outs in the areas of Justice and Home Affairs, the European Security and Defence Policy and the Euro have had a detrimental effect on Denmark’s national interests. Opt outs are not cost free. They could potentially mean Ireland losing its right to shape and influence key policy areas. The implications of choosing such a course of action should be thoroughly examined. 67. The Sub-Committee has strong concerns about any option that could potentially lead to Ireland finding itself on an outer or second tier of the EU. The option of Ireland leaving the EU and negotiating a new relationship with the EU is also unthinkable. These scenarios would be catastrophic for Ireland’s national interests, both economically and politically. 68. Specifically, an option that could lead to Ireland being part of a second tier or even leaving the EU and joining the European Economic Area: •  Could reduce or even eliminate Ireland’s capacity to influence key EU policy areas such the Common Agricultural Policy, energy security and climate change; •  Could mean that Ireland would no longer have access to the Common Agricultural Policy, structural funds and cohesion funds; •  Could mean Ireland becoming a taker and not a maker of internal market legislation but still be expected to contribute funding to the running of the internal market; •  Could have a serious negative impact on Ireland’s ability to attract and retain foreign investment as it would be seen to be outside the core and unable to influence decisions affecting business conditions. 69. The Sub-Committee believes that a solution must be found that keeps Ireland at the heart of Europe while respecting the democratic will of the Irish people by arranging for these concerns to be accommodated by the other Member States.

3 beyond lisbon: public understanding of the eu and ireland’s membership Consider measures to improve public understanding of the EU and its fundamental importance for Ireland’s future The Sub-Committee examined the factors affecting public understanding of the European Union in Ireland, and considered the role that various institutions at European, national and local level could play in enhancing public engagement in European matters. 1. Irish people have a strongly favourable view of the European Union. 73 per cent of Irish people hold the view that membership of the EU is a good thing. This is the second highest percentage among EU Member States. Nevertheless, research shows that Ireland lags behind other EU Member States in terms of people’s knowledge of

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the EU and the operation of its institutions. Given the significance of the European Union for Ireland, it is important that Irish people have a good understanding of how the Union works. Moreover because of our constitutional requirement to put European Treaties to a referendum the Irish electorate are frequently required to make an informed choice about policy options and institutional changes in the EU. 2. It is the view of the Sub-Committee that European matters do not play as prominent a role as they should in Irish politics, media or public discourse. The SubCommittee has analysed the reasons for this lack of engagement. The role of national and European institutions, politicians, civil society and media in developing understanding and encouraging engagement with the EU. Measures have been identified which could be taken at local, national and European levels to improve public, political and media understanding and engagement on European issues. 3. Evidence was presented to the Sub-Committee which suggests that a citizen’s level of understanding of the European Union has a significant effect on the policy choices that citizen makes about the Union, and indeed on whether that citizen chooses to exercise his or her vote in a referendum on a European issue. For example, in the June 2008 referendum on ratification of the Lisbon Treaty, an individual’s level of knowledge about the Union affected both the choice of whether to vote or to abstain, and the choice of whether to vote ‘yes’ or ‘no’. Clearly, therefore, the level of public understanding of the functioning of the European Union is a matter of considerable significance for Ireland. Factors Affecting the Current Level of Public, Media and Political Engagement with the EU Issues at a European Level 4. The European Union is a very diverse entity, bringing together 27 states with distinct cultures and traditions and using 23 official languages in its work. With this diversity comes complexity, which poses a challenge for public understanding of the EU and its institutions. 5. Europe is most successful at engaging its citizens when it deals with issues people are aware of and see as relevant to them. This has been demonstrated in areas such as the Union’s recent work on mobile phone roaming charges and the rights of airline passengers. However, much of the work of the Union over the past decade has been dominated by institutional questions. While this work is crucially important for the Union, it appears somewhat remote from the citizen. This has affected the Union’s ability to connect in a meaningful way with the people of Europe. 6. The European institutions are designed to operate in a way which safeguards the national interests of 27 Member States while facilitating decision-making. Inevitably, this means that the operation of the institutions is complex, as are the regulations which govern that operation. The workings of the Union are also significantly different from those of national governments or legislatures in Member States. This creates a challenge for public understanding of the EU institutions. 7. It was suggested that the familiarity of the public with their own national political systems can lead them to expect that the structure of these systems is replicated at a European level. This may lead, for example, to an identification of the European



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Commission with a national level cabinet, whereas the role of the Commission is entirely different and not comparable to any body in the national political structures of most countries. 8. The current EU structures do not provide for recognised high profile leaders to represent the EU as an entity. The leadership the Union has owes its position to internal state positions and office-holding in each state. As a result voters identify leaders when they represent the Union through their leadership positions in the Member States, not for their position in the EU. The European Commission has a role which is not directly comparable to any institution within the Member States. This lack of prominent, personality-driven leadership hinders public understanding of the work of the Union. 9. The EU has failed to grasp that information about the Union is not understood where the ordinary citizen does not understand the context behind the information. Simply explaining how things happen is inadequate if there is no explanation of why things happen also. The right of European citizens to access information about the Union is correctly emphasised. There is no lack of information about the Union available to citizens. In some ways the problem is that there is so much information, but no context to the information. People need to be able to understand the meaning of the information, and its relevance, and that is often difficult at present because so much of the information is written from an insider’s perspective, presuming a background public knowledge that does not exist. Information on its own, if not in a form people can understand, will not facilitate public understanding and engagement with Europe. 10. The treaties which govern the functioning of the European Union are complex legal documents, and as such are somewhat inaccessible to citizens. It is clear to the Sub-Committee that the Union pays insufficient attention to the presentation of its legal instruments, in particular its treaties, in a manner which facilitates wide understanding of their provisions. 11. In their work, the European institutions have a tendency to use language that is not easily intelligible to citizens. While care is undoubtedly taken at a European level to combat the tendency to use such technical language in communication with citizens, the language does permeate the Union’s work. The impenetrability of such language means that messages communicated in this way can pass over the heads of citizens, journalists and elected representatives, and can alienate people from the work of the Union. Issues Within National Political Systems 12. There is a general sense across the EU that European issues are depoliticised at a national level. In general, issues dealt with at a European level tend not to be areas of disagreement between major political parties. This may be because parties have a common desire to protect the national interest in policy discussions within the Union. Nevertheless, even when direct elections take place to the European Parliament, the focus across the Union tends to be on the national political affilia­ tions of the candidates. Little attention is paid by the political system, media or public to any broader political trends across the Union reflected in the election campaign or the results.

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13. Added to this is a trend for public figures across the Union to apportion blame to the EU institutions for any measures emanating from Europe that are perceived to have a negative effect, but to take credit at a national level for measures that have a positive effect. This can undermine public understanding of the balance of the Union’s work. For instance, there were negative comments on the role of the EU in relation to matters such as water changes for schools, rights for temporary agency workers and support for the fishing industry. In these cases, it was suggested, the matters complained about were in fact due to the actions and decisions of national government rather than the European Union. However, blame for negative impacts on Ireland was attributed to the EU in the minds of the public. 14. Parliaments across Europe tend to focus on national political issues, and their role in holding national governments to account for their actions as lawmakers within the Council of Ministers receives insufficient emphasis. This results in limited political attention being focused on EU matters. 15. The focus of Irish political leaders and officials in interacting with the European Union has conventionally been on representing Ireland’s interests within the EU system. The view was expressed to the Sub-Committee that their role in representing or explaining the Union to the Irish people has been given insufficient emphasis. 16. It was also suggested to the Sub-Committee that a lack of historical awareness in Ireland inhibits general understanding of the European project, and of the historical context within which the European Union operates. There is a lack of sufficient emphasis on the modern history of Europe, and in particular the history of European integration, on the school curriculum in Ireland. Additionally, the position of European languages within the education system is not as prominent as might be desirable. Teaching of modern European languages has an important role to play in facilitating communication across the Union and developing public understanding of cultural aspects of the EU. Issues Related to National and International Media 17. It was explained to the Sub-Committee that outside of the context of a referendum on a European issue, European news tends to be low on the agenda of the news media. It has been suggested that the lack of attention paid to Europe by the news media follows from a lack of attention paid to European issues within the national political system. This translates into a lack of prominence for European issues in public discourse. Nevertheless, the Sub-Committee noted that the Irish media gives a relatively high prominence to European matters when compared with the media in some other Member States. 18. The media, and in particular commercial media organisations, have a wide variety of news stories which can be presented to the public, and must choose items for publication or broadcast that interest the public. National news drives the work of national media organisations, and local news that of local media organisations. There is a perception that European Union matters rank low in terms of the level of interest on the part of the public. This tends to relegate European news to less prominent positions or less accessible broadcasting slots. 19. Poor communication between the institutions of the European Union and sections of the Irish media inhibits the ability of the media to report on European



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issues. This factor is particularly important in the case of Irish media organisations that do not have their own staff based in Brussels and interacting with the EU institutions on a daily basis. Such organisations are normally reliant on news agencies to supply European news. These agencies principally cater to Englishlanguage media markets other than Ireland, with a corresponding focus in their reportage. 20. The news media form the principal channel through which the public learn about European issues. Studies following the Lisbon Treaty referendum showed that television news, national radio news and newspaper articles, alongside discussion with family and friends, were the sources of information about the referendum rated as very valuable or somewhat valuable by more than half of those surveyed. 21. Of interest is the fact that in the context of the Lisbon Treaty referendum, only 12 per cent of those surveyed considered the internet to be a valuable source of information. Considering the extent to which the dissemination of information through the internet has become a factor in political life in the United States, it is clear that there is scope for the use of the internet to enhance public understanding of EU matters to be developed. 22. Public service broadcasters have a clear responsibility to inform the public’s understanding of EU issues. In this context, it was noted that the development of new broadcasting technologies, in particular digital terrestrial television, has the potential to provide a useful channel through which the work of European institutions, and of national institutions which interact with the EU, can be made visible to the public.

the role of institutions in encouraging engagement with europe The Role of the European Institutions 23. The European Commission takes the lead among the EU institutions in developing communications strategies and interacting with both the media and the public. This leadership by the Commission can lead to a public perception that the Commission is the most significant and powerful of the European institutions. In fact the decision-making and legislative power resides with the Council and Parliament. We were told of a perception among journalists that the Commission, while facilitating a constant flow of information to the media, has a tendency to control this information tightly. It can be insufficiently conscious of the stories that have real news value and of the demands on journalists in respect of deadlines. 24. In contrast, it was observed that the European Parliament is favoured by journalists as a source of news stories. Its work is more personality focused and contains more political conflict and disagreement. The media profile of the Council of Ministers, in reality the most powerful of the EU institutions, is considered relatively poor. This may contribute to a public perception that the democratic voice of the people within the Union, expressed through their governments, is not as strong as it should be. 25. It is acknowledged within the European institutions that communication with the public cannot function on a ‘top-down’ basis from Brussels. In order to encourage

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the irish yearbook of international law 2008 citizens of the EU to engage with the Union, and facilitate a sense of ownership, it is necessary for political and educational institutions at a national and local level to play a role. In particular, the promotion of engagement with the EU needs to be driven by local and national public representatives, and not left to the Union’s institutions.

The Role of National Parliaments and Elected Representatives 26. The role of national parliaments in holding to account national government representatives who participate in EU law making through the Council of Ministers is an important mechanism through which public engagement with the European Union can be promoted. The national political agenda tends to define the agenda of the media in the area of current affairs. Enhancing the oversight function of national parliaments in EU law making is likely to increase the focus on European matters within national political systems. This will result in greater attention being paid to EU affairs by the media in Member States. Strong and well-functioning parliamentary oversight of a government’s role in EU institutions also enhances the flow of information to the national media on EU matters. The perception was noted that the best-informed journalists in Brussels are from Denmark, where a particularly strong system of parliamentary oversight of EU matters exists. 27. In order to better develop public understanding of the process of EU law making, national parliaments should involve themselves in the law making process from the earliest possible time, ideally from the proposal stage. This would help to facilitate early public engagement with the process, and allow public views on proposed EU laws to be fed into the decision-making process at an appropriately early stage. 28. In relation to institutional matters within the European Union, and particularly treaty revisions, public representatives have a significant role to play in communicating and explaining proposed changes to the public. The complexity of the Union’s structures means that few citizens will have the opportunity to develop a comprehensive understanding of their operation. Elected representatives and leaders of civil society have a responsibility to carefully consider institutional matters and explain key issues to the public. Engagement in relation to European matters by political representatives on the doorsteps of citizens is vital to the promotion of wide public understanding of the functioning of the European Union. The Role of the Education System 29. Enhancement of public understanding of, and engagement with, the European Union can be achieved through civic education programmes. These may be integrated into school curricula, or targeted more widely within society. In particular, an enhanced emphasis on European matters in Civic, Social and Political Education programmes at secondary school level has the potential to improve the level of basic understanding among young people of the way the European Union works. There is also significant potential for the Oireachtas to engage with the Irish education system, particularly at primary level, to promote engagement with European matters.



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specific measures to improve public, p olitical and media engagement with the eu Measures at European Level 30. It is vital that more be done to encourage citizens to observe and engage with the decision-making processes of the European Union. Further emphasis should be placed on the use by citizens of the European Parliament’s petitions committee. Also, further efforts should be made to ensure that the Council of Ministers meets in public when legislating. It is notable that the need for public access to the Council has been recognised at a European level, and provisions to facilitate this access were included in the Lisbon Treaty. 31.  European treaties should be accompanied by clear explanatory documents, approved by the Member States, setting out in clear and comprehensible terms the intentions of the governments framing the treaty and the effect of each of the treaty provisions. In particular, such a document should be prepared in circumstances where citizens of a Member State are asked to vote on ratification of a treaty in a referendum. This document should be widely distributed during referendum campaigns. The Sub-Committee considers this to be of vital importance. Measures at National Level 32. Strong and prominent coverage by Irish media organisations of the institutions of the European Union is vital to promote public understanding of the work of the institutions. The Government should consider measures to promote such coverage, in particular by incentivising the posting of Irish journalists on a full- or part-time basis to Brussels. In particular support should be given to the media not represented in Brussels at present to encourage them to pool their resources and provide collective journalistic representation. This could include shared office facilities and support staff. Consideration might also be given to the development of traineeship schemes for trainee journalists in the European institutions. 33. Assuming the introduction of an Oireachtas Digital Channel, debates in the Dáil plenary and the work of the EU committees should get priority billing. The development of a dedicated digital television channel dealing with the operation of the EU institutions, and EU affairs generally, should be examined. 34. Modern European history, in particular the history of European integration since the 1950s, should be accorded a more prominent place on the Irish school curriculum. Further emphasis should also be placed on making students familiar with the European Union and the importance of Ireland’s membership. Attention should also be paid to the operation of the EU institutions and how they relate to Ireland’s national institutions of government. Consideration might be given to the inclusion of European Studies as an examinable subject on the secondary school curriculum. 35. In order to promote engagement with Europe and with other Member States of the Union, the teaching of European languages should be introduced to the Irish primary school curriculum.

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36. The Government should consider the establishment of a body, which would function independently, and build on the work of the National Forum on Europe, the Institute of International and European Affairs and the European Movement to assist public understanding of the European Union and act as an authoritative and impartial source of information about the Union’s work and Ireland’s place within it. This body should be mandated to provide such information to the public in a clear and accessible fashion, with an emphasis on simplified presentation of EU decision making and the way in which Ireland’s voice is heard in Europe. This proposal could also be accommodated by reviewing the role of the National Forum on Europe and extending its remit to include a clear communications responsibility. 37. Consideration might also be given to the development of a cross-party foundation for the development of thought in relation to European issues, providing an opportunity for scholars and intellectuals from other Member States of the Union to contribute to Irish public life and to policy formation. 38. The Houses of the Oireachtas should play a leading role in Ireland’s engagement with the European Union. Strengthening the role of the Oireachtas in EU affairs, and increasing the prominence given to EU matters in the work of the Oireachtas, would enhance the position of European issues within the political system. This would in turn influence the attention paid to such issues by the media and the public. Specific measures to enhance the role of the Oireachtas in this area are considered in chapter four.

4 enhancing the role of the oireachtas in eu affairs Make recommendations to enhance the role of the Oireachtas in EU affairs The Sub-Committee examined the current role of the Oireachtas in EU affairs and compared it with other Member States. Based on this analysis, the Sub-Committee has made a number of recommendations to strengthen the role of the Oireachtas in EU affairs. 1. The Irish parliament consists of two Houses, Dáil Éireann and Seanad Éireann, and is known as the Oireachtas. It has two principal functions on behalf of the public – to decide on new Irish laws and to hold the Government to account for its policies and decisions. Under the Irish Constitution the Government is accountable to Dáil Éireann. The Oireachtas is the legislative body. The Government is responsible for external affairs (ie foreign policy). Up to 1973 the Oireachtas was the only body that could consider and pass new Irish legislation. 2. In joining the EU, each Member State agreed to share responsibility for legislation and policy in certain defined areas. By definition, this reduces the legislative powers of national parliaments to some extent. Member States decide to act together, or pool their sovereignty, in the realisation that more can be achieved and more benefits can flow from acting collectively in certain defined areas instead of acting alone. Examples of such decisions are the Common Agricultural Policy, the



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creation of the single market, the Euro currency, and the protection of the envir­ onment. 3. Outside the areas where the 27 Member States have agreed to share responsibility, the Oireachtas remains the only law making body. Ireland retains full control over sensitive national issues like criminal justice, defence and foreign policy (including the traditional policy of military neutrality) and direct taxation. 4. Each country is represented at European level by its government and the citizens of that country are represented by their MEPs in the European Parliament. The national parliaments do not have a direct role in collective decisions by the governments or legislative decisions of the European Parliament. National Parliaments have the specific role of holding their governments to account for decisions it takes at the EU. 5. The interaction between the National Government and the EU institutions in law-making is not mediated or communicated in any meaningful way to the Irish public. It is distant and removed from the everyday local and national life of the citizens. This has led to a legitimacy and accountability deficit at the EU level. In that respect, the Lisbon Treaty contains provisions that would enhance the role that national parliaments can play in the EU decision making process. Notwithstanding this, the Oireachtas must do more, within its own powers and resources, to tackle this accountability deficit. Making New Laws at EU Level 6. Most new laws at EU level are proposed by the European Commission. They are considered by the Council of Ministers and the European Parliament. Each Member State decides its own negotiating position and can obviously take into account its own parliament’s views before it agrees to a new EU law. In effect, this means that the Oireachtas has an opportunity to assess and influence the government’s negotiating position on draft EU laws before they are made. 7. The Oireachtas can enact new laws at national level in Dáil Éireann and Seanad Éireann to give effect to EU acts, or a Minister can implement some measures by secondary legislation. There is an important oversight role for the Oireachtas in these matters, particularly where a proposed EU law could have significant or negative implications for Ireland. Once a new EU law is agreed to by the governments it is then too late to seek changes. EU laws cannot be amended afterward at national level so there is no second chance to influence or shape the final law. Scrutiny of EU Legislation 8. When Ireland joined the EEC, the Oireachtas passed the European Communities Act of 1973. It provided that EU acts shall be binding on the State and shall have effect in domestic law. It also provided that Ministers can use secondary legislation to convert some EU acts into Irish law (Secondary legislation is put in place by a Minister, not by the Oireachtas, but on the basis of the prior authorisation of the Oireachtas contained in the European Communities Act, 1973). Secondary legislation can be annulled by a motion being passed in Dáil or Seanad Éireann within one year. An Oireachtas Joint Committee on Secondary Legislation was also provided for to oversee the secondary legislation used to bring EU law into effect in Ireland,

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but was later subsumed into a new Oireachtas Joint Committee on European Affairs which was established in 1997 and took over responsibility for this area. 9. One of the decisions taken in 2002 after the Nice Treaty referendum was to implement a new EU (Scrutiny) Act 2002. This put the scrutiny of draft EU laws on a statutory basis and was a major improvement. It placed a statutory obligation on Government Departments to send new EU legislative measures to the Oireachtas along with an explanatory note. Ministers are required to have regard to any subsequent reports by the Oireachtas. 10. The Government must also provide two reports to the Houses each year on EU developments. The Act has facilitated the development of a formal system of legislative scrutiny. Up to 2007 a sub-committee of the existing Joint Committee on European Affairs carried out the scrutiny role. In 2007, in recognition of the importance of draft EU measures, the Oireachtas set up a new Joint Committee on European Scrutiny. 11.  The Sub-Committee has identified some specific weaknesses in the way the Oireachtas can hold the government to account for its role in EU law making. The following four areas need to be addressed: – the lack of influence of the Oireachtas in the EU decision making process; – procedures giving effect to EU law in Ireland; – the way EU business is handled in the Oireachtas; and – sensitive policy areas, including workers’ rights and socio-ethical issues. The Lack of Influence of the Oireachtas in the EU Decision Making Process 12. At present, the Oireachtas scrutinises EU proposals after they have been formally published by the EU. This is a reactive approach, and it lacks any mechanism to enable the Oireachtas to have any influence on the content of EU proposals. The Oireachtas should be in a position to identify and highlight any negative consequences for Ireland from draft EU laws. This could then be addressed with the Government before any deal is agreed at Council level. There is no second chance to amend EU legislation once it is finalised. Effective scrutiny is based on parliament having the right information at the right time and all information available to EU institutions should be made available to National Parliaments as of right and at the same time. Giving Effect to EU Laws 13. The Government decides whether EU acts should be brought into domestic law, or transposed, by way of primary or secondary legislation. Primary legislation goes through both Dáil and Seanad Éireann and can be amended, modified or opposed. It can also be referred to an Oireachtas Committee for detailed consideration. The Oireachtas has a far more limited role if secondary legislation is used. 14. The Sub-Committee notes that the sheer volume of EU measures means it would be unrealistic to use primary legislation in every case. However, secondary legislation has become the norm for transposing most EU laws. This increases the need for sufficient transparency to ensure that important changes in the law are flagged in advance and can be considered by the Oireachtas. The use of statutory instru-



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ments, with the lack of accompanying parliamentary scrutiny, has been the subject of judicial scrutiny. Ministers should be obliged to inform the Scrutiny Committee of the measures they propose to enact by statutory instrument and the reasons for doing so. 15. The transposition of some EU laws has been controversial (eg the Habitats Directive, criminal sanctions for fishery offences, restrictions on turf cutting, school water charges). Some representative groups, including the farming sector, also outlined their concerns to the Sub-Committee about the regular use of secondary legislation to give effect to far-reaching proposals. There were concerns about a lack of political and democratic oversight to prevent unnecessary red tape and adopt a more pragmatic approach in implementing EU legislation in Ireland. 16. There is also a perception that Ireland implements or enforces its EU obligations more rigorously than some other Member States. This can be heightened by a perception of over-regulation and unnecessary bureaucracy. Additional concerns are that secondary legislation can be used to add additional measures not needed to bring in an EU act. This further increases the burdens being placed on businesses and individuals. Such difficulties might be avoided or at least better dealt with by greater parliamentary debate and fine-tuning at the transposition stage. 17. The 2005 Government Guidelines on best practice in transposition of EU directives provide that Regulatory Impact Assessments (RIAs) should be undertaken by Departments for ‘significant’ EU directives, regulations, and secondary legislation. RIAs are regarded as a valuable tool to improve the quality of regulation. They are also intended to improve the quality of debate and scrutiny. The SubCommittee is concerned by the low rate of compliance with the existing guidelines as shown in a 2008 Operational Review. The Way EU Business Is Handled in the Oireachtas 18. Scrutiny of EU proposals does not feature prominently in the overall work of the Oireachtas. There is a lack of debates in Dáil and Seanad Éireann on EU related business. National and local issues dominate in parliament, which in turn impacts on what is subsequently reported by the media. There is also an over-reliance on the Committees within the Oireachtas to deal with EU related matters. The media’s coverage of Oireachtas Committees is very limited which reinforces the existing information deficit. 19. There are also practical constraints on Oireachtas Members. Members have to juggle a range of competing demands for their attention. Multi-seat constituencies and the demands of constituents for ‘their’ TDs to be seen locally can act as disincentives to active committee participation. Local politics matters more to most Irish people than any well-meaning discussions on how to improve the institutional structure of the EU. 20. In addition, parliaments in Member States are in an unequal relationship with governments who have vastly superior access to legal, administrative and specialist services. Given the range of issues and volume of information pertaining to EU matters, it is important that parliaments seek to prioritise issues which they believe are of most importance to the people they represent.

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Sensitive Policy Areas 21. There is a particular need to ensure effective parliamentary oversight of any proposed EU actions impacting upon sensitive national issues. Taxation laws, justice measures, workers’ rights, socio-ethical issues and defence policy are examples. Weaknesses in the parliament’s influence can undermine its role in the first place. The Sub-Committee believes that the role of the Oireachtas in some sensitive policy areas should be strengthened. 22. Specific concerns were expressed to the Sub-Committee in relation to the protection of Ireland’s traditional policy of military neutrality. The committing of Irish troops abroad to participate in humanitarian or crisis management tasks undertaken by the EU is based on the triple lock. This requires a combination of UN authorisation, a Government decision and approval by Dáil Éireann. The requirement for Dáil Éireann approval is currently by simple majority. The Government would normally be expected to have a majority within Dáil Éireann which means that the triple lock may involve only two requirements in reality. The Sub-Committee considers that Dáil Éireann approval should reflect not only the will of the Government Members of Parliament but also of Opposition Members of Parliament and that a two-thirds majority for Dáil Éireann approval would be more appropriate.

lessons from abroad 23. The Sub-Committee looked at the systems used in other Member States. They may be broadly divided into two models: Document-based and Council-based. The Sub-Committee identified the British, Danish and German systems as among the best. The Sub-Committee was pleased to be assisted at its hearings by delegations from all three parliaments. 24. The Document-based model focuses on new proposals from the EU. The system primarily looks at draft legal instruments before they are agreed by the Council. It is often accompanied by a scrutiny reserve which provides that governments should not agree to proposals in the Council until the parliamentary scrutiny process has been completed. In general, most documents receive a basic scrutiny, but detailed consideration is reserved for those of significant national importance. 25. The UK has operated this system since 1973 through Committees in both Houses of Parliament. It is supported by a scrutiny reserve which was agreed by resolutions in both Houses. In Germany, the scrutiny system is underpinned by constitutional provisions and a cooperation agreement between the Government and the Bundestag. This obliges the Government to use the Bundestag’s opinion as the basis for its negotiations. 26. The Council based model focuses on the EU decision-making process, usually by concentrating on the government’s position at Council meetings. In some countries the European affairs committee itself is empowered or required to give a mandate to the national government before a minister can give agreement to proposed legislation in Council meetings. The mandate may be legally or politically binding to a greater or lesser extent. In most national parliaments using this system, the mandates given to governments are politically binding and are reported



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to be generally observed by governments. Analysis 27. The two main options available to adjust our EU scrutiny system are a parliamentary mandate or a scrutiny reserve. A parliamentary mandate, which falls under the Council based model, means that the relevant Government Minister must seek a mandate from the national parliament before he/she can agree to the adoption of specific measures at a Council meeting. A scrutiny reserve system, which falls under the document based system, means that Ministers should not normally agree to the adoption of EU legislation in the Council without giving Parliament an opportunity to scrutinise that legislation. If the Parliament decides that an EU legislative proposal requires further scrutiny given its legal or political importance, then a security reserve is placed on the proposal and the Government cannot agree to the proposal at the Council until the parliament has completed its scrutiny procedure. 28. The use of a mandate has worked well in Denmark. Denmark has had minority governments and a mandate can be used to secure the formal cooperation of Ministers. One of the main criticisms of mandates is that they can be too rigid in practice. While they look good formally it would appear that they are used sparingly in practice. 29. A mandate system would not be easily aligned with the Irish political system of majority government. The electoral system in Ireland has meant that majority governments have become the norm. This has led to the development of a strong executive which enjoys a majority in the Oireachtas. There is, therefore, less incentive for the Government to seek the approval of the Oireachtas in areas in which it has the power to decide under the constitution, such as policies at the EU level. If a mandate system was to be introduced, it would in practice have little effect as the Government would always secure its preferred mandate given that it has a majority in the Oireachtas. 30. The Chairman of the Scrutiny Committee in the UK House of Commons told the Sub-Committee that the scrutiny reserve has worked well for them. It is provided for by parliamentary resolutions rather than legislation. The Irish system has similar features to the UK and the Sub-Committee notes that a 2005 Committee Report concluded that a mandate system was not suitable for the UK. Realistically it may be difficult to introduce a mandating system in Ireland, given that the constitutional responsibility for external policy is vested in the government.

recommendations 31. The Sub-Committee recommends the implementation of a series of reforms to address the accountability deficit in EU decision making by enhancing the role of national parliaments. The Oireachtas needs scrutiny and oversight mechanisms which take account of our particular legal, political, social and economic characteristics. The core objective for the EU scrutiny system in Ireland is to influence Ministers and hold them to account, ensure that Oireachtas members are provided with all information available to the EU institutions and at the same time, and provide a source of information and analysis for the public.

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The Lack of Influence of the Oireachtas in the EU Decision Making Process 32. A formal scrutiny reserve mechanism, in line with the model used in the UK Parliament, should be introduced. This will provide more influence for the Oireachtas in the negotiating positions adopted by Irish Ministers on draft EU legislation at Council meetings. The legal, resourcing, and logistical implications need to be examined further. 33. National Parliaments should have to be consulted formally about the European Commission’s annual policy strategy and legislative work programmes before they are finalised. This proposal should be pursued with our partners in other national parliaments in the Conference of European Affairs Committees (COSAC). 34. There should be a more structured arrangement for Oireachtas Committees to meet with Ministers before Council meetings to consider the Government’s negotiating positions on agenda items. Ministers should also report back in writing to the appropriate Oireachtas Committee on the outcome of the discussions and on specific decisions made. 35. There should be more focus by Oireachtas Committees on non-legislative documents by the EU institutions. This includes scrutiny of Green and White Papers as well as of the various Opinions and Reports by the noninstitutional bodies of the EU. The Oireachtas Working Group of Committee Chairmen should also be asked to prepare a report on how EU business can be mainstreamed across all Oireachtas Committees. Giving EU Laws Effect 36. A number of significant concerns were raised in the Sub-Committee’s hearings about how EU directives are brought into Irish law. These need to be addressed with more robust arrangements for the oversight of Statutory Instruments. This may also require amendments to the European Communities Acts 1972 to 2007. 37. The Joint Committee on European Affairs should examine what measures could be put in place to enhance oversight of Statutory Instruments. The aim of such measures could include making sure that Ministers and Departments are strictly complying with EU decisions when bringing these decisions into effect in Ireland. This should include a comparative review of the system in the UK where both Houses have a Committee to focus on secondary legislation. 38. Regulatory Impact Assessments have to be prepared for significant EU Directives, regulations and secondary legislation as provided for in the Government’s guidelines. The Sub-Committee is concerned by the low rate of compliance by Departments with the existing guidelines. The Government should ensure that compliance with the Guidelines is addressed. From now on, RIAs should be forwarded to Oireachtas Committees for consideration when significant EU laws are being considered. 39. If Statutory Instruments are being used to give effect to an EU law, the text of the instrument, or at least the heads of the instrument, should be circulated to all Oireachtas members. This would mirror the current practice of distributing all texts of draft primary legislation. This will bring more transparency to the process of giving effect to EU law and enable the members to highlight any potential problems at an early stage.



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The Way EU Business Is Handled in the Oireachtas 40. It is widely acknowledged that the current political system in Ireland focuses Members on local issues to the detriment of their national role as legislators. The Oireachtas must encourage members to take a far greater role in EU affairs. Members should be able to specialise and develop expertise in EU affairs. This needs a change in the political culture in Ireland. There is a clear need for the Oireachtas to improve its performance in relation to the importance of and the requirements of EU membership. We need to find ways to bring our membership of the EU into national politics. Electoral Changes 41. The Sub-Committee recommends that a new panel be constituted in the Seanad for a minimum of five Senators to be nominated on the basis of experience in EU affairs. Senators elected from this panel would participate in the Oireachtas European Committees. They should also build relations with the Irish MEPs as well as directly with the EU institutions. Procedural Changes 42. The Standing Orders and procedures of Dáil and Seanad Éireann should be amended where necessary to implement the recommendations in this Chapter. The main issues to be addressed include regular debates on EU legislative proposals and developments; enhanced powers for Oireachtas Committees; provision for participation by MEPs in some debates; and informal monthly meetings between Irish MEPs and the European Committees in the Oireachtas. These meetings between the Irish MEPs and the European Committees should take place in the week per month when the MEPs are dealing with constituency work and therefore more likely to be in Ireland. 43. As part of an improved communication strategy the Oireachtas should establish its own EU Information Office. There is a clear need for easy access to neutral information on the EU decision making process, and Ireland’s role therein. Sensitive Policy Areas 44. The current requirement in the triple lock for approval by a simple majority in Dáil Éireann should be strengthened. Dáil Éireann should be required to have a ‘supermajority’, where a two-thirds majority is needed for any proposal to send Irish troops overseas on peacekeeping missions. This would provide a stronger parliamentary mandate for such decisions and enhance the role of the Oireachtas in a key area of interest to the Irish people.

conclusions 45. Some of the changes recommended above would involve amending existing Irish legislation. Some recommendations, in particular the changes proposed to the electoral system, would require changes to the Constitution. This would obviously

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involve a referendum. In general, the legal implications and constitutionality of the proposed recommendations will have to be examined carefully. 46. The Sub-Committee also acknowledges that the recommendations have considerable political implications. Difficult decisions will have to be made but the Sub-Committee believes that these decisions are necessary to tackle the accountability deficit that currently exists when it comes to the EU and Ireland’s membership. These recommendations should help to facilitate and encourage greater political debate around EU issues. This is turn should lead to a higher level of public engagement in and understanding of the EU.

Presidency Conclusions of the Brussels European Council 11 and 12 December 20081 i.  the treaty of lisbon 1 The European Council re-affirms that the Treaty of Lisbon is considered necessary in order to help the enlarged Union to function more efficiently, more democratically and more effectively including in international affairs. With a view to enabling the Treaty to enter into force by the end of 2009, the European Council, while respecting the aims and objectives of the Treaties, has defined the following path. 2 On the composition of the Commission, the European Council recalls that the Treaties currently in force require that the number of Commissioners be reduced in 2009. The European Council agrees that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State. 3 The European Council has carefully noted the other concerns of the Irish people presented by the Taoiseach as set out in Annex 1 relating to taxation policy, family, social and ethical issues, and Common Security and Defence Policy (CSDP) with regard to Ireland’s traditional policy of neutrality. The European Council agrees that, provided Ireland makes the commitment in paragraph 4, all of the concerns set out in the said statement shall be addressed to the mutual satisfaction of Ireland and the other Member States.    The necessary legal guarantees will be given on the following three points: •  nothing in the Treaty of Lisbon makes any change of any kind, for any Member State, to the extent or operation of the Union’s competences in relation to taxation; •  the Treaty of Lisbon does not prejudice the security and defence policy of Member States, including Ireland’s traditional policy of neutrality, and the obligations of most other Member States; •  a guarantee that the provisions of the Irish Constitution in relation to the right to life, education and the family are not in any way affected by the fact that the Treaty of Lisbon attributes legal status to the EU Charter of Fundamental Rights or by the justice and home affairs provisions of the said Treaty. In addition, the high importance attached to the issues, including workers’ rights, set out in paragraph d of Annex 1 will be confirmed. 4 In the light of the above commitments by the European Council, and conditional on the satisfactory completion of the detailed follow-on work by mid-2009 and on presumption of their satisfactory implementation, the Irish Government is committed to seeking ratification of the Treaty of Lisbon by the end of the term of the current Commission. [. . .]   See Document: 17271/1/08 REV 1.

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the irish yearbook of international law 2008 annex 1

Statement of the Concerns of the Irish People on the Treaty of Lisbon as set out by the Taoiseach a.  Ensuring that Ireland’s requirements regarding maintenance of its traditional policy of neutrality are met; b. Ensuring that the terms of the Treaty of Lisbon will not affect the continued application of the provisions of the Irish Constitution in relation to the right to life, education and the family; c. Ensuring that in the area of taxation the Treaty of Lisbon makes no change of any kind to the extent or operation of the Union’s competences; d. Confirming that the Union attaches high importance to: • social progress and the protection of workers’ rights; • public services, as an indispensable instrument of social and regional cohesion; • the responsibility of Member States for the delivery of education and health services; •  the essential role and wide discretion of national, regional and local Governments in providing, commissioning and organising non-economic services of general interest which is not affected by any provision of the Treaty of Lisbon, including those relating to the common commercial policy.

Irish Treaty Series – 2008 The Legal Division of the Department of Foreign Affairs publishes international agreements which the Republic of Ireland becomes a party to 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 2008 Treaty Series. Irish Treaty Series Number

Title of Agreement

No 1 of 2008

Agreement between the Government of Ireland and the Government the United Kingdom of Great Britain and Northern Ireland, done at Dublin on 22 March 2007, entered into force 9 May 2007.

No 2 of 2008

Convention on Social Security between the Government of Ireland and the Government of the United Kingdom of Great Britain and Northern Ireland, done at Dublin on 14 December 2004, and the amendments to this Agreement, done by an exchange of letters dated 3 July 2007, entered into force on 1 October 2007.

No 3 of 2008

Convention on the International Hydrographic Organisation, signed at Monaco on 3 May 1967, Ireland’s instrument of accession deposited with the Government of the Principality of Monaco on 4 June 2007, entered into force with respect to Ireland on 4 June 2007.

No 4 of 2008

Act revising the Convention on the Grant of European Patents, done at Munich on 29 November 2000, Ireland’s instrument of accession deposited with the Government of Germany on 16 July 2007, entered into force with respect to Ireland on 13 December 2007.

No 5 of 2008

Protocol between Ireland and the Portuguese Republic amending the Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and its Protocol, 1993, done at Lisbon on 11 November 2005, entered into force on 18 December 2006.

No 6 of 2008

Cultural Cooperation Agreement between the Government of Ireland and the Government of the Republic of India, done at Delhi on 19 January 2006, entered into force on 11 December 2007.

No 7 of 2008

Amendments to the Convention establishing the European Telecommuni­ cations Satellite Organisation (EUTELSAT), done at Paris on 19 May 1999, Ireland’s instrument of acceptance deposited with the Government of the Republic of France on 13 December 2007, entered into force with respect to Ireland on 28 November 2002.

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the irish yearbook of international law 2008

No 8 of 2008

Tampere Convention on the provision of Telecommunication resources for Disaster Mitigation and relief Operations, done at Tampere on 18 June 1998, Ireland’s instrument of accession deposited with the Secretary General of the United Nations on 16 August 2007, entered into force with respect to Ireland on 15 September 2007.

No 9 of 2008

Arrangement between the Government of Ireland and the Ministry of Defence of the Republic of Estonia and the Ministry of Defence of the Republic of Finland and the Ministry of Defence of the Kingdom of Norway and the Government of the Kingdom of Sweden in respect of a Memorandum of Understanding between the Ministry of Defence of the Republic of Estonia and the Ministry of Defence of the Republic of Finland and the Ministry of Defence of the Kingdom of Norway and the Government of the Kingdom of Sweden concerning the principles for the establishment and operation of a multinational Battlegroup to be made available to the European Union, signed on 23 May 2005, constituted by the Exchange of Letters dated 26 April 2007 (for the Government of Ireland), 14 May 2007 (for the Ministry of Defence of the Kingdom of Norway), 19 June 2007 (for the Government of the Kingdom of Sweden), 30 June 2007 (for the Ministry of Defence of the Republic of Estonia) and 18 July 2007 (for the Ministry of Defence of the Republic of Finland), Ireland’s letter of accession sent on 26 April 2007, entered in to force with respect to Ireland on 7 August 2007.

No 10 of 2008

Arrangement between the Government of Ireland and the Ministry of Defence of the Republic of Estonia and the Ministry of Defence of the Republic of Finland and the Ministry of Defence of the Kingdom of Norway and the Government of the Kingdom of Sweden and the Ministry of Defence of the United Kingdom of Great Britain and Northern Ireland in respect of a Memorandum of Understanding between the Ministry of Defence of the Republic of Estonia and the Ministry of Defence of the Republic of Finland and the Ministry of Defence of the Kingdom of Norway and the Government of the Kingdom of Sweden and the Ministry of Defence of the United Kingdom of Great Britain and Northern Ireland concerning the principles for the cooperation regarding the operation of the OHQ-function for the Nordic Battlegroup signed on 30 May 2006 consti­ tuted by the Exchange of Letters dated 26 April 2007 (for the Government of Ireland), 14 May 2007 (for the Ministry of Defence of the Kingdom of Norway), 19 June 2007 (for the Government of the Kingdom of Sweden), 30 June 2007 (for the Ministry of Defence of the Republic of Estonia), 18 July 2007 (for the Ministry of Defence of the Republic of Finland) and 1 October 2007 (for the Ministry of Defence of the United Kingdom of Great Britain and Northern Ireland), Ireland’s letter of accession sent on 26 April 2007, entered into force with respect to Ireland on 15 November 2007.

No 11 of 2008

Amendment to the 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 21 December 2001, Ireland’s instrument of acceptance deposited with the Secretary General of the United nations on 8 November 2006, entered into force with respect to Ireland on 8 May 2007.

irish treaty series – 2008



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No 12 of 2008

Protocol on Explosive Remnants of War to the 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 28 November 2003, Ireland notified the Secretary General of the United Nations of its consent to be bound on 8 November 2006, entered into force with respect to Ireland on 8 May 2007.

No 13 of 2008

Contribution Agreement (Green Carbon Fund) between Ireland and the European Bank for Reconstruction and Development in respect of Ireland’s participation in the Multilateral Carbon Credit Fund (Green Carbon Fund), signed without reservation to ratification on 1 December 2006 (for the Government of Ireland) and 5 December 2006 (for the European Bank for Reconstruction and Development), entered into force on 5 December 2006.

No 14 of 2008

Participation Agreement for the First Tranche of the World Bank/EIB Carbon Fund for Europe between Ireland and the International Bank for Reconstruction and Development as trustee for the first Tranche of the World Bank/EIB Carbon Fund for Europe, signed without reservation as to ratification on 5 January 2007, entered into force on 5 January 2007.

No 15 of 2008

Participation Agreement between Ireland and the International Bank for Reconstruction and Development as trustee for the Second Tranche of the Biocarbon Fund, signed without reservation as to ratification on 5 January 2007, entered into force on 5 January 2007.

No 16 of 2008

International Institute for the Unification of Private Law, Statute, as amended, done at Rome on 15 March 1940, Ireland notified the Italian Government of its accession on 16 April 1940, entered into force with respect to Ireland on 19 April 1940.

No 17 of 2008

Protocol Amending the 1950 Consular Convention between Ireland and The United States of America, done at Washington on 16 June 1998, entered into force on 27 March 2002.

No 18 of 2008

Agreement Establishing the Common Fund for Commodities, done at Geneva on 27 June 1980, Ireland’s instrument of ratification deposited with the Secretary-General of the United Nations on 11 August 1982, entered into force with respect to Ireland on 19 June 1989.

No 19 of 2008

Agreement on Trade, Development and Cooperation between the European Community and its Member States, of the One Part, and the Republic of South Africa, of the Other Part, done at Pretoria on 11 October 1999, Ireland’s notification of the completion of the necessary procedures for entry into force on 29 April 2002, entered into force on 1 May 2004.

No 20 of 2008

Convention on Nomenclature for the Classification of Goods in Customs Tariffs, done at Brussels on 15 December 1950, Ireland’s instrument of accession deposited with the Belgian Ministry of Foreign Affairs on 22 January 1963, entered into force with respect to Ireland on 22 April 1963, Ireland’s instrument of denunciation deposited with the Belgian Ministry of Foreign Affairs, External Trade and Development Co-operation on 13 October 1988, ceased to be in force with respect to Ireland on 13 October 1989.

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the irish yearbook of international law 2008

No 21 of 2008

Protocol of Amendment to the Convention, done at Brussels on 15 December 1950, on Nomenclature for the Classification of Goods in Customs Tariffs, done at Brussels on 1 July 1955, Ireland’s instrument of accession deposited with the Belgian Ministry of Foreign Affairs on 22 January 1963, entered into force with respect to Ireland on 22 April 1963, Ireland’s instrument of denunciation deposited with the Belgian Ministry of Foreign Affairs, External Trade and Development Co-operation on 13 October 1988, ceased to be in force with respect to Ireland on 13 October 1989.

No 22 of 2008

Additional Protocol to the Constitution of the Universal Postal Union, done at Tokyo on 14 November 1969, Ireland’s instrument of ratification deposited with the Government of the Swiss Confederation on 30 June 1971, entered into force with respect to Ireland on 1 July 1971, with the exception of Article V which entered into force on 1 January 1971.

No 23 of 2008

Second Additional Protocol to the Constitution of the Universal Postal Union, done at Lausanne on 5 July 1974, Ireland’s instrument of ratifi­ cation deposited with the Government of the Swiss Confederation on 5 January 1979, entered into force with respect to Ireland on 1 January 1976.

No 24 of 2008

Third Additional Protocol to the Constitution of the Universal Postal Union, done at Hamburg on 27 July 1984, Ireland’s instrument of rati­ fication deposited with the Government of the Swiss Confederation on 23 November 1989, entered into force with respect to Ireland on 1 January 1986.

No 25 of 2008

Fourth Additional Protocol to the Constitution of the Universal Postal Union, done at Washington on 14 December 1989, Ireland’s instrument of ratification deposited with the Director-General of the International Bureau of the Universal Postal Union on 14 December 1993, entered into force with respect to Ireland on 1 January 1991.

No 26 of 2008

Fifth Additional Protocol to the Constitution of the Universal Postal Union, done at Seoul on 14 September 1994, Ireland’s instrument of rati­ fication deposited with the Director-General of the International Bureau of the Universal Postal Union on 27 October 2003, entered into force with respect to Ireland on 1 January 1996.

No 27 of 2008

Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Further Reduction of Sulphur Emissions, done at Oslo on 14 June 1994, Ireland’s instrument of ratification deposited with the Secretary-General of the United Nations on 4 September 1998, entered into force with respect to Ireland on 3 December 1998.

No 28 of 2008

Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II as amended on 3 May 1996) annexed to the 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 3 May 1996, Ireland notified the Secretary-General of the United Nations of its consent to be bound on 27 March 1997, entered into force with respect to Ireland on 3 December 1998.

irish treaty series – 2008

No 29 of 2008

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Exchange of Notes Between Ireland and Canada Amending the Agreement for Air Services Between the Two Countries, 1947, Letters exchanged on 19 April 1948 and 31 May 1948, entered into force on 31 May 1948.

Index Aarhus Convention, 104 Abbas, Mahmoud, 239 abduction of children, 172, 261 abortion, 11, 12, 26, 34–5, 37–8, 184, 205, 242 Aburi, Nancy, 377 abuse of process, 127–8 adoption:   Ireland, 171    Northern Ireland, 193–4 Afghanistan, 95, 113 African Union, 97, 270, 306 aggression, 218 agriculture:   AGRA, 366   China, 361    Common Agricultural Policy, 151, 393, 397, 412    Comprehensive Africa development Programme (CAADP), 359    Consultative Group on International Agricultural Research (CGIAR), 374    G8 and, 366    gender and landownership, 367   Ghana, 361    International Fund for Agricultural Development (IFAD), 374   Malawi, 362    North/South Ministerial Council, 144, 150–1    nutrition and, 369, 376    productivity improvement, 351, 352, 367–8, 374–5    refocusing on, 363    Smallholder Agriculture Financing Mechanism (SAFM), 366    smallholders, 360, 366, 367–8, 371, 373   Vietnam, 362    water management, 368    women and, 364, 367–8 Ahern, Bertie, 8–9, 143, 247 Ahern, Dermot, 94–5, 111, 115, 163, 239, 241 AidLink, 111 Alliance for a Green Revolution in Africa (AGRA), 366 Altnagelvin Hospital, 146 Amato, Giuliano, 8n18 Amnesty International, 187 Amsterdam Treaty:    Danish opt-outs, 411    Irish contributions, 394 anaemia, 369 Anderson, Benedict, 42 Anderson, Derick, 147 Anderson, Pamela, 377 Anglo-Irish relations, 228, 231, 234–7, 277–9, 289   see also North South Ministerial Council

animal health, 150–1 Annan, Kofi, 110, 239, 310 Annapolis process, 239, 294–5 Antarctic Treaty, 103 Anthony, Gordon, 21, 38, 41 anti-personnel mines, 93, 99, 109, 166, 260 Anti-Sectarianism Fund, 235, 237 anti-social behaviour orders (ASBOs), 196 Anti-Trafficking Unit, 163 appeals, immigration, 164–6 aquaculture, 144, 147–8 arbitration, estoppel, 71, 74 Argentina, 114, 231, 240 Arnold, Tom, 377 ART, 364, 369 Ashdown, Paddy, 236 Asia-Europe Meeting, 239 Asian Tsunami, 265, 282 Assaker, Naija Riachi, 313 asylum seekers:    access to public services, 122, 123, 161   accommodation, 165–6   detention, 174    determination of claims, 162    family life, 131, 165     Northern Ireland, 192–3    human rights, 161–3    Irish jurisprudence, 164–6   non-refoulement principle, 123   O’Keefe test, 164    subsidiary protection, 121–5     healthcare, 122, 123     serious harm, 122–3 Aujeszky’s Disease, 151 Aung San Suu Kyi, 239, 295 Australia, 82, 114, 237 Austria, 243, 298 Austria-Hungary, 57 autism, 153–4 AVATS, 234, 250, 284 avian influenza, 150, 269 aviation:    airport fees, 126–7    Chicago Convention, 95    Derry City Airport, 145, 236    Shannon Airport, 93 BAE Systems, 182 Bahrain, 267 Ban Ki-moon, 97, 111, 112, 246, 247, 292, 294, 307, 312 banking crisis, 242, 396, 401 Barcelona Process, 244 Barroso, Jose Manuel, 243

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index

Bartolini, Stefano, 16 Basescu, Traian, 243 Bassett, Ray, 269 Bassolé, Djibril, 295 Bayard, Thomas, 56 Beijing Women Conference (1995), 298, 300 Belarus, 240 Belgium, 105, 243 Bell, Christine, 200, 210–14 Bell, Jon, 147 beriberi, 369 Bicarbon Fund, 435 Biehler, Gernot, ix, xiii–xiv Bill of Rights, 20, 38–9, 43, 115, 183–4, 185 Bill of Rights Forum, 115 biofuels, 357, 368, 373 Blaine, James, 57 blasphemy, 195 Blazeby, Len, 199 Bloody Sunday Inquiry, 185n19 Blue-tongue, 150 Boll, Alfred, 54, 55 Bolsa Familia, 362, 365 Bono, 377 book reviews, 203–22   Bell, On the Law of Peace, 210–14   Documents on Irish Foreign Policy, 208–9   Kearney, Prohibition of Propaganda for War in International Law, 214–18   Pauwelyn, Optimal Protection of International Law, 219–22   Pech, European Union and its Constitution, 203–6   Sieberson, Dividing Lines between the European Union and its Member States, 206–8 Bosnia-Herzegovina, 113, 306 Brazil, 57, 238, 362, 365 bribery, 103, 182 bridges, 145 Briggs, Herbert, 56–7 British Irish Council, 231, 235, 237, 253, 278, 279, 289 British Irish Parliamentary Assembly, 231, 237 British Irish Rights Watch, 194 Brown, Christopher, 79 Brown, Millward, 118 Brownlie, Ian, 49, 59, 61, 67 Brussels Convention (1950), 435–6 Brussels Convention (1968), 135–6 Brussels European Council (December 2008), 431–2 Brussels I Regulation, 135, 136 Brussels II Regulation, 135, 136 Brussels IIbis Regulation, 135, 136 Burke-White, William, 44 Burkina Faso, 105, 356 Burma, 112, 226, 227, 231, 238, 239, 247, 295, 307 Bush, George W., 94, 235 business development, 144, 155–6 Byrne, Thomas, 382

Cabinet Committee on Aspects of International Human Rights, 94 Calabresi, Guido, 219 Cali, Basak, 41 Cambodia, Temple of Preah Vihear, 75, 85–6 Cameron, David, 184 Canada, 85, 114, 237, 298, 437 Carbon Fund for Europe, 435 Casey, Donal, 200 Catholicism, 11 CCW Conventions, 434–5, 436 CEDAW, 184, 185 Celtic Tiger, 11 Central African Republic, 107, 113, 241 Centre for Global Development (Washington DC), 111 CERD Committee, United Kingdom and, 185 CERF, 247 Chad, 96, 107, 113, 231, 238–9, 241, 292 Chagos Islands case, 183, 185 Chicago Convention, 95 children:    abduction, 172, 261    child protection, North/South Ministerial Council, 144, 146–7    Council of Europe convention, 185    DNA databases, 185    human rights, 171–3, 177    Irish constitution, 171    malnutrition, 351, 363–5, 368–70, 376    Ombudsman for Children, 178–9    parental access, 168    sexual abuse, 172–3, 190    UN Convention, 168, 171, 185 Children in Crossfire, 111 Chile, 298, 370 China:   agriculture, 361    emergency aid to, 247    Irish relations, 279    Irish visits, 228, 231, 232, 245    nutritional advances, 355    Olympic Games, 250    success story, 361, 362    tourism from, 154 Christian Blind Mission, 111 Christianity, 195, 405 Churchill, Winston, 209 circumcision, 104 citizenship:    automatic Irish citizenship of Ulster residents, 45–7      international law and, 50–1, 67–8    diplomatic protection and, 45   Draft Convention (1929), 54    effective nationality, 61–4, 68    EU citizenship, 131–2    European Convention (1997), 49, 60–1, 66    exclusive domestic competence, 48    Hague Convention (1930), 48, 49–50, 51, 52–3, 59–60, 62, 65



index

   international law, 47–51     Flegenheimer Conciliation Commission, 63     Ireland v United Kingdom, 47      Irish citizenship and, 50–1, 67–8     Lotus case, 55     Nottebohm, 48, 50, 52, 53, 61–4, 65–6     opinio juris, 54, 55, 58–61     scholarly opinion, 52–5      state practice, 54, 55, 56–8    Irish nationality and Citizenship Act (1956), 46, 66, 67, 68    Irish nationality and Citizenship Act (2001), 46, 67    Irish nationality and international law, 45   jus sanguinis v jus soli, 53 civil partnerships, 166–8, 173, 177 climate change, 197, 226, 232, 242, 243, 291, 350, 351, 358, 360 Clinton Foundation, 248 cluster munitions   see also Cluster Munitions Conference (Dublin, 2008)   Convention see Cluster Munitions Convention (2008)   definition, 334   destruction, 335–9    Lima Conference (2007), 311    Oslo Conference (2007), 311    Oslo Process, 108, 312    regional conferences, 312   storage, 335    victim assistance, 339    Vienna Conference (2007), 311    Wellington Conference (2008), 311–12 Cluster Munitions Conference (Dublin, 2008):    2008 highlight, 97–8, 107, 228, 238, 264, 293   agenda, 315    conduct of business, 320–2   decision-making, 322–5    delegates list, 331    General Committee, 318   languages, 326   negotiations, 108–9   observers, 313   officers, 317   opening, 319   overview, 97–101    participating agencies, 313    participating states, 313    participation rules, 315–16    procedural report, 311–14   proposals, 328–30    public and private meetings, 327    records, 327, 348     list of documents, 328–31    representation and credentials, 316    rules of procedure, 313, 315–27     amendment, 327   Secretariat, 318–19    subsidiary bodies, 325–6   voting, 322–5 Cluster Munitions Convention (2008):

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  amendments, 345    authentic texts, 314, 348    clarification o compliance, 343   costs, 346   definitions, 334–5   depositary, 348    destruction of munitions, 335–6    destruction of remnants, 337–9    dispute settlement, 344   duration, 347    entry into force, 346    general obligations, 333–4    ICJ jurisdiction, 344    incorporation into Irish law, 93, 98, 260    international cooperation, 340–1, 342–3    meetings of state parties, 344    national implementation measures, 343   objectives, 166   Preamble, 331–3    provisional application, 347   ratifications, 346    relations with non-party states, 347–8   reports, 336   reservations, 347    review conferences, 344–5   scope, 334   signature, 346   storage, 335   text, 331–48    transparency measures, 341–2    victim assistance, 339   withdrawal, 347 Cold War, 216, 217 Colombia, 96 colonialism, 32–3 Combat Poverty Agency, 178 Commission for Victims and Survivors, 189, 237 Commissioners see European Commission Common Foreign and Security Policy (CFSP), 207, 270, 309, 398–9, 407 Common Fund for Commodities, 435 Communicating Europe Initiative, 244, 276 Community Restorative Justice Ireland, 196 competition, EU law v national laws, 22 Comprehensive Africa development Programme (CAADP), 359 Confederation of British Industry (CBI), 145 conflict resolution, 101, 110, 241, 265, 270, 293, 297, 308 Congo (DRC), 112, 113, 238, 240, 247 constitutional governance:   human rights     children’s rights, 171     cosmopolitan/particularist tensions, 19–20, 29, 33–44     inter-layer irritations, 21–6     particularist standards, 32–3    Irish citizenship, 46    Irish history and, 32–3    Irish natural law values, 26

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index

constitutional governance (cont.):    Lisbon Treaty and Ireland, 261, 390, 405–6, 431, 432    multiple layers, 19–21   Open Door/Grogan litigation, 26    symbolic investment, 27 Constitutional Treaty:    French and Dutch debates, 7, 10    French and Dutch No Votes, 3–6, 14    Lisbon Treaty and, 3    size of Commission, 11 consular services:    2008 crises, 264, 265   Cabhair database, 227, 234, 250, 256    Cork Passport Office, 114    economic priorities, 228   functions, 267–8    High Level Goals, 230, 249, 282    interdepartmental issues, 289    overview, 234, 249–52    performance indicators, 284   strategy, 282–2 Consultative Group on International Agricultural Research (CGIAR), 374 Consultative Group on the Past, 237 Continuity IRA, 181 contract:   consideration, 88    estoppel and, 77–8    imprisonment for breach, 173   pacta sunt servanda, 82 control orders, 188 Convention on the Rights of the Child, 168, 171, 185 Cooney, David, 227–9 cooperation   see also North South cooperation    Cluster Munitions Convention (2008), 340–1, 342–3 Cordova, Roberto, 52 corruption, 8–9, 102, 103, 182 cosmopolitanism:    human rights standards, 30–2     attractions, 39–40     democracy and, 40–1     European tensions, 37–9     legitimacy issue, 41–2      particularist tensions, 19–20, 29, 33–7     resolving tensions, 41–4   Kant, 31 Costa Rica, 74, 298, 370 Costello, Joe, 382 Côte d’Ivoire, 105, 113 Coulter, Brian, 191 Council of Europe   see also specific conventions    human rights instruments, 20, 21     domestic tensions, 38, 39    Irish human rights and, 174    Irish mission, 267   nationality, 58    social rights, 174

   UK counter-terrorism and, 188 counter-terrorism:    Irish policy, 93–5    Northern Ireland, 187–9    United Kingdom, 185 Cowen, Brian, 111, 294 Creighton, Lucinda, 382 crimes against humanity, 101, 110, 305, 307, 308 criminal law:   delay, 160–1    Irish human rights, 159–61, 174 Crisis Centres, 251 Croatia, 242, 244, 253, 400, 413 Crotty case, 8 Crowe, Catriona, 208–9 Cuba, nutrition, 370 Culture Ireland, 245, 281 customary international law:    diplomatic protection, 64–5   estoppel, 73    nationality, 48, 49, 50, 52–5    state practice and, 81    state responsibility, 89 customs tariffs, 435–6 Cyclone Nargis, 307 Cyprus, 231 Czech Republic:    ambassador to Ireland, 105    Irish visit, 243    nationality, 57–8, 60, 61    ratification of Lisbon Treaty, 3    Romany ethnic group, 58 Dardis, John, 147 Darfur, 295, 298, 358, 363 data protection, United Kingdom, 194–5 Day, Catherine, 243 De Búrca, Deirdre, 382 De Búrca, Gráinne, 43–4 De Valera, Eamon, 209 death penalty, refugees and, 123, 124 Debate-Europea, 15 decentralisation, Foreign Affairs Department, 285 defence forces:    Irish peacekeeping, 99, 101, 105, 107, 113, 292, 308, 385–6, 407    training, 101, 298 Defence Forces Training Centre, 101 delay:    civil cases, 175    fair trial and, 160–1 democracy:    European democratic deficit, 15–16, 205–6, 207, 208, 425    human rights cosmopolitanism and, 40–1    participatory democracy, 15    peace agreements and, 211–12 Democracy International, 8n23 Deng, Francis, 308 Denmark:   Eastern Greenland case, 77–8, 87    EU and, 205



index

   Maastricht Treaty and, 5, 10, 410–11    media and EU, 420   opt-outs, 411    overseas aid, 358    parliamentary scrutiny of EU law, 426, 427 Derry City Airport, 145, 236 detention   see also imprisonment    asylum seekers, 174    mental health, 176    UK counter-terrorism, 188 developing countries   see also Hunger Task Force; Irish Aid   education, 247    existing commitments, 350–1, 358–9    governance, 102, 351    IMF conditionality, 24    Irish policy, 294    maternal and child malnutrition, 364    UN development assistance, 112 Development Cooperation Directorate, 228 diplomacy, Irish policies, 104–5, 228 diplomatic protection:    customary law, 64–5   ILC Draft Articles, 45, 63, 64–6    Irish citizenship of Ulster residents and, 46–7, 64   meaning, 45   Nottebohm principle, 64 disability:    disability premia as property rights, 196   discrimination, 196    Mental Capacity Bill, 103, 104   travellers, 168–9    UN Convention, 103, 104, 185 discrimination:   disability, 196   education, 103    free travel schemes, 174    Northern Ireland, 182, 195–6 divorce, enforcement of foreign judgments, 135–7 DNA databases, 185, 194 Dobbin, David, 155 Dobelle, Jean-François, 313 Doherty, Pearse, 382 Donner, Ruth, 52 Donohoe, Paschal, 381, 382, 383–4 Driscoll, Aidan, 378 driving disqualification, 145 dualism, 52 Dugard, John, 65 Dulanty, John, 209 Durkan, Bernard, 381–2 Dzehtsiarou, Kanstantin, 200 Eden, Anthony, 209 education:    asylum seekers, 161   discrimination, 103    European integration and, 387   exchanges, 154    hunger and, 369, 376

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   Irish Aid, 247    North/South Ministerial Council, 144, 152–4    public understanding of EU and, 420    special education needs, 153–4    teachers’ qualifications, 153   Travellers, 152–3   underarchievements, 152–3 Eguiguren, Juan Eduardo, 313 Egypt, 231, 238, 239, 356 ehtnic minorities   see also travellers    European Framework Convention (1995), 60 El Baradei, Mohamed, 96 El Salvador, 105 Elliot, Gavin, 200 emanations of the state, 129–30 embassies, 228, 229, 239, 248, 255, 256, 267–8, 275, 280 Emigrant Support Programme, 227, 234, 250, 252 emissions trading, 220 energy prices, 357 enforced disappearances, 185 environmental impact assessments, 133–5, 139–40 environmental protection:    Aarhus Convention, 104    EIA Directive, transposition, 133–5, 139–40    emissions trading, 220    EU law, 132–5    North/South Ministerial Council, 144, 151–2    waste water, 132–3 EQUAL, 150 Equality and Rights Alliance, 178 Equality Commission for Northern Ireland, 196 erga omnes obligations, 221 Estonia, 57–8, 60, 61, 241, 243, 434 estoppel:    acquiescence, 79, 80, 84–5   authority, 87   consequences, 89–90    contractual theory, 77–8   detriment, 87–9   doctrine, 70–1   etymology, 70   foundations, 73–80    good faith, 70, 73–5, 83    inconsistent conduct, 75–7    international law creation, 78–9   Pickard v Sears, 70–1   representations, 80–5   requirements, 80–90    scope, 70, 71    sources of law, 72–3   Temple of Preah Vihear, 71, 74, 75, 76, 85–6, 87, 89   unconditionality, 86   voluntariness, 85–6 Ethiopia, 228, 233, 248, 249, 365 ethnic cleansing, 101, 105, 110, 305, 307 ethnic minorities see travellers EUFOR, 107, 113, 231, 239, 241, 292 EULEX Kosovo, 241 European Arrest Warrants, 119–21



index

European Bank for Reconstruction and Development, 435 European Charter of Fundamental Rights:    cosmopolitan principles, 35    Ireland and, 405, 406    Lisbon Treaty and, 390, 403, 404    status, 23, 207 European Commission:    Debate-Europe initiative, 15    Irish banking crisis and, 396    Irish members, 394    law-making role, 423   leadership, 419    number of Commissioners, 11, 408, 431    Plan D, 15    taxation and, 402    Transparency initiative, 15 European Committee on Social Rights, 31 European Convention on Human Rights   see also specific rights and freedoms    belt and braces approach, 33    cosmopolitan framework, 31, 37, 43    domestic tensions, 38    Eastern Europe and, 24    EU and, 9, 43–4, 44    European Charter of Fundamental Rights and, 207    European Convention on Human Rights Act (2003), 20, 38    German Basic Law and, 28    hierarchy of international law and, 403    housing and, 168–71    incorporation into Irish law, 20, 38, 159, 173    Irish criminal procedure and, 40    Irish judicial application, 20    national norms and, 23    political legitimacy, 41    UK interpretation, 35 European Convention on Nationality (1997), 49, 60–1, 66 European Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, 185 European Council:    law-making role, 423    legal guarantees to Ireland, ix–x, 242, 243, 431–2    Lisbon Treaty No Vote and, 3–4, 5, 10–13, 15, 117–18, 431–2    media and, 419 European Court of Human Rights:    abortion jurisprudence, 34–5    adjustment of national norms by, 30    conflict with ECJ, 28–9    delay in criminal procedures, 160–1    DNA databases, 194    finality of judgments, 27    free expression, 34   Ireland v United Kingdom, 47    Irish cases, 26, 28, 43    mental health detention, 176   Open Door v Ireland, 26, 28    privacy rights, 25

   telephone tapping, 194    US Supreme Court and, 36–7 European Court of Justice:    conflict with ECtHR, 28–9    cosmopolitan framework, 31    finality of judgments, 28   Grogan case, 26, 28    human rights standards, 20    judicial activism, 414   jurisdiction, 207   Kadi case, 25–6    preliminary rulings, procedures, 140–1   Viking/Laval cases, 24, 206 European Economic Area, 412 European Economic Recovery Plan, 232, 242, 243 European Framework Convention for the Protection of National Minorities (1995), 60, 185–6 European integration:    economic benefits to Ireland, 392–3    Ireland as beneficiary, 6    Irish education and, 387, 421    legitimacy crisis, 4, 14–16   pace, 13    political debate, 22 European Movement, 422 European Neighbourhood Policy, 244 European Parliament:    Irish elections, 13    law-making role, 423    media and, 419    petitions committee, 421   powers, 205    transparency pressures, 15 European Patents Convention, 433 European Security and Defence Policy (ESDP), 240, 241, 309, 386, 398–9, 406–7, 411, 415, 431 European Social Charter, 31, 174, 403 European Trade Union Confederation, 403 European Union   see also specific institutions    book reviews, 203–8    CFSP, 207, 270, 309, 398–9, 407    Christian heritage, 405    climate change and, 226, 232, 242, 243    Common Agricultural Policy, 151, 393, 397, 412    democratic deficit, 15–16, 205–6, 207, 208, 425    emanations of the state, 129–30    enforcement of judgments, 135–7    enlargement, 242, 244, 394    ESDP, 240, 241, 309, 386, 398–9, 406–7, 411, 415, 431    EU citizenship, 131–2    EU law see European Union law    explanatory documents, 421    financial crisis, 242    Georgia and, 238, 240, 241, 296    Habitats Directive, 425    identity and function, 206–8    information deficit, 417   integration see European integration



index

   Ireland and see European Union and Ireland    Kosovo, recognition, 105   languages, 421   law see European Union law   leaders, 417    loyalty duty, 126   neoliberalism, 206    overseas development assistance, 366, 373    public communications, 418–22    responsibility to protect and, 309   restructuring, 414    Right to Food, 240    shared values, 23, 392    social market economy, 385    South Africa Agreement (1999), 435    strategic relations, 238    structural funds, 412    superstate debate, 203–5    treaties, complexity, 417    withdrawal right, 205 European Union and Ireland   see also Lisbon Treaty No Vote    2008 review, 241–2    benefits of membership, 389–90, 392   challenges, 392–401    defence and foreign policy, 385–6, 406–7, 431    double majority voting, 408–9    economic impact, 392–3, 399–400    Foreign Affairs Department Report, 241–4    future, 385–9, 401–15    High Level Goals, 230, 241, 275    inter-departmental issues, 288–9    international relations and, 393–5, 398–9, 400    Ireland at the heart of EU, 392, 398    Irish influence, 407–14   issues, 385–6   mission, 267    neutrality issue, 11, 12, 242, 385–6, 406–7, 431, 432    opt-outs, 204, 386    options, 264, 386, 409–14     assessment, 414–15     non-ratifcation, 412–14      ratification of Lisbon Treaty, 410–12     referendum on membership, 412      renegotiation of Lisbon Treaty, 413–4     two-tier Europe, 414    parliamentary Joint Committee Report     decisions, 381–2     Executive Summary, 384–9     Foreword, 383–4     future, 385–9, 401–15     hearings, 391     Introduction, 389–91      Lisbon Treaty No Vote, 383–5, 389–90, 392– 414     members, 382     Table of Contents, 382–3     text, 381–430    parliamentary role, 387–9, 420     enhancing, 422–9     expertise, 429



     implementing EU law, 424–5, 428      lack of influence, 424, 428     law-making, 423     lessons from abroad, 426–7     procedural changes, 429     recommendations, 427–9      scrutiny of EU legislation, 423–6, 427      sensitive policy areas, 426, 429   public engagement     complexity of treaties, 417     factors, 416–19     information deficit, 417     issues, 386–7, 415–22     media role, 418–19, 421     national measures, 421–2     national politics, 417–18      role of education system, 420, 421      role of EU institutions, 418–20      role of national parliaments, 420, 422–9     technical language, 417    public opinion, 415–16    public services, 385, 404–5, 432    social impact, 393    socio-ethical issues, 11, 12, 242, 385, 405–6, 431, 432    strategy (2008–11), 275–7    taxation policy, 11, 12, 242, 385, 402, 431, 432   visits, 243    workers’ rights, 11–12, 13, 402–4, 432 European Union law:    abuse of rights, 127–8    Article 226 infringement proceedings, 139–40    competition, trumping national laws, 22    conformity of interpretation, 126–7    direct effect, 126    Eastern Europe and, 24    ECHR and, 9, 43–4    effective judicial protection, 125–6    environmental protection, 132–5    fixed-term work contracts, 125–6    general principles, 125–32    human rights, tensions, 37–9    implementation process, 424–7, 428    Ireland and, 107, 117–41    ‘Monti clause,’ 403    multi-layered governance, sources of irritation, 21–5   non-retrospectivity, 126    parliamentary scrutiny, 423–6    Posted Workers Directive, 403   proportionality, 128–9    Services Directive, 403–4    shared values, 42    state aids, 137–9    supremacy, 23–4, 205 EUTELSTAT, 433 Evans, Gareth, 307 explosive bomblets, 334, 335 extradition, 190, 254 extraordinary rendition, 93–5

 fair hearing/trial:    anonymous witnesses, 191–2    control orders and, 188    delay, 160–1, 175    legal advice, 192    Northern Ireland, 191–2    paper appeals, 164–5    presumption of innocence, 192    proceeds of crime, 176 family life:    age of consent to sex, 193    asylum seekers, 131, 165, 192–3    enforcement of foreign judgments, 135–7   housing, 168–71    immigration law and, 131, 140, 165    Lisbon Treaty and family values, 11–12, 13    marriages of convenience, 132    Northern Ireland, 192–4     adoption, 193–4      age of sexual consent, 193     housing, 194     immigration, 192–3    Polish values, 34    same-sex couples and children, 168   travellers, 194 Fanning, Ronan, 208–9 Farrell, Kevin, 377 Fayyad, Salam, 239 financial crisis (2008), 242, 396, 401 Finland, 241, 243, 253, 434 Finucane, Patrick, 185n19 fishing:    Foyle and Carlingford areas, 147–8    proportionality of regulations, 128–9   strategy, 147 fixed-term work contracts, 125–6 Flegenheimer Conciliation Commission, 63 Flood, Chris, 250 Flynn, Beverley, 382 Follesdal, Andreas, 16 food   see also nutrition    crises, 247, 363   malnutrition, 363–5    prices, 350, 356–8    right to food, 371   riots, 356    safety, 144, 146, 147, 291 Food and Agricultural Organization (FAO), 358, 366, 374 Food Standards Agency, 147 Foot and Mouth disease, 150 foreign aid, 102, 105, 107, 110, 110–12, 226–7, 246–9 foreign judgments, enforcement, 135–7 foreign policy:    Anglo-Irish relations, 228, 231, 234–7, 277–9, 289    Annual Report (2008)     Foreword, 225–7     Introduction, 227–9     Mission Statement, 225

index     Summary, 231–4     Table of Contents, 225     text, 225–61    Asia Strategy, 232, 245, 280, 281   budgets, 257–9    conflict resolution, 101, 110, 241, 265, 270, 292–3, 308    consular services see consular services    corporate services, 255–7    cross-departmental issues, 288–9    cultural promotion, 232, 246, 280–1, 433    customer service, 256, 287   decentralisation, 285   Documents on Irish Foreign Policy, 208–9   embassies see embassies   EU see European Union and Ireland    Evaluation and Audit Unit, 256    external environment, 230    foreign visits, 253   headquarters, 267    Heads of Division, 269    High-Level Goals (2008–10), 230, 266    human resource management, 285    human rights, 271, 293–4    information technology, 287    inspections, 255, 286   Intranet, 256    Irish Aid see Irish Aid    Irish role in the world, 231–2, 238–41    Irish Treaty Series, 433–7    knowledge management, 256    legal services, 254–5    Management Information Framework, 286    media service, 228–9   ministers, 269    Partnership Agreements, 285    peace and security, 268–72, 292    performance indicators, 271–2, 274, 277, 279, 281–2, 284    Press Office, 253–4    promotion of Ireland abroad, 232, 244–6, 279–82    prompt payment of accounts, 259    protocol services, 252–3    Reconciliation Fund, 228    regulatory impact assessments, 260, 287   residences, 256    role of Foreign Affairs Department, 266–7   staff, 267   Statement of Strategy 2008–11, 93, 105–6, 107, 229     Anglo-Irish relations, 277–9     capacity to deliver, 284–5     critical success factors, 284     European Union, 275–7     Good Friday Agreement, 277–9     High Level Goals, 266     implementation, 284–5     Introductions, 263–5     Irish Aid, 272–4     Mission Statement, 263     objectives and strategies, 268–84



index

     passport and consular services, 282–4     peace and security, 268–72     promotion of Ireland, 279–82     text, 263–89    structure, 229–30, 267–8, 269    support services, 252–7    value for money reviews, 252, 259–60, 284, 285–6    websites, 256, 257 Foucault, Michel, 211 Foyle, Carlingford and Irish Lights Commission, 148 France:   colonialism, 86    Constitutional Treaty debate, 7, 10    Constitutional Treaty No Vote, 3–6    estoppel, 72, 81n75    geo-political significance, 5–6    Irish visits to, 228, 232, 243   Minquiers and Ecrehos, 89    nationality, 51, 57   Nuclear Tests case, 82–3   Temple of Preah Vihear, 75 free expression:    blasphemy and, 195    ECtHR jurisprudence, 34    war propaganda and, 215, 217, 218 free movement, 132, 135, 136–7 Friede, Wilhelm, 74–5 Friel, Hugh, 154 Fritzsche, Hans, 216 Frontline, 111 Fulbright Exchange Programmes, 281 G8, 350, 359, 366 Gaelic Athletic Association, 107, 114 Gaelic games, 114 Gallagher, Dermot, 227, 265–6, 269 Gaza, 97, 238, 239 gender   see also women    human rights and, 166–8    hunger and, 351, 356, 363–5, 368–70, 376    landownership and, 367    Northern Irish judiciary, 184 gender realignment, 167, 173 Geneva, 31 Geneva Convention on the Continental Shelf (1958), 84 Geneva Conventions (1949), 221 genital mutilation, 104 genocide, 101, 110, 218, 305, 307, 308, 309 Genocide Convention, 305 Georgia, 231, 238, 240, 241, 295–6 Germany:    Basic Law, 33, 40    Constitutional Court, 33    constitutional supremacy and human rights, 28    customary international law and, 73    estoppel, 72, 73, 81n75    fundamental rights, 23–4   Hannover case, 25   Hijacked Airplanes case, 40



   human dignity, 40    Irish visits, 232, 243    nationality, 58, 66   North Sea Continental Shelf, 84   Nottebohm, 48    parliamentary scrutiny of EU law, 426    privacy rights, 25    ratification of Lisbon Treaty, 3   reunification, 394   Solange case, 23, 44 Gertenberg, Oliver, 43–4 Ghana, 233, 248, 361, 362 Gibney, Michael, 378 Giscard d’Estaing, Valery, 7n10, 8n18, 15n45 Gleneagles G8 summit (2005), 350, 359 Global Partners Forum on Children, 233, 246, 248 GM foods, 368 Goître, 364 good faith, estoppel, 70, 73–5, 83 Good Friday Agreement:    Bill of Rights, 115    human rights, 156    Irish policy, 264, 265, 277–9    legal services, 254   nationality, 68    North South bodies, 143   operation, 235    promotion, 105, 107    sectoral cooperation, 144   significance, 21    10th Anniversary, 181 Goodbody Value for Money and Policy Review, 252 governance:    development and, 102, 351    hunger and, 351, 359–60, 370–1 Grainger, Carl, 200 Greece, Human Security network, 298 Green Carbon Fund, 435 Greenland, 77–8 Grotius, Hugo, 73 Guantánamo Bay, 93, 94 Guatemala, 62, 63, 74 Habermas, Jürgen, 42 Habitats Directive, 425 Haddad, Lawrence, 378 Hague Convention on Child Abduction, 261 Hague Convention on Conflict of Nationality Laws (1930), 48, 49–50, 51, 52–3, 59–60, 62, 65 Haiba, Mohamed Yaha Ouid Sidi, 313 Haiti, food riots, 356 Hamill, Robert, 185n19 Harvard Law School, 54 health, North/South Ministerial Council, 144, 146 health insurance, 137–9 Health Service Executive, 179 health services, asylum seekers, 161 Hennessy, Patrick, 269 Higgins, Michael D, 95, 97 Hillery, Sarah Jane, 200

 HIV/AIDS:    agriculture and, 367    asylum seekers and, 194    food insecurity and, 364, 369    global challenge, 291    Global Partners Forum on Children, 233, 246, 248    hunger and, 351, 356    Irish Aid budget, 233, 286    Irish Aid strategy, 274, 360   Lesotho, 248   recommendations, 376 Hix, Simon, 16 Hokkaido G8 Summit, 366 Holmes, John, 246, 247, 297 Holy Cross Primary School, 187 Hong Kong, 254 Horowitz, Deborah, 200 housing:    asylum seekers, 165–6   discrimination, 196    human rights, 168–71    travellers, 168–9, 194 human resource management, 285 human rights   see also specific rights and freedoms    common law of human rights, 36    cosmopolitan standards, 30–2, 39–41    cosmopolitanism v particularism     axes, 35–7     democracy, 40–1     European context, 37–9     resolving tension, 41–4     tensions, 19–20, 29, 33–5    developing countries, 102    domestic standards, 32–3, 40–1    extraordinary rendition and, 93–5    Good Friday Agreement and, 156    human rights lobby, 41    Irish Republic, 159–79     children’s rights, 171–3, 177     civil procedure delays, 175      Council of Europe and, 174     criminal jurisprudence, 159–61     foreign policy, 271, 293–4     gender and sexuality, 166–8     housing, 168–71     human trafficking, 163–4     IHRC activities, 177–8     immigration law, 161–3     international humanitarian law, 166     mental health, 176     property rights, 175–6     UN HRC review, 173–4    Joint Committee, 156    Latin America, 240    multi-layered governance, 19–21     Irish layers, 28     open architecture, 27–30     sources of irritation, 25–6    Northern Ireland, 181–97      Bill of Rights debate, 115, 183–4, 185

index     counter-terrorism, 187–9     discrimination, 182, 195–6     extradition, 190     fair trial, 191–2     free speech, 195      House of Lords cases, 181–3     international law, 184–7     policing, 186–7, 190      private and family life, 192–5     right to liberty, 190–1     right to life, 189–90     rule of law, 181–3     socio-economic rights, 197    responsibility to protect, 101, 109–10, 254, 305–10    Rights Commissioners, jurisdiction, 125–6    shared European identity, 42   Viking/Laval, 24, 206 Human Rights Council, 240, 270 Human Security network, 298 human trafficking, 103–4, 159, 163–4, 184 Hungary, preliminary rulings, 141 Hunger Task Force:    accountability principle, 372    agricultural productivity improvement, 351, 352, 367–8, 374–5    on climate change, 358    current status of world hunger, 355–60    on depletion of natural resources, 358    eradicating hunger, 354–5    on existing commitments, 350–1, 358–9    on existing progress, 360–6    on food prices, 356–8    hunger and governance, 351, 359–60, 370–1    international architecture, reform, 373–4    Irish priorities and principles, 371–2    Irish targets, 376–7   leadership, 372    on malnutrition, 351, 363–5, 368–70   members, 377–8    on new international initiatives, 366    nutrition strategies, 352–3, 375–6   objectives, 351–3    partnership principle, 372    policy coherence, 372    prevention principle, 372    refocus on agriculture, 363    Report (2008), 227, 233, 246, 349–79     acronyms, 378–9     executive summary, 349–53     Introduction, 354–5     overview, 247, 294     Preface, 349      recommendations, 111, 349, 351–3, 360, 372–7     Table of Contents, 353–4    scale of problem, 349    small-scale agriculture, 360, 366, 367–8, 371, 373    social safety nets, 365    strategy, 349, 351–3    on success stories, 361–3    three-pronged approach, 366–71



index

   women as priority, 363–5, 368–70, 372, 376 Hurst, Cecil, 76 IMF, 24, 31, 43 immigration law   see also asylum seekers    appeal jurisprudence, 164–6    family life and, 131–2, 192–3   goals, 283    HIV and, 194    human rights and, 161–3, 174    Immigration, Residence and Protection Bill (2008), 161–3    ministerial discretion, 163    paper appeals, 164–5    safe countries of origin, 163 imprisonment   see also detention    breach of contract, 173    Irish prisoners abroad, 250    life imprisonment, 190    Northern Ireland, 184, 190–1, 196    US policy, 190    women, 184, 196 India:    child malnutrition, 364    Irish relations, 279, 433    Mumbai bombings, 251    tourism from, 154    US-India Agreeement, 93, 95–6 Indonesia, 105 information technology, Foreign Affairs Department, 287 inland waterways, 144, 148–9 Institut de Droit International, 63–4 Institute of International and European Affairs, 422 Inter-American Court of Human Rights, 31 Internatiional Monitoring Commission, 181 international arbitration, estoppel, 71, 74 International Atomic Energy Authority (IAEA), 95–6 International Court of Justice:   Anglo-Norwegian Fisheries, 84    estoppel, 69, 71, 73, 74, 75, 76, 82–7, 89   Gulf of Maine, 85    jurisdiction, Cluster Munitions Convention, 344   Minquiers and Ecrehos, 89   North Sea Continental Shelf, 73, 83–4   Nottebohm, 48, 50, 52, 53, 61–4, 65–6, 74   Nuclear Tests (Australia v France), 82–3    sources of law, 72, 81, 82   Temple of Preah Vihear, 71, 74, 75, 76, 85–6, 87, 89 International Covenant on Civil and Political Rights:    individual rights, 214    Irish review, 173–4, 177, 240    prohibition of propaganda for war, 214–15, 216–17    UK review, 185 International Covenant on Economic, Social and Cultural Rights, 214



International Criminal Court, 218, 294, 300, 305 international criminal law, propaganda for war and, 217–18 International Criminal Tribunal for Rwanda, 218 International Criminal Tribunal for the Former Yugoslavia, 218 International Fund for Agricultural Development, 374 International Fund for Ireland, 237, 278 international humanitarian law, 97–101, 166, 199–200, 221   see also cluster munitions International Hydrographic Organisation, 433 International Institute for the Unification of Private Law, 435 International Institute of Humanitarian Law (San Remo), 101 International Labour Organisation, 21 International Law Commission:    definition of diplomatic protection, 45   Draft Articles on Diplomatic Protection, 45, 63, 64–6    international crimes, 218    state responsibility, 89–90, 221 International Mine Action Standards (IMAS), 338 International Partnership for Microbicides, 256 international terrrorism see counter-terrorism INTERREG IIIA Programme, 150 INTERREG IVA Programme, 150, 151 INTERREG IVB Programme, 150 INTERREG IVC Programme, 150 InterTradeIreland, 155 Investment Conference (Belfast), 226 IRA, 181, 236 Iraq, 112, 189, 247 Irish Abroad Unit, 252 Irish Aid   see also Hunger Task Force    2008 developments, 246–9    budget, 111, 226–7, 355    Civil Society Policy, 249    country strategy papers, 228, 246, 248    education policy, 247    Headquarters, 228, 256, 285    High Level Goals, 230, 246   increase, 273    Management Review, 273, 274, 284    nutrition strategies, 352–3    performance indicators, 274    productivity improvement and, 352    Public Information and Volunteering Centre, 274    Rapid Response Initiative, 112, 246, 247    responsibility to protect and, 308   Statement of Strategy 2008–11, 272–4    Summary Report, 233    United Nations and, 249    White Paper, 102, 105, 107, 110–11, 264, 266, 273, 284, 355 Irish Aid Volunteering and Information Centre, 112 Irish Congress of Trade Unions, 403 Irish Council for Civil Liberties, 194



index

Irish Fairtrade Network, 228, 233, 249 Irish Film Institute, 245 Irish Human Rights Commission:    2008 survey, 177–8   amicus curiae, 177    on civil partnerships, 167, 177    financial cutbacks, 159, 177–8    Good Friday Agreement and, 156    on human trafficking law, 164    immigration Bill (2008) and, 162–3 Irish Language Agency, 149 Irish Red Cross Society, 199 Irish Society of International Law, 199–200 Irish Taxation Institute, 402 Irish Treaty Series, 433–7 Israel, 97, 226, 231, 238, 239, 240, 294–5 Italy, nationality, 57, 61, 63 Jack, Harry, 186 Jansa, Janez, 5n12 Japan, 105 Jennings, Robert, 54–5, 62 Joint Committee of Representatives of Human Rights Commissions, 156 Joint Consortium on Gender Based Violence, 298 Jones, Mervyn, 52, 56, 57 Jordan, 298 judgments, enforcement of foreign judgments, 135–7 jus cogens, 220–1 Kant, Immanuel, 31, 40 Kapetanovic, Branislaw, 312 Kavanagh, Paul, 112, 292, 297–9 Kearney, Michael, 214–18 Kellenberger, Jakob, 312 Kennedy, Michael, 208–9 Kenya, 96, 110, 112, 231, 239, 247, 249 Keogh, Dermot, 208–9 KFOR, 105, 113, 231, 240 Khalilzad, Zalmay, 297 Kierans, Lauren, 200 Kilcullen, Justin, 378 Kitt, Michael, 102 Klaus, Vaclav, 5 Köhler, Horst, 243 Kongstad, Steffen, 313 Kosovo, 105, 113, 231, 232, 240, 241 KPMG, 251 Krisch, Nico, 29 Kyoto Protocol, 220 Laeken Declaration (2001), 390 Lamy, Pascal, 244 landmines see anti-personnel mines Lane, Jerry, 199 language:    North South Ministerial Council and, 144, 149    Northern Ireland, 186 Latvia, 57–8, 60, 61, 253 Lauterpacht, Hersch, 72, 74, 79–80 LEADER+, 150

League of Nations, 215–16 Lebanon, 113, 264 legitimate expectations, 182 Lesotho, 97, 228, 233, 248 lex pacificatoria, 200, 210–14 Liam, Joanne Nic, 200 Liberia, 226, 241 Liberty, 194 Liechtenstein, Nottebohm, 48, 61–4, 74 Lisbon Treaty:    book reviews, 203    Charter of Fundamental Rights and, 390, 403, 404    Constitutional Treaty and, 3    double majority voting, 408–9   form, 8   impact, 207–8    institutional reforms, 394    Irish and UK opt-outs, 204, 386    Irish legislation, 261    Irish No Vote see Lisbon Treaty No Vote    long negotiation history, 9–10    nature of treaty, 3    number of Commissioners, 11, 408   opacity, 8   origins, 390    ratifications, 3, 397    renegotiation option, 413–4    transparency reforms, 15 Lisbon Treaty No Vote:    abortion issue, 11, 12, 242    anti-Treaty Campaign, 7    Commissioner numbers, 11    consequences for Europe, 395    consequences for Ireland, 395–401   costs, 9–10    EU benefits and, 6    EU response, 3–5    European problem, 13–16    French and Dutch No Votes compared, 3–7    government response, 264    inadequate pro-Treaty-Campaign, 7–9    Ireland’s insignificant size, 5–6    Irish differences, 5–10    Irish influence and, 407–14    Irish issues, 10–13    Irish view, 226, 242–3    legal guarantees to Ireland, ix–x, 242, 243, 431–2    neutrality issue, 11, 12, 242, 406–7, 431, 432    options, 386, 409–14     non-ratifcation, 412–14     ratification, 410–12      referendum on EU membership, 412   overview, 117–19    Parliamentary Joint Committee and, 383–414    profile of No voters, 118–19    reasons, 10–13, 117, 118, 242   referendum, 3    socio-ethical issues, 11, 12, 242, 405, 431, 432    taxation issue, 11, 12, 242, 402, 431, 432   turnout, 7    workers’ rights, 11–12, 13, 402–4, 432

Livni, Tzipi, 239 Loughlin, Martin, 212 Loughs Agency, 147–8 loyalty duty, 126 LRTAP Convention, 436 Lucey, Denis, 378 Luck, Edward, 307–8 Luxembourg, 32, 243, 358 Maastricht Treaty:    Danish rejection, 5, 10, 410–11    negative referenda, 14 McAleese, Mary, 228, 243 McCabe, Pauline, 191 McCartney, Robert, 181 McCreevey, Charlie, 8n22 McCrudden, C, 36 McDowell, Michael, 41 Macedo, Pablo, 313 Macedonia, 244 MacGibbon, IC, 73, 84 McGrath, Michael, 382 McGuinness, Martin, 143, 234 MacKay, Don, 108 McMahon, Brendan, 378 Mahiga, Augustine Philip, 292 Mair, Peter, 16 Majone, Giandomenico, 15–16 Malanczuk, Peter, 57 Malawi, 97, 233, 239, 246, 248, 249, 362, 365 Mali, Human Security network, 298 marriage:    EU citizenship and, 131–2    marriages of convenience, 132, 193    right to marry, 193 Martin, John, 148 Martin, Micheál:    Annual Report (2008), 225–7    Cluster Munitions Convention and, 109, 312    foreign visits, 238, 239    on Gaelic Athletic Association, 114    on Guantanamo Bay, 94    Minister for Foreign Affairs, 269   Statement of Strategy 2008–11, Introduction, 263–5    UN statement (2008), 291–6    US visa agreement, 114 Matthews, Pippa, 200 Mauritius, 105 media:    Foreign Affairs Department, 228–9    public engagement with EU and, 418–19, 421 Melamed, Douglas, 219 Melkert, Ad, 312 mental health:    asylum seekers, 166   detention, 176    human rights, 176    North South cooperation, 146    right to life and, 189–90    UN Human Rights Committee review, 173 Merkel, Angela, 5n12, 243

index



mesothelioma, 197 Mexico, 56–7, 238, 365 microfinance, 365, 368 Migrant Workers Convention, 156, 185 migration, 113–14   see also immigration law Millennium Development Goals, 102, 111, 272, 273, 274, 291, 350, 355, 359, 365 Millward Brown, 412 Milton, John, 212 monism, 52 Montenegro, 244 Montgomery, Rory, 269 Moravcsik, Andrew, 15–16 Morocco, 104–5, 356 Motor Insurance Bureau of Ireland (MIBI), 129– 30 Mottaki, Manoucher, 239 Mozambique, 97, 228, 247, 248, 249 Mubarak, Hosni, 239 Mullen, Rónán, 382 Mullhall, Dan, 269 Multi-Annual Programme Scheme (MAPS), 256 Murphy, Ronan, 269 Murphy, Seán, 209 Mweemba, Sheila, 313 Nash, Pat, 292 National Consultative Committee on Racism and Interculturalism, 178 National Forum on Europe, 422 National Pensions Reserve Fund, 98–9, 100 nationality see citizenship natural resources, depletion, 358 Neary, John, 269 Nelson, Rosemary, 185n19 neoliberalism, European Union, 206 Netherlands:    ambassador to Ireland, 105    Constitutional Treaty debate, 7, 10    Constitutional Treaty No Vote, 3–6    geo-political significance, 6    overseas aid, 358 neutrality issue, 11, 12, 208–9, 268, 406–7, 431, 432 New Zealand, 108, 114, 237 Nice Treaty:    Irish initial rejection, 5, 6, 10, 14    number of Commissioners, 408    public understanding of, 7    referendum campaign, 7 Niger, 363 Nigeria, asylum seekers from, 122, 123 non-proliferation, 93, 95–6, 240, 268, 270, 271 non-refoulement principle, 123 non-retrospectivity, 126 Nordic Battlegroup, 204, 241, 434 North Korea, 247 North South cooperation, 228, 231, 234–7, 277–9, 289 North South Exchange Consortium, 154 North South Ministerial Council:    Joint Secretariat, 143, 229



index

North South Ministerial Council (cont.):    meetings, 235, 236–7    Plenary Meeting, 143–4    sectoral meetings, 144–56 Northern Bank robbery, 181 Northern Ireland   see also Good Friday Agreement   abortion, 184    adoption law, 193–4    age of consent to sex, 193    Anti-Sectarianism Fund, 235, 237   ASBOs, 196    automatic Irish citizenship, 46–7     diplomatic protection and, 64      international law and, 50–1, 67–8    Bill of Rights, 115, 183–4, 185   blasphemy, 195    Bloody Sunday Inquiry, 185n19    Commission for Victims and Survivors, 189, 237    Consultative Group on the Past, 189    crime statistics, 186    devolution progress, 181   fair trial     anonymous witnesses, 191–2     legal advice, 192     presumption of innocence, 192    family life, immigration and, 192–3    female prisoners, 184    gender, judiciary, 184    health in pregnancy grants, 197    human rights, 181–97      Bill of Rights, 115, 183–4, 185     counter-terrorism, 187–9     discrimination, 182, 195–6     extradition, 190     fair trial, 191–2     family life, 192–4     free speech, 195      House of Lords cases, 181–3     international law, 184–7     policing, 186–7, 190, 192     privacy rights, 194–5      private and family life, 192–5     right to liberty, 190–1     right to life, 189–90     rule of law, 181–3     socio-economic rights, 197    Independent Monitoring Commission, 236    investment strategy, 235    Irish policy, 115    loyalist protest, 187   mesothelioma, 197    NHS employees, 182    parades, 182, 236    police, 186–7, 236    Police Ombudsman, 186, 187, 190    prisoner numbers, 190–1    Prisoner Ombudsman, 191    Privacy Advisory Committee, 195    public appointments, 182    Reconciliation Fund, 237    rule of law, 181–3

  sectarianism, 115   terrorism, 181    US Investment Conference (Belfast), 226, 235    women, 184, 297    women prisoners, 184, 196    Youth Conference Service, 196 Northern Ireland Assembly, suspension, 143 Northern Ireland Human Rights Commission:    Bill of Rights and, 115, 183   discrimination, 196    Good Friday Agreement and, 156    Holy Cross Primary School and, 187    mental health patients and, 190    on secret inquests, 190 Norway:   Anglo-Norwegian Fisheries, 84   Eastern Greenland case, 77–8, 87   Grisbadarna Arbitration, 79, 85    Human Security network, 298    Irish Agreements, 434    Irish visits to, 228, 232    Nordic Battlegroup, 434    overseas aid, 358    Spitzbergen and, 77 Nowak, Manfred, 216–17 nuclear non-proliferation, 93, 95–6, 240, 270, 271 Nuclear Suppliers’ Group, 95–6 Nuremberg Trials, 216 nutrition:    agriculture and, 369, 376   malnutrition, 363–5    right to food, 371    strategies, 351–3, 375–6    women and children, 351, 363–4, 368–70 O’ Brien, Patricia, 107, 112, 269 O’ Brien, Patrick, 200 O’ Ceallaigh, Dáithi, 312 O’ Crosain, Tarlach, 147 O’ Flaherty, Michael, 113, 240 Ó Floinn, Colm, 312 O’ Halpin, Eunan, 208–9 O’ Keefe, Pat, 103 O’ Loan, Nuala, 110, 226, 232, 241, 293 O’ Neill, Adrian, 269 O’ Toole, Paul, 154 Obama, Barack, 94, 239 obesity, 146 OECD:    Bribery Convention, 103, 182    Irish mission, 267    nationality and, 58    UK corruption and, 182 Olmert, Ehud, 294 Olympic Games (Beijing), 250 Ombudsman for Children, 178–9 opinio juris:    customary law and, 73    nationality, 54, 55, 58–61 Orde, Hugh, 187 organised crime, Convention, 103–4 OSCE, 267



index

Oslo Process, 108, 312 overseas development assistance   see also Hunger Task Force; Irish Aid    existing commitments, 350–1, 358–9    existing progress, 360–6    recent international initiatives, 366    success stories, 361–3 Paisley, Ian, 143, 234 Pakistan, 96, 356 Palestinian Authority, 231, 239, 253 Palestinian territories, 97, 226, 231, 238, 240, 294–5 Panhuys, HF van, 52 parades, 182, 236 Parades Commission for Northern Ireland, 182 Parliament:    EU Report (2008), 381–430    EU role, 387–9, 420, 422–9   parliamentary sovereignty, Factortame, 22, 23 particularism, cosmopolitanism and, 19–20 passports, 234, 250, 251, 256, 260, 261, 282, 283, 284, 287 patents, 433 Pauwelyn, Joost, 219–22 peace agreements, 200, 210–14 PEACE I, 150 PEACE III, 150, 151, 278 PEACE programmes, 393 peacekeeping forces, 99, 101, 105, 107, 113, 292, 308, 385–6, 407 Pech, Laurent, 203–8 pellagra, 369 pensions, transfers, 143 Permanent Court of Arbitration:   Canevaro case, 61   Grisbadarna Arbitration, 79, 85, 88 Permanent Court of International Justice:   Acquisition of Polish Nationality, 48, 51   Chorzów Factory, 75    customary international law, 81   Eastern Greenland case, 77–8, 81, 87    estoppel, 71, 72, 74–5, 77, 78–9, 81, 85   Lotus case, 55   Nationality Decrees in Tunis and Morocco, 48, 51   Serbian Loans, 75, 78–9, 85 Peru, nationality, 56, 61 Philippines, 356 pigs, 151, 226, 232, 245 Plan Ireland, 111 planning:    environmental impact assessments, 133–5    proportionality of conditions, 175–6 plant health, 151 Poland:    abortion law, 34–5   Chorzów Factory, 75    Irish visit to, 243    nationality, 48, 51 police, Northern Ireland, 186–7, 192, 236 Police Service of Northern Ireland (PSNI), 186–7, 190 Pollock, Frederick, 88



Portugal, 57, 437 positivism, 52 posted workers, 24, 206, 403 Pottering, Hans-Gert, 243 Power, Peter, 101, 103, 109–10, 227, 246, 248, 265, 269, 305–10 preliminary rulings, procedures, 140–1 Prendergast, Phil, 382 presumption of innocence, 192 privacy rights:   DNA, 194    multiple layers, 25    Northern Ireland, 194–5    telephone tapping, 194    UK children, 185 proceeds of crime, 176 Progressio Ireland, 111 Project Kelvin, 236 propaganda for war, 214–18 property rights, 175–6, 196 proportionality:    EU principle, 128–9    planning conditions, 175–6 Provisional IRA, 236 public policy, immigration and, 132 public services, EU and Ireland, 385, 404–5, 432 Qualification Directive, 121–5 Rácz, Sándor, 313 railways, 145 Randelzhofer, Albrecht, 54 Rapid Response Initiative, 112, 246, 247, 273, 288 Real IRA, 181 Reconciliation Fund, 237 Reconciliation Networking Forum, 237 Red Cross, 99, 199, 247, 311, 313, 316, 344, 345 refugees see asylum seekers regulatory impact assessments, 260, 287, 388, 425, 428 religion, Irish privileging, 173 remedies, effective remedies, 125–6 representations, estoppel, 80–5 res judicata, 63 responsibility to protect, 101, 109–10, 254, 305–10 Rice, Condoleeza, 94 right to liberty, Northern Ireland, 190–1 right to life:    abortion and, 26, 28, 37–8    European Charter of Fundamental Rights, 405    Northern Ireland, 189–90 right to strike, Viking/Laval, 24, 206 roads, 143, 145 Robinson, Mary, 298 Robinson, Peter, 234 Roche, Dick, 227, 265, 269 Roman law, estoppel, 72 Romania, 228, 232, 243 Roosevelt, Franklin, 215

 Royal Canal, 148, 149 Royal Irish Academy, 101, 305–10 Royal Ulster Constabulary, 190 rule of law, 102, 105, 181–3, 230, 239, 241, 263, 266, 268, 271, 294, 308, 310, 392 Rundstein, Szymon, 52 Russia, Caucasus conflicts, 413 Rwanda, 112, 218, 306 Rynne, Michael, 208–9 Sachs, Jeffrey, 378 Safefood, 147 Saharawi people, 104–5 St Andrews Agreement, 21, 115, 235, 254 St Andrews Agreement Review Group, 144 St Patrick’s Day, 228, 232, 245, 281 same-sex couples, 166–8 Sarkozy, Nicolas, 5n12, 118, 243, 296 Saudi Arabia, 182, 228, 245 Schraner, Christine, 108 Schroeder, Gerhard, 7n8 Schwazenberger, Georg, 84 SCoTENS, 153 scurvy, 369 Sean Lester Lecture, 200 sectarianism, 115, 235, 237 Senegal, 356 Serbia, 75, 78–9, 105 Seville declarations, 407 sexual violence, 299, 300–3 Shannon Airport, 93 Shannon Navigation, 149 sheep, 151 Sheeran, Josette, 378 Sieberson, Stephen, 203–8 Sisulu, Sheila, 378 Slaughter, Anne-Marie, 44 Slovenia, 243, 297, 298 Smallholder Agriculture Financing Mechanism (SAFM), 366 Smith, Colin, 199–200 social safety nets, 365 social security, 174, 433 socio-economic rights, 197, 402–4, 431, 432 socio-ethical issues, 11, 12, 242, 385, 405–6, 431, 432 Somalia, 247 South Africa:    EU Agreement (1999), 435    Irish markets, 245    Irish visits, 228, 231, 232, 239    Zimbabwe and, 97 Southern Africa Development Community (SADC), 96–7 Soviet Union, 217 Spain, 57, 105 Special EU Programmes Body (SEUPB), 144, 149–50 special summons, 127 Spiro, Peter, 57–8, 61 Spitzbergen, 77 Sri Lanka, 247

index state aids, 137–9 state practice:    customary international law and, 81    nationality, 54, 55, 56–8 state responsibility, 89–90, 221 state sovereignty:    European Union and, 204    nationality and, 48, 51    peace agreements and, 211    responsibility to protect and, 110, 306 Steyn, Lord, 182 Strasbourg, 32 Streicher, Julius, 216 Sudan, 96, 238, 247, 295, 298, 358, 363 suicide, 146, 190 sulphur emissions, 436 Sweden:   Grisbadarna Arbitration, 79, 85    Irish Agreements, 434    Irish visits, 243    Nordic Battlegroup, 241, 434    overseas aid, 111, 358 Switzerland, 108, 298 Tajikistan, 112 Tanzania, 97, 112, 231, 232, 233, 246, 248, 249, 292 Tariceanu, Càlin, 243 Taser guns, 185, 187 taxation:    civil partnerships, 173    double taxation treaty, 433    fair hearing, 176    Ireland and EU, 11, 12, 242, 385, 402, 431, 432    value added tax, 127–8 teachers, qualifications, 153 telecommunications, 433–4 telephone tapping, 194 television, 387, 419, 421 terrorism   see also counter-terrorism    Northern Ireland, 181 Thailand:    Bangkok unrest, 251    Human Security network, 298    nutritional intervention, 370   Temple of Preah Vihear, 75, 85–6, 89 Timmins, Bill, 98, 382 Timor Leste, 110, 226, 228, 231, 241, 246, 248, 256, 308–9 Togo, 247 Torture Convention, 102–3 torture/inhuman treatment, 123, 124 tourism, 144, 147, 148, 149, 154–5, 236, 245, 268 trade development, 144, 155–6 trade unions, 125, 206, 403 transport:    free travel, 174    North South cooperation, 144, 145 transsexuals, 167, 173 travellers, 152–3, 168–9, 173, 177, 194



index

treaties:    2008 overview, 102–4    Irish Treaty Series, 433–7 Trichinella, 151 Tsunami (2004), 265, 282 Turkey, 242, 244 UDA, 181 Uganda, 248, 249 Ukraine, 105, 121 Ulster Canal, 143, 148 Ulster Scots Agency, 149 UNAMID, 295 UNDP, 110, 112, 249, 298, 313 UNESCO, 103, 267 UNICEF, 112, 247, 249, 374 United Arab Emirates, 228 United Kingdom:    Agreement with Ireland (1998), 46–7, 68   Anglo-Norwegian Fisheries, 84   Belmarsh case, 35    Bill of Rights debate, 20, 38–9, 43, 184, 185   blasphemy, 195    CEDAW and, 185    CERD Committee and, 185    Chagos Islands case, 183, 185    Climate Change Act (2008), 197    Colonial Laws Validity Act, 183    common law rights, 33    Conservative Party, 5    corruption investigation, 182    Council of Europe Conventions and, 185–6    counter-terrorism, 185, 187–9    data protection, 194–5    DNA database, 194    draft Freedom Bill, 184    ECtHR cases, 43   estoppel, 81    extradition to US, 190   Factortame case, 22, 23    free expression, 34, 195    Gaelic games, 114    human rights, House of Lords cases, 181–3    Human Rights Act (1998), 23, 39    human trafficking, 184    immigration, family life and, 192–3    Irish Treaties, 433, 434    Irish visits, 228, 232, 243    judicial deference to executive, 23    Lisbon Treaty opt-outs, 204   Minquiers and Ecrehos, 89    nationality, 51, 56, 57, 59, 68    Nordic Battlegroup, 434    parliamentary scrutiny of EU law, 426, 427    political advertising, 195    prerogative powers, 183    right to life, 189–90    telephone tapping, 194   torture evidence case, 35    UN Disability Convention and, 185    UN Enforded Disappearances Convention and, 185



   UN HRC and, 185 United Nations   see also specific programmes and agencies    CCW Conventions, 434–5    CEDAW Committee, Northern Ireland and, 184    CERD Committee, 185   CERF, 247    Charter, 73, 110    cluster munitions and, 311, 340, 341, 346, 348    Commissioner for Hunger, 373    Committee on the Rights of the Child, 104, 185, 187    Common Fund for Commodities, 435    Common Humanitarian Funds, 247    conflict resolution, 292–3    Corruption Convention, 103    Department of Political Affairs, 110    development assistance, 112, 294    Development Programme (UNDP), 110, 112, 249, 298, 313    Disability Convention, 103, 104, 185    Enforded Disappearances Convention, 185    High Commission for Refugees (UNHCR), 249    High Level Task Force, 357, 366    human rights, 293–4    Human Rights Committee, 113, 240     amicus curiae, 177     Irish commitments, 167     Irish review, 173–4, 177     UK review, 185    Human Rights Council, 240, 270    human rights standards, 20–1, 31, 38, 39    Hunger Report, 356    Irish mission, 267, 308    Irish policy, 112–13, 238, 240, 263, 269–70     Martin’s address (2008), 291–6    Irish visits, 231    Maternal Health Trusts Fund, 102    Migrant Workers Convention, 156, 185    Millennium Project Task Force, 356    Organised Crime Convention, 103–4    overseas aid, target, 358    Population Fund (UNFPA), 102, 249    propaganda for war and, 216–17    reform, 263, 292    regional organisations and, 385    Relief and Works Agency (UNWRA), 247    Saharawi people, 105   SC see United Nations Security Council    world hunger and, 352    Zimbabwe and, 97 United Nations Security Council:    human rights, 101   Kosovo, 105    peace and security, 292   peacekeeping operations      EUFOR, 107, 113, 231, 239, 241, 292      Irish forces, 99, 101, 105, 107, 113, 292, 308, 385–6, 407     Irish training, 298



index

United Nations Security Council (cont.):    peacekeeping operations (cont.)      KFOR, 105, 113, 231, 240     women’s security, 302    responsibility to protect, 305, 307–8   sanctions, 25–6    women, peace and security     Irish address, 297–9      Resolution 1235 (2000), 241, 297     Resolution 1820 (2008), 300–3 United States:    Afghanistan and, 95    common law rights, 33    ECtHR jurisprudence and, 36–7    extradition from UK, 190    extraordinary rendition, 93–5    free speech, 217    Gaelic games, 114    global war on terrorism, 93    Investment Conference (Belfast), 226, 235    Irish consular relations, 435    Irish foreign policy, 239, 279    Irish undocumented immigrants, 283    Irish visa agreement, 113–14    Irish visits to, 228, 232    nationality, 56–7, 58, 63, 66    Northern Ireland policy, 237    privacy rights, 36    Shannon Airport and, 93    taser guns, 187    US-India Agreeement, 93, 95–6    Working Holiday Agreement, 227, 234, 250, 252 Universal Declaration of Human Rights, 214, 216, 293, 354 Universal Postal Union, 436 University College Dublin, 200 Upian, 72 URBAN II, 150 UVF, 181 Uzbekistan, 65 value added tax, 127–8 Versailles Treaty (1919), 210 Verzijil, JHW, 53–4, 57 victims, cluster munitions, 339 Vienna Convention on the Law of Treaties, 87 Vietnam, 105, 233, 246, 248, 249, 362 visas, 113–14, 234, 250, 282, 284 Vita, 111 VSO Ireland, 111 Walker, Neil, 21–2, 23, 29, 41–2 Walsh, Joseph, 209, 349, 377

war crimes, 101, 110, 305, 307, 308 war propaganda, 214–18 Warnock, William, 209 waste water, 132–3 water management, 368 waterways, 144, 148–9 Waterways Ireland, 148–9 Watts, Robert, 54–5, 62 Weber, Max, 204 Wegener, Henrik, 147 Weis, Paul, 49, 52–3, 57, 63, 67 Westphalia, Treaty of (1648), 306 Whelan, Mary, 269 White, Kathleen, 269 Whitton, John, 216 Wilde, Jane, 146 wind farms, 134 Witenberg, Joseph Charles, 84 witnesses, anonymity, 191–2 women:    agricultural production and, 364, 367–8    genital mutilation, 104    human rights, 173    Hunger Task Force priority, 372    landownership rights, 367    malnutrition, 351, 363–5, 368–70, 376    National Women’s Strategy, 298    Northern Ireland, 184, 196    peace and security, 241, 297–303    sexual violence against, 299, 300–3    UNSC Resolution 1325, 241 Woodlands Juvenile Justice Centre, 196 Woodward, Shaun, 181 workers’ rights, Lisbon Treaty No Vote and, 11–12, 13, 402–4, 432 Working Holiday Agreements, 114, 227, 234, 250, 252 World Bank, 31, 364–5, 366, 435 World Food Programme, 365, 366, 374 World Food Security Conference (2008), 366 World Food Summit (1996), 354, 359, 373 World Health Organisation (WHO), 112, 249 World Summit Outcome Document (2005), 110, 300, 305, 308, 355 World War II, 209 Wright, Billy, 185n19 WTO, 19, 21, 21–2, 31, 43, 220, 244, 397, 404 Youth Conference Service, 196 Zambia, 97, 248, 365 Zimbabwe, 96–7, 226, 227, 231, 238, 239, 247, 295, 307