The Irish Yearbook of International Law, Volume 6, 2011 9781474200196, 9781849464772

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EDITORIAL BOARD Members of the Advisory Board Lord Lester of Herne Hill QC Professor Conor Gearty, London School of Economics and Political Science Professor Gráinne de Búrca, New York University Judge Teresa Doherty, Special Court for Sierra Leone Ms Patricia O’Brien, Under-Secretary for Legal Affairs and UN Legal Counsel Editors-in-Chief Professor Fiona de Londras, Durham University Professor Siobhán Mullally, University College Cork Editorial Board Professor Jean Allain, Queens University Belfast Professor Christine Bell, University of Edinburgh Professor Christine Chinkin, London School of Economics Professor Imelda Maher, University College Dublin Professor Michael O’Flaherty, University of Nottingham and Northern Irish Human Rights Commission Professor Gerard Quinn, National University of Ireland, Galway Professor William Schabas, National University of Ireland, Galway and Middlesex University Correspondents Dr Alan Brady: Irish Practice in International Law Dr Ronán Long: Irish Practice on the Law of the Sea Mr Stephen Coutts: Ireland and the European Union Mr Colin Smith B.L.: Human Rights in Ireland Prof. Brice Dickson: Human Rights in Northern Ireland Book Reviews Editor Professor Fiona de Londras, Durham University

Editorial FIONA DE LONDRAS & SIOBHÁN MULLALLY

With this, the sixth volume of the Irish Yearbook of International Law, we continue to publish on emerging issues in international law, and on developments in Irish practice in international law. This combination of scholarly research with analysis and documentation of state practice is central to the purpose of international law yearbooks. In this volume, in addition to documenting Irish practice on a range of European and international law issues in 2011, we place the spotlight on climate change and climate justice. Climate change is a complex process, the management of which requires engagement from numerous disciplines including from law. Given its transnational nature, and the capacity of one state’s actions to impact on the climate of other states, it is something to which international law has paid significant attention. International law has been trying not only to devise and implement technical legal standards relating to, for example, emissions levels, but also to imagine ways in which existing bodies of law can be usefully deployed in this area. Human rights law has been a source of particular innovation in this context, and in this volume David Browne explores the potential of human rights litigation to ‘close gaps’ left in climate change negotiations through the orthodox imposition of liability. As well as developing legal tools to try to combat climate change, international institutions also use international legal instruments, techniques and processes to inculcate climate justice. Climate justice encompasses a commitment to ethically informed responses to climate change, recognising that because of the significant contribution of the world’s most developed countries to climate change those countries should bear a greater responsibility in trying to counter it. Climate justice also recognises the uneven impacts of climate change on people around the world in terms of significant weather alterations and consequent effect on food production and traditional land use patterns, adaptation mechanisms, urbanisation, and food and water security. It attempts to respond to these uneven impacts in an equitable manner; it is, as Mary Robinson puts it in her contribution to this volume, a rights-based approach to tackling climate change. A commitment to climate justice has recently been demonstrated by the Irish government through Irish Aid and its engagement in international processes relating to climate change. Climate justice can also have a somewhat more conceptually bounded meaning, namely to do justice to those who are negatively affected by climate change. In her contribution to this volume Fanny Thornton considers ways in which a compensatory approach to justice might usefully contribute to the achievement of climate justice understood in this way. In his contribution Paul Govind notes that the distributive approach to climate change has generally not succeeded and argues instead for a reorientation towards a capabilities approach, which he argues has meaningful potential in the context of climate change. The overarching message from these contributions to the Yearbook is that not only is the achievement of climate justice imperative, but that it requires innovation in how we conceptualise the concept of justice in this context and in what legal tools we use to try to achieve that. As well as these articles, this volume of the Yearbook includes a shorter contribution from Darren O’Donovan discussing the strained diplomatic relations between Ireland the Holy See in 2011. A range of correspondent reports on human rights in Ireland, international law in Ireland, Ireland and the EU, and human rights in Northern Ireland over the course of 2011 are also provided. This year the Yearbook includes notes of appreciation in memory of one of Ireland’s leading international lawyers, Kevin Boyle, who died in December 2011. Kevin’s legacy remains not xi

only through his scholarship, but also through his tireless work in developing international legal standards particularly in the areas of freedom of expression and minority rights, and through the vibrant community in the Irish Centre for Human Rights that he founded in NUI Galway.

xii

Climate Justice Post-Durban MARY ROBINSON∗ Centre for Global Development, University College Cork 18 January 2012

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am delighted to be in University College Cork to talk to you all this evening. My thanks to President Murphy for his warm welcome, and to the Centre for Global Development for facilitating my visit here today. I have had a very stimulating day learning about the research ongoing in UCC which is contributing positively to our understanding of the impacts of climate change and to the design of equitable responses to tackling this global problem. It is great to see the same curiosity and dedication to finding solutions to the world’s problems reflected in the projects of so many students participating in the Young Scientist Exhibition last week. They are the ones who will be the decisions makers, mothers, fathers and leaders in 2050 when the impacts of climate change are being acutely felt. They didn’t cause the problem, we who came before are responsible for that, but the burden of dealing with it will fall squarely on their shoulders. It is interesting that climate change is one of the focal areas of the upcoming Tanzania Young Scientist Exhibition. Students there have an even more immediate need to understand the impacts of climate change and to find solutions to the problems it creates. Schools, universities and colleges need to equip students from Cork to Dar es Salaam with the skills they will need to navigate their way through an ever-changing world. International conferences taking place in Ireland later this year will help to set the scene for this, demonstrating Ireland’s contribution across a range of scientific disciplines. In May the World Congress on Water, Climate and Energy takes place in Dublin and in July, Dublin will be the City of Science hosting Europe’s largest science conference, the Euroscience Open Forum. A programme of science-related events and activities are being held throughout the year across the island of Ireland to showcase the latest advances in science and technology and to stimulate and provoke public interest, excitement and debate about science and technology. I hope this can build on the work of the Young Scientist Exhibition to get young people energised and involved in science and technology – so that they can shape the world of 2050 and make it a better place to live. Last month the city of Durban in South Africa was the venue of one of the most important meetings of 2011. Durban hosted the Conference of the Parties, or COP as it is known, the annual gathering of governmental and NGO representatives concerned with what I believe to be the most critical issue we all face – the future of our planet. In these times of economic crisis, amid worries about our own and the European and international economies, it is not surprising that attention focuses on our immediate problems. But, make no mistake about it, we ignore the threat posed by climate change at our peril. When respected institutions such as the OECD and the International Energy Agency, who are not given to alarmist statements, warn that failure to face up to the problems posed by climate change could result in irreversible damage, we must all give the issue our fullest attention.

∗ *

President, Mary Robinson Foundation for Climate Justice.

The Irish Yearbook of International Law 2011

Climate change is a complex, multifaceted problem. It has far reaching impacts on every part of the world and it hits the poorest countries and peoples hardest. I believe that a climate justice approach is the only way to tackle this grave problem and I will explain what I mean by that and what my Foundation is doing to achieve it. Firstly, what is climate justice? Climate justice links human rights and development to achieve a human-centred approach, safeguarding the rights of the most vulnerable and sharing the burdens and benefits of climate change and its resolution equitably and fairly. Climate justice is informed by science, responds to science and acknowledges the need for equitable stewardship of the world’s resources. It is a human rights-based approach to combating climate change which seeks equitable outcomes to both protect the vulnerable and provide access to benefits arising from our transition to low carbon development. Climate justice has a focus on people – it looks at the causes, the impacts and the solutions to the problem from a human perspective. Climate justice is fully informed by science but it communicates and identifies solutions from the perspective of human needs and rights. As such it seeks equity in the way in which we deal with the negative impacts of climate change (for example, which countries take the lead on cutting greenhouse gas emissions) and equity in accessing benefits (for example, access to offgrid renewable energy for communities living without access to electricity). This is the work of my foundation, the Mary Robinson Foundation – Climate Justice (MRFCJ). MRFCJ’s first full year in operation, 2011, culminated in our participation at COP17 in Durban, South Africa. In human terms these conferences are intense two week-long sessions involving 195 countries, civil society organisations, business interests, researchers and the media. Nobody gets enough sleep, you are invariably too hot or too cold and the mood ebbs and flows in response to rumours, public statements and plenary debates. The world went into COP17 in Durban with low expectations. On the cards was the future of the process, a successor to the Kyoto Protocol due to expire in December 2012 and the need to deliver concrete actions for the people of the host continent, Africa. In the first week I was struck by the complete lack of urgency in the formal negotiations, contrasting with the real urgency being voiced on the street, by scientists and by organisations representing the most vulnerable communities from all over the world. Thankfully the message finally got through in the final days of the second week – the need to deliver a result, ‘to avoid the death of the Kyoto Protocol on African soil’, and to set a deadline for a new all-inclusive legal agreement to succeed Kyoto, was acknowledged and acted on. Alliances were formed – most notably between the EU, the least developed countries and the small island developing states – and this put significant pressure on the naysayers to stand aside and let progress be made. It was the longest COP in history, going on 2 days longer than expected – and the result it delivered is important – but it will only help two to solve the problem if it delivers on the promise that has been made. I would like to go into this a little further and explore what the outcomes from COP17 mean in the context of climate justice. MRFCJ had three priorities going into COP17; i) the legal form of a future climate agreement; ii) food security and agriculture; and iii) women’s leadership and the gender dimensions of climate change. Starting with the issue of legal form of a new climate agreement – at the crux of this was the need to decide what should happen after the end of the first phase of the Kyoto Protocol at the end of 2012. Since 2007 work has been ongoing to design a new agreement for the post-2012 period with the aim of keeping global warming to less than 2°C above pre-industrial levels. There has been disagreement as to whether this should continue to be a top down international

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Climate Justice Post-Durban

Mary Robinson

legally binding agreement or whether the objective of reducing emissions could better be achieved through voluntary commitments by countries. From a Climate Justice perspective, we, in MRFCJ, have argued for a legally binding international agreement as the only way to hold countries to account and to ensure that actions are taken to protect the most vulnerable. Without a legally binding agreement there is no obligation to act. Without a global agreement that includes all countries there is a risk that the voices of the most vulnerable will not be heard, and that the biggest polluters won’t do their fair share. Durban delivered a commitment to develop “a new protocol, another legal instrument or an agreed outcome with legal force” by 2015 which would come into force by 2020. Now there are two ways to read this – one is that this risks nothing meaningful being done to cut emissions until 2020. Or two, the more optimistic view (which I share) that we now have all countries of the world (including major polluters like the US who didn’t ratify the Kyoto Protocol) committed to working together as part of a multilateral process to develop a new legal agreement. There is wriggle room for those countries who are reluctant to sign up to a legally binding agreement in the term ‘an agreed outcome with legal force’ – however, the majority of countries are committed to a legally binding instrument and this is significant. Lots of work will need to be done, technical, legal and diplomatic to achieve the 2015 deadline. Four years to agree on many issues which divide us and many of which are core climate justice issues – such as equity, the right to development and the principle of common but differentiated responsibilities and respective capabilities. This principle of common but differentiated responsibilities is central to climate justice. It recognises that developed counties are more responsible for the causes of climate change than developing countries because the growth of their societies, based on the consumption of fossil fuels, put the greenhouse gases into the atmosphere that are causing the problem. This means that developed countries should act first to reduce emissions. Of course some developing counties like China, India and Brazil are now starting to have significant emissions – but responsibility for the bulk of greenhouse gases in the atmosphere rests with the developed countries first. The principle also recognises differences in capacity to address the problem. Those countries that are richer tend to have more skills, technology and resources with which to control emissions and are committed under the Convention to supporting those countries with less capacity to adapt to the impacts of climate change. Ireland has an opportunity to be involved in and inform discussions on these underlying principles – with a view to finding common ground and facilitating a new agreement. We can do this by drawing on our experience, our research expertise and our strengths in facilitating dialogue, in particular with developing countries. Meanwhile, the voluntary commitments made to reduce emissions in Cancun in 2010 need to be implemented and increased. It is expected that the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) and the outcomes of the 2013-2015 review of the global goal (to keep warming below 2°C) will provide additional evidence and impetus to set emissions reductions targets at a level which will safeguard us all from dangerous climate change. As part of this effort we will need to start looking at action on climate change – not as a threat to our economies and way of life – but as an opportunity for a better, more sustainable, quality way of life. And of course, we have an opportunity to champion this approach at home and to lead by example. The second priority issue for MRFCJ at COP17 was food security and agriculture. In recent years we have seen all too starkly the impact that extreme events such as floods and droughts can have on those least able to cope. Severe and recurrent drought was a major cause of the famine I witnessed in Somalia last July, further compounded in many regions by intense flooding in the autumn. There are also more subtle changes to seasons and rainfall patterns which have a significant impact on food security. Across the world farmers are experiencing unpredictable growing seasons, making the age old art and science of farming a guessing game. The world’s population is set to reach 9 billion in 2050 and it is estimated that by then 5

The Irish Yearbook of International Law 2011

up to 25% of world food production could be lost as a result of climate change, water scarcity and land degradation resulting in an increase of 10-20% in the number of people going hungry. The links between climate change and food security have been clear for some time and at Durban the challenge was to reflect the importance of food security and agriculture in the work of the Convention. Up to now food security and agriculture have not been a focus of the work of the Convention and work ongoing since 2009 by civil society, farming organisations, UN agencies and individual countries, has sought to bring these issues formally into the work of the Convention. This was finally achieved in Durban and while the decision falls short of establishing a work programme to explore these issues in the context of the Convention, it does open the door to this possibility. In 2012 Parties will consider how best to support a process to address the impacts of climate change on food security and the role of climate smart agriculture in finding ways to grow food under changing climatic conditions while safeguarding the environment and reducing greenhouse gas emissions. Ireland has the potential to make a significant contribution in this area drawing on domestic agriculture expertise and our international work on food and nutrition security. A particular aspect of food and nutrition security that links to our third priority issue (gender and climate change) is the role of women in food production and land management. We know that up to 75% of people living in developing countries rely on agriculture for their livelihoods – and that over 90% of Africa’s agricultural production comes from small-scale production. Many of these farmers are women, who play a critical role in food and nutrition security and are responsible for growing, buying, selling and cooking the food. Between 60 and 80 percent of the food produced in most developing countries is produced by women. In sub-Saharan Africa the figure is between 80 and 90 percent, yet women own less than 2 percent of the land. This takes me to our third theme in Durban - women’s leadership - through which we highlight the gender dimensions of climate change with the aim of supporting more gender equitable climate policies and actions. We know that gender blind actions in the past yielded poor results. Through decades of development work we have learned that to be successful we need to target women for agricultural training services and to maintain water pumps and irrigation systems, as they are often the ones responsible for these activities. Likewise if we are to find effective solutions to climate change we will have to include all those that can make a difference, men and women. Ignoring or undervaluing the contribution of women restricts our potential for innovation and our capacity to act. During COP17 I worked with an inspiring set of women leaders to highlight these issues. Through a Troika+ of women leaders including the COP President, Minister Maite NkoanaMashabane, former COP President Patricia Espinosa from Mexico and Christiana Figueres, Executive Secretary of the UNFCCC, the tone was set from the first day of the COP when Maite said in her opening remarks – “because we now have women leaders at the helm of this COP … the outgoing President, a woman and a very capable woman, Executive Secretary, a woman and a capable woman and the incoming president … it is a very nice coincidence so we will not give up this opportunity to make use of it”. And make use of it they did… Christiana Figueres held a COP women’s day on 5 December to highlight the impacts of climate change on women and women’s role in responding to the challenge. Then, on 7 December, Maite Nkoana-Mashabane and I co-hosted a meeting of women leaders to look at how the gender dimensions of climate change were being addressed in the texts under negotiation in Durban and with a view to Rio+20 this June. The event convened a large number of high profile women leaders including Connie Hedegaard EU Commissioner for Climate Action, US Ambassador-at-large Melanne Verveer, Christiana Figueres, ministers and directors of UN and other international organisations. We will continue work on this theme in 2012 by connecting these women leaders with grassroots

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Climate Justice Post-Durban

Mary Robinson

organisations to access real experiences and increase the effectiveness of their collective policy influencing. Overall the outcome from Durban reflected the emphasis being placed on gender in speeches and side events. The texts build on the significant efforts to address gender in the outcome from COP16 by addressing gender in actions to be taken by Parties as well as in relation to gender balance in the elected institutions under the Convention. So, overall where does COP17 leave us in our quest for climate justice? Firstly the door is open for a new international and inclusive legally binding agreement to solve the climate change problem. We have a start date, January 2012, a deadline December 2015, and a lot of work to do, barriers to breakdown and agreement to reach before then. Central to this will be overcoming the divide between developed and developing countries in the climate negotiations. The alliance formed between the EU, the Least Developed Countries and the Small Island Developing States at COP17 started to challenge this divide. It is a move in the right direction that will need to be nurtured and strengthened in the coming years to facilitate an ambitious new agreement. I believe Ireland can play a pivotal role in fostering and supporting these relationships, particularly during our Presidency of the EU in 2013. Secondly we need to keep on the pressure and increase the sense of urgency so that by 2015 Parties are ready to make ambitious commitments to reduce their greenhouse gas emissions. To accompany this we will need transparent and effective ways of ensuring equity related to the pace and scale of emissions reductions with those most responsible taking the lead. This is a key concern of developing countries who have yet to reap the benefits of fossil fuel powered growth and who fear having their development opportunities quashed by limits on their greenhouse gas emissions. These are core climate justice issues and MRFCJ will be working to mobilise world leaders, thinkers and those with influence to address these issues and find common ground. Thirdly, we made progress on issues of importance to climate justice including gender equality and food security. Both of these issues reflect the Principles of Climate Justice which underpin the work of MRFCJ and help to communicate the human impacts of climate change and demonstrate the need for solutions which are informed by human rights. This work is far from complete and we will continue to work on these themes inside and outside the Climate Change Convention as core elements of our work on climate justice. I welcomed the outcome of Durban because it marked progress and set targets. It was not the breakthrough needed to solve the problem now, but no one really expected that. Neither was it a failure; in fact it lays down a clear challenge to all the countries of the world – and particularly those responsible for the worst emissions – to get their act together before it is too late. A new roadmap has been set for seriously addressing climate change; we should all play our part in putting pressure on for the world’s leaders to take on their responsibilities. A new alliance was also formed – in the shape of the cooperation that emerged between the EU the LDCs and the small island states. That augurs well for the crucial negotiations that lie ahead. I firmly believe Ireland can play a leadership role in strengthening this alliance and championing a climate justice approach. I am heartened by recent references to the importance of climate justice by leaders in government, including the Tánaiste Eamon Gilmore in his address to the UN General Assembly last September. We now have an opportunity to embrace a human rights and justice inspired approach to addressing climate change which draws on our collective values, on our sense of empathy and on our positioning in the global community. One of the core principles of climate justice that we have adopted in MRFCJ is to Harness the Transformative Power of Education for Climate Stewardship. Education is a fundamental human right and is indispensable to the just society. It draws those in receipt of it towards a fuller understanding of the world about them, deepening their awareness both of themselves and of those around them. Done well, it invites reflection on ethics and justice that make the 7

The Irish Yearbook of International Law 2011

well-educated also good citizens, both of their home state and (in these global times) of the world as well. Universities and institutes of learning have a role to play in delivering multi-disciplinary teaching which increases consciousness of climate change from scientific, sociological and political perspectives. Linked to this is the need for research and innovation in the many disciplines that are affected by and hold the solutions to climate change. Embracing multidisciplinary research greatly facilitates a focus on the justice elements of the climate challenge. Initiatives in UCC like the Centre for Global Development and the Beaufort Laboratory, as well as UCC’s participation in the Irish Maritime Resource and Energy Cluster – all of which are based on collaboration, partnership, inter-disciplinary research and real world solutions - have an opportunity to champion climate justice research. They can also create networks and partnerships for Climate Justice Research in Ireland and with developing county partners. So, in wrapping up, I am encouraged to see the many opportunities to address climate justice in the research being undertaken here in UCC. I think you are well positioned to champion the concept of climate justice and to use it to inform your teaching and research. I believe you are well placed to show leadership by demonstrating what an inclusive, equitable, low carbon and climate resilient future can be in practice. In 2012 we will focus our minds once again on sustainable development, 20 years after the Earth Summit in Rio in 1992. We have certainly made some significant gains since then – but we have also ex-perienced first-hand the impacts of unsustainable development and challenges such as climate change risk undermining the advances we have made. Now is the time to imagine the future we want for the 9 billion people who will live on this planet in 2050. We need a new vision and the imagination and creativity to achieve it. Researchers, students and academics should play a key role in informing this vision and plotting a course to achieve it. Sustainable development considers the needs of future generations – we have a res-ponsibility to them. As Edmund Burke put it, society is “a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.”

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A Reorientation of Climate Justice Capability Justice and Climate Change Adaption PAUL GOVIND* I. INTRODUCTION

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limate justice is at a crossroads. The United Nations Framework Convention on Climate Change (UNFCCC) 18th Conference of the Parties meeting, which concluded in Dec-ember 2012, introduced loss and damage into international climate law for the first time and as a consequence has posed a significant challenge to current perceptions of climate justice.1 The inclusion of loss and damage is tacit recognition that some impacts of climate change are unavoidable despite the operation of both mitigation and adaptation policies. The climate regime has historically operated on the basis that whilst impacts will occur, countries and populations will largely be insulated if effective adaptation measures are taken. Justice has predominantly been pursued on this basis – protecting the most vul-nerable from the impacts of climate change through redistribution of primary goods such as financial assistance. This equitable approach with fairness at its centre resonates strongly with distributive justice. However, the inability to implement effective adaptation suggests distributive justice has failed. This article argues that capability justice is an increasingly important framework in the context of climate law and policy and in particular highlights key weaknesses in the distributive justice model. Amartya Sen, one of the chief exponents of the theory, maintains that capability justice moves beyond affording people the means to achieve objectives and rather focuses upon providing people (or nations) with the ‘actual ability to do the different things she values doing.’2 Capability justice can diversify the interests of vulnerable countries within the international community and certain sectors of the population within vulnerable nations. It provides a broader scope for understanding how the subject of redistribution such as wealth can be translated into the opportunities and capabilities for achieving those things a person values. This allows capability justice to recognise the individual circumstances that give rise to loss and damage, the impediments that can prevent the conversion of adaptation funding into meaningful outcomes and the extent of loss itself as each applies to an individual country. The flexibility of capability justice prompts Sen to remark: ‘To understand that the means of satisfactory human living are not themselves the ends of good living helps to bring about a significant extension of the reach of the evaluative exercise.’3

*

Lecturer, School of Law, Macquarie University.

1

United Nations Framework Convention on Climate Change, Conference of the Parties ‘Report of the Conference of the Parties on Its Eighteenth Session, Held in Doha from 26 November to 8 December 2012’ Draft Decision /CP.18 (Herein referred to as the ‘COP18 Decision’) 2

A Sen, The Idea of Justice (London, Allen Lane, 2009) 253.

3

Ibid. 234.

The Irish Yearbook of International Law 2011

The opening section of this article will provide an overview of capacity justice as formulated by leading exponents for the theory Amartya Sen and Martha Nussbaum.4 A critical reappraisal of distributive justice will also be provided to highlight the underlying rationale and unique features of capability justice. Building upon this theoretical foundation the following section will demonstrate the relevance of capability justice to climate law and policy. The specific focus will be upon how capability justice offers a more effective basis to evaluate climate change adaptation policy in the international climate regime. It is argued that as opposed to distributive justice capability justice focuses upon implementation of adaptation policy and delivering outcomes. Sen’s point about conversion of wealth into capabilities is particularly important in this context. This allows a more nuanced understanding of how effective measures such as adaptation funding respond to the needs of individual nations in relation to particular vulnerabilities. The final substantive section will look at the recent challenges posed to climate justice by the inclusion of loss and damage under the UNFCCC process. This discussion will also include the important inter - relationship between managing climate change impacts and natural disasters as reiterated at COP18. This has highlighted some similarities but also crucial differences between climate change and disaster policy when conceptualising loss and damage – for example damage caused by slow onset climate impacts. It is argued that the focus capability justice gives to ‘good living’ means it is receptive to non-economic loss such as potential loss of culture and heritage that cannot be quantified or replicated.

II. PROMOTING A JUSTICE FRAMEWORK

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heories of justice are pursued to ‘critically appraise existing institutions and to guide for social change.’ 5 Ebbesson observes that developing ideas of justice requires limiting the framework for debate.6 Whilst justice concerns have permeated debates within the international law realm there are few explicit statements regarding justice. As a result the extent to which the climate change regime reflects a justice framework must be deduced from two interrelated elements: the overall objectives of the climate change regime and the means by which these objectives are to be achieved. Sen maintains that, ‘The requirements of a theory of justice include bringing reason into play in diagnosis of justice and injustice.’ 7 A major object of justice theory is to ‘provide the intellectual basis for moving from a general sense of injustice to particular reasoned diag-noses of injustice, and from there to the analyses of ways of advancing justice.’ 8 The application of a justice framework provides objective criteria that gives effect to particular objects and thereby guides the operation and application of a legal system. It therefore affords an opportunity to evaluate the effectiveness of laws and law making in relation to the prevention of manifest injustice. As capability justice is in many ways a response to the inadequacies of distributive

4

M Nussbaum Women and Human Development: The Capabilities Approach 1st edn (Cambridge, Cambridge University Press, 2000); Creating Capabilities - The Human Development Approach 1st edn (Cambridge, MA, The Belknap Press of Harvard University Press, , 2011). 5

Ibid. 4.

6

J Ebbesson, ‘Introduction: Dimensions of Justice in Environmental Law’ in J Ebbesson and P Okawa (eds), Environmental Law and Justice in Context (Cambridge, Cambridge University Press, 2009) 1, 2. Other theories argue that justice should not be limited to human beings but also non-human species. 7

Sen, The Idea of Justice (n 2) 5.

8

Ibid.

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Paul Govind

justice it is necessary to provide an overview of the earlier theory before proceeding to an analysis of capability justice. Distributive Justice Distributive justice is a version of a broader theory known as ‘transcendental institutionalism.’ 9 Transcendental institutionalism focuses upon establishing just institutional arrangements for a given community and remains the dominant theory in contemporary discussions of justice. It has two component parts. The object of transcendental institutionalism is to achieve ‘perfect’ justice through the just operation of institutions. As such Sen characterises transcendental institutionalism as being an ‘arrangement focused’ view of justice - meaning justice is conceptualised in terms of certain organisational arrangements.10 Exponents of transcendental institutionalism have embraced a number of assumptions regarding human behavior in particular. Key to this approach among is the idea of a ‘social contract.’ John Rawls is the chief exponent of modern distributive justice. Rawls’ conception of the social contract focused not only on institutions but also behaviour when discussing the selection of the ideal society. Rawls called this the ‘original position’ and it represents the foundation of the distributive justice framework. The original position describes the situation in which choices are made about the ideal or at least preferential principles of justice that will underpin society. The selection is made under a ‘veil of ignorance’ where no person has any conception of vested personal interest and therefore is unable to choose particular justice principles simply on the basis that such a choice would benefit them personally. He weds this concept to what his ‘foundational idea’ that ‘justice has to be seen in terms of the demands of fairness.’11 Establishing fairness as a foundational idea allowed Rawls to condition any discussion and development of justice on the basis of fairness. Given that nobody has the knowledge of how the outcome will affect them decisions are made on the basis of ensuring impartiality and fairness. Rawls has claimed that: ‘the original position is the appropriate initial status quo that insures that the fundamental agreements in it are fair. The fact yields the name ‘justice as fairness.’ 12 Rawls’ primary, though not exclusive, vehicle to implement distributive justice is transferral of primary goods. What actually constitutes primary goods can vary depending on the context but includes basic things such as income and wealth. Primary goods are intended to be instrumental in bringing about change. This effectively makes distributive justice a ‘means orientated’ justice system. Rawls identifies disadvantage on the basis of the means people or communities possess. Therefore, the way to overcome this disparity and deliver justice is to simply provide the means that would enable people of communities to do – that is, the redistribution of primary goods such as wealth. Contours of Capability Justice Capability justice is particularly fascinating because its theoretical underpinnings and justifications are in large part a response to the perceived shortcomings of distributive justice. The basis of capability justice is to offer an alternative, arguably more effective, way of evaluating whether laws and legal institutions offer justice. It is a departure from the strict means focused approach of distributive justice. The key difference is the manner in which

9

See Sen, The Idea of Justice (n 2).

10

Ibid. 6.

11

Ibid. 53.

12

See J Rawls, A Theory of Justice (Oxford, Clarendon Press, 1972) 17.

11

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efforts to achieve substantive freedom is evaluated. Sen recognises how different values will necessarily inform competing justice theories which must select ‘an inform-ational focus, that is, it has to decide which features of the world we should concentrate on in judging a society and in assessing justice and injustice.’13 Capability justice is concerned with: a person’s capability to do things he or she has reason to value. A person’s advantage in terms of opportunities is judged to be lower than that of another is she has less opportunity – less real opportunity – to achieve those things that she has reason to value.14 The capability justice approach is inherently more flexible than employing distributive justice and does not avail itself of a universal formula applied to society at large. The application is therefore on a more individual basis where incidents of manifest injustice emerge. It does not promote primary goods as the key measurement of equity but rather focuses upon the improvements it can make to human life. As a consequence it ‘proposes a serious departure from concentrating on the means of living to the actual opportunities of living.’15 In comparison to distributive justice Sen argues that the ‘capability approach is particularly concerned with correcting this focus on means rather than on the opportunity to fulfill ends and the substantive freedom to achieve those reasoned ends.’ 16 The focus on a person’s actual ability means capability justice places greater emphasis on individual variations among members in a given community. Such individual variations will inevitably impact the capability of a person to convert income or wealth into substantive freedoms. A particular example of variation listed by Sen and relevant to this article is ‘diversities in the physical environment.’ 17 Whilst Sen describes the situation with regard to the obstacles faced by an individual, it resonates strongly with environmental challenges endured by communities more broadly- ‘How far a given income will go will depend also on environmental conditions, including climatic circumstances, such as temperature ranges, or flooding.’18 Realisation v. Transcendental Institutionalism Sen’s underlying rationale for capability justice extends from his identification of inadequacies with distributive justice. The main point of departure between versions of transcendental institutionalism such as distributive justice and capability justice is the latter’s focus on ‘actual realisations and accomplishments, rather than only on the establishment of what are identified as the right institutions and rules.’ 19 He maintains that limiting justice analysis to institutions is unduly restrictive and asks whether we should also ‘examine what emerges in the society, including the kind of lives that people can actually lead, given the institutions and rules, but also other influences, including actual behavior, that would inescapably affect human lives?’ 20

13

Ibid. 231.

14

Ibid.

15

Ibid. 233.

16

Ibid. 234.

17

Ibid. 255.

18

Ibid.

19

Ibid. 10.

20

Ibid.

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A Reorientation of Climate Justice

Paul Govind

As mentioned the distribution of primary goods is central to distributive justice theory. Rawls identifies disadvantage on the basis of the means people or communities possess. Therefore, the way to overcome this disparity and deliver justice is to simply provide the means that would enable people of communities to do – that is, the redistribution of primary goods such as wealth. Sen argues that delivering justice in this way is inherently limited and operates ‘without taking into account the wide variations they have in being able to convert primary goods into good living.’21 Sen believes that focusing on enhancing a person’s capabilities can provide a much more accurate appraisal and evaluation of whether justice is being delivered. The underlying rationale for the capability justice approach is as follows: The conversion of primary goods into the capability to various things that a person may value doing can vary enormously with differing inborn characteristics…as well as disparate acquired features of the divergent effects of varying environmental surroundings…There is, thus, a strong case for moving from focusing on primary goods to actual assessment of freedom and capabilities.

III. CAPABILITY JUSTICE AND CLIMATE JUSTICE Capability Justice and the Natural Environment

S

en has utilised the capability approach principally in the context of economic development that is particularly relevant to the focus of this article. The relationship between economic development and the natural environment as a resource is considered by Sen.22 It affords Sen the opportunity to underline the importance of environmental conditions in facilitating functioning lives. Proponents of capability justice underline how climate/environmental conditions can detrimentally affect the ability to construct functioning lives – central to capability theory. The underlying point is that the concept of sustainability should necessarily be extended to capabilities that are enjoyed in reliance of the natural environment and upon its pres-ervation. Therefore, any environmental activity that would undermine the freedoms and capabilities of future generations must be treated as unjust. This resonates with Schlosberg’s observation that, ‘Any conception of a capabilities-based notion of climate justice must focus on the way that changes in the climate system…will impact the capabilities of other human beings, now and into the future.’ 23 Holland argues that under the capacity justice framework the natural environment represents a ‘meta-capability.’ 24 As a meta-capability the natural environment is instru-mental as it is necessary for the functioning of all other capabilities identified by Nussbaum. Holland terms this meta-capability as Sustainable Ecological Capacity. The instrumental role fulfilled by the natural environment is the basis for Holland’s conception of the environmental justice threshold where a natural ecosystem has the ability to

21

Ibid. 66.

23

See generally A Sen, Development as Freedom (Oxford, Oxford University Press, 1999); also see A Sen, Commodities and Capabilities (Oxford, Oxford University Press, 1999). 24

D Scholsberg, ‘Justice, Ecological Integrity, and Climate Change’ in A Thompson and J Bendik-Keymer (eds), Ethical Adaptation to Climate Change – Human Virtues of the Future (Boston, The MIT Press, 2012) 169. 25

B Holland, ‘Justice and the Environment in Nussbaum’s ‘Capabilities Approach – Why Sustainable Ecological Capacity is a Meta-Capability’ (2008) 61(2) Political Quarterly 319, 320.

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sustain itself and in addition others that are dependent upon it. Holland concludes that, ‘As long as ecological systems have the functional capacity to sustain the conditions enabling the minimum threshold level of … capabilities … the ecological conditions of justice are met.’ 25 Capability Justice and Adaption - Vulnerability Capability theory has been specifically applied to climate change adaptation by Schlosberg. The focus is upon contextualising adaptation among other underlying vulnerabilities and thereby reaching a more inclusive understanding of how climate change exacerbates preexisting frailties in a given society. This has relevance in terms of justice regarding the design and practical implementation of adaptation policy and on the ground. Schlosberg outlines a successful application of capability based justice to climate change as including: [t]he focus would be on how climate change makes our lives more vulnerable in terms of the impacts on the environmental basis of capabilities, and how a notion of climate justice can more directly address that vulnerability as we adapt to new environmental conditions.26 The Preamble to the UNFCCC describes a variety of physical and geographic features that make a country vulnerable to climate change impacts. The list is not exhaustive and fails to provide a definition of vulnerability and includes, ‘low-lying and other small island countries, countries with low-lying coastal, arid and semi-arid areas or areas liable to floods, drought and desertification, and developing countries with fragile mountainous ecosystems.’27 Paavola and Adger maintain that, ‘The concept of vulnerability is central for climate justice because it helps to tie the primary concerns of adaptation scholarship to those of moral philosophy.’28 Problematically, however, Klein observes that ‘There is no objectivist ‘truth’ in vulnerability assessment; any agreed approach will have to be the socially construct-ed outcome of a negotiation process.’ 29 This article reflects vulnerability in the context of both climate change impacts and economic fragility that affects particular nations. The basis of effectively managing adaptation to take account of contextual and temporal considerations is dependent upon a complex and broadened understanding of vul-nerabilities. Capability justice provides an enhanced view of vulnerabilities that highlights the synergies between climate change impacts and other pre-existing stressors – thereby creating a context for vulnerability. This serves as the basis for identification of the direct and indirect

26

Ibid, 328.

27

Schlosberg, ‘Justice, Ecological Integrity’ (n 24) 171.

28

For further discussion of vulnerability and physical and geographic factors see, R Mendelsohn, A Dinar and L Williams, ‘The Distributional Impact of Climate Change on Rich and Poor Countries’ (2006) 11 Environment and Development Economics 159. This should be contrasted with the definition of vulnerability provided by the IPCC: ‘The degree to which a system is susceptible to, or unable to cope with, adverse effects of climate, including climatic variability and extremes. Vulnerability is a function of the character, magnitude, and rate of climate variation to which a system is exposed, its sensitivity and adaptive capacity.’ J J McCarthy, O F. Canziani, N A. Leary, D J Dokken, K S. White, Climate Change 2001: Impacts, Adaptation, and Vulnerability: Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, Cambridge University Press, 2007) (‘IPCC AR3’).The IPCC AR3 outlines the requirements necessary for a country to have a high adaptive capacity: a stable and prosperous economy, a high degree of access to technology at all levels, delineated roles and responsibilities for implementation of adaptation strategies, systems in place for dissemination of adaptation information and equitable distribution to resources. 29

J Paavola and W N Adger, ‘Fair Adaptation to Climate Change’ (2006) 56 Ecological Economics 594, 604.

30

R J T Klein and A Mohner, ‘The Political Dimension of Vulnerability: Implications for the Green Climate Fund’ (2011) 42 International Development Studies Bulletin 15, 16.

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Paul Govind

consequences of adaptation projects and can therefore help guard against maladaptation and the attendant notion of injustice. The flexibility of capability justice recognises that the relationship between poverty and vulnerability to climate change impacts will also vary according to the specific context. Brown has observed that, ‘The vulnerability…of societies is determined not only by the direct impacts of climate change on the resources upon which people depend, but also by the availability or resources and people’s entitlements to call on them.’ 30 Crucially, ‘social vulnerability assessment’ stresses the relationship between ‘climate and non-climate related causes of losses associated with climatic disturbance.’ 31 This particular method of vulnerability assessment highlights the importance of social and political factors when analysing the damage caused by so-called natural disasters. The social impacts are often the result of human policies that have created the vulnerabilities later exacerbated by the effects of environmental events. Consequently, humans can more effectively manage the impacts of such events through reduction of vulnerabilities and thereby mitigating the damage associated with natural disasters. Of particular importance is the relevance of difference in reaching a more complete understanding of vulnerability. A distributional inequity in access to resources among poorer sections of the population affects the capacity to cope with environmental shocks. The underlying point was that vulnerability assessment must take into account difference. In relation to vulnerability on a national level this underlined the importance of resource distribution and management in terms of managing risk. Polsky and Eakin note that when applied in the context of climate change social vulnerability assessment: highlighted the importance of adding global and national socio-economic processes alongside climate as exogenous drivers of climate change vulnerability, and characterized vulnerability, and characterized vulnerability largely in terms of differential capacities for coping with shocks rather than differential exposure to exogenous stress.32

Poverty Cycle and ‘Conversion Capability’ The ultimate objective for Sen was the application of the capability approach to help improve development programs in accordance with quality of life assessments. Sen’s specific focus has been upon the underlying conditions that enable people to choose and develop fully functioning lives. The ability to develop fully functioning lives is critically dependent on an ability to understand the relationship between vulnerability to climate change impacts and other related vulnerabilities.

On a global scale poorer countries, such as LDCs, find it more challenging to recover from past extreme weather events and prepare for future disasters because of their low economic capacity.33 These factors lead to LDCs being caught in a ‘poverty trap’ as econ-omies continue

31

K Brown, ‘Sustainable adaptation: An oxymoron’ (2011) 3 Climate and Development 21, 26.

32

C Polsky and H Eakin, ‘Global Change Vulnerability Assessments: Definitions, Challenges, and Opportunities’ in J Dryzek, R B Norgaard and D Schlosberg (eds) The Oxford Handbook of Climate Change and Society (Oxford, Oxford University Press, 2011) 205, 207. 33

Ibid.

34

S Fankhauser and A Bowen, ‘Low Carbon Development for the Least Developed Countries’ (2011) 12 World Economics 1, 4.

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to shrink due to poor production from adversely effected economic practices such as agriculture, and having to devote significant portions of the economy to recovery measures following the impacts of extreme weather events. The risk of being caught in the poverty trap is heightened significantly by climate change. Loss is compounded in the case of LDCs due to the proximity of populations to the regions that are susceptible to climate change. For example, the regions most in danger of drought are located in Sub-Saharan Africa – an area that features 15 LDCs. Generally one third of Africa’ s population inhabit drought prone areas and the United Nations Office of the High Representative for the Least Developing Countries, Landlocked Developing Countries and Small Island Developing States (UN-ORHLLS) has predicted that by 2020 between 70 - 220 million in Africa will suffer climate change induced water shortage and stress.34 Using the terminology Sen employs in the discussion of capability justice and disability is particularly apt. Poorer countries are impaired in terms of their lack of income-earning ability or ‘earning handicap’ as recognised under the UNFCCC. However, a key observation drawn from studies on disability is the ‘conversion handicap.’ Within the framework of capability justice this refers to the inability to convert income, wealth and other primary goods into good living because of the disability. The similarity to countries particularly vulnerable to climate change is clear. The conditions that make such countries vulnerable in the first place undermine the use of funds for the purposes of development. Capability justice therefore provides a more complete understanding of poverty. In particular it helps to understand the cyclical nature of poverty by highlighting how the earning handicap that is characteristic of poorer countries is compounded by the conversion handicap. The importance of the conversion handicap is not evaluated under the distributive justice framework because its understanding of distributional fairness focuses exclusively on the income distribution. This outcome is inadequate according to Sen, stating it ‘prevents an understanding of the predicament of disability and its moral and political implications for social analysis.’35 A similar observation can be made in relation to climate change and the predicament of the poverty cycle that poorer countries are subjected to. Maladaptation/Eco-based Adaptation The relationship between adaptation and development is well known. However, concerns have been raised as to the extent to which adaptation and development objects are mutually reinforcing. Capability justice stresses the need for adaptation to be flexible – a principle that resonates strongly with sustainable adaptation. Brown maintains that adaptation is broadly perceived as being subsumed in the development discourse – that is it measured principally through its ability to insulate economic growth from climate change impacts.36 This has resulted in a disjuncture between adaptation and some of the key principles of sustainability such as precaution and intergenerational equity. Eriksen and others pinpoint three key vulnerabilities that sustainable adaptation can counteract.37 Of particular note is the relationship between poverty and sustainable adaptation. Eriksen and others maintain that prevailing climate change policy merely identifies this linkage but nothing more:

35

United Nations Office of the High Representative for the Least Developing Countries, Landlocked Developing Countries and Small Island Developing States (UN – OHRLLS), ‘The Impact of Climate Change on the Least Developed Countries and Small Island Developing States’ ( 2009) 15. 36

Sen, The Idea of Justice (n 2) 260.

37

Brown, ‘Sustainable adaptation’ (n 31) 28.

38

S Eriksen, P Aldunce, C Sekhar Bahinipati, R D’almeida Martins, J I Molefe, C Nhemachena, K O’Brien, F Olorunfemi, J Park, L Sygna and Kn Ulsrud, ‘When not every response to climate change is a good one: Identifying principles for sustainable adaptation’ (2011) Climate and Development 7, 10.

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Paul Govind

The tendency of poor people to be highly vulnerable to climate change is often used as a justification for implementing adaptation; however, whether or not the proposed adaptation measures will actually assist poor groups is seldom assessed. Since not any and every adaptation intervention reduces poverty and inequality…sustainable adaptation measures need to specifically target links between vulnerability and poverty.38 In order to achieve resilience to climate change impacts the multiple stressors that contribute to vulnerability must be addressed. Capability justice recognises the importance changing conditions have on the assessment and delivery of justice. The awareness of context is also crucial in terms of sustainable adaptation. The point being that social justice must reflect the implementation of adaptation policy over the course of a period of time. Snap shot assessments of the effectives of adaptation and therefore justice concerns are myopic in the context of climate change where environmental conditions remain subject to unpredictability and change. In terms of sustainable adaptation Eriksen and others have commented that,‘The types of responses that contribute to social equity and environmental integrity will depend on context, and therefore vary between people and places, and over time…practices need to change as the context changes.’ 39 Capability justice can help prevent maladaptation. Adaptation actions vary in purpose. A basic distinction is between ‘hard’ and ‘soft’ actions. Examples of hard actions include the construction of sea walls and levees that involve capital goods and are specifically designed to protect against a clear and identifiable risk. Soft adaptation actions on the other hand are concerned with behavioral change. Less concerned with responding to an immediate threat soft adaptation actions operate on a long-term basis and include capacity building and information sharing. Historically, hard adaptation actions have proven more popular due to in part the relative ease with which their benefits could be measured. However, hard adaptation actions such as infrastructure are often classified as ‘high regret’ measures meaning once built they are very difficult to reverse and any negative impacts will have a substantial legacy. Such negative impacts can include a consequence called ‘maladaptation.’ This is defined by the Intergovernmental Panel on Climate Change (IPCC) as ‘any changes in natural or human systems that inadvertently increase vulnerability to climate stimuli; an adaptation that does not succeed in reducing vulnerability but increases it instead.’40 The underlying point is that short-term benefits could result in longer term problems if adequate consideration is not given to the particular circumstances that have given rise to vulnerabilities. Relevant factors include funding, information, capacity of the population in question and importantly the impact upon ecosystems. The prospect of maladaptation reinforces the idea that climate change adaptation is a process where the level of risk and vulnerability must be monitored. Maladaptation is also important in terms of assessing whether justice has been afforded to the most vulnerable. Investment in adaptation actions, particularly hard actions, can provide a false sense of security. If the level of vulnerability is not reduced or is indeed heightened then under the capability justice framework justice has not been delivered. It is not enough simply to invest capital into infrastructure projects – the issue of justice relates to the outcome. Maladaptation is clearly an undesirable outcome. As a concept maladaptation has its roots in disaster risk management. Studies into natural disasters conducted as early as the 1930s concluded that ‘levees can provide a false sense of security and are eventually fallible, ultimately leading to increased risk.’ As a consequence other approaches were endorsed such as environmental management of river basins to reduce

39

Ibid, 10.

40

Ibid.

41

See IPCC, Climate Change 2001 Synthesis Report (2001) 378.

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the risk of flooding.41 This approach has obvious applications for climate change adaptation also. The significance is the endorsement of an approach akin to soft adaptation and particularly one that is sensitive to environmental concerns. Eco-based adaptation is founded upon this idea. Climate change adaptation measures must reflect due consideration for potential impact on other areas of the environment. This is due in part to issues such as biodiversity, but also the reliance that certain nations have upon the environment as a resource. Overall adaptation measures, particularly hard or technological measures, must be sensitive to local needs, capacities and development goals. The IPCC has recommended that, ‘This calls for greater reflection on the social, economic, and environmental consequences of technology across both space and time. In many cases, res-ponses to climate extremes can be improved by addressing social vulnerability, rather than focusing exclusively on technological responses.’ 42 This approach to adaptation resonates strongly with capability justice that underlines the importance of looking at what is necessary to help a person in terms of actual ability to achieve actual outcomes. An approach that gives effect to capability justice seeks to improve the lives of the people affected by vulnerability be it a nation or community within a nation. In terms of ecosystem-based adaptation the IPCC after reviewing a number of case studies concluded that, ‘Ecosystem-based solutions in the context of changing climate risks can offer ‘triple-win’ solutions, as they can provide cost-effective risk reduction, support biodiversity conserv-ation, and enable improvements in economic livelihoods and human well-being, partic-ularly for the poor and vulnerable.’ 43 Compared to distributive justice, capability justice adopts a broader perspective of what justice means in the context of climate change – beyond the transfer of wealth through funding – and therefore affords a more effective evaluation of the particular adaptation measure. The following case studies illustrate how giving effect to a capability justice goal provides for a satisfactory outcome in terms of climate change adaptation, environmental integrity and overall well-being. The examples underline the importance of pursuing adaptation actions in a manner that considers the impact on ecosystems and the populations that rely upon them. In doing so, key principles of capability justice are illustrated. The adaptation measures constitute interventions aimed at maintaining the environmental integrity of particular values such as biodiversity and resources. This echoes the meta-capability approach to sustainable ecological capacity formulated by Holland and the need to maintain the minimum threshold of capabilities that depend on the natural environment. Underlined further is the importance of ensuring that the capability of local communities is not compromised. The first example relates to restoring wetlands in the Lower Danube. The conversion of floodplains into farming area has meant there is a high level of vulnerability to flooding – exacerbated by climate change. The initiative to adapt to these changes was spearheaded by the World Wildlife Fund. Adaptation in this context was designed as a soft measure that was the restoration of the flood plain to create the ‘Lower Danube Green Corridor.’ The use of an ecosystem-adaptation approach had other ecological benefits for the population including higher water quality, restoration of fisheries, forestry and species migration. The focus upon the substantive outcomes is the hallmark of the capability justice approach.44

42

See, I Burton, R Kates and G White (eds) The Environment as Hazard (New York, Guildford Press, 1978).

43

Intergovernmental Panel on Climate Change, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation – A Special Report of the Working Groups I and II of the Intergovernmental Panel on Climate Change (New York, Cambridge University Press, 2012) 448. 44

Ibid. 343.

45

World Bank, Convenient Solutions to an Inconvenient Truth: Eco-Based Approaches to Climate Change (Washington, World Bank, 2009) 50.

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Similar observations can be made with regard to measures adopted in the Gulf of Mexico. The ecosystem includes vast wetlands covering over 14, 000 sq km and coastal swamps of Tabasco and Campeche that are rich sources of biodiversity. The wetlands are also instrumental in maintaining the water cycle. The area is particularly vulnerable to a number of climate change impacts including sea level rise, salt-water intrusion and more frequent and severe extreme weather events. The consequences are often high in economic and social terms. The World Bank prepared a project that explored options of reducing vulnerability using an ecosystem-based approach including integrating adaptation into resource management decisions, restoring mangrove swamp ecosystems through land use management and reintroduction of native species.45 The second example concerns the role of indigenous people and knowledge in Peru. As discussed earlier, capability justice is concerned with the actual ability of a person and recognises that different circumstances will necessarily influence this. This is particularly the case in relation to disadvantaged and marginalised groups – for example indigenous people. Indigenous people are particularly vulnerable to climate change but possess invaluable knowledge relevant to ecosystem-based adaptation. The project has received funding under the Global Environmental Facility (GEF) – the financial mechanism of the UNFCCC. The Salinas and Aguada Blanca National Reserve is an important source of biodiversity and water supply. Climate change has impacted the area due to melted glaciers and less precipitation that has caused water shortages. The GEF has given financial support to adaptation efforts but the critical element that has allowed, in the words of Sen ‘conversion’ of funds into capability, is the use of indigenous knowledge. The adaptation measures employed included water retention terracing, small ditches and other techniques reliant upon indigenous knowledge and not used since the Spanish occupation of Peru. Inclusion of indigenous knowledge was key to giving effect to an outcome that increased the capabilities of people in relation to the natural environment thereby giving effect to capability justice and ensuring a better environmental outcome.46

IV - CAPABILITY JUSTICE AND ‘LOSS AND DAMAGE’

C

OP18 witnessed the emergence of a number of issues that pose significant conceptual and practical challenges to the continued application of justice. This section will focus in particular on non-economic loss and slow onset climate impacts. It represents the culmination of a process initiated during COP16 in 2010 where the UNFCCC decided to establish a work program on approaches to loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to climate change.47 The COP requested the Subsidiary Body for Implementation (SBI) to take the issue of loss and damage under consideration with a view to delivering a set of recommendations at COP18. The SBI published the contours of a work program on loss and damage that includes three broad focus areas:

46

Ibid. 50 – 51.

47

Ibid. 53 – 54.

48

UNFCCC ‘Report of the Conference of the Parties on Its Sixteenth Session, Held in Cancun from 29 November to 10 December 2010 – Addendum – Part Two: Action Taken by the Conference of the Parties at Its Sixteenth Session’ (15 March 2011) UN Doc FCCC/CP/2010/7/Add.1 Decision 1/CP.16 (Herein referred to as the ‘Cancun Agreements’), paras 25 – 29. For further discussion on the history of loss and damage under the SBI, see, J Hyvarien, ‘Loss and Damage Caused by Climate Change: Legal Strategies for Vulnerable Countries’ (Briefing, Foundation for International Environmental Law and Development).

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  

Risk assessment of loss and damage associated with the adverse effects of climate change Consideration of different approaches to understanding and addressing loss and damage – including both impacts related to extreme weather events and slow onset events The role of the UNFCCC in enhancing the implementation of approaches to address loss and damage.48

The second theme was considered at regional level through a series of meetings. The meetings were held in Africa, Asia/Eastern Europe, Latin America and the Caribbean (representing Small Island States) with each meeting assuming a regional focus. Each meeting was conducted on the basis of common themes concerning loss and damage. However, the conclusions revealed that priorities and approaches to managing loss and damage differed. To an extent this outcome would no doubt have been anticipated as the particular environmental conditions and vulnerability are different. The conclusions of the SBI resonate strongly with the theoretical basis of capability justice. Highlighted is the role of using local knowledge in vulnerable nations to fill gaps in assessment methodology relating to loss and damage. This is important from both a practical and conceptual perspective. It affords vulnerable nations and communities within to specify how loss and damage will threaten their particular lifestyles both individually and collectively. This approach resonates strongly with capability justice because it is receptive to what is particularly valued by the nations exposed to heightened vulnerability from climate change. The emergence of ‘loss and damage’ could prompt a re-think of the conceptual boundaries of adaptation as a concept and also its practical limitations. This point was made during the course of negotiations by a negotiator for the Seychelles: If we had more ambition [on emission cuts from rich countries], we would not have to ask for so much [money] for adaptation. If there had been more money for adaptation [to climate change], we would not be looking for money for loss and damage. What’s next? Loss of our islands?49 The concept of loss and damage resonates strongly with capability justice. Capability justice however is more receptive to values associated with non-economic loss. As outlined in the earlier sections of this article capability justice focuses ‘actual ability to do the different things that she values doing’ in order to provide a ‘good living.’ To reiterate, the focus of capability justice is upon occurrences of manifest injustice. The application of capability justice can potentially re-orientate the direction of the regime toward concentrating on actual loss. The concept of loss and damage extends to include damage from extreme weather events, slow onset damage from occurrences such as sea level rise and both economic and non-economic loss. The inclusion of non-economic loss, for example cultural loss, loss of ecosystems, melted glaciers, loss of human life, does not resonate strongly with the means orientated approach of distributive justice but does reflect qualities required for a ‘quality life’ that is the focus of capability justice theory. The problem becomes more acute with regard to non-economic loss such as cultural heritage, ecosystems and loss of life. Case studies undertaken by the Loss and Damage in Vulnerable Countries Initiative have revealed that even in the context of climate change

49

See, Subsidiary Body for Implementation, United Nations Framework for the Convention of Climate Change, ‘Approaches to Address Loss and Damage Associated with Climate Change Impacts in Developing Countries that are Particularly Vulnerable to the Adverse Effects of Climate Change to Enhance Adaptive Capacity at its Thirty Seventh Session’ (1 December 2012) UN Doc FCCC/SBI/2012/L.44. 50

T Akanle Eni-ibukun, J Allan, B Antonich, A Appleton, E Kosolapova, K Kulovesi and E Recio (11 December 2012) 12(567) Earth Negotiations Bulletin 20 accessed 22 January 2013.

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adaptation non-economic loss persists. A particular study in Bhutan found that changes in precipitation attributed to global warming had lead to problems regarding irrigation for smallscale farmers. A number of adaptation measures have been pursued such as water sharing and changing the types of crops grown. However, the policies have not been effective and have resulted in substantial economic losses to the farmers. Of particular importance to this article is the detrimental effect this has had on non-economic values on the community affected. The majority of farmers stated that the water sharing had resulted in increased tensions, violence and vandalism. The authors of the report concluded that assessment of the costs needed to include social costs in terms of undermining social cohesion and livelihood security.50 This is a good example of where the deficiencies of distributive justice and the corresponding strengths of capability justice are highlighted. The funds for adaptation measures simply have not achieved a suitable outcome. The impact upon the community threatens to undermine cultural understandings. The permanency of loss in this context challenges prevailing notions of adaptation and even more radical ideas such as compensation.51 The loss is irreversible and often the value of the subject matter cannot be quantified. The process of slow onset impacts will affect lives differently over time as needs and values change. Capability justice affords an opportunity to examine policy in this light and evaluate its effectiveness in a changing context. Natural Disaster and Climate Loss and Damage The COP18 decision on loss and damage gives explicit recognition to the relationship between loss and damage caused by climate impacts and natural disaster risk manag-ement.52 The preamble takes note of the ‘relevant knowledge’ outside of the UNFCCC:53 Disaster risk reduction and management complements climate change adaptation policy. There are many similarities that allow disaster risk management to inform the practical application of climate adaptation policy. However, there are key differences chief among them being the slow onset impacts related to climate change. The COP18 decision reflects agreement that the UNFCCC has a role in promoting the implementation of approaches to address loss and damage including: 5. Also agrees that the role of the Convention in promoting the implementation of approaches to address loss and damage associated with the adverse effects of climate change includes, inter alia, the following: (a) Enhancing knowledge and understanding of comprehensive risk management

51

N Wangdi and K Koesters, Loss and Damage: The Costs of Adaptation in Punakha, Bhutan: Loss and Damage Associated with Changing Monsoon Patterns (November 2012) accessed 30 January 2013. 52

The idea of compensation was mooted in a submission by the Small Island Developing States to the Subsidiary Body for Implementation, UNFCCC SBI (Bolivia, Ecuador, China, El Salvador, Guatemala, Thailand, Philippines, and Nicaragua) ‘Theme III – The Role of the Convention in enhancing the implementation of approaches to address loss and damage associated with the adverse effects of climate change’ (7 November 2012) accessed 1 December 2012. 53

UNFCCC Cop18 Decision, para 3.

54

This includes the IPCC, [C.B. Field, V. Barros, T.F. Stocker, D. Qin, D.J. Dokken, K.L. Ebi, M.D. Mastrandrea, K.J. Mach, G.-K. Plattner, S.K. Allen, M. Tignor, and P.M. Midgley (eds)] Special Report of the Intergovernmental Panel on Climate Change, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation, The Global Assessment Report on Disaster Risk Reduction, the Hyogo Framework for Action 2005 -2015: Building the Resilience of Nations and Communities to Disasters (Cambridge, Cambridge University Press, 2012).

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approaches to address loss and damage associated with the adverse effects of climate change, including slow onset impacts.54 Central to the disaster risk community is the United Nations International Strategy on Disaster Reduction (UNISDR). Following the adoption of the Hyogo Framework for Action (HFA)55 the UNISDR was mandated to ensure its implementation. Whilst the HFA does not specifically mention the slow onset of climate change it promotes ‘the integration of risk reduction associated with existing climate variability and future climate change into strategies for the reduction of disaster risk and adaptation to climate change.’ It has been noted that whilst the reference to the future could be recognition of slow onset impacts, the HFA only covers to 2015 and is therefore limited in terms of its application to climate change. Managing loss and damage from climate impacts can draw upon key lessons from the disaster management community. Whilst both ex-ante (pre-disaster) and post-ante (post disaster) policies will be required, it is the latter that poses the most conceptual and practical difficulty for climate justice. The most fundamental challenge involves the consequences of permanent or irreversible loss and damage. An example is relocation of population after a tipping point has been reached. In March 2012 the government of Kiribati released a plan to purchase parts of Fiji in order to move its population there in the event of coastal inundation and sea level rise.56 The plan is based upon the concept of ‘migration with dignity.’ While it might seem that events in this scenario have moved beyond justice, the application of capability justice can add substance to the idea of ‘dignity.’ The fundamental tenets of capability justice give effect to those things people value. In this sense it is more receptive to non-economic factors such as cultural values and social well being that are critical to maintaining the national identity of a nations such as Kiribati.

V. CONCLUSION

C

apability justice offers a fresh perspective on climate justice. The focus on outcomes and realisation of capabilities is a shift from the redistribution of funds that is central to distributive justice. It is argued that focusing on achieving changes through adaptation interventions that improve the capabilities of vulnerable nations or populations is a more effective way of evaluating whether justice is being achieved. The advent of loss and damage casts doubts over the long-term viability of adaptation and the question of justice itself. It is arguable that in light of loss and damage the UNFCCC has failed in its objective under Article 2 – to avoid dangerous human interference to the climate system. Whether the advent of loss and damage means this object is now impossible to achieve rests on the definition of ‘dangerous.’ The meaning of dangerous in the context of climate change has long been debated. Adaptation can be viewed as a policy designed to remove the ‘danger’ from unavoidable climate impacts, but this does not necessarily mean that adaptation will prevent all incidents of loss and damage. However, climate justice and adaptation can endure if the outcomes of adaptation are the central focus rather than funding. This article has argued that the underlying tenets of

55

COP18 Decision, Approaches to Address Loss and Damage Associated with Climate Change Impacts in Developing Countries that are Particularly Vulnerable to the Adverse Effects of Climate Change to Enhance Adaptive Capacity, para 5. 56

Hyogo Framework for Action (n 55).

57

Office of the President Republic of Kiribati, Kiribati Climate Change , accessed 27 January 2013.

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capability justice can guide a more effective adaptation strategy. Taking into account the values, needs and aspirations of the people or nation relevantly impacted by climate change can prove vital to guiding effective adaptation action. Justice can therefore be delivered through the outcomes of adaptation action if the effective use and conversion of funds is measured as opposed to simply focusing upon distribution. Adaptation can be more effectively monitored over time through measuring whether capabilities are being realised or undermined by adaptation policy. The recognition of loss and damage has inevitably challenged existing views of climate justice. This article has recommended that capability justice can help guide adaptation and also manage the magnitude of residual loss and damage.

23

Compensatory Justice for Climate Change Displacees under International Law: Fault-Based and No-Fault Approaches FANNY THORNTON∗

I. INTRODUCTION

T

he possibility of large-scale displacement resulting from anthropogenic climate change has been the subject of some considerable media, political and academic attention.1 An approach best described as ‘the numbers game’2 has sought to contend that hundreds of millions of people will be on the move around the globe by the end of the century, spurred by dramatic climatic and environmental changes.3 Skeptics4 have been concerned about the speculative, spectacle-focused and overly deterministic nature of such predictions, though few would argue that environmental change resulting from global warming will not impact, and likely substantially, on levels of migration and displacement in the coming decades. Some commentators5 have advanced certain justice or equity issues raised by climate changeinduced displacement, highlighting in particular that such displacement may more significantly affect nation states (and their citizens) which, overall, have contributed little to climate change itself and which do not have access to the resources necessary to prevent people from being displaced by climatic change where possible, or assist them in migrating where it is not. What is largely and conspicuously absent from debates concerning climate change displacement, however, is how justice frameworks or ethical considerations should inform a response to this pernicious climate change harm, including the role to be played by international law. This is peculiar, in particular because such frameworks or considerations are employed regularly when discussing the resolution of other inter-country aspects concerning climate change:6 for example, the distribution of future emissions or the sourcing and allocation of adaptation funding. In the climate change displacement discourse, however, the

∗

College of Law, The Australian National University, Canberra, Australia.

1

Media: eg, The Hungry Tide (Directed by T Zubrycki, JOTZ Productions, 2011); Politics: eg, B Sercombe and A Albanese, Our Drowning Neighbours: Labor’s Policy Discussion Paper on Climate Change in the Pacific (2006), www.bobsercombe.id.au/uploads/OurDrowningNeighbours.pdf; Academic: amongst a growing number of publications, the following edited collection provides a multitude of perspectives: J McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Oxford, Hart Publishing, 2010). 2

A term coined in relation to environmental displacement by O Brown, ‘The Numbers Game’ (2008) 31 Forced Migration Review 8. 3

See, eg, one of the most prominent proponents of the numbers game, N Meyers, ‘Environmental Refugees: A Growing Phenomenon of the 21st Century’ (2002) 357 Philosophical Transactions of the Royal Society 609, who argues for 200 million by mid-century. 4

See, eg, S Castles, ‘Concluding Remarks on the Climate Change-Migration Nexus’ in É Piguet, A Pécoud and P Guchteneire (eds), Migration and Climate Change (Cambridge, Cambridge University Press, 2011) and R Black, ‘Environmental Refugees: Myth or Reality’ (New Issues in Refugee Research Working Paper No 34, UNHCR, 2001). 5

See, eg, P Penz, ‘International Ethical Responsibilities to “Climate Refugees”’ in J McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Oxford, Hart Publishing, 2010) 153. 6

See, eg, the many contributions in S Gardiner, S Caney, D Jamieson and H Shue, Climate Ethics: Essential Readings (Oxford, Oxford University Press, 2010).

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justice lens is rarely7 used to frame solutions. This is not to say, of course, that those interested in the development of a response to the phenomenon, including through international law,8 are immune to questions of justice and fairness, but it is to say that explicit recourse to justice or ethics frameworks is largely absent. The present paper will seek to rectify this disjunction, at least in part, by relying on compensatory justice frameworks to investigate the possibility of compensation for climate change displacement. The following section will seek to tease out the nature of compensatory justice and its key features. This will be followed by two chapters seeking to analyse a) opportunities for fault-based compensation and b) no-fault compensation under international law. The paper will conclude with a discussion of the likelihood of compensation for climate change displacement.

II. COMPENSATORY JUSTICE

I

n essence, compensatory justice must include three components: first, an entity which has been harmed or injured (a victim); secondly, an entity which is at fault for causing the injury, harm or loss (the victimiser) and, thirdly, quantifiable damage, harm or loss which can actually be compensated if restoration is not possible.9 It broadly falls under the umbrella of remedial, corrective or rectificatory justice, which calls for harm, loss or damage to be remedied, corrected or rectified by various means, of which compensation is one potential key avenue. Understandings of the goals of compensatory justice sometimes vary. In his Nicomachean Ethics, Aristotle highlights that the purpose of rectificatory justice is to restore equality, arguing that a victim’s ‘loss’ must always be matched by the removal from the victimiser any unjust ‘gain’.10 More contemporarily, Jeffrie Murphy and Jules Coleman have equally argued that the purpose of corrective justice is the equalising of unjust gains and losses.11 Tort law essentially takes this approach, when seeking to quantify in terms of ‘dollars and cents’ both tangible and more abstract losses, including ‘pain and suffering’, then seeking to compensate for these.12 Others have argued that compensatory justice’s goal must not necessarily be equality between victim and victimiser, loss and gain, but making the victim whole again, ‘at least as well off as before the transgression’;13 in other words, equality between a ‘before’ and ‘after’. Acknowledging that it may sometimes be impossible to return to a situation as it was before damage, loss or harm occurred, compensatory justice must nevertheless aim to reinstate a situation as close as possible to the one that had existed before an interference; in other words, a situation that affords victims the same or similar opportunities and enjoyment as exited before an injury, harm or loss occurred. In reality, situations do not always match the

7

Exceptions are P Penz, ‘International Ethical Responsibilities’ (n 5) and A Williams, ‘Achieving Justice within the International Legal System: Prospects for Climate Refugees’ in Y Le Bouthillier et al (eds) Climate Law and Developing Countries (Cheltenham, Edward Elgar, 2009) ch 4. 8

For a comprehensive and very useful analysis of the role of international law in climate change-induced displacement, see J McAdam, Climate Change, Forced Migration, and International Law (Oxford, Oxford University Press, 2012). 9

RA Hill, ‘Compensatory Justice: Over Time and Between Groups’ (2002) The Journal of Political Philosophy 392, 392.

10

Aristotle, The Nicomachean Ethics [trans J E C Welldon] (Amherst, NY, Prometheus Books, 1987) 145.

11

J Murphy and J Coleman, ‘Philosophy and Private Law’ in J Murphy and J Coleman (eds), The Philosophy of Law: An Introduction to Jurisprudence (Totowa, NJ, Woman and Allanheld, 1984). 12

Ibid, 394.

13

See, eg, L Lomasky, ‘Compensation and the Bounds of Rights’ in JW Chapman (ed) Nomos XXXIII: Compensatory Justice (New York, New York University Press, 1991) 13, 27.

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neat division into the three components necessary for compensatory justice: although victims and/or harm might be easily identified, spatial, temporal or causal matters might complicate the identification of fault and a victimiser (or victimisers). Quantifying harm may equally prove difficult, especially where non-material loss or harm are concerned. These difficulties, of course, also plague analysis of compensation for harm and losses originating through climate change, including from and through displacement. The following sections will nevertheless examine critically opportunities for compensation in relation to climate change displacement.

III. FAULT-BASED COMPENSATION

P

rinciples of compensatory justice suggest that greenhouse gas emitters’ arguably harmful and morally questionable behaviour entails obligations to compensate in some shape or form, and thus repair, the harm done to others by such emissions, including harm emanating from and through displacement. Certainly, there is a significant rise in litigation worldwide concerning the consequences of global warming.14 Not all such cases are dismissed based on political question doctrine, which holds that climate change raises political questions beyond the expertise of the judiciary. For example, in the Second Circuit decision in State of Connecticut v American Electric Power Co Inc15, the Court found that public nuisance suits based on harm resulting from climate change did not present non-justiciable questions. The possibility of human displacement has been at the heart of some of these cases.16 Arguably, fundamentally important to responding to climate change harm through compensation is the establishment of fault, and thus responsibility, for the harm committed. Responsibility, of course, is an expansive concept, containing ideas of accountability or blame, obligation and reliability.17 It can be traced historically, originating in early Greek philosophy from which it was then systematised to meet legal ends.18 Essentially, it contains a purely causal, as well as a moral and legal dimension.19 In the climate change context, for example, we might say with some certainty that the combustion of fossil fuels as a result of human activity is responsible for recent global warming or that climatic events contribute to human migration or displacement. In that vein, the Intergovernmental Panel on Climate Change’s (IPCC) fourth Assessment Report left little doubt that ‘[m]ost of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in

14

For analysis at state, national and international levels, see WC G Burns and HM Osofsky (eds), Adjudicating Climate Change: State, National, and International Approaches (Cambridge, Cambridge Press 2009). Although note that litigation is largely restricted to domestic courts and relief is rarely sought in international forums; see, A Strauss, ‘Climate Change Litigation: Opening the Door to the International Court of Justice’ in Burns and Osofsky, Adjudicating Climate Change (above). However, cases are also not limited to developed countries: J Gupta, for example, outlines a case in Nigeria, whereby various Niger River delta communities began legal proceedings against the oil companies working in the area, requesting them to stop flaring gas, as this leads to significant greenhouse gas emissions; in ‘Legal Steps Outside the Climate Convention: Litigation as a Tool to Address Climate Change’ (2007) 16 Review of European Community and International Environmental Law 76, 82. 15

State of Connecticut v American Electric Power Company, 582 F Supp 3rd 309 (2nd Cir, 2009).

16

See Native Village of Kivalina v Exxon Mobil Corporation, No C 08–1138 SBA (ND Cal, 2009).

17

See, eg, K Bickerstaff and G Walker, ‘Risk, Responsibility and Blame: An Analysis of Vocabularies of Motive in Air-Pollution(ing) Discourses’ (2002) 34 Environment and Planning A 1312. For the various meanings of responsibility – causal, moral, legal - see also HLA Hart, ‘Post-script: Responsibility and Retribution’ in Punishment and Responsibility (Oxford, Oxford University Press, 2008) 210. 18

D Birnbacher, ‘Philosophical Foundations of Responsibility’ in AE Auhagen and H-W Bierhoff (eds), Responsibility: The Many Faces of a Social Phenomenon (London, Routledge, 2000) 9. 19

See, eg, J Feinberg, ‘Action and Responsibility’ in Doing and Deserving: Essays in the Theory of Responsibility (Princeton, NJ, Princeton University Press, 1970) ch 6; S Vanderheiden, Atmospheric Justice: A Political Theory of Justice (Oxford, Oxford University Press, 2008) ch 5 and Hart, Post-script (n 17).

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anthropogenic greenhouse gas concentrations.’ 20 Concerning the movement of people, a recent IPCC special report on managing the risks of extreme events and disasters states that there is at least ‘medium agreement’ and ‘medium evidence’ supporting the statement that ‘disasters associated with climate extremes influence population mobility and relocation, affecting host and origin communities’.21 Such statements are relatively straightforward ascriptions of causality between separate events that involve little moral agency or attribution of fault. Their truthfulness, though debated, can usually be established via empirical means. To ascribe fault, however, causal responsibility will have to be coupled with a moral judgement of culpability for harm. To continue with the aforementioned example, it changes should we claim, for example, that the United States (or another country or entity) is responsible for the combustion of fossil fuels so excessive as to cause harmful effects with displacement consequences for humans in that country and elsewhere. The formerly descriptive statement has become prescriptive and normative, assigning moral responsibility to a particular entity. Legal notions of responsibility then enter this realm via remedial justice concepts, which stipulate that responsibility for harm entails liability and should, ultimately, necessitate the imposition of punitive or compensatory measures upon the harming entity. Our statement therefore alters one final time if we say that fossil fuel combustion in the United States (or another country or entity) has been so excessive that some form of compensation or other consequence is due for the displacement (or other harmful) outcomes its activities cause. Causality, of course, is not so easily established. Compensatory justice stipulates that liability and compensation for harm or losses arising from and through climate change displacement should only concern those that have contributed to it – and only to the extent they did. Disaggregating this is complicated because clear and certain causal chains are undoubtedly difficult to establish; despite widespread scientific consensus concerning the anthropogenic nature of climate change, variations in climatic activity and many other confounding factors make it difficult to link specific harm to it.22 Furthermore, climate changerelated displacement may be influenced by factors not necessarily related to greenhouse gas emissions, for example poverty, family size and community make-up. Allocating responsibility is even more bewildering and possible to a wide range of actors: climate change harm is, inevitably, the result of multifarious individual acts (and omissions), conducted, ultimately, by a multitude of agents, including individuals, companies and regulators. Therefore, climate change, though capable of producing morally significant harm, including displacement, may be the outcome of morally insignificant individual behaviour; according to Steve Vanderheiden, ‘some bad outcomes appear to have been caused by entirely blameless acts.’23 Domestic tort law has nevertheless long found ways to deal with situations where polluters collectively have contributed to a problem: The rule that has evolved is that, at least where both [or several] causes involve comparable blameworthiness, both actors are liable, even though the conduct of either one was not a sine qua non of the injury because of the conduct of the other. There is no

20

Intergovernmental Panel on Climate Change, ‘Summary for Policy Makers’ in Contributions of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, New York, Cambridge University Press, 2007) 10 [italics by author]. 21

Intergovernmental Panel on Climate Change, ‘Summary for Policy Makers’ in Intergovernmental Panel on Climate Change Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (Cambridge and New York, Cambridge University Press, 2011) 8. 22

See, eg, DR Hodas, ‘Standing and Climate Change: Can Anyone Complain about the Climate? (2000) 15 Journal of Land Use and Environmental Law 451, 456. Although the United States Supreme Court in Massachusetts v EPA, 127 S Ct 1438 (2007) hardly struggled to find a connection between emissions controls (or lack thereof) in the U.S. and the future harm of sea level rise. 23

Vanderheiden, Atmospheric Justice (n 19) 160.

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reason why a polluter should be insulated from responsibility in a case where a traditional tortfeaser would not be.24 Relying on principles of moral philosophy, courts have equally argued that polluters cannot use the fact that pollution was caused collectively and not by individual action to escape liability: Take the philosophers’ example [...] of the kitchen with a light switch at each end. When two people simultaneously flip both switches on, the light goes on. Neither person’s conduct is a sine qua non, because the light would have gone on anyway. Neither individual’s conduct made a difference to the outcome. [This] analysis would compel the conclusion that neither person caused the light to go on. [This] argument that liability can only attach to conduct that is a sina qua non of the harm, even for causally overdetermined harm, cannot be right, as the kitchen light hypothetical case shows. The problem with [this] argument is that where the result is overdetermined, each person’s argument is as strong as the other’s identical argument. If we accept one person’s argument that he did not cause the light to go on, then we have to accept the identical and equally valid argument of the other person that he did no cause the light to go on. Each accurately points out that his switching the light on was not a sine qua non of its going on. It is true that the light would have gone on anyway because of the other person’s conduct. If conduct had to be a sine qua non even for this overdetermined result, then neither person’s conduct caused the light to go on. But the light went on. And it did so by human agency, not spontaneously. So the conclusion that argument compels, that no one caused the light to go on, is false. Because the correct answer has to be the same for the two individuals, by eliminating the false answer, we have left only one possible answer which must be true: each of the two persons caused the light to go on.25 The concept of vicarious liability, whereby contributory fault is assigned to one party (e.g. an individual/individuals) but liability to another (e.g. collectives such as companies, etc.), is of course a long-familiar concept in many collective settings (including the military and places of employment).26 Under international law, harm originating from more than one state is also not necessarily a hindrance to holding individual states responsible. For example, the Corfu Channel case suggests that Albania’s responsibility for failure to warn was not reduced or precluded because of the possible simultaneous responsibility of a third state (Yugoslavia).27 In his separate opinion in the Oil Platforms case,28 Judge Simma furthermore has sought to argue that the principle of joint and several liability, more familiar from domestic legal systems, could be elevated to international law. The Institut de Droit International suggests that liability would be ‘joint’ where two or more states are responsible for each other’s wrongful act against third states; ‘several’ in so far as each state can be held separately responsible, without the need to hold both responsible.29 Relying on US law, Judge Simma distinguishes that three

24

Boeing Company v Cascade Corporation, 207 FSupp 3d 1177, 1183 (9th Cir, 2000); in DA Farber, ‘The Case for Climate Change Compensation: Justice for Climate Change Victims in a Complex World’ (2008) Utah Law Review 377, 391. 25

Ibid, 1184-85.

26

See, eg, Feinberg, ‘Action and Responsibility’ (n 19) and Vanderheiden (n 19) 177.

27

Corfu Channel (United Kingdom v Albania) [1949] ICJ Rep 4, 16-18, 36; also MG Faure and A Nollkaemper, ‘International Liability as an Instrument to Prevent and Compensate for Climate Change’ (2007) 43 Stanford Journal of International Law 123, 167. 28

Oil Platforms (Iran v United States) [2003] ICJ Rep 90, Separate Opinion of Judge Simma.

29

Institut de Droit International, ‘Resolution on Responsibility and Liability under International Law for Environmental Damage’ (1998) 67 Annuaire 486, art 11.

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conditions must be met: First, each defendant state must have engaged in the activity leading to loss or damage (irrespective of causality); one defendant must necessarily have caused the loss or damage; and, finally, it must be impossible to determine which one of the defendants did so, in whole or in part.30 It is doubtful, however, that such reasoning would lead to one state being burdened with the entire costs for climate change harm.31 The International Law Commission (ILC)’s Draft Articles on State Responsibility also stipulate that where several states are responsible for the same internationally wrongful act, the responsibility of each state may be invoked. However, the challenge in invoking this in the climate change context would be that it applies only to responsibility for the ‘same wrongful act’ and not to different and independent acts that only in the cumulative cause harm. Problems in ascribing fault might also arise out of the fact that ‘many of the relevant actors are long dead’ and ‘much of the contribution [to climate change harm] was probably due to people who died years ago’.32 And indeed, greenhouse gasses act as ‘stock pollutants’ which alter the climate on account of cumulative accumulation over decades if not centuries.33 International law, furthermore, does not really support retrospectivity: Article 13 of the Draft Articles on State Responsibility, for example, states: ‘An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs’.34 The Commentary shows that this constitutes simply the application of the general principle of inter-temporal law to the question of state responsibility.35 In the Island of Palmas arbitration, Judge Huber similarly found that ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not the law in force at the time when a dispute in regard to it arises or falls to be settled.’ 36 Retrospectivity may thus be difficult to reconcile with norms of state responsibility. On the other hand, Michael Faure and André Nollkaemper argue that emitting greenhouse gases is a ‘composite act’ that becomes wrongful only in the cumulative and after a long series of emissions. In other words wrongfulness occurs not necessarily at the point of emissions but at the point where a series of emissions reach a certain threshold. Although pinpointing that exact moment might provide challenges, ‘the effect will be that past emissions will only be subjected to a responsibility regime at the date when they become [...] wrongful’,37 a point likely in the much more recent past. Also, relying on greenhouse gas emissions data concerning the United States, a major emitter, Daniel Farber shows that although CO2 emissions between 1990 and 2004 amounted to only 25.5 percent of total emissions from that country, those emitted between 1970 and 2004 amounted to 53.5 percent of total emissions and, going back further, those emitted between 1950 and 2004 amounted to 72.5 percent of total emissions. He goes on to argue that, with most

30

Oil Platforms (Iran v United States) [2003] ICJ Rep 90, Separate Opinion of Judge Simma, para 66-77. It is important to note, however, that Judge Simma was concerned more with the apportionment of responsibility and fault, not damages. 31

Faure and Nollkaemper, ‘International Liability’ (n 27) 167. Note also I Brownlie, Principles of International Law, 6th edn (Oxford, Oxford University Press, 2003) 189, who suggests that absence of state practice and ignorance in international law literature on the issue of joint and several liability do not permit the consideration of it as a principle of international law. 32

EA Posner and CR Sunstein, ‘Climate Change Justice’ (2008) 96 Georgetown Law Journal 1565, 1597.

33

See IWH Parry, ‘Fiscal Interactions and the Case for Carbon Tax over Grandfathered Carbon Permits’ (2003) 19 Oxford Review of Economic Policy 385, 396. 34

See International Law Commission, Report of the International Law Commission on the Work of its Fifty-Third Session, UN GAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (12 December 2001); also ‘Articles on State Responsibility’. 35

Ibid, Commentary to art 13 (1).

36

Island of Palmas (Netherlands v United States) [1928] 2 RIAA 829, 845.

37

Faure and Nollkaemper (n 27) 171f.

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living Americans alive during the latter time frame, it is wrong to think that harmful emissions are necessarily or largely a historical phenomenon.38 Arguments concerning contribution and retrospectivity aside, an investigation of compensatory justice for climate change displacement is incomplete without also investigating the extent of support for compensatory justice for environment-related harm under international law, which highlights other issues. A version of a compensatory polluter pays principle was considered in the negotiations leading up to the Kyoto Protocol but then rejected in favour of the ‘common but differentiated responsibilities’ notion and with it a system that foregoes compensation claims altogether.39 Specifically, Brazil proposed a punitive and compensatory Clean Development Fund (CDF), which would have based responsibility remedially on big national polluters, requiring them to contribute to the Fund relative to their emissions, and then using it to pay for sustainability projects in developing countries. 40 Instead, the Kyoto Protocol enshrined as one of its ‘flexible’ instruments a Clean Development Mechanism (CDM) which is not punitive and takes no account of responsibility for emissions.41 More recently, discussion concerning a loss and damage mechanism under the UNFCCC umbrella has commenced.42. Although framed around the idea of compensation (for climate change related loss and damage particularly in developing countries), it is unlikely that it will be based on principles of compensatory justice (although it may implicitly acknowledge that there will be victims of climate change and quantifiable losses and damage, questions of responsibility and liability and the idea of a culpable wrongdoer/wrongdoers have been avoided in the talks about the mechanism).43 Liability regimes contained in several other international environmental treaties,44 though permitting compensation for environmentrelated harm, suffer from limitations that make them all but irrelevant to the climate change context.45 Some have claimed that more promising may be norms regarding state responsibility:46 The ruling in the 1928 Permanent Court for International Justice (PCIJ) Chorzow Factory case famously stated that ‘[i]t is a principle of international law that the breach of an engagement

38

Farber, ‘The Case for Climate Change’ (n 24) 395-96.

39

See Vanderheiden (n 19) 231.

40

See EL La Rovere, L Valente de Macedo and K Baumert, ‘The Brazilian Proposal on Relative Responsibility for Global Warming’ in KA Baumert, O Blanchard, S Llosa and JF Perkaus (eds), Building on the Kyoto Protocol: Options for Protecting the Climate (Washington, World Resources Institute, 2002) 157, 159. 41

Although it is the main source of income for the UNFCCC Adaptation Fund, established in 2007.

42

See, eg, ‘K Warner, S Kreft and S Harmeling, ‘Decision 7/CP.17: A Way Forward on Loss and Damage’ (Germanwatch, 2011). 43

Note that some commitments towards establishing the mechanism in future were made at the 2012 Doha climate change negotiations. However, note also that the mechanism has been described in the context of (voluntary) ‘aid’ rather than (mandatory) ‘compensation’; see, eg, M Marshall, ‘Doha Summit Launches Climate Damage Aid’ (10 December 2012) New Scientist (online), http://www.newscientist.com/article/dn 22609-doha-summit-launchesclimate-damage-aid. html. 44

And note also the International Law Commission, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, in Report of the International Law Commission on the Work of its Fifty-Eights Session, UN Doc A/61/10 (1 October 2006). 45

See Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, opened for signature 10 December 1999, UN Doc UNEP/CHW.5/20 and Protocol on Environmental Protection to the Antarctic Treaty Liability Arising From Environmental Emergencies, Annex VI, opened for signature 14 June 2005, 30 ILM 1455; for a comprehensive analysis of these and other regimes, see RR Churchill, ‘Facilitating (Transnational) Civil Liability Litigation for Environmental Damage by Means of Treaties: Progress, Problems, and Prospects’ (2003) 12 Yearbook of International Environmental Law 3. 46

See, eg, RSJ Tol and R Verheyen, ‘State Responsibility and Compensation for Climate Change Damages – A Legal and Economic Assessment’ (2004) 32 Energy Policy 1109.

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involves an obligation to make reparation in an adequate form’ 47 and that ‘reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would, in all probability, have existed if that act had not been committed.’ 48 The International Law Commission affirmed the principle of reparation49 for injuries caused by the breaches of international obligations when adopting the afore-mentioned Draft Articles on State Responsibility in 2001,50 the result of 40 years’ work,51 stipulating further that injury includes any damage, both material and moral.52 The more controversial issue this raises, however, is not whether international law accepts the principle of reparation or compensation for harm53 but that the responsibility and liability of states is engaged only based on the commission of a prohibited – or internationally wrongful - act and not any act that is harmful. Although there has been some discussion about direct or strict state responsibility,54 and the ILC has discussed the possibility to develop rules on harm that arise out of acts lawful but potentially harmful,55 for the time-being any wrongful act engaging state responsibility will likely be limited to either a violation of a treaty obligation or a norm as enshrined under customary international law.56 Regarding treaties, the possibility to construe that state responsibility arises out of violations of the obligations contained in either the UNFCCC, the Kyoto Protocol, or the Law of the Sea Convention (UNCLOS) has been raised.57 UNCLOS, for example, arguably contains substantive language expressly outlawing the emission of greenhouse gases. It provides that: States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.58

47

Factory at Chorzow (Germany v Poland) [1927] PCIJ (ser A) No 17, 29.

48

Factory at Chorzow (Germany v Poland) [1927] PCIJ (ser A) No 17, 47.

49

Art 34, dealing with the form of reparation for injury, includes compensation, alongside restitution and satisfaction, as possible means of reparation. 50

Art 31(1).

51

For a history of state responsibility as a topic in the ILC, see J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, Cambridge University Press, 2002). 52

Art 31(2). ‘Moral damage includes such items as individual pain and suffering, loss of loved ones or personal affront associated with an intrusion on one’s home or private life’; International Law Commission, ‘Commentary on Article 31’ in Draft Articles on Responsibility of States for Internationally Wrongful Acts – With Commentaries, para 5, 92. 53

In fact this is firmly embodied in many international legal instruments and has been refined by the jurisprudence of a large number of international or regional courts; see REDRESSS, What is Reparation? (2004), 2, www.redress.org/what-is-reparation/what-is-reparation. 54

See, eg, PN Okawa, State Responsibility for Transboundary Air Pollution in International Law (Oxford, Oxford University Press, 2000); also Tol and Verheyen, ‘State Responsibility’ (n 46) 1113 and R Verheyen, Climate Change Damage and International Law: Prevention Duties and State Responsibility (Leiden, Martinus Nijhoff, 2005) 169f. 55

In relation to ultra-hazardous activity.

56

Although the Articles on State Responsibility also make mention of ‘the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law’; see art 40. 57

See, eg, Faure and Nollkaemper (n 27), 142; also A L Strauss, ‘The Legal Option: Suing the United States in International Forums for GlobalWarming Emissions’ (2003) 33 Environmental Law Reporter 10185; and M Burkett, ‘Climate Reparations’ (2009) 10 Melbourne Journal of International Law 509, 530. 58

United Nations Convention on the Law of the Sea, (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 art 194(2).

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It continues by specifying that such measures ‘shall deal with all sources of pollution of the marine environment,’ specifically ‘the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping.’ 59 Importantly, pollution is defined as: the introduction by man, directly or indirectly, of substances or energy into the marine environment which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment or quality for use of sea water and reduction of amenities.60 Such provisions may provide useful when considering responsibilities in connection with threatened island nations facing livelihood challenges (e.g. in fisheries) with displacement consequences. The problem here is that many high emitting states, like the United States, are not signatory to the Convention and there may be many technical hurdles requiring resolution before either a lawsuit (or at least advisory opinion) is to materialise,61 hurdles plaguing also legal challenges under other treaty instruments. Customary international law suggests norms where an emitting state has not made commitments under a specific treaty or where treaty commitments have been complied with (e.g. the emission reduction obligations of the Kyoto Protocol) but climate change harm has nevertheless occurred (e.g. because commitments made have not been significant enough to prevent harm). Article 38 of the Statute of the International Court defines customary international law as ‘evidence of general practice accepted as law’. One such practice accepted as law is contained in the so-called ‘no harm rule’.62 Founded on the principle that states shall not inflict damage on or violate the rights of other states, the rule has been accepted in relation to trans-boundary pollution at least since the famous Trail Smelter Arbitration63 and was restated more generally by the International Court of Justice (ICJ) in the Corfu Channel case.64 It was further fleshed out in both the 1972 Stockholm Declaration65 and 1992 Rio Declaration, 66 the latter of which outlaws transboundary environmental injury by holding that: States have [...] the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’67

59

Ibid, art 194(3)(a).

60

Ibid, art 1(1)(a).

61

See Strauss, (n 57) 10188.

62

Roda Verheyen and others have repeatedly sought to argue convincingly that this provides a strong basis for a claim based on state responsibility; see, eg, R Verheyen and P Roderick, ‘Beyond Adaptation: The Legal Duty to Pay Compensation for Climate Change Damage’ (Report for World Wildlife Fund, 2009) and R Verheyen, Climate Change Damage (n 54); see also C Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 Nordic Journal of International Law 1. 63 64

Trail Smelter Arbitration (United States v Canada) [1941] III RIAA 1905. Corfu Channel Case (United Kingdom v Albania) [1949] ICJ Rep 244.

65

Declaration of the United Nations Conference on the Human Environment, (16 June 1972), UN Doc A/Conf.48/14/Rev 1. 66

Rio Declaration on Environment and Development, (3-14 June 1992), UN Doc A/Conf.151/26 (Vol I) .

67

Principle 21.

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Although the exact parameters of the rule are subject to heated discussion, the ICJ emphasised its existence in the 1996 Nuclear Weapons Advisory Opinion: [T]he existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.68 Generally, the rule contains obligations to prevent transboundary harm and to minimise the risk of transboundary damage. It therefore creates legal obligations even before harm has occurred. It is a pure duty of conduct and no intent to cause harm is necessary; in other words, prevention duties apply as long as an activity can be reasonably shown to cause damage or contain risk. Nevertheless, the rule does not imply that states could be held responsible for any damage occurring as a result of their greenhouse gas emissions; rather, a state’s activities must be shown to be contrary to specific standards of care, elements of which might evolve around prevention opportunities, foreseeability and proportionality.69 The Trail Smelter Arbitration also left little doubt that obligations of states concerning transboundary pollution extend to the activities of private entities. Although they are not as such attributable to a state, states may incur responsibility given their capacity to prevent and control private emissions. All that said, however, significant challenges of attribution remain: Does climate change amount to pollution in the Trailsmelter sense? And can links be drawn between the emissions in one place and the potential impacts in another? A partial answer to this question may be provided by an interesting case concerning the expansion and life-extension of the Czech Prunéřov II coal-fired power plant, a significant source of CO2 emissions in the Czech Republic.70 When the Czech Ministry of Environment, as the responsible public authority, contemplated conducting a transboundary environ-mental impact assessment (TEIA) regarding Prunéřov’s expansion, it failed to notify potentially affected states or interested parties, even though its obligations under the 1991 Espoo Convention71 and provisions in Czech domestic law required it to do so. In December 2009, the Federated States of Micronesia 72 nevertheless requested the initiation of a TEIA, stressing that the climate impacts of the project would have to be assessed and arguing against expansion in light of the detrimental effects this would have in Oceania. Although the Ministry of Environment eventually issued a positive environmental impact statement, clearing the way for the expansion of the plant, the Ministry also recognised the Federated States of Micronesia as an ‘affected state’ and required the power utility behind the expansion to provide a

68

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] 35 ILM 809.

69

This parallels what in domestic legal systems are known as negligence or due diligence; see Verheyen and Roderick, ‘Beyond Adaptation’ (n 62) 16. In its Commentary to the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, the ILC noted that acting with due diligence requires a state ‘to take measures to prevent significant transboundary harm or at any event minimize the risk thereof […] Such measures include, first, formulating, policies designed to prevent significant transboundary harm or to minimize the risk thereof and, second, implementing those policies. Such policies are expressed in legislation and administrative regulations and implemented through various enforcement mechanisms.’; see Draft Articles on Prevention of Transboundary Harm from Hazardous Activities: With Commentaries, in ILC, ‘Report of the International Law Commission on the Work of its 53rd Session’, (23 April-1 June, 2 July-10 August) UN Doc A/56/10, 154. 70

See Greenpeace International, Legal Steps Taken by the Federated States of Micronesia against the Prunéřov II Coal-fired Power Plant, Czech Republic: Background Information (2010), http://www..greenpeace.org/international/Global/international/planet-2/report/2010/3/teia_fsm.pdf. 71

Convention on Environmental Impact Assessment in a Transboundary Context, (adopted 25 February 1991, entered into force 10 September 1997) 1989 UNTS 309 ; also ‘Espoo Convention’. 72

Supported by Greenpeace and the Environmental Law Service.

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compensation plan that would offset much of the additional CO2 emissions generated.73 More importantly, the case illustrates the idea of ‘trans-regional’ impacts of climate change, providing a possible hook to hold major emitters in non-neighbouring states accountable. Final questions concerning compensatory justice relate to what or whom qualifies for compensation: is there quantifiable harm in relation to displacement; how should it be quantified and allocated? Importantly, international law usually contemplates an award of compensation only where restoration and complementary measures are not available,74 so only irreversible loss (e.g. of livelihoods) with displacement consequences would likely qualify for compensation. Causality issues, too, may impact on what is compensated. Most simply, a compensation claim could be based on establishing some statistical chance that certain greenhouse gas emissions have contributed to displacement elsewhere and full compensation emanates from this possibility. A defendant state will likely seek to argue that compensation is due only if greenhouse gas emissions can be linked to displacement in an absolute sense. Both of these positions are, arguably, unjust. A compromise may be to award compensation only when the probability that displacement was caused by certain greenhouse gas emissions has passed a certain threshold, for example, fifty percent. In legal terms, this approach is known as the ‘more probable than not’ standard; if probability is lower than the threshold, then victims receive no compensation at all; if it is higher, then victims receive full compensation. Faure and Nollkaemper have suggested a fourth, more fine-tuned approach by suggesting to award proportionate amounts of damages based upon the probability of causation.75 This has the obvious advantage of permitting at least the possibility of a successful (if partial) compensation claim despite the uncertainty over causation. Applying their model to displacement, allocation of damages would look something like this: if the probability of a particular flooding event with displacement consequences having been caused by certain emissions is forty percent, affected states should be compensated forty percent of the damage. Realistically and effectively seeking compensation on this basis is hampered, however, by the multitude of actors who have contributed to the emissions that have increased the risk of flooding. Legally, the proportional share of individual actors’ (e.g. country) emissions would therefore also have to be considered before awards of compensation materialise. Debates here have focused on several approaches: a country’s relative contribution to absolute greenhouse gases emitted, or a country’s share of excess emissions, or a country’s contribution to warming.76 Science would also need to provide the evidence that would permit assessments of the kind of probability of causation discussed here; for the time-being, the IPCC Assessment Reports and the like provide only vague indications of this. One further issue is worthy of some discussion: climate change and its effects will likely not be the only factor which influences the movement of people, which may, equally, be influenced by the cultural, socio-economic and political make-up of affected nations and areas, including the acts and omissions resulting from public authorities there. Determining an appropriate level of compensation therefore also has to take account of the fact that displacement may not be wholly the responsibility of emitting nations. Referred to as ‘contributory negligence’ in national legal systems, the ILC deals with this issue in Article 39 of its Draft Articles on State Responsibility, which recognises that the conduct of an injured state, or of any person or entity in relation to which reparation is sought, should be taken into

73

Greenpeace International, Threatened Pacific Island Nation Makes Legal History by Challenging European Carbon Emitter (23 May 2011), http://www.greenpeace.org/international/en/ press/releases /Threatened-Pacific-IslandNation-makes-legal-history-by-challenging-European-carbon-emitter/. 74

See, eg, in the biodiversity context: Conference of the Parties to the Convention on Biological Diversity, ‘Note by the Executive Secretary: Liability and Redress in the Context of Paragraph 2 of Article 14 of the Convention on Biological Diversity’, Doc UNEP/CBD/COP9/20/Add.1, 9. 75

(n 27).

76

See, eg. Ad Hoc Group for the Modeling and Assessment of Contributions to Climate Change (MATCH), Summary Report (7 November 2007), www.match-info.net/data/MATCH%20sum mary%20report.pdf.

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account when assessing the form or extent of reparation. This would not deny the commission of an unlawful act by a defendant state but may limit the legal consequences, including the amount of compensation granted, flowing from it. Establishing amounts of compensation is, of course, not simply a matter of loss allocation but also one of loss assessment (in compensatory justice terms, quantifiable damage). Given the complexities of displacement, this, on the surface, seems a difficult task. Simply attaching market value to loss with displacement consequences will inevitably treat displaced persons as ‘willing sellers’ and will not necessarily resolve the task of restoring incomes and livelihoods, a dynamic long familiar from development-related displacement.77 How, after all, does one attach market value to the likely fragmentation of communities and the break-down of support structures? How would a compensation scheme function where affected populations are not, in the first place, structured around formal legal rights, for example in relation to property ownership? Given these difficulties, it may be unsurprising that past empirical research has found impoverishment long after, and in spite of, compensation for displacement (e.g development related) in many cases.78 The task of putting a monetary value on climate change-related displacement has, nevertheless already been contemplated in the context of threatened communities in Alaska. At least twelve indigenous communities there need to move elsewhere due to the effects of climate change;79 for some, relocation is quickly becoming the only viable option remaining to protect residents.80 The United States Army Corps of Engineers has investigated the issue of relocation in these communities, including associated timeframes and costs. According to a 2006 report, the villages of Kivalina, Newtok and Shishmaref all had less than 15 years before they would become uninhabitable; relocation costs would range from USD 95 Million to USD 200 Million per village,81 in the case of Newtok $380,000 per resident.82 These figures were arrived at by anticipating the cost of relocating the entire community to a new site, including all the existing facilities, structures and utilities that could be moved and replacement of those that could not.83 The Corps also, however, acknowledges that the cost/benefit approach taken in its report may not be appropriate for relocation analysis, as many non-material or nonmonetary items not connected to infrastructure, perhaps best described as social capital, cannot be easily reflected in dollar terms.84 In any case, none of the communities has actually relocated, though the inhabitants of some now reside in places with seriously deteriorated infrastructure. Receiving funding for relocation has been at the heart of the difficulties experienced by those affected.85

77

See, eg, MM Cernea, ‘For a New Economics of Resettlement: A Sociological Critique of the Compensation Principle’ (2003) 55 International Social Science Journal 37, 38f and U Ramanathan, ‘Displacement and the Law’ (1996) 31 Economic and Political Weekly 1486; more recently, eg, S Maitra, ‘Development Induced Displacement: Issues of Compensation and Resettlement – Experiences from the Narmada Valley and Sardar Sarovar Project’ (2009) 2 Japanese Journal of Political Science 191. 78

Cernea, New Economics (n 77) 40.

79

See R Bronen, ‘Climate-Induced Community Relocations: Creating an Adaptive Governance Framework Based in Human Rights Doctrine’ (2011) 35 NYU Review of Law and Social Change 356; also United States Government Accountability Office, Alaska Native Villages: Limited Progress Has Been Made on Relocating Villages Threatened by Flooding and Erosion (2009), www.gao.gov/new. items/d09551.pdf. 80

See United States Army Corps of Engineers – Alaska District, Alaska Village Erosion Technical Assistance Program (April 2006), www.housemajority.org/coms/cli/AVETA_Report.pdf. 81

Ibid, Executive Summary. A York, Alaskan Village Stands on Leading Edge of Climate Change (2009), www.unc.news 21.com/index.php/climate-refugees.html. 82

83

United States Army Corps of Engineers – Alaska District, Technical Assistance Program (n 80) 7.

84

Ibid, 4.

85

See Bronen, ‘Climate-Induced Community Relocations’ (n 79).

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Compensation for both the material and some of the non-material elements of displacement and relocation has been key in compensation claims sought in connection with U.S. nuclear testing in the South Pacific, however.86 Between 1946 and 1958, the United States conducted sixty-seven nuclear tests in the Marshall Islands, at the time a United Nations Trust Territory administered by the U.S., which had pledged to ‘protect the inhabitants against the loss of their lands and resources.’87 Prior to the first tests conducted in 1947, the United States removed people from several of the area’s atolls, keeping them in exile on more distant, isolated and resource-poor islands for decades, whilst scarcely providing for their basic needs and contaminating their home atolls. As early as 1982, affected persons, by now returned to only partially restored atolls, filed compensation claims in US courts, all of which were dismissed on jurisdictional grounds when a Compact of Free Association88 went into effect, which established a Nuclear Fund ‘to address past, present and future consequences of the Nuclear Testing Program’ 89 and implemented a Nuclear Claims Tribunal as the only means to seek compensation. Claims to the Tribunal have since included those for the loss of use of land during exile and for ongoing costs of restoration and rehabilitation of land following nuclear testing, but also for the hardship and suffering involved both in being displaced and returning to only partially restored and inhabitable atolls. In the case of the Enewetak people, for example, displaced on Ujelang atoll for 33 years, the Tribunal awarded between USD 3,000 and USD 4,500 per year per person exiled – or a total of USD 34 Million - for hardship and suffering alone.90 Although receiving funding in this – and all other categories – has been hampered by political haggling and the fact that the Nuclear Fund was set up with a finite budget, these cases nevertheless provide an important background by which to consider that compensation for displacement and relocation should include not only reparation for material loss but also that which is non-material or not easily converted in monetary terms. There is no denying the many practical and conceptual challenges involved in potential compensation claims for one of climate change’s most dire consequences – displacement, which may also include many jurisdictional issues considered elsewhere.91 The multiple causality issues discussed in this section, in particular, may seriously hamper the success of such an endeavour and even successful claims may only partially compensate, given that at least some of the harm arising in connection with displacement will be difficult to quantify. Rather than holding to account polluters and changing their behaviour, inherent in any compensation-based approach is also the hazard that polluters may deliberately opt to continue emissions unrestrainedly, with a view to simply compensating victims for the consequences.92 Nevertheless, arguing that no compensation is due or possible for climate change displacement is also, in its own way, a proposal for a compensation scheme, albeit one that sets compensation at zero, hardly a just approach. Given the many constraints involved in fault-based compensation, the following section will seek to discuss opportunities for compensatory justice through no-fault insurance-type schemes.

86

See, eg, D Pevec, ‘The Marshall Islands Nuclear Claims Tribunal: The Claims of the Enewetak People’ (2006) 35 Denver Journal of International Law and Policy 221. 87

Trusteeship Agreement for the Former Japanese Mandated Islands, - (6 July 1947), 8 UNTS 189, art 6.

88

Compact of Free Association (United States and Marshall Islands), (adopted 25 June 1983, entered into force 14 January 1986), 99 Stat 1770. 89

See Agreement Between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association (1983), Preamble, www.nuclearclaimstribunal.com/177text.htm. 90

See Pevec, ‘The Marshall Islands’ (n 86) 237.

91

See, eg, Strauss (n 14).

92

See S Caney, ‘Climate Change and the Future: Discounting for Time, Wealth, and Risk’ (2009) 40 Journal of Social Philosophy 163, 175.

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IV. NO-FAULT COMPENSATION

I

nsurance is frequently highlighted as an important tool to potentially address, even relieve, the multiple burdens and risks presented by climate change.93 Such conceptualisations usually place insurance within the context of adaptation planning and financing and thus do not address compensation. However, insurance, especially in relation to workers’ compensation, arose historically also as an important compensatory mechanism, one which bypasses many of the difficult causality issues dogging fault-based compensation. It is that context this section seeks to explore in relation to the possibility of compensation for climate change displacement. Important lessons regarding the role of insurance as a compensatory tool can be gleaned by investigating the rise of no-fault insurance. Although compensation for injury suffered on the job has been available since ancient times, work injury compensation arrangements up until the late nineteenth century meant that if a workplace injury was at least partially to blame on the injured worker or an injury occurred as a result of complex interactions involving multiple actors (which it inevitably often did), damages were easily reduced or not afforded at all. As a consequence, injured workers often bore themselves some, if not all, of the costs resulting from an injury – usually at a time when they could least afford it due to loss of income resulting from lost employment. More importantly, compensation claims frequently proved complicated and costly. For many, litigation and compensation therefore remained out of reach. Only affluent workers were able to purchase various kinds of private disability insurance, for example via the English ‘Friendly Societies’ or the German ‘Krankenkassen’.94 Tackling these issues, it was rightly acknowledged that the problem largely lay in the insistence on having to establish fault before compensation could be awarded. Disentangling complex interactions to apportion blame had proven inefficient, costly and frequently unjust. Beginning in Germany in 1884, workplace injury reparation therefore shifted to a system of ‘no-fault’ compensation through an insurance-based system. All workers were now obliged to carry insurance against the risk of workplace harm, with premiums often born by employers thereby relieved of the prospect of costly and lengthy litigation. Importantly, claims could be lodged simply by establishing the fact of a work-related injury without necessitating an inquiry into fault, responsibility or blame. Such schemes proved hugely successful and were quickly transferred to other areas. Since Otto von Bismarck first introduced the notion of entitlement to compensation that is not linked to an entity’s ability to prove that an injury or harm were due to another’s fault in nineteenth century Germany, the idea has spread globally to include no-fault automobile accident insurance, no-fault personal injury compensation95 and no-fault compensation schemes for medical injury,96 to name a few. In some places, more personal injuries are now covered by no-fault schemes than claims in the courts.97 A shift away from individualised responsibility, liability or blame and towards collectivised no-fault schemes of compensation has therefore become widely accepted within the context of many risk categories. Responding to harm in such collective fashion mirrors the multitude of

93

See, eg, the various entries in a special issue of Climate Policy (vol 6, 2006) on insurance and climate change, many of which have been cited in this paper. 94

For more on the history prior to the establishment of no-fault compensation, see see D Schmidtz and RE Goodin, Social Welfare and Individual Responsibility (Cambridge, Cambridge University Press, 1998) esp 156f and G Guyton, A Brief History of Worker’s Compensation (1999), www.ncbi.nlm.nih.gov/pmc/art icles/PMC1888620/. 95

Note, eg, New Zealand’s Accident Compensation Corporation (ACC), About ACC, www.acc.co.nz/aboutacc/index.htm. 96

See T Drabsch, ‘No Fault Compensation’ (Briefing Paper No 6/05, NSW Parliamentary Library Research Service, 2005) 46. 97

For example in Canada; see, eg, B Feddthusen, ‘Posturing, Tinkering and Reforming the Law of Negligence Canadian Perspective’ (2002) 25 University of New South Wales Law Journal Forum 854.

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causes which often contribute to it in the first place.98 In the climate change context, this is important given the causality and attribution issues highlighted in the previous section, which raised doubts over climate change harm being attributable to an individual actor or single collective entity, such as a state or company, to whom fault could be apportioned directly. Insurance, if funded compulsorily and collectively by entities which nevertheless undeniably do play a key part in causal chains leading to climate change harm, may therefore be a more viable, alternative corrective mechanism to costly and time-consuming compensation claims unlikely to succeed in the courtroom. A closer interrogation of some of the advantages of nofault compensation over more traditional compensation claims will reveal further advantages. Compensation is meant to correct a wrong or imbalance created. Traditionally such wrongs or imbalances have been established through a (liability) suit in a court of law. However, nofault insurance-type mechanisms evolved when it was acknowledged that societal needs were no longer fully met through costly and lengthy liability-type claims in courtrooms.99 The problem sometimes cited, however, is that with the removal of blame, fault or direct liability, comes also a removal of incentives to reduce risks; in other words, moral hazard is created. Howell et al., for example, argue that: [t]he principal weakness of no-fault schemes is the difficulty of ensuring that the socially optimal amount of care is taken by potential loss-causers, as the links between their potential to cause loss and the costs of their actions are severed.100 Nonetheless, it has been noted that the value of liability claims in terms of deterrence is likely offset by the costly, ineffective, often unsuccessful nature of such claims.101 Luntz and Hambly also show that those not insured rarely resort to legal action to seek compensation at all,102 casting doubt on the potential of liability claims to deter negligence, harm or loss. For this and other reasons, Peter Cane has therefore argued that: [w]hile it seems reasonable to think that the imposition and possibility of tort liability has some impact on people’s conduct, the precise nature and magnitude of that impact on people’s conduct is largely speculative and there is good reason to think that tort law is, at best, a blunt regulatory instrument.103 Applying this to the climate change context and the arguments advanced in this paper, deterrence may thus be much better served via a no-fault compensation scheme, with regular contributions to the scheme made by those who have an interest in reducing greenhouse gases in order to keep risks, and with this contributions, low. Litigation is cumbersome, costly and often unsuccessful. Even ignoring complicated questions of causality and jurisdiction, this alone will make it an unlikely avenue to pursue in the climate change context. In relation to tort-like approaches to compensation, Peter Cane has more generally asked:

98

RE Goodin, ‘The Collectivization of Risk’ in Schmitdtz and Goodin, A Brief History (n 94) 160f.

99

See J Fleming, The Law of Torts, 4th edn (Sydney, The Law Book Company, 1971) 9; see also J O Newman, ‘Rethinking Fairness: Perspectives on the Litigation Process’ (1985) 94 The Yale Law Journal 1643. 100

B Howell, J Kavanagh and L Mariott, ‘No-fault Public Liability Insurance: Evidence from New Zealand’ (2002) 9 Agenda 135, 147. 101

See Drabsch, ‘No Fault Compensation’ (n 96) 48.

102

H Luntz and D Hambly, Torts: Cases and Commentary, 5th edn (Chatswood, Butterworths Law, 2002) 8.

103

P Cane, ‘Reforming Tort Law in Australia: A Personal Perspective’ (2003) 27 Melbourne University Law Review 649, 654

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[w]hether the huge cost of delivering tort compensation (consistently estimated, in aggregate, as high as 40 per cent or more of the total cost of the tort system, and relatively much higher than the cost of delivering no-fault compensation) is worth the ‘benefits’ that would be lost in the move to a no-fault system ...’ 104 No-fault compensation via insurance is simply more efficient in terms of time and money spent, as significantly fewer resources are dispensed to establish fault.105 Legal fees become largely unnecessary and claimants often receive at least some assistance even before a claim is fully investigated and settled, presenting a far lesser threat to livelihoods and belongings. Finally, although no-fault compensation schemes cannot ignore causality entirely nor always resolve satisfactorily disputes over the amount of damages to be paid to a claimant, they do provide more certainty, clarity and consistency than fault-based approaches. By removing fault from the equation of compensation, redress may be provided to a more significant array of injured parties in a more equitable manner. Otherwise, ‘[i]f fault is not proved, then no matter how innocent the plaintiff, the [...] law will leave him to bear the whole burden of his losses, even though they may have been catastrophic.’ 106 Without recourse to compensation via no-fault insurance, the same will likely be the case for many of the victims of climate change. Of course it is one thing to muse over the advantages of no-fault, insurance-type compensation and quite another to analyse whether international law provides a basis for establishing insurance-type mechanisms in response to climate change. An obligation to support affected countries or individuals detrimentally affected by climate change via insurance mechanisms may well arise out of the right to social protection, related to the right to social security, asserted in several international codes, conventions and agreements. Both concern measures, whether in kind or in cash, providing benefits that secure protection from a variety of ills or deprivations. Insurance, social or otherwise, is one such mechanism often resorted to. The earliest recognition of social security as a human right is enshrined in the 1948 Universal Declaration of Human Rights, which states: Everyone, as a member of society, has the right to social security and is entitled to the realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.107 It adds that: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.108

104

Ibid, 674.

105

Drabsch (n 96) 50.

106

Royal Commission of Inquiry, ‘Compensation for Personal Injury in New Zealand’ (1967) 144; also the ‘Woodhouse Report’. 107

Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) art 22.

108

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 art 25(1).

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Article 9 of the 1966 International Covenant on Economic, Social and Cultural Rights similarly recognises the right of everyone to social security, including social insurance.109 More recently, in March 2006, representatives from 13 African countries gathered in Zambia and agreed to the Livingstone Declaration,110 which has since been endorsed by the African Union, and which declares that social protection is a basic human right. Both social security and protection are founded on the more fundamental principles of universality, equality and human dignity: dignity because they enable people to lead decent lives no matter the adverse circumstances they face; equality and universality because they seek to grant rights to all people without discrimination. Both raise obligations that states must take legislative, administrative, budgetary, judicial or other measures to guarantee such rights to their populations. This may raise obligations of conduct – states taking the necessary steps (including insurance) to guarantee certain rights, or obligations of outcome – states having to achieve certain targets to satisfy specified standards.111 Often, implementing at least a minimum level of social security or protection requires equity subsidies from the rich to the poor (though this fits more with distributive justice and not compensatory justice principles). The Universal Declaration leaves little doubt that this should also include support by the international community for states with insufficient resources themselves. Perhaps more importantly, support for insurance instruments to specifically manage climate change risks has been on the agenda of the international climate change negotiations for some time. Article 4.8 of the UNFCCC calls upon Convention parties to consider actions, including insurance, that meet the specific needs and concerns of developing countries in the climate change context. Article 3.14 of the Kyoto Protocol similarly calls for consideration of the establishment of insurance. The Bali Action Plan requires the Parties to address enhanced action on adaptation, including consideration of ‘risk management and risk reduction strategies, including risk sharing and transfer mechanisms such as insurance’. 112 Insurance has, finally, featured in the draft negotiating texts coming out of all Conference of the Party discussions since.113 Several concrete proposals have emerged over time,114 of which at least one frames insurance as part of a compensation framework: Specifically, the Alliance of Small Island States (AOSIS) suggested in 1991 that an ‘international insurance pool’, funded exclusively by industrialised countries (Annex I), be established under the auspices of the Conference of the Parties (COP) in order to compensate small-island and low-lying developing nations for the uninsured losses and damage arising from anticipated sea-level rise. The pool was to compensate:

109

See also International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 art 5(e)(iv), Convention on the Rights of the Child and art 11 of the Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 art 26. 110

See African Union, The Livingstone Call for Action (2006), www.ipc-undp.org/doc_africa_ brazil/Livingstone-callfor-action.pdf, endorsed by 13 African nations as the Livingstone Declaration. 111

Ibid, 50.

112

See ‘Revised Draft Decision -/CP.13: Ad How Working Group on Long-Term Cooperative Action Under the Convention: Proposal by the President’, UN Doc FCCC/CP/2007/L.7/Rev.1, 14 December 2007, para 1(c)(ii); also ‘Bali Action Plan’. 113

Note also in this context UNFCCC, ‘Report on the Workshop on Risk Management and Risk Reduction Strategies, Including Risk Sharing and Transfer Mechanisms such as Insurance: Summary of the Chair of the Workshop’, (6 December 2008) UN Doc FCCC/AWGLCA/2008/CPR.7. 114

See, eg, Alliance of Small Island States, ‘Proposal to the AWG-LCA: Multi-Window Mechanism to Address Loss and Damage from Climate Change Impacts’, UN Doc A/AC.237/15, 6 December 2008 [also ‘Multi-Window Mechanism’]; B Müller, ‘Equity in Climate Change: The Great Divide’ (Oxford University, Institute for Energy Studies, 2002); C Bals, K Warner and S Butzengeiger, ‘Insuring the Uninsurable: Design Options for a Climate Change Funding Mechanism’ (2006) 6 Climate Policy 637 and J Linneroth-Bayer and R Mechler, ‘Insurance for Assisting Adaptation to Climate Change in Developing Countries: A Proposed Strategy’ (2006) 6 Climate Policy 621.

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(i) in situations where selecting the least climate sensitive development option involves incurring additional expense and (ii) where insurance is not available for damage resulting from climate change.115 An administrating authority was to be responsible for collecting mandatory contributions and for handling claims against the fund. The proposal envisioned that assets, both private and public, in countries potentially affected by sea level rise, would be valued and registered with the administrating authority, and claims considered on this basis. Levels of sea level rise that would trigger claims and legally require compensation payment would be subject to negotiation between each country and the authority. Critically, the authority would have to determine whether and to what extent loss or damage arising in a claim was avoidable through preventative measures which, reasonably, could have been undertaken at an earlier stage by affected countries. Any assets covered by commercial insurance would also not be eligible for compensation under the fund. Although this proposal represents an important first step in presenting a tangible proposal by which developed countries would take financial responsibility for adverse climate change impacts beyond their jurisdiction, it also presents several obstacles: first, the process of valuing properties to establish baselines by which claims could be assessed in the event of damage resulting from sea level rise would likely prove too costly in countries with ill-established insurance systems and structures, making transaction costs on the fund prohibitively expensive. Secondly, determining what constitutes ‘reasonable’ preventative action would likely also prove a problematic concept to administer and adjudicate. Finally, the proposal suggested a financial mechanism for only one type of loss driver – sea level rise – of relevance only to a subset of negotiating states and perhaps difficult to insure due to its slow-onset nature and gradual occurrence. Dealing with some of these issues, AOSIS has since refined its position on how loss and damage from climate change should be compensated, including through insurance. Its MultiWindow Mechanism to Address Loss and Damage from Climate Change116 consists of three interdependent components. Insurance is envisioned to help Small Island Developing States (SIDS), as well as other particularly vulnerable countries, to manage financial risk and exposure from increasingly frequent and severe extreme weather events. This acknowledges that insurance mechanisms must cover a greater diversity of countries and loss drivers than in the original proposal but also limits its likely relevance to sudden-onset, extreme events such as floods or storms. A second component, rehabilitation/compensation, would address negative impacts of climate change that are progressive and slow-onset, including sea level rise and ocean acidification, and which AOSIS suggests are unlikely to be insurable in the formal sense due to their nature. Importantly, compensation here is not understood in the tort law but the no-fault compensation scheme sense and would be triggered simply by an adverse climate-related harm occurring. A third component, risk management, would support risk assessment and risk management tools which could support preventative action, so problematic in the original proposal. The Multi-Window Mechanism again envisions that funding would originate largely from Annex I countries. It would be situated under the umbrella of the UNFCCC, with a board providing oversight, the UNFCCC Secretariat providing administrative support, and technical and financial facilities providing the necessary expertise. Most other proposals for climate change-related insurance are lacking from a compensatory justice perspective, with many arguing that insurance schemes are relevant only for risks and damage arising from rapid-onset or extreme events. Although it is true that, at least in theory, only risks that can be reliably estimated but for which there is uncertainty can be insured, which may not include gradual and often more predictable risks,117 this leaves a gap not filled

115

Intergovernmental Negotiating Committee, ‘International Insurance Pool’, UNFCCC, 2nd Sess, (19 – 28 June 1991), UN Doc A/AC.237/Misc.1/Add3. 116

See Alliance of Small Island States, ‘Multi-Window Mechanism’ (n 114).

117

See Linneroth-Bayer and Mechler, ‘Insurance for Assisting Adaptation’ (n 114) 631.

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in at least some other proposals. AOSIS’s Multi-Window Mechanism and an insurance proposal by Joanne Linneroth-Bayer and Reinhard Mechler do suggest alternatives for uninsurable risks, but only AOSIS makes funding for this (compensation/rehabilitation) obligatory and relevant also to gradual risks. This is of some relevance also to displacement, which is just as likely to be triggered by risks and damage arising from rapid-onset and slowonset events. Given the lack of alternative funding mechanisms for gradual risks or damage provided in many climate change-related insurance proposals, those facing slow-onset harm are therefore simply ignored and thus disadvantaged. Importantly, only AOSIS envisions that developed countries, those that allegedly have made the most significant contributions to global warming and its adverse effects, have an obligation and responsibility to finance insurance or no-fault compensation for climate-related risks arising from anthropogenic climate change. All other proposals suggest that financial or other support is voluntary and provided much like international aid is today, somewhat adhoc and on a charitable basis. This leaves little room to frame climate change insurance schemes as compensatory justice and would provide little certainty to affected countries. Some insurance proposals suggest that affected countries themselves are responsible for raising insurance premiums,118 justice arising simply from the fact that the international community or donor entities, through a variety of mechanisms, make premiums more affordable or accessible than they would otherwise be. Employing a justice lens, a final critique emerges in light of the insistence of some proposals that only risks related to major infrastructure or state assets should be covered via climate change insurance mechanisms. This would leave personal assets unprotected and ignore the multitude of small harms arising from global warming. For displacement this again has dire consequences, as it leaves the very assets unprotected that may be a deciding factor in migration decisions. It is also an unusual suggestion in light of the growing experience with micro-insurance in many developing countries, which has for some time now protected personal belongings and livelihoods whilst offering affordable risk management to lowincome demographic groups otherwise without access to such schemes. Microinsurance protects those in the lowest income brackets against a variety of risks, often as related to life, health or livelihoods. In essence, it is not fundamentally different from mainstream insurance: it protects people against specific harm in exchange for regular premiums which are set in proportion to the likelihood and cost of risk involved. The difference is in its more specific target-market – low-income people; in other words, persons who usually do not have access to conventional social or commercial insurance mechanisms, many employed in informal economic sectors in developing countries.119 It is a rapidlygrowing risk sharing and management tool, with policies in Africa growing by 80 percent between 2005 and 2009 and over one million people now protected in India.120 Some microinsurance schemes already cover weather risks known to increase with climate change.121 Importantly, it is not the scope of the risks which are ‘micro’ to the individuals and households who experience them, but the contributions made to a pool that spreads risk. Microinsurance thus reduces vulnerability to often significant events by replacing the uncertain prospect of loss with the certainty of making small payments into a joint scheme, with those not suffering loss in times of adversity essentially subsidising the losses experienced by others.122

118

See Bals, Warner and Butzengeiger, ‘Insuring the Uninsurable’ (n 114).

119

C Churchill, ‘What is Insurance for the Poor?’ in C Churchill (ed), Protecting the Poor: A Microinsurance Compendium (Munich, Munich Re Foundation, 2006) 12, 13. 120

See T Loster and D Reinhard, ‘Microinsurance and Climate Change’ in E Morelli, GA Onnis and C Sutter (eds), Microinsurance: An Innovative Tool for Risk and Disaster Management (Davos, Global Risk Forum, 2010) 39, 39. 121

See, eg, K Warner et al, ‘Solutions for Vulnerable Countries and People: Designing and Implementing Disaster Risk Reduction and Insurance for Adaptation’ (Policy Brief, Munich Climate Change Initiative, July 2010) 13 122

C Churchill, ‘What is Insurance for the Poor’ (n 119) 14.

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Microinsurance functions in two ways – from either a social protection or market-based angle. The former is often funded by government, or aid in the absence of government-funded schemes. The latter is supported by independent financial institutions which provide a financial service to low-income households by developing business models that, despite the small premiums involved, are profitable for the commercial operations concerned.123 Given these two streams, microinsurance can be delivered by a variety of channels: community-based schemes, credit unions, other microfinance institutions but also large multi-national insurance conglomerates.124 Frequently, such institutions work in public-private partnership: for example Allianz Insurance has worked together with the United Nations Development Programme (UNDP) and the prominent German aid organisation Gesellschaft für Technische Zusammenarbeit (GTZ; since 2011 merged with the Deutsche Gesellschaft für Internationale Zusammenarbeit, GIZ) to provide insurance for the poor in India and Indonesia.125 Many existing schemes are of some direct significance to the climate change context,126 not least because payouts are triggered by certain weather events occurring, and not following complicated and time-consuming loss assessment. But where does insurance fit with displacement? The prospect of changes in the frequency, severity and distribution of natural disasters and the impact of slow-onset changes brought about by climate change, as well as the inability of many governments to provide widespread protection in the face of this, will jeopardise the ability of many to cope with such changes, increasing significantly their vulnerability to risks. Those with few financial reserves may have no option but to migrate. Insurance can reduce vulnerability to risk and may thus stem the flow of migration. In a study of typhoon re-housing insurance Morsink et al., for example, found that microinsurance reduced the chance that households have to employ what they term ‘stressful coping strategies’ after a shock, which includes outmigration.127 Even where households received microinsurance pay-outs which covered only part of the economic losses experienced, forcing them to resort to additional coping strategies, this prevented households from falling into the poverty trap,128 which may have had migration consequences. Furthermore, insurance may also play a part when migrating becomes unavoidable. Although some types of migration may well mitigate household risks by increasing and diversifying income levels129 that support livelihoods otherwise no longer tenable in places of origin, migration is just as known to increase risks and vulnerability. These arise from the often more limited social safety nets available to migrants, sometimes family break-up, and the commonly limited amount of financial reserves that could counter the effects of emergency or disaster in host places.130 Migrants are often exploited, discriminated against and denied basic

123

For more, see J Angove and N Tande, ‘A Business Case for Microinsurance: An Analysis of the Profitability of Microinsurance for Five Insurance Companies’ (Microinsruance Paper No 11, International Labour Office, July 2011). 124

Ibid.

125

See United Nations, Allianz-GTZ-UNDP Join Forces in Micro-Insurance Initiative (2006), www.business.un.org/en/documents/87. 126

See, eg, Warner et al, ‘Solutions for Vulnerable Countries’ (n 121).

127

K Morsink, P D and A Kooijman-van Dijk, ‘Impact of Micro Insurance on Vulnerability of Low Income Households in the Philippines: The Case of Typhoon Re-housing Insurance’ (Paper presented at the Second European Research Conference on Microfinance, 17 June 2011, Groningen, Netherlands) 28. 128

Ibid, 29.

129

Migration literature, for example, highlights that remittances function as a form of informal insurance. See, eg, C Amuedo-Dorantes and S Pozo, ‘Remittances as Insurance: Evidence from Mexican Migrants’ (2006) 19 Journal of Population Economics 227. 130

See, eg, J Powers, B Magononi and E Zimmerman, ‘Formalizing the Informal Insurance Inherent in Migration: Exploring the Potential Links Between Migration, Remittances and Microinsurance’ (The International Labour Office, March 2011) vi.

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rights.131 A 2011 landmark report by the UK’s Foresight Programme on migration and global environmental change highlights the likelihood of those migrating in response to climatic events moving from vulnerable to even more vulnerable places.132 Insurance therefore might also have to counter some of the risks that arise from migrating itself or as part of the migration experience. Some migration-linked microinsurance schemes already seek to do so.133 For example, SuguraCaixa, affiliated with major Spanish insurer La Caixa, has successfully offered an affordable life and repatriation insurance scheme to migrants since 2008. Sixty-six thousand documented migrants, mostly from Africa and Latin America, are covered under a policy which pays €30,000 to beneficiaries upon the death of a migrant, also covering repatriation of the migrant’s body if necessary. A similar scheme, managed by Spanish SegurIngreso, covers fourteen thousand migrants and pays €6,000 and a regular monthly income for five years to beneficiaries in the event of a migrant’s death. Such schemes, few as they are, suffer from serious limitations, however, which make them only minimally relevant to the climate change context: first, they concern only migrants which continue to have a relationship with family members back home and not those whose relationship with home is severed. Protection afforded by insurance is often more about those left behind than those migrating. Secondly, such schemes face a host of regulatory and legal issues, with individual insurers facing constraints to operate in a cross-border setting. Requirements concerning the type of coverage and exclusions allowed simply differ between countries, challenging the uniform applicability of insurance across borders.134 Thirdly, the undocumented status of many cross-border migrants poses challenges for those wanting to purchase insurance products, which often requires identifying documentation. There are also issues with marketing, distribution and affordability of such schemes. Finally, schemes that specifically target those migrating internally do not exist. It is for these reasons that only a globally-managed insurance mechanism could tackle the specific needs of those migrating in response to climate change’s detrimental effects. An insurance-based approach to responding to the threat of climate change displacement has the potential to tackle the issue from multiple angles. If it is funded by those that contribute significantly to climate change, such a scheme would assure that such parties have an interest to minimise harm, whilst permitting those affected by climate change to stay longer and those unable to stay to move with more security. Compulsory funding of the scheme by those contributing to global warming would also assure that affordability issues are forgone and devising an internationally-administered scheme promises to prevent the cross border hurdles currently plaguing migration-linked insurance designs. Peter Penz argues, finally, that insurance funds must not only support migrants themselves but also migrant-receiving communities that have to accommodate those displaced.135 The refugee literature supports the sometimes detrimental impact displaced persons and the camps that house them have on their host communities.136Payouts thus could also cover the infrastructure, security, nutritional, health, education and other needs generated in such communities.

131

See, eg, AA Afolayan and IO Adelekan, ‘The Role of Climatic Variations on Migration and Human Health in Africa’ (1998) 18 The Environmentalist 213 and R Hill, K Jorgensen Diener, S Miller and T White, ‘IDP Livelihoods and Personal Security: Case Studies from Colombia and Sudan’ (2006) 25 Refugee Survey Quarterly 40. 132

See Foresight, ‘Migration and Global Environmental Change: Final Project Report’ (The Government Office for Science, London, 2011). 133

For more see Powers, Magononi and Zimmerman, ‘Formalizing the Informal Insurance’ (n 130) and B Magnoni, A Lovoi, J Brown and R Thornton, ‘Risks Across Borders: A Study of the Potential of Microinsurance Products to Help Migrants Cope with Cross Border Risks’ (Inter-American Development Bank, September 2010). 134

Powers, Magononi and Zimmerman (n 130) 14.

135

P Penz, ‘International Ethical Responsibilities’ (n 5) 170.

136

See, eg, J-F Maystadt and P Verwimp, ‘Winners and Losers Amongst a Refugee-Hosting Population’ (Discussion Paper No 2009/34, International Association for Research and Teaching (ECORE), 2009).

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Contributions to an insurance scheme could be minimised by utilising public-private partnerships, premium pooling and the inclusion of risk mitigation components. Financial contributions would have to be supplemented with assistance for the necessary technical expertise required to initiate and manage the scheme. Insurance would also have to be able to cover both micro and macro losses; in other words, those faced by both countries and communities or individuals alike. Many schemes covering both types of losses already exist, though they are currently funded on a voluntary basis through international aid, or by risk bearers themselves and therefore do not bear all the hallmarks of compensatory justice. Finally, insurance must be able to cover extreme or rapid-onset, as well as more moderate, slow-onset events. Although some proposals for climate change insurance argue that only the former are insurable, experience from micro-insurance shows that at least some slow-onset events (such as drought) are insurable, at least in relation to individual losses. Ultimately, insurance will positively impact on migration and displacement. Because insurance allows losses to be recuperated relatively quickly, livelihoods may well be able to be re-established before migration becomes the only response to deal with a climatic event. V. CONCLUSION

H

uman communities have long devised ways for their members to seek redress for harm, loss or damages. There is no reason to forego at least contemplating this possibility also in the climate change context, though there can be no doubt that familiar legal concepts may have to be stretched in order to accommodate what are new realities. What is clear is that some have acted/are acting in ways that harm others. Although the moral and legal culpability for such action is far from straightforward, contemplating compensation for climate change harm nevertheless offers a process by which to confront the moral challenge and justice issues raised by the disproportionate impacts of climate change. Not at least pondering this possibility would, in the words of Pablo de Greiff, constitute a form of injustice that consists of depriving someone of the sort of consideration which is owed to all those negatively and severely affected by the actions of others.137 This is not to deny the many practical and conceptual challenges involved in potential compensation claims for one of climate change’s most dire consequences - displacement. Nevertheless, arguing that no compensation is due or possible for climate change displacement is also, in its own way, a proposal for a compensation scheme, albeit one that sets compensation at zero, hardly a just approach. Surely, some compensation must be superior to none at all. Adrian Vermeule advocates the concept of compensation as rough justice: even where there are seemingly intractable objections to any particular account of who should pay how much and why, a rough version of corrective justice suggests that wrongdoers should nonetheless pay something, more than zero.138 One way of achieving this may well be through devising no-fault compensation frameworks akin to insurance. Insurance is already contemplated in the international climate change negotiations, though not in its compensatory justice sense. Importantly, insurance schemes, both micro and macro, already cover potential harms related to many weather and environmental risks also anticipated to increase with climate change, as well as some migration-linked risks. What remains is the challenge to devise a scheme which is funded by those who contribute disproportionately to climate change in the first place and in a compulsory fashion. If this could be achieved, an efficient, fair and affordable compensation mechanism could be set up. At least the concept of ‘loss and damage’ has been embedded in the international climate change negotiations, more firmly so since the

137

P de Greiff, ‘Justice and Reparations’ in Pablo de Greiff (ed), The Handbook of Reparations (Oxford, Oxford University Press, 2006) 460. 138

A Vermeule, ‘Reparations as Rough Justice’ (Public Law and Legal Theory Working Paper No 105, Law School, The University of Chicago, 2005) 7.

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Doha Conference of the Parties in late 2012.139 Insurance may well turn out to be one of the mechanisms through which it is addressed. through t hrough through hrough which it is addressed

139

See, eg, M Marshall, ‘Doha Summit Launches Climate Damage Aid’ (n 43).

47

Causation and Damages in Climate Litigation: Evaluating the Role of Human Rights Law DAVID BROWNE∗1 I. INTRODUCTION

T

his article examines the role that litigation can play in driving action on climate change in the context of insufficient progress at international climate change negotiations. It focuses specifically on the possibilities for change arising when injured parties seek damages or redress as compensation for the harm caused to them as a result of the impacts of climate change. It also examines the specific difficulties that potential plaintiffs or claimants might face in litigation such as establishing legal standing, causation and justiciability. The article argues that the role of litigation in asserting rights that are affected by climate change could be strengthened and enforced by adopting a human rights law perspective. Such a perspective, which is framed by more absolutist rights-based language, could offer minimum rights thresholds and strengthen the adaptive and preventative mechanisms available, particularly for those who are more vulnerable and marginalised.1 This article argues that adopting a human rights perspective could: (a) strengthen procedural and process rights for those pursuing litigation before a national court or international tribunal and (b) offer a greater level of legal protection for an injured party seeking compensation or a party seeking to assert or determine its rights where there has been a breach of fundamental human rights. The article is structured as follows. Section 2 looks at the physical science basis underpinning climate change and provides a broad overview of the potential impacts of climate change on human health and welfare. Section 3 looks at the role of litigation in establishing liability in order to assess what potential compensatory and restorative remedies might be available to parties seeking redress or declaratory relief through national courts or international tribunals. Section 3 also critically evaluates the difficulties in using litigation as a means of regulating climate change and specifically examines the problems of establishing legal standing, justiciability, causation and damages. Section 4 examines the link between environmental law and human rights. Section 5 evaluates the role that human rights law might play in climate change litigation and achieving climate justice. It also identifies and analyses the potential contribution of various international human rights instruments in order to evaluate what legal protection these might offer. Section 5 also examines the issue of climate migrants or climate refugees and the legal protections that might be available to specifically protect their rights.

II. IMPACTS OF CLIMATE CHANGE

T

he most recent Intergovernmental Panel on Climate Change (IPCC) Assessment Report, i.e. the 2007 Fourth Assessment Report (AR-4),2 noted that warming of the climate system was

∗

Barrister-at-Law.

1

The author wishes to acknowledge the comments of Dr Tara Shine on an earlier draft of this paper.

2

Intergovernmental Panel on Climate Change (IPCC), Fourth Assessment Report: Climate Change 2007 (AR-4) (Geneva, Switzerland, IPCC, 2007). The IPCC was created in 1988 by the World Meteorological Organization (WMO) and the

The Irish Yearbook of International Law 2011

‘unequivocal’ and concluded that there was more than a 90% probability that most of the observed increase in global average temperatures since the mid-20th century was ‘very likely’ due to the increase in anthropogenic greenhouse gas (GHG) concentrations.3 The weight and preponderance of scientific evidence indicates that recent significant increases in the ‘basket’ of atmospheric GHG emissions, which includes carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O) and the fluorinated gases (hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6)),4 can be largely attributed to anthropogenic activities, including energy consumption, industrial production, transport and agriculture.5 In addition to confirming the role of anthropogenic activities in climate change, the IPCC AR-4 also identified the impacts of climate change. In particular, it noted that coastal regions are likely to be exposed to increased risks, including coastal flooding, storms, erosion and sea level rise, which will affect low-lying coastal areas with large populations, thus threatening vital infrastructure and island communities. It was also projected that there will be direct health impacts as a result of climate change, including: (i) malnutrition, particularly among children; (ii) increased deaths, diseases and injury due to extreme weather events; (iii) greater incidence of vector-borne diseases, such as scrub typhus, diarrheal diseases, malaria and dengue; and (iv) increased frequency of cardio-respiratory diseases due to higher concentrations of ground-level ozone in urban areas. These impacts are likely to be spatially diffuse and concentrated in particular vulnerable regions, with potentially perilous effects.6 This inequitable disparity is compounded as the most vulnerable communities are those already engaged in subsistence survival, particularly in coastal and low-lying island regions. Women and children are particularly vulnerable to the effects of climate change. In the poorest regions of the world, women often bear the primary responsibility for gathering the essential supplies for their families and supporting their children. Similarly, shortages of food and water will likely increase malnutrition among children. Indigenous peoples are also particularly vulnerable to climate change, since their way of life is often inextricably tied to the natural environment in their immediate hinterland.7 Furthermore, ethnic minorities and those who are economically impoverished may be particularly vulnerable where there is an inequitable distribution of political and economic power and this may aggravate dormant ethnic and social tensions.8 Ultimately, it appears that although there may be net ‘winners’ and ‘losers’ with

United Nations Environment Programme (UNEP) in order to inform national governments of climate change science and policy. The United Nations General Assembly (UNGA) Resolution 43/53 states that the role of the IPCC is to ‘provide internationally coordinated scientific assessments of the magnitude, timing and potential environmental and socio-economic impact of climate change and realistic response strategies’ (UNGA Res 43/53 (6 December 1988)). The Fifth Assessment Report (AR-5) is currently being prepared and should be published in 2014. 3

The Intergovernmental Panel on Climate Change (IPCC) also estimated in its 2007 Synthesis Report that eleven of the twelve years between 1995 and 2006 rank among the twelve warmest years in the instrumental record of global surface temperature which extends as far back as 1850 (Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: Synthesis Report (Geneva, Switzerland, IPCC, 2007), at p.30). 4

GHG emissions are generally aggregated according to their global warming potential (GWP) and expressed as CO2-equivalents (CO2-eq). The GWP takes into account the extent to which GHG emissions absorb radiation and the length of time that they remain in the atmosphere. See UN Habitat, Cities and Climate Change: Global Report on Human Settlements 2011 (London, Earthscan, 2011). 5

There is still some residual academic, political and media debate on the science of climate change although it is not proposed to comment on that in this article and it is taken as axiomatic that there is a direct causative link between climate change and human activities. 6

N Stern, The Stern Review: The Economics of Climate Change (HM Treasury, United Kingdom, 2007) at p.7.

7

M Orellana and A Johl, Climate Change & Human Rights: A Primer (Washington D.C., Centre for International Environmental Law (CIEL), 2011) at p.2. 8

UN Habitat, Cities and Climate Change: Global Report on Human Settlements 2011 (London, Earthscan, 2011).

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some areas gaining marginal increases in economic productivity climate change will cause net global losses which will be unevenly distributed.9

III. THE ROLE OF LITIGATION

G

iven the frustratingly slow and sometimes glacial progress that often appears to be made at the annual United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) and the lack of real action in effectuating policy rhetoric and commitments, the judicial process may offer a viable alternative in delivering change and may be used, inter alia, to provoke or stimulate legislative action.10 This is particularly the case where there is a policy or legislative lacuna or where progress is stymied by political deadlock or paralysis and the courts may be viewed as the only effective mechanism for action. The judicial process can be used to establish liability where there has been a negligent act or omission which has resulted or will result in a reasonably foreseeable contribution to climate change, for example by a disproportionate contribution to GHG emissions;11 failure to regulate or a failure to consider the impacts of climate change in a particular administrative or executive decision, where such consideration is required and where the failure to do so is procedurally irrational and/or unreasonable.12 Asserting and establishing liability may also give rise to recourse for compensation or reparations where there has been a negligent breach of an express or implicit obligation which can be established and where such breach gives rise to recoverable damages. Indeed, compensation for those who are affected by climate change, which is increasingly recognised as a ‘legally cognisable injury’, may be regarded as a ‘moral imperative’ and an acknowledgment that climate change is a violation of ‘moral responsibility’.13 Such a breach may be invoked by a claimant or plaintiff, whether that is an individual, corporation, community group, coastal state or island, municipality or non-governmental organisation (NGO), in order to seek redress where damage has been caused by another party and such damage is directly attributable to climate change. The need for litigation may be particularly acute where it is viewed as a necessary means of transferring the costs caused by damage from

9

It should be noted that climate change is also projected to bring some benefits in temperate areas, such as fewer deaths from cold exposure and less rigorous or oppressive winter conditions, as well as some economic benefits, for example in the area of agricultural productivity, tourism and navigation in the Arctic region. However, overall, it is expected that the benefits will be outweighed by the negative health effects of rising temperatures, especially in developing countries. See D Farber, ‘Adapting to Climate Change: Who Should Pay?’ (2007) UC Berkeley Public Law Research Paper No.980361, at p.7. 10

See DA Farber, ‘Basic Compensation for Victims of Climate Change’ (2007) 155 University of Pennsylvania Law Review 6, 1613. 11

See J Brunnée, S Goldberg, R Lord and L Rajamani, ‘Overview of Legal Issues Relevant to Climate Change’ in R Lord, S Goldberg, L Rajamani, J Brunnée, (eds), Climate Change Liability: Transnational Law and Practice (Cambridge, Cambridge University Press, 2011) at pp.28-30. It should be noted, however, that climate change is a global and diffuse problem with multiple contributors and virtually all consumers drive demand. 12

For example the test for administrative unreasonableness by a public body in the UK and Ireland tends to be that set down in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] EWCA Civ1 at para. 230. A number of merits-based or administrative cases have been taken in Australia in relation to climate change where it was alleged that the decision-maker failed to take proper account of relevant considerations where it was expressly or implicitly required by statute to do so, for example Greenpeace Australia Ltd. v Redbank Power Co. Pty Ltd. [1994] 86 LGERA 143; Gippsland Coastal Board v South Gippsland Shire Council [2008] VCAT 1545; Aldous v Greater Taree City Council and Another [2009] NCWELC 17; Your Water Your Say Inc. v Minister for the Environment, Heritage and the Arts [2008] FCA 670. 13

See DA Farber, ‘Basic Compensation for Victims of Climate Change’ (2007) 155 University of Pennsylvania Law Review 6 at 1613.

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climate change from the victims of climate change to the perpetrators or principal actors. Costs, it is argued, may then be allocated in a way that is more closely linked to responsibility and causation.14 However, there are a number of problems with using litigation as a means of corrective justice or as an alternative to legislative or executive action. First, the impacts of climate change are global and diffuse and there may be practical difficulties in identifying both the appropriate plaintiffs and defendants and the appropriate jurisdictional forum or tribunal, for example in the case of transboundary damage.15 Secondly, the effects of climate change are not linear and may materialise or be realised over different time scales and spatial scales. This raises the question of whether a plaintiff might sue on behalf of future generations who may not yet even be born but who may suffer the consequences of climate change as a result of current activities.16 Thirdly, there may be difficulties in establishing proximate causation, i.e. that a potential defendant or respondent substantially caused or contributed or is causing or contributing to climate change, particularly where there are scientific uncertainties. Therefore, a plaintiff may have to rely on the precautionary principle supported by robust modelling, which seeks to ascertain the probability of potential climate change and the impacts that this may cause whilst taking into account other contributory factors. In order to establish the chain of causation, a party may have to rely on the ‘but for’ test and establish that the defendant’s conduct was a contributory factor in the chain of causation. The traditional approach to establishing causation may succeed where there is scientific certainty and such certainty would have enabled the defendant to have been reasonably aware or to have reasonably foreseen such damage. However, this approach does not work as well for extreme weather events or stochastic events that are more difficult to predict. In addition, it may be difficult to prove the ‘divisibility of causation’, i.e. the extent to which an individual entity is responsible for the cumulative impact of climate change, particularly where that entity’s contribution to the global stock of GHG emissions is minor.17 It is arguable, therefore, that proving causation is the most significant obstacle to realising a compensation claim in climate change litigation. There is also the difficulty that allocating culpability to actors for their historic contributions to the global stock of GHG emissions and apportioning responsibility thereto may be contestable on the basis that, prior to the consensus being reached that GHG emissions caused climate change, GHG emitters would not have been aware of the injurious impacts of GHG emissions and such impacts may not have been reasonably foreseeable. In addition, the courts would have to establish the level of damage that is attributable to the negligence or contribution of the specific defendant or defendants to the impacts of climate change. Such damages might include both damages that have already been incurred as well as anticipatory or preventative damages.18 There may be significant administrative costs associated with adjudicating on compensation claims. Furthermore, the problem of establishing legal standing in any possible litigation is not insignificant. A potential plaintiff, applicant, claimant or petitioner would have to establish legal standing or ‘locus standi’ in order to assert its rights to compensation or review an

14

See DA Grossman, ‘Warming up to Not-so-radical Idea: Tort-based Climate Change Litigation’ (2003) 28 Columbia Journal of Environmental Law 1. 15

International tribunals may include the International Court of Justice (ICJ) or the United Nations Convention on the Law of the Sea (UNCLOS). See Trail Smelter Arbitration (United States v Canada), 16 April 1938, 11 March 1941, 3 RIAA 1907 (1941); Gabcikovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Reports 7. See P Sands, Principles of International Environmental Law (2nd Edition) (Cambridge, Cambridge University Press, 2003), at pp.318-319, 469-477. 16

H Osofsky, ‘The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance’ (2005) 83 Washington University Law Review 6. 17

S Goldberg and R Lord ‘England’ in R Lord, S Goldberg, L Rajamani, J Brunée (eds), Climate Change Liability: Transnational Law and Practice (Cambridge, Cambridge University Press, 2011) at pp.465-468. 18 Ibid.

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administrative or executive decision.19 In the case of Massachusetts v EPA20, the US Supreme Court held that the petitioners had standing although it was acknowledged that this was difficult to show given that the causes of climate change are diffuse. The Court held that to gain standing the State of Massachusetts had to demonstrate that it was ‘injured’ by climate change. It was also noted that a ‘contribution’ to injury or damages may be sufficient to establish standing and that the defendant need not be the sole contributor to the harm asserted by the petitioner in order to be held responsible, thus recognising that ‘small incremental steps’ may also justify judicial action. In Friends of the Earth v Laidlaw Environmental Services,21 it was held by the US Supreme Court that in order to establish standing a plaintiff must show that: (a) it has suffered an injury that is concrete and particularised; (b) the injury is actual or imminent rather than hypothetical; (c) the injury is fairly traceable to the impugned action of the defendant; and (d) it is likely that the injury will be redressed and the situation remedied by a favourable judicial decision. It was also held that ‘an association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organisation’s purpose’ and that standing must be demonstrated for each form of relief sought.22 In addition, the injury must have occurred directly to the litigants and not merely to the environment at large. However, it appears that even though climate change may affect other individuals this will not alter standing requirements as ‘to deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread….actions could be questioned by nobody’.23 In Lujan v Defenders of Wildlife24, Justice Kennedy held that ‘while it does not matter how many persons have been injured by the challenged action the party bringing suit must show that the action injures him in a concrete and personal way’.25 The issue of standing also arises where individuals or organisations seek to judicially review an executive act or decision. For example, in Australia, a litigant who is seeking to judicially review an administrative decision must establish that he or she has appropriate standing to do so and establish that he or she is particularly affected by or has a ‘special interest’ in the decision.26 In Ireland, an applicant in a judicial review matter of a planning or environmental decision must demonstrate that there is an arguable case and that the applicant has a ‘sufficient interest’ in the matter.27 In general, when an applicant seeks to judicially

19

See C Stone, ‘Should Trees Have Standing? Towards Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450. See also the dissent by the late Associate Justice of the United States Supreme Court, William O. Douglas, in Sierra Club v Morton 405 U.S. 727 (1972), wherein it was held that ‘the critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded …. and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation’. 20

Massachusetts v EPA 549 U.S. 497 (2007); 127 S. Ct. 1438 (2007). In that case, the Court ultimately held by a 5-4 decision that the Clean Air Act of 1970 (CAA) gives the US Environmental Protection Agency (EPA) the authority to regulate GHG emissions as a pollutant and that GHG emissions ‘may reasonably be anticipated to endanger public health and to endanger public welfare’, i.e. the endangerment finding. The Court also acknowledged that the ‘harms associated with climate change are serious and well-recognised’. 21

Friends of the Earth v Laidlaw Environmental Services (TOC), 528 U.S. 167, 181 (2000).

22

Friends of the Earth v Laidlaw Environmental Services (TOC), 528 U.S. 167, 180-181 (2000).

23

United States v Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 686-688 (1973),

24

Lujan v Defenders of Wildlife, 504 U.S. 555 (1992).

25

Lujan v Defenders of Wildlife, 504 U.S. 555, 581 (1992).

26

See R Abbs, P Cashman and T Stephens, ‘Australia’, in R Lord, S Goldberg, L Rajamani, J Brunée (eds), Climate Change Liability: Transnational Law and Practice (Cambridge, Cambridge University Press, 2011) at pp.67-111. 27

Section 50A of the Planning and Development Act 2000, as amended by section 32 of the Planning and Development (Amendment) Act 2010 and section 20 of the Environment (Miscellaneous Provisions) Act 2011.

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review an administrative decision, they must demonstrate a particular interest in the matter or in the decision that is impugned.28 In some cases, non-governmental organisations (NGOs) have relied on their observer status at meetings of the Parties to international conferences in order to demonstrate a ‘sufficient interest’ to bring a case. For example, in R. v Inspectorate of Pollution, ex p. Greenpeace Ltd. (No.2)29, Otton J. held that in order to determine whether Greenpeace had standing it was appropriate to take into account ‘the nature of the applicant and the extent of the applicant’s interest in the issues raised’,30 and found that Greenpeace had sufficient interest to bring the case as it had been accredited with consultative status by the United Nations Economic and Social Council.31In addition, the courts may take the view that issues of climate change governance are not in fact justiciable but are rather matters of policy, which are exclusively the preserve of the executive or legislature, and, therefore, should not be subject to adjudication by the courts who may not have the requisite authority, jurisdiction and competency to deal with the issue.32 In the case of State of Connecticut v American Electric Power Company (AEP) and others33, which involved a public nuisance claim filed against the utility defendants for their contribution to climate change on the basis that the five defendant power companies were together responsible for 10% of all anthropogenic GHG emissions in the US, the District Court held that the claim involved ‘non-justiciable political questions’.34 In September 2009 the US Court of Appeals for the Second Circuit reversed the decision and found that the case was justiciable. It appears, however, that there is a general judicial reticence to intervene in legislative and/or administrative decisions. Furthermore, national legislation on climate change may not be justiciable in the sense that mandatory national or sectoral targets are

28

In Canada, it was held that the test is whether it has been established that one is directly affected by the legislation or has a genuine interest in its validity (Canadian Council of Churches v Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 236; in the UK, the applicant needs to have a ‘sufficient interest’ in the matter to which the application relates (section 31(3) Senior Courts Act 1981), although standing is extended to individuals and entities who may be concerned with decisions affecting the general environment rather than any specific personal interest (R v Somerset CC ex p. Dixon [1998] Env LR 111; R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin); in the US it was held in Warth v Seldin, 422 US 490, 498 (1975) that ‘in essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues’. The US test of standing also requires the applicant to demonstrate that he or she has suffered or will imminently suffer actual injury which is concrete and particularised and standing at federal court level tends to be limited to ‘cases or controversies’ (Art III of Constitution). 29

R. v Inspectorate of Pollution, ex p. Greenpeace Ltd. (No.2) [1994] All E.R. 329.

30

R. v Inspectorate of Pollution, ex p. Greenpeace Ltd. (No.2) [1994] All E.R. 329.

31

It should be noted that international plaintiffs may rely on the Alien Tort Claims Act, which was passed with the Judiciary Act in 1789, when instituting climate change-related proceedings in the US courts. However, this only applies to treaties and customary law that the US recognises, thus excluding the Kyoto Protocol which the US has not ratified. Secondly, the US Supreme Court has suggested that ‘great caution’ should be shown before allowing cases to be brought under the Alien Tort Claims Act, c.f. Sosa v Alvarez-Machain, 542 U.S. 692, 728 (2004). For further consideration of the applicability of the Alien Tort Claims Act, see EA Posner, ‘Climate Change and International Human Rights Litigation: A Critical Appraisal’ (2007) University of Chicago, Public Law Working Paper, No.148. 32

See HS Wilkins, ‘The Justiciability of Climate Change: A Comparison of US and Canadian Approaches’ (2011) 34 Dalhousie Law Journal 529; AE Breakfield, ‘Political Cases or Political Questions: The Justiciability of Public Nuisance Climate Change Litigation and the Impact on Native Village of Kivalina v. ExxonMobil’ (2011) 17 West Northwest Journal of Environmental Law & Policy 39. 33

State of Connecticut v American Electric Power Company (AEP) and others 406 F. Supp. 2d 265 (S.D.N.Y. 2005). In Comer v Murphy Oil Company (Comer I) (2007), the plaintiffs' claims for damages against various energy, fossil fuel and chemical companies for their contributions to climate change were dismissed as non-justiciable. In California v General Motors Corp., 2007 WL 2726871 (N.D. Cal 2007), the United States District Court for the Northern District of California dismissed the plaintiff's claims for damages against various automakers for their contributions to climate change on the grounds of justiciability and on the basis that the suit contained issues more suited to the political realm. 34

State of Connecticut v American Electric Power Company (AEP) and others 406 F. Supp. 2d 265 (S.D.N.Y. 2005).

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explicitly not included and the legislation is limited to setting an administrative framework, which does not lend itself to justiciable standards of review.35 Therefore, while litigation may be somewhat useful in considering and adjudicating on claims for compensation and may raise the political profile of compensation claims relating to climate change, it may not be the most effective or appropriate mechanism for achieving distributive or corrective justice. Indeed, an international administrative tribunal, such as the United Nations Compensation Commission (UNCC) which can adjudicate on compensable environmental claims, may be a more effective mechanism to achieve such aims.36

IV. THE INTERSECTION OF HUMAN RIGHTS LAW AND ENVIRONMENTAL LAW

H

uman rights law may play a role in climate justice, including in environmental litigation where there is a violation of human rights norms.37 Under the 1945 Charter of the United Nations38, the 1948 Universal Declaration of Human Rights39, and other international human rights instruments, states have a specific duty to prevent the violation of human rights.40 In particular, states have an obligation under Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to ‘undertake steps, individually and through international assistance and cooperation to fulfil rights’ and are required to use ‘the maximum of its available resources’ to that end.41 Although the language varies, a synoptic review indicates that a number of key human rights are identified and recognised, including the right to life and liberty; freedom of expression, religion, movement, and residence; respect for privacy, family and home and the right to property.42 The most fundamental human right that may be affected by climate change, for example through the increase in natural disasters and flooding, is the right to life which is protected under Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and is considered a ‘peremptory norm’ of international

35

For example, it is arguable that the Heads of the Climate Action and Low Carbon Development Bill 2013, which was published as a framework for climate legislation in Ireland, suggest that it was intended that the provisions in that Bill would not be justiciable. This Bill was published by the Minister for Environment, Community and Local Government in Ireland and is available at http://www.environ.ie/en/PublicationsDocuments/FileDownLoad,32468,en.pdf, accessed on 27 March 2013. 36

See DA Farber, ‘Basic Compensation for Victims of Climate Change’ (2007) 155 University of Pennsylvania Law Review 6 at 1616. 37

See M Orellana and A Johl, Climate Change & Human Rights: A Primer (Washington D.C., Centre for International Environmental Law (CIEL), 2011), p.3; S Humphreys (ed), Human Rights and Climate Change (Cambridge, Cambridge University Press, 2009). 38

The Preamble to the Charter provided that one of the purposes of the United Nations was to promote and encourage ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’ (Charter of the United Nations (adopted on 26 June 1945, entered into force on 24 October 1945) 39

Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR).

40

M Orellana and A Johl, Climate Change & Human Rights: A Primer (Washington D.C., Centre for International Environmental Law (CIEL), 2011), p.1. 41

See S Humphreys (ed), Climate Change and Human Rights: A Rough Guide (Versoix, Switzerland, International Council on Human Rights Policy, 2008). 42

JH Knox, ‘Climate Change and Human Rights Law’ (2009) 50 Virginia Journal of International Law 1 at p.170. In Saramaka People v Suriname (2007 Inter-Am. Ct. H.R. (Ser. C) No. 172), the Inter-American Court found that although the protection of property is not absolute the state must ensure that any restriction on the community’s right to property ‘does not deny their survival as a tribal people’.

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law.43 In addition, climate change may represent a threat to the right to the highest attainable standard of health.44 In 1968 the UN General Assembly (UNGA) explicitly recognised the relationship between the quality of the human environment and the enjoyment of human rights.45 The 1972 Stockholm Declaration46 proclaimed that man’s natural and manmade environment ‘are essential to his well-being and to the enjoyment of basic human rights – even the right to life itself’. In 1990 the UNGA declared that ‘all individuals are entitled to live in an environment adequate for their health and well-being’.47 The Rio Declaration on Environment and Development, which was adopted at the 1992 United Nations Conference on Environment and Development (UNCED) or ‘Earth Summit’, takes a particularly anthropocentric approach, stating at Principle 1 that ‘[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’.48 The fields of environmental law and human rights law show a considerable degree of overlap.49 These areas of overlap are evident, in particular, where compensation and redress are denied or where restrictions have been placed on access to information relating to the environment and/or public participation.50 Many states have also adopted national measures linking the environment and the protection of human rights.51 Indeed the national or federal constitutions of about 100 states now expressly recognise the right to a clean environment. These constitutional provisions vary in their approach. For example, they may provide that the

43

S Atapattu, ‘Global Climate Change: Can Human Rights (And Human Beings) Survive This Onslaught?’ (2008) 20 Colorado Journal of International Environmental Law and Policy 35, 46. 44

Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESR) protects the right of individuals to attain the highest standard of physical and mental health. Other rights that may be affected include the right to an adequate standard of living, including adequate food, clothing and housing (recognised in Article 11 ICESCR) and the right to a livelihood and the right to work (Article 6 ICESCR) (International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976); Annex to UNGA Res. 2200 XXII; 6 ILM 360 (1967) (1966 ICESCR)). Article 12 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right to freedom of movement and choice of residence, including the right not to be displaced (International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976); Annex to UNGA Res. 2200 XXII, 999 UNTS 171 (1967) (1966 ICCPR)). 45

UNGA Res 2398 (XXIII) (3 December 1968).

46

Formally referred to as the Declaration of the United Nations Conference on the Human Environment (adopted 16 June 1972, United Nations Conference on the Human Environment (UNCHE), Stockholm, Sweden). 47

UNGA Res.45/94 (14 December 1990).

48

Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992. Rio Declaration on Environment and Development, in Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), 12 August 1992, Annex I. 49

See DL Shelton, ‘Human Rights, Environmental Rights and the Right to Environment’ (1991-1992) 28 Stanford Journal of International Law 103; DL Shelton, ‘Human Rights and the Environment: Jurisprudence of Human Rights Bodies’ (2002) Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment 14-16 January 2002, Geneva: Background Paper No. 2; A Fabra, ‘The Intersection of Human Rights and Environmental Issues: A Review of Institutional Developments at the International Level’ (2002) UNEP-OHCHR Expert Seminar on Human Rights and the Environment 14-16 January 2002, Geneva: Background Paper No. 3; DL Shelton, ‘Developing Substantive Environmental Rights’ (2010) 1 Journal of Human Rights and the Environment 1; DK Anton and DL Shelton, Environmental Protection and Human Rights (Cambridge, Cambridge University Press, 2011); DL Shelton (ed), Human Rights and the Environment (United Kingdom, Edward Elgar Publishing, 2011). 50

See the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (”the Aarhus Convention”) (adopted on 25 June 1998, entered into force 30 October 2001, 38 ILM 517 (1999)). The Aarhus Convention provides in its Preamble that ‘every person has the right to live in an environment adequate to his or her health or well-being and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations’. 51

In 1993 the province of Ontario in Canada adopted the Environmental Bill of Rights, 1993 (EBR) (S.O. 1993, Chapter 28). This came into effect in February 1994 and provides every Ontario citizen with a formal role in environmental protection by affording citizens with the right to participate in environmental decision-making.

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state has a duty to protect and preserve the environment or declare that the individual has a substantive right in relation to the environment or provide for an individual right or collective duty of citizens to safeguard the environment.52 For instance, the French Constitution was amended in 2005 and now includes a Charter of the Environment, which affords all French citizens the right to live in a ‘balanced environment, favourable to human health’.53 The Constitution of Belgium confers the right to ‘lead a worthy life of human dignity’, including ‘the right to protection of a sound environment’.54 The Portuguese Constitution asserts that ‘all have the right to a healthy ecologically balanced human environment and the duty to defend it’.55 Section 45 in Part I of the Spanish Constitution states that ‘everyone has the right to enjoy an environment suitable for the development of the person as well as the duty to preserve it’.56 Article 20 of the Finnish Constitution states that the ‘public authorities shall endeavor to guarantee for everyone the right to a healthy environment’.57 Article 225 of the Brazilian Constitution declares that ‘[e]veryone has the right to an ecologically balanced environment which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve [it] for present and future generations’.58 There have also been a number of specific cases where environmental law and human rights law have intersected in litigation and positive obligations to prevent environmental damage have been recognised.59 For example, in Gbembre v Shell Petroleum Development Company Nigeria Ltd. et al.,60 the Nigerian federal court held that the practice of gas flaring, which was being carried out by Shell in the Niger Delta, was unconstitutional as it violated the guaranteed fundamental rights of life and dignity of human persons provided for in the Constitution of Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights.61

52

See P Sands, Principles of International Environmental Law, 2nd edn. (Cambridge, Cambridge University Press, 2003) at p.296. 53

Legifrance, Charter for the Environment, art. 1; D Marrani, ‘The Second Anniversary of the Constitutionalisation of the French Charter for the Environment: Constitutional and Environmental Implications’ (2008) 10 Environmental Law Review 9; JR May, ‘Constituting Fundamental Environmental Rights Worldwide’ (2005-2006) 23 Pace Environmental Law Review 113-114; OW Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21 Georgetown International Environmental Law Review, 1. 54

LA CONSTITUTION BELGE art. 23(3)(4) (Belg.) (1831).

55

CONSTITUIÇÃO DA REPÚBLICA PORTUGUESA [Constitution] art. 66 (Port.), adopted in April 1976.

56

Constitución Española de 1978, art. 45 (Spain).

57

SUOMEN PERUSTUSLAKI [Constitution] art. 20 (Fin.); Constitution Act of Finland 2000.

58

Constitution of the Federative Republic of Brazil, ratified on 5 October 1988. See A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471, 480. 59

See S Humphreys (ed), Climate Change and Human Rights: A Rough Guide (Versoix, Switzerland, International Council on Human Rights Policy, 2008); J Brunnée, S Goldberg, R Lord and L Rajamani, ‘Overview of Legal Issues Relevant to Climate Change’ in R Lord, S Goldberg, L Rajamani, J Brunnée (eds), Climate Change Liability: Transnational Law and Practice (Cambridge, Cambridge University Press, 2011). 60

Gbembre v Shell Petroleum Development Company Nigeria Ltd. and Others (2005) AHRLR 151 (NgHC 2005).

61

In 2001, in Social and Economic Action Rights Center v Nigeria (the “Ogoniland Case”), it was held, inter alia, that Article 24 of the 1981 African Charter of Human and Peoples’ Rights imposes an obligation on the State to take reasonable measures ‘to prevent pollution and ecological degradation, to promote conservation, and to secure ecologically sustainable development and use of natural resources’. (Decision Regarding Communication 155/96 (Social and Economic Action Rights Center v. Nigeria; SERAP v. Nigeria, Ruling, Suit No: ECW/CCJ/APP/08/09). See A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471 at 474-475.

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Although it has not expressly been invoked in an action on climate change, Article 8 of the European Convention on Human Rights (ECHR)62 could potentially be invoked by parties seeking to argue that climate change has impacted on their right to private and family life. One might also reasonably argue that climate change might impinge on Article 1, Protocol 1 ECHR (the right to peaceful enjoyment of possessions). The issue of environmental damage representing a breach of Article 8 was raised in Hatton v United Kingdom.63 However, in that case it was held that a government scheme which altered the regulation of noise arising from night flights out of Heathrow Airport was not in violation of Article 8 of the ECHR as adequate steps had been taken to soundproof homes and limit the frequency of flights.64 In López Ostra v Spain65, the applicants complained that a waste water treatment facility near their home violated their right to privacy and family. It was held that severe environmental pollution may infringe rights under Article 8(1) of the ECHR, irrespective of whether a person’s health is seriously endangered. However, when environmental harm does affect human rights, the ECHR has tended to allow the Member State a considerable deal of discretion or ‘margin of appreciation’ to find a ‘fair balance’ between the rights of the individual and the interests of others in the broader community, whether the harm is caused by the state directly or by a private actor.66 In determining whether a particular Member State has found an acceptable balance, the ECHR tends to crutinise the domestic law to see if the state has failed to meet domestic standards by allowing excessive levels of pollution or has failed to implement a domestic court decision.67 However, the ECHR does not explicitly offer any level of environmental protection or create any directly justiciable environmental rights. Furthermore Article 37 of the European Union’s Charter of Fundamental Rights merely provides that ‘[a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’.68 In addition, the cases which have been decided under the ECHR relate to intra-territorial impacts, for example from an industrial activity or nuisance, which have been linked to an impact on human health. Thus, it is far from clear as to what level of protection might be offered by the ECHR in climate litigation or how climate change might be treated in future ECHR jurisprudence, particularly where impacts are caused by extra-territorial activities. V. RECOGNISING THE ROLE OF CLIMATE JUSTICE AND THE RIGHTS OF CLIMATE MIGRANTS

C

limate change lies at the confluence of environmental law and human rights law and lends itself to a human rights consideration, given the potential scale of natural disasters and

62

European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted on 4 November 1950, entered into force 3 September 1953) 213 U.N.T.S. 221 (1950 ECHR). 63

Hatton v United Kingdom (App no 36022/97) (2003) 37 EHRR 28; ECHR 338. See also Arrondelle v UK 26 DR 5 (1982). 64

Hatton v United Kingdom (App no 36022/97) (2003) 37 EHRR 28 at paras.96-98.

65

López Ostra v Spain (App no 16798/90) [1994] ECHR 46. at para. 58. See also Guerra v Italy 14967/89 [1998] ECHR 7.

66

In Hatton v United Kingdom (App no 36022/97) (2003) 37 EHRR 28, it was held at para. 119 that the UK Government had done its best to mitigate the impact of night-time flights on the private life of those who were affected and had sought to maintain a ‘fair balance’ between the needs of local residents and airport operators. 67

Hatton v United Kingdom (App no 36022/97) (2003) 37 EHRR 28; López Ostra v Spain (App no 16798/90) [1994] ECHR 46; Taşkin v Turkey (App no 46117/99) [2004] ECHR 621. 68

Charter of Fundamental Rights of the European Union (adopted on 2 October 2000, entered into force 7 December 2000) (2000/C 364/01). See A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471, 478-479.

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damage that may result as well as the diffuse distribution of climate change impacts and the inherent inequity that may arise where those who contributed least to the problem are most affected.69 Climate justice links human rights, sustainable development and environmental protection in a social paradigm based on an anthropogenic or human-centred approach, which aims to safeguard and protect the rights of the most vulnerable and more equitably share the burdens and benefits of the impacts of and adaptation to climate change.70 Thus, climate justice may offer greater guarantees of both ‘procedural justice’ in terms of participation in decisionmaking and ‘distributional justice’ in terms of how the benefits and burdens of climate change are allocated and distributed. It also aims to ensure that human rights are invoked to protect the most vulnerable against the impacts of climate change, while respecting and promoting the right to development through access to resources, including funding for adaptation and disaster risk management, dissemination of information and technology transfer. This link between climate change and human rights has increasingly been recognised at international level, which strengthens the position of a potential claimant or plaintiff who attempts to assert that their basic human rights are violated or breached as a result of climate change. In November 2007, representatives of the Small Island Developing States (SIDS) signed the Malé Declaration on the Human Dimension of Global Climate Change.71 This Declaration noted that the ‘impacts of climate change pose the most immediate, fundamental and farreaching threat to the environment, individuals and communities around the planet’. The Declaration also called for the cooperation of the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the United Nations Human Rights Council in assessing the human rights implications of climate change. In March 2008, the United Nations Human Rights Council adopted Resolution 7/23 on human rights and climate change by way of consensus.72 This stated, inter alia, that the Council was ‘concerned’ that ‘climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights’ 73 and ‘recalled’ that development was a ‘universal and inalienable right’.74 It also ‘recognised’ that the world’s poor are especially vulnerable to the effects of climate change, particularly those concentrated in high-risk areas, and that ‘low-lying and other small island countries, countries with low-lying coastal, arid and semi-arid areas or areas liable to floods, drought and desertification, and developing countries with fragile mountainous ecosystems are particularly vulnerable to the adverse effects of climate change’.75 The UN Human Rights Council adopted

69

See S Atapattu, ‘Global Climate Change: Can Human Rights (and human beings) Survive This Onslaught?’ (2008) 20 Colorado Journal of International Environmental Law and Policy 35; S McInerney-Lankford, ‘Climate Change: An Introduction to Legal Issues’ (2009) 33 Harvard Environmental Law Review 431; JH Knox, ‘Climate Change and Human Rights Law’ (2009) 50 Virginia Journal of International Law 1, 163-218; D Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’ (2010) Georgia Journal of International and Comparative Law 38: 511-524. 70

See EA Posner and CR Sunstein, ‘Climate Change Justice’ (2007) Public Law and Legal Theory Working Paper No.354, The University of Chicago; EA Posner and D Weisbach, Climate Change Justice (Princeton, Princeton University Press, 2010). 71

Male’ Declaration on the Human Dimension of Global Climate Change, Male’, Republic of Maldives (adopted on 14 November 2007). 72

United Nations Human Rights Council (UNCHR), Resolution 7/23, ‘Human Rights and Climate Change’ (28 March 2008) U.N. Doc. A/HRC/7/78 (14 July 2008). 73

United Nations Human Rights Council (UNCHR), Resolution 7/23, ‘Human Rights and Climate Change’ (28 March 2008) U.N. Doc. A/HRC/7/78 (14 July 2008), para. 1. 74

United Nations Human Rights Council (UNCHR), Resolution 7/23, ‘Human Rights and Climate Change’ (28 March 2008) U.N. Doc. A/HRC/7/78 (14 July 2008), para. 6. 75

United Nations Human Rights Council (UNCHR), Resolution 7/23, ‘Human Rights and Climate Change’ (28 March 2008) U.N. Doc. A/HRC/7/78 (14 July 2008), para. 9. In 2008, the Organisation of American States approved Resolution AG/Res 2429 on human rights and climate change in the Americas, which expressed concern for ‘the consequences [that climate change] could have for the full enjoyment of human rights’ and called on the various human rights and environmental agencies to inform the States on the adverse impacts of climate change

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another consensus resolution on human rights and climate change, namely Resolution 10/4, at its tenth session in March 2009 76, following a request by the Maldives.77 This Resolution also ‘noted’ that climate change has both direct and indirect implications for the enjoyment of human rights and ‘recognised’ that vulnerable individuals and communities will be the most acutely affected.78 The 2009 Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (“the OHCHR study”)79 ‘notes’ the link between climate change and human rights and the obligation on States to protect human rights from the effects of climate change. However, it also ‘notes’ that there ‘is a need for more detailed studies and data collection…….in order to assess the human rights impact of climate change-related phenomena and of policies and measures adopted to address climate change’.80 In September 2011, the United Nations Human Rights Council adopted its third resolution on human rights and climate change, namely Resolution 18/22.81 This ‘affirms’ that ‘human rights obligations, standards and principles have the potential to inform and strengthen international and national policy-making in the area of climate change, promoting policy coherence, legitimacy, and sustainable outcomes’.82 However, these resolutions are generally quite guarded. Indeed, the language that is used is predominantly precatory and refrains from using more hortatory declamations. Notwithstanding this, the fact that climate change and human rights have been recognised in UN Resolutions may mean that any potential actions which rely, for example, on Article 8 of the European Convention on Human Rights and seek to argue that climate change engages the protections of the ECHR, may yet succeed. Aside from the cautious development signalled by this emerging body of law and international declarations and resolutions, there have been some specific examples of progress at international level where international tribunals have been called upon to adjudicate in the

(Organisation of American States, Resolution 2429, ‘Human Rights and Climate Change in the Americas’, (3 June 2008) AG/RES 2429 (XXXVIII-O/08). 76

United Nations Human Rights Council (UNCHR), Resolution 10/4, ‘Human Rights and Climate Change’ (25 March 2009). Draft Report of the Human Rights Council on its Tenth Session 13, at 15, U.N. Doc. A/HRC/10/L.11 (31 March 2009). 77

See JH Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477. 78

United Nations Human Rights Council (UNCHR), Resolution 10/4, ‘Human Rights and Climate Change’ (25 March 2009). Draft Report of the Human Rights Council on its Tenth Session 13, at 15, U.N. Doc. A/HRC/10/L.11 (31 March 2009), para. 7. 79

United Nations General Assembly, Human Rights Council Tenth Session, Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the SecretaryGeneral: Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, A/HRC/10/61, 15 January 2009. 80

Ibid, para. 97. In October 2010, the UN Human Rights Council convened a ‘Social Forum’ in order to provide an opportunity to discuss the adverse effects of climate change on human rights as well as measures and actions to address the impact of climate change at the local, national, regional and international levels; and international assistance and cooperation in addressing the human rights-related impacts of climate change. See M Orellana and A Johl, Climate Change & Human Rights: A Primer (Washington D.C., Centre for International Environmental Law (CIEL), 2011). 81

United Nations Human Rights Council (UNHRC), Resolution 18/22, ‘Human Rights and Climate Change’ (30 September 2011) A/HRC/RES/18/22. This was tabled by the Philippines and Bangladesh, with the support of 43 co-sponsors including the Maldives, Germany and Spain. 82

United Nations Human Rights Council (UNHRC), Resolution 18/22, ‘Human Rights and Climate Change’ (30 September 2011) A/HRC/RES/18/22. The UN Human Rights Council was also requested to convene a seminar on addressing the adverse impacts of climate change on the full enjoyment of human rights, prior to its nineteenth session.

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area of climate change. For instance, in 2005 the Inuit people in Canada filed a petition before the Inter-American Commission on Human Rights (IACHR)83, which claimed that climate change has had a devastating impact on the rights of the indigenous peoples of the Arctic and that the human rights of the applicants were being violated due to the failure of the United States to mitigate its GHG emissions.84 While the IACHR ultimately did not find the case admissible and decided not to proceed with the petition, it did hold a ‘thematic hearing’ to begin investigating the connection between climate change and human rights.85 In September 2011,86 President Johnson Toribiong of the Pacific Island nation of Palau informed the UN General Assembly that, along with the Marshall Islands, Palau would call on the 193-member Assembly to seek an advisory opinion from the International Court of Justice (ICJ) on the subject of climate change, citing the obligations of customary international law as well as the United Nations Convention on the Law of the Sea (UNCLOS).87 This call was reiterated in February 2012 with a high-level group convened to formulate a preliminary draft of the question.88 However, although these resolutions and inquiries have established a normative and moral dimension and drawn a nexus between climate change and human rights at UN level, a clear legal dimension connecting climate change and human rights has not yet been established at international level.89 Furthermore, the legal rights of those who are affected by climate change have not been clarified. These include those who have been directly affected by a natural disaster which is attributable to climate change or who have suffered a significant reduction or diminution in their standard of living or welfare or who have been forced to adapt their way of life as a result of climate change. There have, however, been some academic attempts to identify and establish the legal position of ‘climate migrants’, i.e. persons who have been forced to migrate either regionally within their homeland or across territorial borders. This includes both voluntary migration and involuntary displacement as a result of both long-term insidious climate change impacts such as incremental sea level rise and drought as well as immediate

83

Petition to the Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States. See also HM Osofsky, ‘The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights’ in: WCG Burns and HM Osofsky (eds), Adjudicating Climate Change: State, National, and International Approaches (Cambridge, Cambridge University Press, 2009). 84

Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States. This Petition was submitted on 7 December 2005 by Sheila Watt-Cloutier with the Support of the Inuit Circumpolar Conference on Behalf of All Inuit of the Arctic Regions of the United States and Canada, the Centre for International Environmental Law (CIEL) and Earth justice. The rights that were alleged to have been violated and that were alleged to have been protected by the American Declaration of the Rights and Duties of Man, which was signed in Bogotá, Colombia in April 1948, include the rights “to enjoy the benefits of their culture” (page 74), “to use and enjoy the lands they have traditionally used and occupied” (page 79), “to use and enjoy their personal property” (page 83), “to the preservation of health” (page 85), “to life, physical integrity and security” (page 89), “to their own means of subsistence” (page 92), and “to residence and movement and inviolability of the home” (page 94). 85

Testimony, Inter-American Commission on Human Rights (IAHCR), March 5 2007. See M Averill, ‘Climate Litigation: Ethical Implications and Societal Impacts’ (2008) 85 Denver University Law Review 899. 86

Statement by President Johnson Toribiong, Palau, to the United Nations General Assembly (UNGA), 22 September 2011. http://gadebate.un.org/66/palau, accessed on 27 March 2013. 87

Citing Article 194.2 of UNCLOS which states that ‘States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention’. 88

Statement by President Johnson Toribiong, Palau, to the United Nations General Assembly, 7 February 2012. http://www.un.org/News/briefings/docs/2012/120203_ICJ.doc.htm, accessed on 27 March 2013. 89

S. McInerney-Lankford, ‘Climate Change and Human Rights: An Introduction to Legal Issues’ (2009) Harvard Environmental Law Review, 33, 432.

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natural disasters.90 The potential for mass migration as a consequence of climate change requires reflection both on what this might mean for global migration and demographic patterns as well as the need to strengthen legal protection for climate migrants and agree on a workable definition of ‘climate migrants’. The International Organisation for Migration proposes the following definition for environmental migrants: 91 ‘Environmental migrants are persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad’. The concept of environmental migrants has been adapted and applied to what has controversially been referred to as ‘climate refugees’. A ‘climate refugee’ has been defined as a person ‘whom climate change forces to relocate across national borders’ 92 and ‘who is forced to flee his or her home and to relocate temporarily or permanently across a national boundary as the result of sudden or gradual environmental disruption that is consistent with climate change and to which humans more likely than not contributed’.93 Climate change refugees have also been defined as ‘people who have to leave their habitats, immediately or in the near future, because of sudden or gradual alterations in their natural environment related to at least one of three impacts of climate change: sea-level rise, extreme weather events, and drought and water scarcity’.94 However, the term ‘climate refugees’ has yet to be formally defined nor is it universally accepted.95 Furthermore, the issue appears to be more complex than simply migration as a result of climate change and is linked to other factors such as violence, poverty and conflict. As the term ‘climate refugees’ is highly disputed and value-laden, the language has evolved to consider ‘climate displaced persons’ where such displacement or migration

90

See A Williams, ‘Turning the Tide: Recognising Climate Change Refugees in International Law’ (2008) 30 Law & Policy 4, 502-529; B Docherty and T Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 2, 349-403, 355. It is estimated that by 2050 there may be between 50-200 million climate migrants globally, including migrants seeking refuge in other countries, internally-displaced persons who are seeking to relocate and temporary or seasonal local or regional migration of pastoralists. However, one should be careful when attributing the scale of migration to climate change only and it is necessary that one considers other factors such as economic and social stresses and violence or internecine warfare. 91

International Organisation for Migration (IMO), Discussion Note: Migration and the Environment – NinetyFourth Session (2007), para. 6 [MC/INF/288]. 92

B Docherty and T Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 2, 349-403, 352. 93

B Docherty and T Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 2, 349-403, 361. 94

F Biermann and I Boas, ‘Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees’ (2010) 10 Global Environmental Politics 1, 60-88, 67. 95

In 2008, António Guterres, the UN High Commissioner for Refugees, stated that he had ‘serious reservations with respect to the terminology and notion of environmental refugees or climate refugees’ and indicated that ‘these terms have no basis in international refugee law’ as the majority of those had not crossed an international border. See United Nations High Commissioner for Refugees (UNHCR), ‘Climate Change, Natural Disasters and Human Displacement: A UNHCR Perspective’, 23 October 2008.

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may be internal, i.e. internally-displaced persons (IDPs)96 or seasonal pastoralists, or crossborder and may be forced displacement or voluntary migration.97 Furthermore, the legal rights of climate migrants or refugees have not been adequately identified and defined, possibly as a result of the semantic ambiguity over what is meant by climate migrants or refugees and the reticence to allocate rights to a group which has yet to be legally recognised. Nonetheless, the United Nations Office of the High Commissioner for Human Rights (OHCHR) has begun to pay specific attention to climate change and, more specifically, the risk of ‘permanent displacement’ as a result of climate change.98 Article 1A of the 1951 Convention Relating to the Status of Refugees,99 which was amended by the 1967 Protocol Relating to the Status of Refugees,100 defines the term ‘refugee’. However, this definition does not offer sufficient protection for climate migrants who do not fall easily within the scope of the 1951 Convention. In particular, ‘environmental degradation’ is not specified within the definition nor does it appear to be construed within one of the enumerated reasons that constitute a ‘well-founded fear of persecution’. It has been argued that a new legal instrument is necessary.101 While this article does not propose to deal in detail with this issue, it is suggested that, whatever form such a legal instrument takes and however the terms ‘climate migrants’ and ‘climate refugees’ are legally defined, it is essential that this does not discombobulate the situation but rather that such terms and legal instruments are sufficiently and robustly defined to avoid any obfuscation of what they might mean in practical terms and to ensure that the rights of those that have suffered as a result of climate change are protected. Therefore, notwithstanding the complexity of the issues and the difficulties in litigating climate change, recognising the impacts of climate change as human rights issues may offer a useful approach in litigation where parties seek to argue that climate change is leading to or directly linked to human rights violations both for individuals and communities at present but also for future generations. Such a rights-based approach offers a number of benefits.102 First, embracing a human rights approach may be useful in prioritising harm to actual individuals and communities and brings a ‘human face’ to the issue rather than contemplating hypothetical scenarios. Human rights considerations can also focus attention on the most vulnerable or marginalised who often lack the information and resources needed to make informed choices on adaptation and add a degree of ‘moral urgency’ that may not be redolent in a purely environmental law context. Indeed, human rights law imposes duties on states to

96

See the Guiding Principles on Internal Displacement and, in particular, Guiding Principles 5 to 9 which describe the parameters of the right not to be arbitrarily displaced (United Nations Office for the Coordination of Humanitarian Affairs (OCHA), ‘Guiding Principles on Internal Displacement’ (OCHA, September 2004)). 97

M Ammer ‘Climate Change and Human Rights: The Status of Climate Change Refugees in Europe’ (2009) Ludwig Boltzmann Institute of Human Rights, Austria, p.27. Available at: http://www.udhr60.ch/report/ClimateChangepaper0609.pdf, accessed on 27 March 2013. 98

In February 2008, the Deputy High Commissioner for Human Rights noted that ‘by 2050, hundreds of millions more people may become permanently displaced due to rising sea levels, floods, droughts, famine and hurricanes. Increased desertification and the alteration of ecosystems, by endangering communities’ livelihoods, are also likely to trigger large population displacements’ (United Nations Deputy High Commissioner for Human Rights, ‘Climate Change, Migration and Human Rights’, 19 February 2008). 99

Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention). 100

Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (Protocol). 101

See A Williams, ‘Turning the Tide: Recognising Climate Change Refugees in International Law’ (2008) 30 Law & Policy, 4, 502-529; B Docherty and T Giannini, ‘Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees’ (2009) 33 Harvard Environmental Law Review 2, 350. 102

See S Atapattu, ‘Global Climate Change: Can Human Rights (And Human Beings) Survive This Onslaught? (2008) 20 Colorado Journal of International Environmental Law and Policy 35.

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protect those who are affected by climate change and to respond accordingly, regardless of where the culpability for causation can be placed.103 Human rights standards also provide ‘thresholds of minimum acceptability’ for harms that must be both respected and protected. Furthermore, moral and ethical considerations captured by a human rights framework can give rise to legal obligations. Human rights law may be considered to be more absolutist than environmental law where human rights serve as legalistic ‘trump cards’, which have ‘lexical priority’,104 rather than considerations to be balanced against political or social priorities as might be the case with international environmental agreements. Indeed, it has been argued that international environmental law depends on ‘reciprocity’ or mutual action or collective effort whereas human rights law does not.105 Human rights law, it is suggested, offers a greater degree of formalism, moral certainty and universalism.106 Thus, viewing climate change as a human rights issue offers a greater level of protection within the framework of ius cogens than, for example, environmental law, which may be based on more ’politicised’ or consensus-oriented international arrangements.107 Human rights can also confer greater benefits for marginalised parties in terms of accountability and ensuring compliance with the United Nations Framework Convention on Climate Change (UNFCCC) and its associated principles and maxims of equity – common but differentiated responsibility and respective capabilities.108 Human rights law may strengthen the procedural safeguards set out in the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (”the Aarhus Convention”),109 which include the right to access environmental information, the right of the public to be fully informed and to participate in decision-making, the right to challenge public decisions and access to justice and the right to an effective remedy.110 The procedural rights protected under the Aarhus Convention are broader than those provided for by ECHR procedural rights, which are limited to the safeguarding of individual interests.111 These provisions should, therefore, enable greater participation by representatives of vulnerable communities in matters concerning mitigation, benefit-sharing, adaptation, funding and technology transfer. The right to participation is also relevant at a local or regional level where discussions are being held in relation to allocation of scarce resources and the distribution of

103

J H Knox, ‘Climate Change and Human Rights Law’ (2009) 50 Virginia Journal of International Law 1 218.

104

DM Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’ (2010) 38 Georgia Journal of International and Comparative Law 517, 521. 105

DM Bodansky, The Art and Craft of International Environmental Law (Cambridge, MA, Harvard University Press, 2009). 106

DM Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’ (2010) 38 Georgia Journal of International and Comparative Law 517; S Humphreys, (ed), Climate Change and Human Rights: A Rough Guide (Versoix, Switzerland, International Council on Human Rights Policy, 2008), pp.49-54. 107

DM Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’ (2010) 38 Georgia Journal of International and Comparative Law 516. 08

M Ammer, ‘Climate Change and Human Rights: The Status of Climate Refugees in Europe’ (Austria, Ludwig Boltzmann Institute of Human Rights, 2009). 109

Article 7 of the Aarhus Convention states that: ‘[e]ach Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public’. 110

Under Article 9(4) of the Aarhus Convention, procedures for accessing justice must not be ‘prohibitively expensive’. 111

A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 495.

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benefits from donor countries.112 Human rights protection also offers a level of pre-emptive protection of legally-recognisable fundamental human rights for which it may not be morally desirable to reduce into a compensatable pecuniary value. Furthermore, these rights may confer active and positive obligations to protect such rights. However, there are a number of difficulties with asserting human rights violations arising from climate change. First, economic, social and migrant rights are difficult to enforce and have weak enforcement mechanisms under international law, particularly where causation is uncertain. Secondly, extraterritorial responsibility is difficult to establish where the respondents or defendants are operating in different jurisdictions or are multi-national corporations. Thirdly, there may be a conflict between economic rights or rights to property and other human rights.113 And, even if damages are obtained as a result of a breach of human rights, it is unlikely that obtaining redress through litigation will offer a viable alternative to the UNFCCC process as it only offers an incremental or ad-hoc solution to an ongoing problem.114 Finally, national courts may be reluctant to apply human rights standards in private common law disputes relating to negligence and public nuisance. Difficulties also remain in relation to legal standing and issues of justiciability. These difficulties will arise in climate litigation and, as yet, have not been adequately resolved.

VI.

CONCLUSIONS

L

itigation which seeks to recover compensation as a result of damage caused by climate change may prove to be a necessary tool to effectuate change and may serve to focus greater attention on the impacts of climate change on human rights. This connection between climate change and human rights offers more absolutist legal thresholds and stronger procedural safeguards and guarantees. The concept of climate justice, which seeks to bridge human rights and climate change law, can be used to strengthen and enforce considerations of ‘equity’ and both ‘intergenerational’ and ‘intragenerational’ justice in climate litigation and offers a specific anthropogenic perspective to what might otherwise be considered as more of an environmental law issue. However, climate litigation is fraught with a number of procedural difficulties and offers a somewhat inadequate solution to the problems witnessed at the annual UNFCCC negotiations. Ultimately, one of the major limitations of litigation in regulating climate change is that it is incrementalist and ad-hoc in nature and does not lead to cohesive regulatory, policy and institutional change. This is primarily because courts and tribunals are confined to considering the matters that are pleaded before them, assuming that potential plaintiffs and claimants overcome barriers such as locus standi, and will be reluctant to engage in extra-judicial pronouncements or decisions that stray into the political or executive realm. Furthermore, litigation is unlikely to lead to significant redistribution of wealth by way of the allocation of damages and so is unlikely to replace the hotly-contested mechanisms of technology transfer and climate finance, which are central to the UNFCCC process. Therefore, even though litigation may succeed in driving policy change in specific circumstances or focussing political

112

A Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 498; S Humphreys (ed), Climate Change and Human Rights: A Rough Guide (Versoix, Switzerland, International Council on Human Rights Policy, 2008) at pp.49-54; JH Knox, ‘Climate Change and Human Rights Law’ (2009) 50 Virginia Journal of International Law 1, 189. 113

See S Humphreys (ed), Climate Change and Human Rights: A Rough Guide (Versoix, Switzerland, International Council on Human Rights Policy, 2008), 6-9. 114

S Humphreys (ed), Human Rights and Climate Change (Cambridge, Cambridge University Press, 2009).

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attention on climate change, it should not replace more systemic and cohesive progress in national and international policy frameworks and institutional arrangements. arrangements arrangements arrangements arrangements

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The Diplomatic Disputes between the Holy See and the Irish State 2009-2012: A Legal Analysis DR DARREN O’DONOVAN* 1. INTRODUCTION

T

he diplomatic dispute that erupted between Ireland and the Holy See concerning the reports of Commissions of Investigation into child abuse in the dioceses of Cloyne 1 and Dublin2 provoked critical reflection on a traditionally privileged bilateral relationship. It should also be viewed as having made a highly significant contribution to broader debates concerning the Holy See’s status under international law. The Holy See’s uniquely opaque and sui generis status contributed to the unprecedented tension between it and the Irish State during the diplomatic controversies.

2. THE FINDINGS OF THE COMMISSIONS OF INVESTIGATION

T

he first diplomatic incident had arisen in the context of the Murphy Commission of Inquiry into Child Abuse in the Dublin Archdiocese. The Commission wrote to the Holy See’s Congregation for the Doctrine of the Faith in September 2006, asking for information on its promulgation of the document Crimen Sollicitationis as well as information on any reports of clerical sexual abuse emanating from the Dublin diocese during the period being investigated.3 The Congregation contacted the Irish Government to complain that the Commission had not followed diplomatic protocol by submitting the request through the Department of Foreign Affairs.4 The Commission had taken the view that as it was an independent body, with various government departments themselves being within the ambit of its inquiry, it would not be appropriate for it to rely upon government as an intermediary. The Commission also wrote to the Papal Nuncio to Ireland in November 2007 requesting all documents in his possession

* Bond University, Queensland, Australia 1

Hereinafter the Cloyne Report. The Report focused on the child protection practices in the diocese and how it dealt with complaints against nineteen priests from 1998 onwards. The Report of the Comission of Investigation into the handling by Church and State authorities of allegations and suspicions of child sexual abuse against clerics of the Catholic Diocese of Cloyne (Dublin, Stationery Office, 2011). Also available at: http://www.justice.ie/en/JELR/Pages/Cloyne_Rpt. 2

Hereinafter the Murphy Report. Both Commissions were chaired by Justice Yvonne Murphy. The Report of the Commission of Investigation into the handling by Church and State authorities of allegations and suspicions of child abuse against clerics of the Catholic Archdiocese of Dublin (Dublin: Stationery Office, 2009). Also available at: http://www.justice.ie/en/JELR/Pages/PB09000504. http://www.justice.ie/en/JELR/Pages/PB09000504 3

Ibid at para 2.24. The Crimen Sollicitationis document outlined the Church’s procedures for dealing with serious ‘delicts’ on the part of clergy and was in force during the period under investigation by the Commission. The exchanges between the Holy See and the Commission are described in. 4

Ibid at para 2.24.

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relevant to the Inquiry’s terms of reference,5 and for his comment upon the portions of its draft report that related to him and his Office. It received no reply.6 The Murphy Report, when published, concluded that the Dublin Archdiocese, until at least the middle of the 1990s, prioritised the maintenance of secrecy and the protection of the reputation and assets of the Church in its investigations of allegations of sexual abuse. It concluded that “the Archdiocese did not implement its own canon law rules and did its best to avoid any application of the law of the State.” 7 The Papal Nuncio later rejected the opportunity to appear before the Joint Oireachtas Committee on Foreign Affairs to explain the Holy See’s attitude towards the investigation and its findings.8 In 2010, the Guardian published a Wikileaks cable from the American Embassy to Ireland where it was claimed that 'the Vatican believes the Irish government failed to respect and protect Vatican sovereignty during the investigations'.9 This exchange formed the backdrop for the publication, on 13 July 2011, of the Cloyne Report. The Report concluded that Bishop John Magee, head of that diocese, had not, as he had publicly claimed, ensured the reporting of all local allegations of abuse to civil authorities.10 It concluded also that he had deliberately misled another inquiry by creating two differing accounts of a meeting with a priest subject to investigation, one being lodged in the diocesan files, the other being sent to the Vatican.11 The Commission of Investigation had again written to the Papal Nuncio, who replied that he was “unable to assist” it in relation to any of the matters as the Nunciature was not charged with “determining” the handling of sexual abuse cases in Ireland.12 Despite this, the Commission concluded that the Holy See’s dismissal in 1997 of the Irish Church’s document, Child Sexual Abuse: Framework for a Church Response, (usually referred to as The Framework Guidelines on Child Abuse),13 as a ‘study document’ was ‘entirely unhelpful’ in its impact on the everyday practices in the Cloyne diocese.14 This dismissal of the guidelines had occurred in a letter from the then Papal Nuncio, Archbishop Luciano Storero, to the Irish Bishops Conference in January 1997. The Nuncio described the Framework Guidelines on

5

The Commission specifically asked the Nuncio to confirm whether or not such documentation existed.

6

Above n 2.

7

Above n 2 at para 1.15. The Report continued at para 1.32: “Another consequence of the obsessive concern with secrecy and the avoidance of scandal was the failure of successive Archbishops and bishops to report complaints to the Garda prior to 1996. The Archbishops, bishops and other officials cannot claim that they did not know that child sexual abuse was a crime. As citizens of the State, they have the same obligations as all other citizens to uphold the law and report serious crimes to the authorities.” authorities.” authorities.” 8

The Irish Times, Nuncio Criticised over Oireachtas Invitation, 15 February 2010. Available at: http://www.irishtimes.com/newspaper/breaking/2010/0215/breaking57.html. 9

Above n 6. The Guardian, Wikileaks Cables: Vatican refused to engage with child sex abuse inquiry, December 11, 2010. Available at: http://www.guardian.co.uk/world/2010/dec/10/wikileaks-vatican-child-sex-abuse-investigation. 10

11

Above n 1 at paras 1.18-119. Above n 1 at para 21.18.

12

Ibid at para 2.11. The Nuncio stated that his Office: “does not determine the handling of cases of sexual abuse in Ireland and therefore is unable to assist you in this matter. In fact, such cases are managed according to the responsibility of local ecclesiastical authorities, in this instance the Diocese of Cloyne. Like all ecclesiastical entities in Ireland, the Diocese of Cloyne is bound to act in accordance with canon law and with all civil laws and regulations of Ireland as may be applicable.” The Report does not reference whether this communication with the Office of the Nuncio was facilitated by the Irish Government. 13

As it is so named in both the Cloyne and Murphy Reports, this article will adopt the term “Framework Guidelines on Child Abuse”. Irish Bishops’ Conference, Child Sexual Abuse: Framework for a Church Response, (1996, Veritas Publishing, Dublin). authorities.” authorities.” authorituthorities.” 14

Above n 1 at para 1.18.

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Child Abuse, which urged full disclosure to Irish authorities, as potentially ‘highly embarrassing and detrimental’, and warned of: procedures and dispositions which appear contrary to canonical discipline and which, if applied, could invalidate the acts of the same Bishops who are attempting to put a stop to these problems. If such procedures were to be followed by the Bishops and there were cases of eventual hierarchical recourse lodged at the Holy See, the results could be highly embarrassing and detrimental to those same Diocesan authorities. In particular, the situation of ômandatory reportingö gives rise to serious reservations of both a moral and a canonical nature.15 The Cloyne Report found that this letter gave support to those in the Church who did not wish to implement the guidelines. It is significant that at least one bishop admitted in the media that, regardless of the intent of the letter, he interpreted it as discouraging them from reporting.16

III. THE AFTERMATH OF THE CLOYNE REPORT

T

he reaction to the Report by the Irish Government was delivered by a number of Government Ministers. The Minister for Justice, Equality and Defence, Mr. Alan Shatter T.D., stated that the intervention by the then Papal Nuncio was unacceptable, given that the State had been assured that the Irish Catholic Church had implemented new child protection guidelines.17 Following a meeting with the Papal Nuncio, the Minister for Foreign Affairs and Trade, Mr Eamon Gilmore stated T.D.: I want to know why this state, with which we have diplomatic relations, issued a communication, the effect of which was that the very serious matter of the abuse of children in this country was not reported to the authorities.18 This formal call for an explanation was accompanied by a speech to the Dßil (Irish Parliament) by An Taoiseach (the Prime Minister), Mr Enda Kenny, which received worldwide media coverage following its suggestion that the Cloyne Report exposed ”an attempt by the Holy See to frustrate an inquiry in a sovereign, democratic republic” as little as three years ago, not three decades ago”.19 Following the speech, a Government spokesperson was forced to clarify that the Taoiseach, was not referring to any specific incident, and that he had misquoted a purported statement of the then Cardinal Ratzinger on theological matters.20 The Taoiseach

15

Ibid.

16

The Irish Times, 1 January 2011, Vatican Edict in 1997 rejected calls to report priests who abused. Available at http://www.irishtimes.com/newspaper/ireland/2011/0117/1224287680501.html. 17

At the time, the Secretary of the Irish Bishops Conference had publicly stated that the guidelines were being implemented faithfully throughout Ireland. authorities.” authorities.” authorities.” authorities.” 18

The Irish Times, Kenny Condemns Vatican Response to Allegations, 14 July 2011.Available at: http://www.irishtimes.com/newspaper/breaking/2011/0714/breaking1.html. 19

Dáil Éireann Debates, 20 July 2011, Vol. 737(11), at p 13.

20

The Taoiseach mistakenly quoted then Cardinal Ratzinger as having stated that “standards of conduct appropriate to civil society or the workings of a democracy cannot be purely and simply applied to the Church”. This quote was, however, from a collective document of the Congregation of the Faith centred on theology, and related to the reliance by some Catholic thinkers upon secular sources to challenge Church teaching. Instruction on

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had, in his speech, accused the Vatican of reacting “to evidence of humiliation and betray alà with the gimlet eye of a Canon lawyer”, which resulted in it adopting what he described as “a calculated, withering position”. The Taoiseach concluded that “the historic relationship between church and state in Ireland could not be the same again”.21 The diplomatic dispute was accelerated when a motion on the Cloyne Report was passed by both Houses of the Oireachtas (Parliament) stating, inter alia, that the Oireachtas “deplores the Vatican’s intervention which contributed to the undermining of the child protection framework and guidelines of the Irish State and the Irish Bishops.” 22 The Holy See then recalled its Papal Nuncio to Ireland, Giuseppe Leanza, with a spokesman noting that this was due to “excessive reactions” in Ireland.23 Archbishop Leanza was later reassigned, and eventually replaced by Monsignor Charles Brown as Papal Nuncio to Ireland.24 The Official Response of the Holy See to the Cloyne Report25 is an extensive, formalistic document that provides insights into the internal working divisions of the Vatican and its oversight of individual dioceses. The Response directly contested the findings of the Cloyne Report, and focused heavily upon formal structures of authority and administrative process. The Response argued that the authority to take decisions belonged to local bishops. It defended the statement of the then Papal Nuncio that the 1996 Framework Guidelines on Child Abuse did not have any authority to bind local bishops, as it had not been placed before the Holy See under the formal canon law process of recognitio. Given that, in 1996, the Secretary of the Conference of Irish Bishops had written to the Papal Nuncio stating that all Catholic dioceses in Ireland had accepted the document, the Holy See argued it was unnecessary for it to intervene further. The Response restated that each individual bishop was “free to adopt” the Framework Guidelines on Child Abuse as particular law in his diocese, provided these “were not contrary to canon law”.26 The Holy See did not acknowledge any obligation on its part to ensure the full and clear publication of its position in 1997, to facilitate further action by the Irish Government and to inform public debate. Crucially, underlining the entire response was the claim that the Holy See was a unique actor in international affairs; a fact it believed should be taken into account when defining its institutional responsibility: It should be borne in mind that the social organisation of the Catholic Churchàis not like that of a modern State with a central government nor is it comparable to that of a federal State.27

the Ecclesial Vocation of the Theologian, otherwise known as Donum Veritatis (The Gift of the Truth), published by the Congregation for the Doctrine of the Faith on 24 May 1990. authorities.” authorities.” 21

Above n 15.

22

Above n 15.

23

Vice-director of the Vatican press office, Father Ciro Benedettini, quoted in the Guardian, 15 July 2011. Available at: http://www.guardian.co.uk/world/2011/jul/25/vatican-ireland-child-abuse-row. authorities.” 24

His appointment to the post was outside the conventions of such appointments, given his non-diplomatic background. He had worked closely with Pope Benedict in the Congregation of the Doctrine of the Faith. 25

Holy See Response to Eamon Gilmore, Tanaiste and Minister for Foreign Affairs and Trade of Ireland, Concerning the Cloyne Report. Available at: http://www.vatican.va/resources/resources_risposta-gilmore_20110903_en.html. 26

Ibid at s 1(a) of the Response. authorities.” authorities.” authorities.” authorities.”

27

Ibid at s 4 of the Response.

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Furthermore a significant portion of the document was devoted to noting the lack of any mandatory reporting provision in Irish law at the time, shifting responsibility by implying that an adequate civil law would have rendered internal church practices irrelevant.28 The Response relied upon canon law divisions and internal bureaucratic structures, avoiding any reference to specific diplomatic and human rights law obligations owed by the Holy See to the Irish State. In its approach to diplomatic law, the Response appeared to imply that support for the allegation of interference with Ireland’s domestic affairs required evidence of an order or directive rather than a negligent omission or practice on the part of the Holy See. The Response failed to acknowledge any obligation to cooperate with the Irish Government to ensure effective rights protection, particularly under the Convention on the Rights of the Child. The remainder of this article will illustrate the centrality of these international legal obligations to the diplomatic dispute.

THE INTERNATIONAL LEGAL SIGNIFICANCE OF THE DISPUTE

I

n requesting information from the Holy See, the Murphy Commission had stated that “it was seeking information from the Church as a body and not from the Vatican as a State”.29 This clarification perhaps indicated an expected response of good will on the part of the Holy See, which then invoked its position as a sovereign state and practice on diplomatic relations. Yet, the invocation of its international legal personality draws the Holy See into a network of duties and obligations towards Ireland, which it appears to have ignored in the dispute regarding the Murphy and Cloyne Reports. The international legal status of the Holy See has in recent times been clarified further by its recognition as a non-Member Observer State in the United Nations General Assembly, in 2004.30 Despite this recognition, it is best to view it as remaining a sui generis actor, and not a State. While the Vatican City enjoys territory, population and government,31 the Holy See is a distinct entity. It is a member of inter alia the United Nations Conference on Trade and Development, the Organisation for Security and Co-operation in Europe (OSCE), the International Atomic Energy Agency and the World Intellectual Property Organisation. During the brief lack of papal territory in the years 1870-1929, the Holy See continued to garner diplomatic recognition as a distinct international legal personality. Thus, it is not a state anchored in the traditional Montevideo criteria 32 for statehood, but a governance structure of a limited number of individuals administering religious affairs.33

28

Ibid at s 1(d) of the Response.

29

Above n 2.

30

U.N. General Assembly Resolution A/58/314 Participation of the Holy See in the work of the United Nations, passed on the 16 July 2004. Aut horities.” authorities.” authorities.” authorities.” authorities.” authorities.” 31 As Dag Hammarskjold, the Secretary General of the UN from 1953-1961 stated “When I request an audience from the Vatican, I do not go to see the King of the Vatican City, but the head of the Catholic Church”, as quoted in Edward Gratsch, The Holy See and the United Nations 1945-1995 (Vantage Press, 1997) at p 10. Reflecting this statement, the Vatican City only represents the church in more technical conventions such as the International Telecommunications Union, the Universal Postal Union and the International Grain Council. 32

Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 165 League of Nations Treaty Series at p 19. 33

In taking this position, the author is echoing the position of Professor Ian Brownlie, Principles of International Law, (7th ed., Oxford University Press, New York, 2008) pp 69-95. A similar entity is arguably The Sovereign Order of St. John of Jerusalem, of Rhodes and Of Malta, whose international legal personality, like that of the Holy See. was unaffected by the loss of its prior territory, and is tied to its widespread diplomatic recognition and established international functions. While not recognised as an Non-Member Observer State, the Order currently enjoys a

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The Irish Yearbook of International Law 2011

Particularly significant international treaties to which the Holy See is a party include the Convention Relating to the Status of Refugees,34 the Vienna Convention on Diplomatic Relations (VCDR),35 the Vienna Convention on Consular Relations,36 the International Convention on the Elimination of All Forms of Racial Discrimination,37 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,38 the Convention on the Rights of the Child and its Optional Protocols, 39 and the Convention on Cluster Munitions.40 The VCDR accommodates the Holy See expressly by equating apostolic nuncios with ambassadors and allowing states to give precedence to the representative of the Holy See.41 The Holy See also invokes its international personality through the conclusion of bilateral concordats regulating religious affairs and activities.42 The issue of legal personality is not merely academic, as the specific nature of the Holy See is presented as relevant to the implementation of its international legal obligations. This is most clearly seen in its reservations and interpretive declarations to UN human rights treaties in particular. In ratifying the United Nations Convention on the Rights of the Child (CRC) it stated: the Holy See intends to give renewed expression to its constant concern for the well-being of children and families. In consideration of its singular nature and position, the Holy See, in acceding to this Convention, does not intend to prescind in any way from its specific mission which is of a religious and moral character.43 The normative consequences of the “singular nature” of the Holy See are also seen in its reports submitted to under human rights treaties which usually discuss activities at a local

similar status as intergovernmental bodies such as the International Committee of the Red Cross and the International Olympic Committee; being classed as an ‘entity having received a standing invitation to participate as observers’ and maintaining a permanent office. See further: http://www.un.org/en/members/intergovorg.shtml 34

Convention relating to the Status of Refugees 1954, 189 United Nations Treaty Series. at p 150. The reservation of the Holy See to this Convention states that æthe application of the Convention must be compatible in practice with the special nature of the Vatican City StateÆ. Declaration of the Holy See upon Ratification of the Convention relating to the Status of Refugees, 21 May 1952, cited in United Nations Treaty Series, 26th edition, UN Doc. ST/LEG/SER/E/, Chapter 5(2), at p 137. 35

Vienna Convention on Diplomatic Relations, (1961) 500 United Nations Treaty Series at 95.

36

Vienna Convention on Consular Relations (1967) 596 United Nations Treaty Series at 261.

37

International Convention on the Elimination of All Forms of Racial Discrimination, (1966), 660 United Nations Treaty Series at p 195 38

Convention against Torture and Other Inhuman or Degrading Treatment and Punishment 1465 United Nations Treaty Series at p 85. 39

Convention on the Rights of the Child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989); 1577 United Nations Treaty Series at p 3. 40

Convention on Cluster Munitions, Dublin Diplomatic Conference on Cluster Munitions, adopted May 30, 2008, 48 I.L.M. 357. 41

Above n 35 at Article 16.

42

The most famous of these concordats is of course the Lateran Treaty of 1928, concluded between it and Italy, 130 BFSP at p.791. A list of a number of these concordats is available at: http://www.vatican.va/roman_curia/secretariat_state/index_concordati-accordi_en.htm. 43

The word æprescindÆ means to separate or to withdraw attention from. Reservation of the Holy Seee to the Convention on the Rights of the Child, See Multilateral Treaties deposited with the Secretary-General, Status as at 31 December 1991, United Nations, New York, 1992, pp 200-202.

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Darren O’Donovan

level that are viewed as encouraged by the Holy See,44 but which “are carried out by local Catholic institutions in accordance with their own authority and responsibilities under canon law and pursuant to the laws of the respective States in which they operate”.45 The Holy See does not view itself as “responsible for the activities of such organisations or the implementation of them, although such activities are inspired and moved by the Catholic faith”.46 Thus in the Holy See’s Initial Report on the CRC, it notes that the United Nations Committee on the Rights of the Child’s Reporting Guidelines cannot be strictly followed by it, 47 but can be respected only so far as possible given “the Holy See’s proper nature”.48 Such reliance upon internal structures of the Holy See raises questions under Article 27 of the Vienna Convention on the Law of Treaties, which prohibits reliance by a party on “provisions of its internal law as justification for its failure to perform a treaty”. Regardless of the content of Canon Law, the Holy See must take all affirmative steps available to it to implementprotect the relevant CRC provisions. Furthermore, as the 1983 Canon Law Code states that even the most serious provision of Church law “cannot abrogate or derogate from the pacts entered upon by the Apostolic See with nations or other political societies”, the Holy See most take action to fulfill its international obligations where any of its officers or divisions fail to do so.49 Events in the Cloyne and Dublin dioceses clearly engage the international legal responsibility of the Holy See. The failure to take positive action to ensure protection of children, irrespective of the content of Canon Law, raises a violation of Article 19 of the CRC, which requires States Parties to: take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. The Holy See’s actions towards the Commissions of Investigation and the statements of the then Papal Nuncio in 1997 also represent breaches of the specific obligation under Article 34 of the CRC to “protect the child from all forms of sexual exploitation and sexual abuse”, particularly the requirement that State Parties “take all appropriate national, bilateral and multilateral measures to prevent abuse.” 50 The negative impact of the Papal Nuncio’s comments, as outlined by the Cloyne Report, falls within the ambit of the Vienna Convention on Diplomatic Relations 1961, which provides

44

This structure is seen in both the Initial Report of the Holy See under the Convention on the Rights of the Child, 28 March 1994, UN Doc. CRC/C/3/Add.27 at paras 40-43, 47-54. Such a presentation is also adopted throughout the Second Report of the Holy See under the Convention on the Rights of the Child, 22 October 2012, UN Doc. CRC/C/VAT/2. See also, the Initial Report of the Holy See under the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography UN Doc. CRC/C/OPSC/VAT/1. This position is strongly evident in the manner in which this latter report [particularly in its fourth and fifith sections] continually refers to the affirmation, rather than implementation, of the rights of Convention, by the Holy See. 45

This position is outlined by Jane Aldophe, æThe Holy See in Dialogue with the Committee on the Rights of the ChildÆ, Ave Maria International Law Journal, vol 1, Fall 2011 at p 146. 46

Ibid.

47

UN Committee on the Rights of the Child, Treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention on the Rights of the Child, UN Doc. CRC/C/58/Rev.2. 48

Ibid at para 3.

49

1983 Canon Law Code, Canon 365, s 1.

50

Emphasis added.

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that diplomatic representatives have an obligation “not to interfere in the internal affairs of that State”.51 A failure to comply with this obligation can arise where the Holy See’s diplomatic officer’s communications can be shown to have de facto weakened, potentially weakened or been of significant importance to the failure to protect children, and were not brought to the attention of the Irish government. Eighteen years since its Initial Report, and fourteen years overdue, the Second Report of the Holy See to the Committee on the Rights of the Child, was published in October 2012.52 It showed some evolution in the Holy See’s attitude towards its legal obligations under the Convention. The Report outlined briefly the steps the Holy See has taken to “encourage” the combating of sexual abuse through reform of the canon law and appropriate guidance.53 Nevertheless, in defending the absolute separation of civil and canon law, the Report left unaddressed concrete situations such as that in the Cloyne diocese, where, by cultural practice and lack of appropriate oversight, Canon Law processes led to a loss of information or lack of evidence sharing.54 The Report simply argued that the confidentiality of Canon Law proceedings did “not forbid or even discourage anyone from reporting the underlying allegations to civil authorities”.55 In citing various Papal and curia56 statements as well the actions of its institutions throughout this Report under the CRC, however, the Holy See directly contradicted the content of its Response to the Irish Government it implicitly acknowledged that its leadership, or the lack of it, has had and will continue to have a bearing upon the reporting of child abuse in local dioceses. Other legal fora are undertaking similar evaluations of the Catholic Church’s obligations in the civil sphere and their interaction with the structures of the canon law.57 In this context the recognition of the possible application of vicarious liability principles to dioceses, which occurred for the first time by the United Kingdom Court of Appeal in the recent case of JEG v The Trustees of the Portsmouth Roman Catholic Diocesan, is significant.58 The Court of Appeal rejected the claims by the diocese that neither they nor the bishop were in control of the relevant abusing priest to the extent necessary to ground liability. In denying the existence of an employment relationship, the respondents had relied upon the fact that they had no power under the canon law (absent grave cause) to remove him from his priesthood.59 The Court

51

Vienna Convention on Diplomatic Relations, above n 35 at Article 41. The provisions of this Convention were incorporated into Irish law by the Diplomatic Relations and Immunities Act 1967, s 5. 52

Second Report of the Holy See under the Convention on the Rights of the Child, above n 45 at para 98(i).

53

Ibid at para 98.

54

In the context of the Cloyne Report, such behaviour was most strongly seen in the actions of the relevant Bishop, Bishop John Magee, who in one case of alleged abuse, sent one version of his investigation to Gardai and another version to authorities in Rome. This raised the question of whether the Holy See has in place administrative safeguards to prevent such practices. 55

Above n 45 at para 98(i).

56

The curia is the collective term for the administrative apparatus and central governing body of the Church who, together with the Pope, constitute the government of the Holy See. This structure is described in the Papal Decree Concerning the Pastoral Office of Bishops in the Church Christinus Dominus Proclaimed by his Holiness Pope Paul VI, on October 28 1965 at para 9. Available at: http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_decree_19651028_christusdominus_en.html 57

See especially, Dominic McGoldrick, æIn the Gods we trust, in the Church we trust, but need to verifyÆ, (2012) 12 Human Rights Law Review 759. 58

JEG v The Trustees of the Portsmouth Roman Catholic Diocesan [2012] EWCA Civ 938, Court of Appeal (Civil Division), 12 July 2012. This case was an appeal on point of law, emanating from the claimantÆs action for damages following the alleged sexual abuse and assault by a deceased parish priest. The claimant argued that the Trustees of the diocese were liable vicariously despite the fact no formal employment relationship existed. 59

Ibid at para 79.

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Darren O’Donovan

ruled that there was a sufficient relationship with ecclesiastical authorities to make it just and fair to apply vicarious liability, indeed citing various aspects of canon law in doing so, including the requirement that a priest live close to the local church.6061 The governance structures of the Catholic Church have also recently been under discussion before the European Court on Human Rights, which has been provided with an official statement regarding the functioning of the Catholic Church by the Holy See’s Permanent Representative to the Council of Europe.62 This acknowledges the needs of “just public order”, while defending a sphere of “religious affairs” from which the secular state must refrain from involving itself: When considering the Church’s freedom, primary attention should therefore be given to her collective dimension: the Church is autonomous in her institutional functioning, juridical order and internal administration. With due respect for the imperatives of a just public order, this autonomy should be respected by the civil authorities; this is a condition of religious freedom and the distinction between Church and State.63 Yet in construing the boundaries of “public order” and its own autonomy, the Holy See must obey the rules of conduct necessitated by its international personality. In the human rights law context, this requires a goal oriented, pragmatic implementation which the abstract formalism and hierarchies of canon law can occlude. Where, as occurred in Ireland, the curia’s64 communications contribute to negative practices, this represents a failure to comply with the requirements of the CRC. The key test of successful implementation is engagement with actual contexts and experiences such as those in the Cloyne diocese. Examination of these contexts should hopefully occur during the United Nations Committee on the Rights of the Child’s upcoming examination of the Holy See’s Second Report. In this way, the historic diplomatic dispute between Ireland and the Holy See can trigger a renewed examination of the obligations of the Holy See under the international legal conventions to which it is a party.challenging the technocratic selectivity that has marked the Holy See’s communications with international human rights law institutions. human human rights law rights law

institutions

60

Ibid.

61

Ibid at para 79.

62

Office of the Permanent Representative of the Holy See to the Council of Europe, Note on the Catholic ChurchÆs freedom and institutional autonomy, on the occasion of the examination by the European Court of Human Rights of the Sindacatul "Pastorul cel Bun" versus Romania (No. 2330/09) and Fernandez Martinez versus Spain (No. 56030/07) cases. Published 16 January 2013, available at http://www.vatican.va/roman_curia/secretariat_state/2013/documents/rc_seg-st_20130116_libertaautonomia_en.html). The ECHR cases mentioned in the title of the document relate to the application of discrimination law and the procedural rights of employees at Catholic institutions. 63

Ibid at s 4 of the document.

64

See the explanation of this term in above n 54.

77

Kevin Boyle – An Appreciation of his Work on Freedom of Expression MARIE MCGONAGLE*

K

evin Boyle was a firm believer in freedom of expression, the power of open debate, the importance of making one’s contribution to it and encouraging others to do likewise. While sometimes dismayed at the excesses of sections of the media, let down by others who succumbed to censorship or took the easier path, and even stung occasionally by personal attacks or criticism, he continually pushed out the boundaries to increase the realm of free speech and democracy throughout the world. The Purcell v Ireland case,1 Jersild v Denmark,2 Bladet Tromso v Norway,3 his defence of Salman Rushdie,4 and his writings on the Danish cartoons controversy5 are but a few examples of his tireless fight for freedom of expression for all. Fundamental to his world view was his respect for people and peoples; for him, freedom of expression was a key value in society to be exercised in conjunction with the right to equality and in order to deepen democracy.6 As he stated in the introduction to the World Report 1988, which he published in his capacity as first Director of ARTICLE 19, the London-based international anti-censorship organisation: No attempt is made to rank or classify countries. ... Freedom of expression is not the property of any political system or ideology. It is a universal human right, defined and guaranteed in international law.7

* School of Law, NUI Galway. Marie McGonagle worked with Kevin Boyle on freedom of expression and media law issues from 1986-2007 and co-authored a number of reports, articles, book and other publications with him during that period. 1

(1991) 12 H.R.L.J. 254.

2

Series A No. 298, judgment of 23 September 1994.

3

[GC], App. No. 21980/93, judgment of 20 May 1999, Reports 1999-III

4

See, for example, the 1989 report of the International Committee for the Defence of Salman Rushdie (which Kevin established and on which he served as Chairman) and his Publishers, prepared as a contribution to the debate in Britain over the future of blasphemy law. It was intended to address the discrimination discovered in the existing law of blasphemy that it protected Christianity alone and not other faiths such as Islam. This discrimination was “unacceptable in a democratic society which should guarantee freedom for all religions as well as systems of humanist belief, atheistic or agnostic.” The pamphlet sets out the case for abolition of the crime of blasphemy in the interest of “equal treatment of religious belief as well as freedom of expression.” Available at www.article19.org/pdfs/publications/crime-of-blasphemy.pdf 5 See, for example, his analysis in “The Danish Cartoons”, Netherlands Quarterly of Human Rights, Vol. 24, 2006, pp. 185-191 and his paper of the same title available at courses.essex.ac.uk/hu/hu901/useful%20docs/00%20Column.txt 6

See Kevin Boyle, “Freedom of Expression and Democracy”, in Liz Heffernan, ed., Human Rights: A European Perspective, Round Hall Press, 1994, p.211. 7

ARTICLE 19, World Report: Information, Freedom and Censorship, Longman, UK, 1988 and Times Books, USA and Canada; available at http://www.article19.org/data/files/pdfs/publications/world-report-1988.pdf While initially ARTICLE 19 was described as an anti-censorship organisation, its role is now described as defending freedom of expression and information.

The Irish Yearbook of International Law 2011

Those words portray Kevin’s openness to all, his drive for equality, his even-handedness and great respect for human dignity, whatever part of the world or regime a person grew out of. This realisation of the relationship and mutual dependence of freedom of expression and equality was central also to the Camden Principles prepared by a group of experts, including Kevin, for ARTICLE 19, twenty years later in 2009, the opening statement of which said: It is only when coordinated and focused action is taken to promote both freedom of expression and equality that either can effectively be realised.8 Kevin pursued every avenue available to him to promote and further that “coordinated and focused action”. Shortly before his death, the United Nations produced a new draft General Comment on Article 19 ICCPR on freedom of expression, which was finalised and issued in September 2011. Conscious that the previous one dated from 1983, Kevin had been quietly lobbying for a new General Comment for some time and raised it in 2007 as a recommendation in the Asia-Europe Meeting (ASEM) seminar on Freedom of Expression in Cambodia, for which he was co-rapporteur with Cherian George (Nanyang Technological University, Singapore). Kevin believed not only in analysing problems in his academic role but also in working out and trying to bring about solutions to them through international organisations, such as the United Nations, or international courts, particularly the European Court of Human Rights. The ultimate solution to his mind was a global one. Speaking to journalist, Harry McGee, now of the Irish Times, Kevin once said: I have a great belief that the idea of a common code of human rights for all people on the globe is essential for world peace. The pursuit of human rights for the wronged and the marginalised was at the heart of Kevin’s very being and he was a tireless thinker, always looking for opportunities to improve the lot of vulnerable individuals and sections of society. Indeed, so tireless was he that, as his Essex colleague, Francoise Hampson, and I both discovered from working with him, some of his best ideas were crystallised on train and plane journeys. The idea for the Purcell case, for instance, was first articulated in an early morning taxi in Dublin and the first draft was written on the late train journey back to Galway! Throughout his life, wherever he was and whatever issues he was working on, Kevin maintained a deep interest in Northern Ireland and at many stages and in many fora produced ideas and perspectives that helped chart the way to peace. Likewise, he maintained an interest in the media and development of media law in Ireland from the mid-1980s onwards, actively espousing reform of the defamation laws in Ireland, for example, at the same time that he was developing international principles on defamation in his role as Director of ARTICLE 19. His interest carried right through to drafting a blueprint and code of practice for a Press Council for Ireland and he attended the initial training session for the Press Council in Dublin in September 2007. As a teacher, Kevin opened the world to his students and placed Galway, Essex or anywhere he taught, at the centre of that world. His stage was the world stage but he also respected the national, the local, even the parochial. Kevin always saw the strengths and vulnerabilities in people, acknowledged and affirmed their capabilities, making them feel good about themselves and as one graduate put it, making you feel you were great and could take on the world even if you knew or suspected you weren’t and couldn’t. The effect, however, was to encourage people to strive to be as good as he intimated they were and to build a powerful optimism and groundswell of good-will around him. There was also a great sense of excitement when Kevin was around and a sense that important things were happening. He

8

Available at http://www.article19.org/data/files/medialibrary/1214/Camden-Principles-ENGLISH-web.pdf

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Kevin Boyle: on Freedom of Expression

Marie McGonagle

was always in demand from media all over the world and always being asked to take on new human rights projects. He created a sense that anything was possible, that rights could be attained even in the most arduous of circumstances. His advocacy before the European Court of Human Rights in cases such as Jersild and in the Kurdish cases with Francoise Hampson is testimony to that. But not only did he affirm people and persuade them that they all had an important role to play, he also involved them in meaningful ways and trusted them to perform the task well. As an early illustration of his insistence that we all do our bit, in his address to a Dublin conference organised by “Let in the Light” in 1993 to initiate its campaign for freedom of information legislation in Ireland, and in which, incidentally, Salman Rushdie participated in his first public event after the fatwa, Kevin spoke of freedom of information and its role in a democratic society, stating that the focus should be on the international standard and how we measure up to it: The purpose of our conference is to ask what can be done about the failures, the weaknesses of our system, and more particularly, what are we going to do about it, because this conference is concerned not only to debate but to plan for action to ensure that we achieve this international standard.” ... “[I]nformation belongs to the public and to the whole population and is a vital resource for that citizenry.” ... [I]t shifts the balance of power between the government and the governed; between the state and the citizen. [Emphasis added.]9 Thankfully, Kevin lived long enough to see many of the causes he had espoused come to fruition and many of the actions he had taken successfully completed. Not only did he succeed in many cases before the European Court of Human Rights, he also saw the establishment of international laws and principles on freedom of expression and other human rights issues, and reform of many laws and the enactment of new ones, not least the Freedom of Information Act and Defamation Act in Ireland. He also left a huge legacy in terms of his teaching and publications. He was immensely proud of his former students and all around the world those former students and colleagues continue his work. At the Asia-Europe conference in 2007, he said, emphasising the importance of education: It is clear that freedom of expression is not only an individual right but also an essential ingredient for societal progress. It is vital for development. The new global economic competition requires education systems that nurture open and creative minds – inconceivable without freedom of opinion and expression. It is also indispensable for democracy. That is the challenge Kevin left us all.

Kevin Boyle’s archive is housed at the James Hardiman library at NUI Galway and is open to researchers

9

See P. Smyth & E. Hazelcorn, eds, Let in the Light: censorship, secrecy and democracy, Brandon Books, 1993.

81

Working With Kevin: A Personal Reminiscence1 TOM HADDEN∗

I

first met Kevin in Cambridge when he took a course at the Institute of Criminology. I remember him then as a young student from Belfast. He remembered me in the garden of Peterhouse showing him how to play croquet. That was a snapshot of our very different backgrounds: myself as a privileged young Cambridge graduate from a medical family in unionist Portadown, Kevin as the son of a taxi-driver in nationalist Newry. We met again when I returned to Belfast in 1969 and shared a flat with him: Kevin was running the People’s Democracy in street protests and a rent and rates strike of which I rather disapproved. I was setting up Fortnight, a middle of the road reform oriented political magazine. It was an unlikely partnership. But we began to teach each other about our respective communities. I remember a tense moment at a pub on the Falls Road and the silence when I told the people at our table who I was and where I was from. There was an equally tense moment for him when we stopped at a band parade at The Birches, a loyalist village outside Portadown. Kevin was scared that he might be recognised and attacked. I wanted to buy him an icecream because I knew you didn’t cut across a band parade. We soon began to work together on monitoring abuses by the security forces and the outcome of the Diplock trials. We joined with Paddy Hillyard in a submission to the Gardiner Committee arguing against internment. That was our first involvement with officialdom. When we were asked how the Provos would respond to the ending of internment Kevin was able to set up a meeting with their representatives and we drafted and relayed back an agreed memorandum to the Committee. All of this was published almost immediately in Fortnight rather than held up for academic journals and books. That was the beginning of a strategy we developed in our joint work in the run up to the Anglo-Irish Agreement in 1985. Kevin set up meetings with leading Irish and British civil servants – he seemed to know them all. We discussed the issues with them and sent them drafts for comment on what we eventually submitted to the New Ireland Forum and published as a Penguin Special. We found that was a better way of exerting influence than academic peer review. All this was a window on how Kevin worked. He was a consummate networker. He seemed to know everyone you needed to meet and was on good terms with them all. He had the gift of making us all feel special: officials, colleagues and students alike. He was also a great reconciler. He had praise and encouragement for everyone and no enemies. This was not half-way compromise but a recognition that it would not help to take sides or to insist on particular positions. And he was a great institution builder. He left a trail of new human rights bodies: the Irish Human Rights Centre in Galway, Article 19 in London, the Kurdish Human Rights Project for Turkey and the Human Rights Centre in Essex. He had a clear vision for each of them and used to complain to me when the people he handed them over to didn’t develop what he had created in the way he wanted. His last book was aptly entitled ‘New Institutions for Human Rights Protection’.

1

This is a written summary of an oral presentation to the Tripartite Conference in honour of Kevin Boyle and his Work held in Galway, Belfast and Essex in May 2011. ∗ Queen’s University Belfast, and the Transitional Justice Institute, University of Ulster .

The Irish Yearbook of International Law 2011

There were of course some regrets. I wanted him to be a joint Chief Commissioner of the new Northern Ireland Human Rights Commission. He could probably have delivered the limited and broad based Bill of Rights for Northern Ireland we had been working on with the political parties throughout the 1990s. But he didn’t want to return to Belfast and give up his international work He wanted to be a Special Rapporteur and would have been really good at it. But he fell foul of the usual politicking at the United Nations. Now that he is gone we all regret that he is no longer there to ring up to talk through our current problems. So how should we remember him? Perhaps as a consummate human rights diplomat. That was what he was best at and what we should all learn from him.

84

Ireland and International Law 2011 DR. ALAN D.P. BRADY∗

I

n 2011, Ireland ratified international agreements including the UN Convention against Corruption. The compulsory jurisdiction of the International Court of Justice was accepted and a reservation to the International Covenant on Civil and Political Rights was withdrawn. There were some embassy closures which were attributed to difficulties with the public finances and a second Global Irish Forum was held. The amount of overseas development aid was cut further. The Irish Defence Forces made a substantial deployment of over 400 troops to the UN mission in Lebanon. In March 2011 a general election brought about a new coalition government of Fine Gael and the Labour Party to implement a new programme for government. As part of the new government some departmental reorganisation relevant to Ireland and international law were introduced. In particular, the Department of Foreign Affairs became the Department of Foreign Affairs and Trade 1 with two junior ministries (one for European Affairs and one for Trade and Development).

INTERNATIONAL AGREEMENTS

I

n December 2011, Ireland accepted the compulsory jurisdiction of the International Court of Justice. The text of the declaration is as follows: Ireland hereby declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes as specified in Article 36, paragraph 2, with the exception of any legal dispute with the United Kingdom of Great Britain and Northern Ireland in regard to Northern Ireland.2 The Minister for Foreign Affairs and Trade welcomed the declaration saying: I am delighted that the Government has taken a decision that Ireland should accept the compulsory jurisdiction of the International Court of Justice. This decision is fully consonant with the commitment in Article 29 of the Constitution to the peaceful settlement of international disputes by international courts and tribunals. It is also consistent with the Government’s objective of enhancing Ireland’s standing as a respected and influential member of the international community.3

∗

Law Library, Dublin and Trinity College Dublin

1

Foreign Affairs (Alteration of Name of Department and Title of Minister) Order 2011 (SI No 246 of 2011) changed the title of the Department and the Minister with effect from 2 June 2011. 2

3

United Nations Depositary Notification CN.800.2011, 19 December 2011.

‘Declaration accepting the compulsory jurisdiction of the International Court of Justice’ Department of Foreign Affairs and Trade, Press Release, 15 December 2011.

The Irish Yearbook of International Law 2011

The declaration was made on 8 December 2011 and took effect upon being deposited with the United Nations Secretary General on 15 December 2011.4 The Minister for Foreign Affairs discussed the State’s consideration of possible ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Optional Protocol would allow individuals or groups to make direct communications to the Committee on Economic Social and Cultural Rights:5 The optional protocol to the International Covenant on Economic, Social and Cultural Rights opened for signature in New York in September 2009. To date some 35 states have signed. A total of nine of the 27 EU member states have signed. Three states have ratified the optional protocol: Ecuador, Mongolia and Spain. The optional protocol will come into force three months after the deposit with the UN Secretary General of the tenth instrument of ratification or accession. My Department has led consultations between Departments on possible signature of the optional protocol, recently circulating an informal paper for the information of Departments and inviting their comments. A formal proposal asking Departments for their views as to possible signature of the optional protocol will be circulated to Departments shortly. Once that process is completed, the question of the possible ratification of the optional protocol will be examined.6 In December the Minister for Foreign Affairs and Trade confirmed that a formal proposal had been circulated to Government Departments seeking views on signature of the Optional Protocol. He stated that once that consultation was complete, the question of signature would be examined. He noted that ratification was a separate step to be considered in due course.7 The Minister for the Environment, Community and Local Government addressed the status of plans to ratify the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. He said that: The three pillars of the Convention are partially implemented in EU law by two Directives. The first of these deals with public access to environmental information and was transposed into Irish law through the European Communities (Access to Information on the Environment) Regulations 2007. The second, known as the Public Participation Directive, deals with public participation in decision making and access to justice. Several pieces of legislation have been used to transpose the Public Participation Directive into law. The most recent measure is the Environment (Miscellaneous Provisions) Act 2011, which introduced new cost rules that apply in certain environmental cases. This Act also implements certain aspects of the Convention that are not implemented by EU Directives. The effect of these measures is that Ireland has now implemented the provisions of the Convention.8

4

Journal of the United Nations (2011/242) p 16.

5

See Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, General Assembly resolution A/RES/63/117, 10 December 2008. 6

Minister for Foreign Affairs, Dáil Debates, 22 March 2011, Volume 728, Column 160.

7

Minister for Foreign Affairs, Dáil Debates, 22 March 2011, Volume 750, Column 417.

8

Minister for the Environment, Community and Local Government, 24 November 2011, Dáil Debates, Volume 747, Column 1026.

88

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Alan Brady

The Minister added that it was expected that the Convention would be ratified in the first half of 2012. The UN Convention against Corruption was ratified during 2011. The Minister for Justice and Equality in commending the motion set out the legislative framework used to ensure that Ireland complied with the Convention before ratification: The convention is structured around four themes – preventive measures, criminalisation, international co-operation and asset recovery. The key anticorruption legislation in this State is the Prevention of Corruption Acts 1889 to 2010. The Prevention of Corruption (Amendment) Act 2010 strengthened the law on corruption, particularly by substantially extending the State’s extraterritorial jurisdiction in respect of the corruption offence so that jurisdiction now extends to virtually all people who have a connection with the State. The Act also contains extensive protection for whistleblowers reporting corruption offences. The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 strengthened regulatory controls and broadened the range of offences considered as predicate offences for money laundering. The Criminal Justice Act 2011, which was enacted just before the summer recess and is now in force, targets serious white collar crime including fraud and corruption and enhances the power of the Garda to investigate such offences.9 The Dáil motion approving the convention was passed on 26 October 2011.10 The Minister for Justice and Equality expressed the State’s intention to ratify the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Protocol provides for regular independent national and international monitoring of places of detention within States Parties. In response to a written Parliamentary Question, the Minister stated: Ratification of the Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires legislation. On 17 May last, the Government approved my proposals for preparation of the General Scheme of a Bill to enable ratification of the optional protocol. Arrangements will be made to ratify the instrument as soon as possible after the necessary legislation has been enacted.11 It was also envisaged that the proposed legislation would put the current system of prison visits by the Council of Europe Committee on the Prevention of Torture on a statutory footing.12 The UN Convention on the Rights of Persons with Disabilities was raised repeatedly in the Dáil by Deputies of various parties.13 The Government reiterated its commitment to ratify the

9

Minister for Justice and Equality, Select Committee on Justice, Defence and Equality, 25 October 2011.

10

Dáil Debates, 26 October 2011, Volume 745, Column 17.

11

Dáil Debates, 22 November 2011, Volume 747, Columns 533-534.

12

Minister for Justice and Equality, Dáil Debates, 22 November 2011, Volume 748, Column 704.

13

See for example: 6 April 2011, Dáil Debates, Volume 729, Column 562; 18 May 2011, Dáil Debates, Volume 732, Column 789; 13 July 2011, Dáil Debates, Volume 738, Column 674; 15 September 2011, Dáil Debates, Volume 740, Column 683-684; 1 December 2011, Dáil Debates, Volume 748, Column 707.

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Convention. The need for reform of the law on mental capacity was given as a reason for the delay in ratification.14 This reason has been given repeatedly since 2008.15 The Government supported the final text the Convention on Decent Work for Domestic Workers (International Labour Organisation Convention no 189). In keeping with the State’s practice of preparing necessary implementing legislation in advance of ratification, the Government undertook to examine the Convention carefully and obtain any necessary legal advice.16 Upon ratification of the International Covenant on Civil and Political Rights, Ireland had made the following reservation: ‘Ireland reserves the right to confer a monopoly on or require the licensing of broadcasting enterprises. The notification of the withdrawal of this reservation was received by the UN on 15 December 2011.17 The Minister for the Environment, Community and Local Government noted the State’s obligations under the UN Framework Convention on Climate Change and the Kyoto Protocol. Ireland has already signed up to meeting demanding legally binding targets for the purposes of the Kyoto Protocol and under the climate and energy package agreed by the EU in December 2008. By 2020, this country will be required to achieve the equivalent of a 20% reduction on its 2005 levels of greenhouse gas emissions in the sectors of the economy not covered by the EU emissions trading scheme, ETS. This legally binding target will have to be met, irrespective of national climate legislation. This poses a significant challenge for Ireland and will require a robust, wholeof-Government response. Any new legislation on climate change must encapsulate and give overarching support to the objectives and binding commitments at international level in the context of the United Nations Framework Convention on Climate Change and within the ambitious EU agenda.18 In this context, the Minster referred back to his own previous statement with regard to the introduction of climate change legislation: At this point, taking account of the importance of advancing this issue in an inclusive way, providing a more robust basis for galvanising a broad measure of support, I expect to be in a position to publish a consultation paper on climate legislation early next year, with the heads of a climate Bill following during the year, and a final Bill being published as quickly as possible thereafter.19

14

Minister of State at the Department of Justice and Equality, 13 July 2011, Dáil Debates, Volume 738, Column 674; Minister for Justice and Equality 1 December 2011, Dáil Debates, Volume 748, Column 708. 15

See de Londras, F., ‘International Law in Ireland’ (2008) 3 Irish Yearbook of International Law, p. 103; and Brady, A.D.P. ‘Ireland and International Law’ (2009-2010) 4 Irish Yearbook of International Law. 16

Minister for Jobs, Enterprise and Innovation, Dáil Debates, 23 June 2011, Volume 736, Column 635.

17

Journal of the United Nations (2011/242) p 16.

18

Minister for the Environment, Community and Local Government, Dáil Debates, 16 June 2011, Volume 735, Column 686. 19

Minister for the Environment, Community and Local Government, Dáil Debates, 17 May 2011, Volume 732, Column 430.

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The Dáil debated the Patents (Amendment) Bill 2011, in preparation for ratification of the London Agreement to the European Patent Convention. The Minister of State at the Department of Jobs, Enterprise and Innovation explained the function of the Agreement and the necessary amendments: Article 65 of the European Patent Convention provides that any contracting state may require a translation of the text of a European patent into one of its languages, if that language is different from the language in which the patent is granted. Under the London Agreement, the parties to the agreement undertake to waive, entirely or largely, the requirement for translations of European patents to be filed in their national language. In effect, under the agreement, states with English, French or German as an official language will dispense with translation requirements entirely for the patent to come into effect. Having English as an official language, Ireland would have to dispense with the requirement to seek a translation into English of the detailed specification of European patents drawn up in French or German. However, it is important to note that the claims which are the core part of the patent that defines the limit of the monopoly would continue to be available in English after granting. Section 119(6) of the Patents Act 1992 requires that a European patent designating Ireland and drawn up in either French or German must have its specification translated into English for that patent to be validated in Ireland. It is necessary to delete section 119(6) and corresponding subsections where reference to these translations is made in order to give full effect in our legislation to the London Agreement.20 The Bill was referred to the Bill be referred to the Select Sub-Committee on Jobs, Enterprise and Innovation, which completed its consideration of the Bill on 26 October 2011 reported the matter back to the Dáil.21

FOREIGN CONFLICTS

A

series of uprisings occurred in North Africa during 2011. These included uprisings based on civil unrest and outright armed conflict. Addressing the so-called ‘Arab Spring’ in the Dáil, the Minister for Foreign Affairs said: Popular unrest and demonstrations have in a very short time resounded across much of the Arab world. Entrenched authoritarian regimes have been confronted by demands of largely unorganised citizens for change. In a region dominated since independence by the same leaders or elites this has been justifiably titled the Arab spring. The common overwhelming demand has been for change and a more democratic system in which the citizenry as a whole participates in political life and decisions. There are also strong underlying economic grievances at work fuelling these demands. While these are very positive developments, they are also full of potential risk. The outcome so far has ranged from substantial but not yet complete success in Tunisia and Egypt to bloody repression in Libya.22

20

Minister of State at the Department of Jobs, Enterprise and Innovation, Dáil Debates, 6 October 2011, Volume 742, Colum 813-14. 21

Select Sub-Committee on Jobs, Enterprise and Innovation, 26 October 2011.

22

Minister for Foreign Affairs, Dáil Debates, 22 March 2011, Volume 728, Column 154.

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The Minister added: My own view is that we should provide the countries in question with strong and generous support in their transition to democracy, while at the same time respecting their autonomy. This historic juncture presents many opportunities as well as challenges and we should not fear to grasp them. The European Union has long had as a key objective the promotion of our values of democracy and the rule of law in our nearest neighbours. My first meetings with EU colleagues have been dominated by our continuing response to these events. The Union believes that, while it is for Arab nations to decide their future direction, we should adapt our engagement with and support for the countries in question so as to support and encourage the transition now taking place.23 He subsequently discussed the violence in Libya specifically: The general movement of protest against authoritarian and repressive regimes has been described as the “Arab Spring”. It behoves all of us who uphold democratic values to be supportive of those throughout the Middle East and North Africa seeking greater freedoms. In that regard, President Obama eloquently spoke for many in the international community in the comments he made following the downfall of President Mubarak. He identified the basic yearning for freedom which has motivated these movements and emphasised the need to side clearly with those who are seeking, as he put it “to bend the arc of history once more towards justice”. The tragic events now unfolding in Libya need to be seen and understood against the backdrop of the Arab Spring. Like Tunisia and Egypt, Libya is experiencing a genuinely popular uprising against the deeply repressive and now violent rule of the Gadaffi regime.24 In April, the Minister for Defence confirmed that Irish troops involved in the EU battle groups were not due to be deployed to Libya and explained the role that would be involved in the event that such deployment became necessary. He said to the Dáil: As I understand it, there are no plans to deploy the Nordic battle group as part of the EUFOR Libya military mission and we did not have any discussion in that regard. If deployed, EUFOR Libya would not be an occupation force but an operation to support humanitarian assistance in the region.25 After the fall of the previous Libyan government, the Minister for Foreign Affairs and Trade outlined to the Dáil the international efforts being made to assist in the region: With regard to Libya, for example, the High-level Meeting on Libya in New York on 20 September en marge of the 66th session of the UNGA, which I attended, made clear the international community’s political support for the National Transitional Council as the interim authorities in Libya as well as providing for formal acceptance into the United Nations of the new Libya. The

23

Minister for Foreign Affairs, Dáil Debates, 22 March 2011, Volume 728, Column 154.

24

Minister for Foreign Affairs, Dáil Debates, 24 March 2011, Volume 728, Column 510.

25

Minister for Defence, Dáil Debates, 19 April 2011, Volume 730, Column 367.

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Security Council also authorised on 16 September a United Nations Support Mission for Libya (UNSMIL) which will lead the international community’s practical assistance during the transition period to Libyan national efforts in a range of areas, including the restoration of public security and order, the promotion of rule of law, the restoration of public services and support for human rights. In Tunisia and Egypt, too, the international community has rallied to offer support to the interim authorities. In addition to substantial financial assistance, there has also been assistance directly aimed at building a democratic culture. For example, at Tunisia’s request, the EU deployed an EU Electoral Observation Mission to assess and offer recommendations on Tunisia’s first democratic elections on 23 October and has offered similar assistance to the Egyptian authorities. Another example of practical assistance was the first meeting of the EU-Tunisia Taskforce on 21 and 22 September which sought to galvanise private sector development in Tunisia. Economic development will be a key factor in the successful democratisation of these countries, and must be considered as an integral part of the democratisation effort.26 The Minister went on to confirm that the strategy of Ireland and the EU with regard to Libya would continue to be guided by the EU ‘European Neighbourhood Policy’.

DIPLOMATIC MATTERS

I

n March 2011, the conflict in Libya necessitated the evacuation of Irish citizens. After the evacuation was completed, the Minister for Foreign Affairs said: I am delighted that those citizens seeking to leave Libya have been safely evacuated. I want to pay tribute to the combined efforts of the Irish rescue services, in particular the Air Corps, who under the overall coordination of the Department of Foreign Affairs, and with the assistance of the Garda Síochána, were central to an operation that involved the safe evacuation of over 115 Irish nationals and family members. The operation was led by the Department of Foreign Affairs’ Crisis Centre which provided round the clock assistance and information to the families and relatives of those caught up in the events in Libya. Members of the Emergency Consular Assistance Team were deployed to Libya and officials from Ireland’s Embassies throughout Europe were mobilised to assist the evacuees and to help with their welfare and onward journeys. The Department is continuing to liaise with all Irish citizens who have remained in Libya and will do so until such time as the current crisis is over. Where citizens decide that they wish to leave Libya, the Department will advise them on all available options.27

In November 2011, the Department of Foreigh Affairs and Trade closed the Irish Embassies to the Holy See and to Iran and also closed the Irish Representative Office in Timor Leste. Prior to the closure there had been continuing discussions with the Apostolic Nuncio regarding the

26

Minister for Foreign Affairs and Trade, Dáil Debates, 10 November 2011, Volume 746, Column 326-327.

27 ‘

Taoiseach praises successful evacuation of Irish citizens from Libya’ Department of Foreign Affairs, Press Release, 2 March 2011

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Vatican’s response to the revelations of the Commission of Investigation into sexual abuse of children in the Diocese of Cloyne.28 In the context of those discussions, the Minister for Foreign Affairs and Trade had stated: The sense of betrayal which was felt by Irish people about this matter, and which was clearly expressed by the Taoiseach, came about not only because of the nature of child abuse itself but also because of the unique position which the Catholic Church enjoyed in this country, manifested in many ways, over many decades.29 The Minister for Foreign Affairs and Trade cited constraints on public finances and the need to implement budget cuts across the public service as the reason for the closures. The Minister said: While the Embassy to the Holy See is one of Ireland’s oldest missions, it yields no economic return. The Government believes that Ireland’s interests with the Holy See can be sufficiently represented by a non-resident Ambassador. The Government will be seeking the agreement of the Holy See to the appointment of a senior diplomat to this position. Ireland has had an Embassy in Teheran since 1976. Regrettably, trade volumes with Iran have fallen short of expectations and, in light of the current pressures on public finances, the Government has decided to close this mission and to seek Iran’s agreement to a non-resident accreditation.30 The Minister subsequently clarified the details of the change in the diplomatic relationship with the Holy See: As regards the Holy See, I want to make clear that we have not broken off diplomatic relations. On the contrary, the Government has nominated a senior Dublin-based official in my Department as our ambassador to the Holy See and is currently awaiting the agreement of the Vatican to this nomination.31 In November 2011, the Irish vessel MV Saoirse was intercepted by the Israeli Navy. The vessel had fourteen Irish citizens on board. The Minister for Foreign Affairs and Trade expressed relief at the lack of violence and Department of Foreigh Affairs and Trade urged the Israeli forces to exercise restraint. 32 With regard to the broader issue of the blockade, the Minister for Foreign Affairs and Trade stated: My views and those of the Government on the Gaza blockade are well known. We do not agree with it, regard it as contrary to international humanitarian law in its impact on the civilian population of Gaza, and have repeatedly

28

Commission of Investigation Report into the Catholic Diocese of Cloyne December 2010.

29

‘Statement by the Tánaiste and Minister for Foreign Affairs and Trade Eamon Gilmore T.D. on the Response by the Holy See to the Report of the Commission of Investigation in the Catholic Diocese of Cloyne’ Department of Foreign Affairs and Trade, Press Release, 3 September 2011. 30

‘Closure of Embassies: Statement by the Tánaiste’ Department of Foreign Affairs and Trade, Press Release, 3 November 2011. 31

Minister for Foreign Affairs and Trade, Joint Committee on Foreign Affairs and Trade, 14 December 2011.

32

‘MV Saoirse – Statement by Tánaiste’ Department of Foreign Affairs and Trade, Press Release, 4 November 2011.

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urged Israel to end a policy which is unjust, counter-productive and amounts to collective punishment of 1.5 million Palestinians.33 The Minister subsequently elaborated on the issue in the Dáil: Also leading up to this event, and the earlier intended sailing in July, both I personally and my Department made clear to the Israeli authorities our assurance that the Irish activists intended a non-violent political protest, and our insistence that any measure taken to enforce the blockade, including any interception of the ship, be carried out so as to ensure the safety of the citizens involved. After the disaster that occurred in May 2010, this was clearly my first concern. I am relieved, therefore, that no injuries to our citizens were reported. The fourteen citizens detained were deported from Israel and arrived back in Ireland on Thursday and Friday last week. I have requested the Embassy in Tel Aviv to follow up with the Israeli authorities on a number of issues arising from this episode, including allegations that the MV Saoirse sustained damage during the interception.34 With regard to the situation in the Middle East more broadly, the Minister for Foreign Affairs and Trade reiterated the Irish State’s long-standing support for a two-state solution at a discussion on Ireland’s foreign affairs priorities: With regard to the Middle East peace process, I will maintain the strong commitment of successive Irish Governments and the Oireachtas to the earliest possible achievement of a sovereign state of Palestine, living in peace with Israel. Therefore, I will consider our response to any move by the Palestinians at the UN this autumn to seek recognition of a Palestinian state when I examine what is proposed. It is my belief that the Palestinian people deserve the dignity of their own state. However, I wish to see a Palestinian state in reality, not only one contained in a UN resolution. On this island we all know too well that a permanent and lasting comprehensive peace can only be achieved through dialogue and negotiation. When we take on the chair of the Organization for Security and Co-operation, OSCE, in Europe next January we will be in a position to enhance our contribution to ongoing promotion of comprehensive security throughout the OSCE region. Our experience of conflict resolution will be a particular asset in this work.35 During 2011, the President of Ireland received credentials from ambassadors representing: Ethiopia, Canada, Libya,36 Croatia, Lesotho, Honduras, Tunisia,37 Japan, Mexico Vietnam, 38 Malaysia, Germany, Spain, Nigeria, China, Egypt, Cyprus, Norway,39 Hungary, India, Brunei, Singapore, Algeria,40 Italy, Luxembourg and Kosovo.41

33

‘MV Saoirse – Statement by Tánaiste’ Department of Foreign Affairs and Trade, Press Release, 4 November 2011.

34

Minister for Foreign Affairs and Trade Dáil Debates 15 November 2011, Volume 746, Column 547.

35

Minister for Foreign Affairs and Trade, Joint Committee on Foreign Affairs and Trade, 5 July 2011.

36

Department of Foreign Affairs, Press Release, 12 January 2011.

37

Department of Foreign Affairs, Press Release, 20 April 2011.

38

Department of Foreign Affairs and Trade, Press Release, 16 June 2011.

39

Department of Foreign Affairs and Trade, Press Release, 13 September 2011.

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BILATERAL RELATIONS, CONSULAR SERVICES AND THE DIASPORA

T

he Irish State continued to focus heavily on the building of trade links and the fostering of economic growth. In its first annual report on the Programme for Government, the Department of the Taoiseach stated: The Promoting Ireland Abroad conference with Irish Ambassadors and Heads of Mission was convened on 1-2 June. The Taoiseach and Tánaiste met with the full team of senior overseas representatives from Department of Foreign Affairs; Irish business leaders; and heads of Irish economic agencies to determine what is working, and what was to be improved, in our international economic promotion activity. Heads of Mission were thoroughly briefed on the outlook for Ireland’s economy in the coming years and what is expected of the State’s foreign policy and diplomatic networks in repairing Ireland’s reputation and promoting our interests abroad.42 A second Global Irish Economic Forum was held in Dublin Castle in October 2011.43 The Forum followed on from a similar event which had been held in October 2009. Shortly after the Forum, the Minister for Foreign Affairs and Trade stated: The second Global Irish Economic Forum was held in Dublin Castle on the 7th and 8th of October. The primary purposes of the Forum were to engage fully with the Irish Diaspora in developing Ireland’s global business and trade relations; to discuss face-to-face the Government’s priorities for economic renewal with key members of the international business community; and to strengthen ties with the Irish Diaspora as a key part of the Government’s efforts to restore Ireland’s international reputation abroad. There was an exceptional uptake on the Taoiseach’s invitation from among members of the Global Irish Network. In addition to the members of the Network, attendees also included members of the Government, Secretaries General of Government Departments, CEOs of State Agencies and members of the Opposition and leading members of the Irish business and cultural sectors.44 The five key themes which emerged from the discussions at the Forum were: 1) Reenvisioning Ireland; 2) Re-establishing our Reputation; 3) Re-engagement; 4) Re-energising Ireland; and 5) Reforming Ireland.45 Subsequent to the Forum, an inter-departmental committee, chaired by the Secretary General of the Department of the Taoiseach met to

40

Department of Foreign Affairs and Trade, Press Release, 11 October 2011.

41

Department of Foreign Affairs and Trade, Press Release, 6 December 2011.

42

Programme for Government, Annual Report 2012, Department of the Taoiseach, March 2012, p. 37.

43

‘Tánaiste announces holding of Second Global Irish Economic Forum in Dublin Castle on 7-8 October, 2011’ Department of Foreign Affairs, Press Release, 3 May 2011. 44

Minister for Foreign Affairs and Trade, Dáil Debates, 10 November 2011, Volume 746, Column 18.

45

Report of the Second Global Irish Economic Forum Dublin Castle, 7- 8 October, 2011Department of Foreign Affairs and Trade 22 November 2011, at p. 7.

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examine the report of the Forum. The committee undertook to report on progress in March 2012.46 In February, a Garda Síochána investigation had concluded that there was ‘an entirely persuasive picture’ of Russian intelligence services involvement in the forging of Irish passports. A statement was issued by the Department of Foreign Affairs: The Government today considered the findings of the Garda Síochána report and agreed to a course of action proposed by the Minister for Foreign Affairs. The Secretary General of the Department of Foreign Affairs subsequently met with the Russian Ambassador this afternoon to inform the Ambassador that the activities of Russian intelligence services in connection with the forgery of Irish passports and the effective theft of the identity of six Irish citizens are completely unacceptable and not the behaviour the Government would expect from a country with which we have friendly relations.47 Later in the year, the Minister for Foreign Affairs and Trade had a successful visit to Russia during which he signed a trade agreement with the Russian Federation. The Minister said: The agreements signed with our Russian partners provide a comprehensive platform for increased trade between the two countries. It is clear that that there is potential to increase exports from Ireland to Russia in key sectors such as education, agriculture, transport, energy, and information technology. By taking advantage of the opportunities that exist and playing to our strengths we can deliver the export-led growth needed to bring about recovery in Ireland’s economy.48 The Minister of State at the Department of Finance introduced a series of bilateral taxation agreements to the Dáil in the course of 2011: I am pleased to introduce four draft Government orders giving force of law in Ireland to new double taxation agreements with Germany, Saudi Arabia, Armenia and Panama, and two draft Government orders giving force of law to tax information exchange agreements with Grenada and Vanuatu, which I understand is in the South Pacific. ... Double taxation agreements are widely regarded as critical pieces of fiscal infrastructure for developing substantial bilateral trading and investment opportunities by reducing tax impediments that might otherwise deter such cross-border activity. For a small open economy like Ireland, dependant on trade and investment with other countries, continuing to expand our network of international tax agreements is not alone necessary but vital.49 In July the Irish Government recognised the independence of the Republic of South Sudan on foot of a referendum in that jurisdiction.50

46

Report of the Second Global Irish Economic Forum Dublin Castle, 7- 8 October, 2011Department of Foreign Affairs and Trade 22 November 2011, at p. 13. 47

‘Statement on Russian involvement in the forging of Irish Passports’ Department of Foreign Affairs Press Release, 1 February 2011. 48

‘Tánaiste signs agreement promoting trade between Ireland and Russia’ Department of Foreign Affairs and Trade Press Release, 7 November 2011. 49

Minister of State at the Department of Finance Select Sub-Committee on Finance, 14 December 2011.

50

‘Government Recognises the Independence of South Sudan’, Department of Foreign Affairs and Trade Press Release, 9 July 2011.

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OVERSEAS DEVELOPMENT AID

T

he Programme for Government of the new coalition stated that the Government was ‘committed to the 0.7% of GNP target for Overseas Development Aid. We will seek to achieve this by 2015.’ 51 Notwithstanding In July, the Minister of State and the Department of Foreign Affairs and Trade set out the 2011 spend to the Dáil: For 2011, Ireland will provide a total of €659 million in Official Development Assistance (ODA). Of this funding, €524 million will be administered by Irish Aid, in the Department of Foreign Affairs and Trade, which manages the Government’s aid programme. The remaining €135 million is accounted for by contributions to international development by other Government Departments and by Ireland’s share of the EU development cooperation budget. On current projections, this allocation will ensure that Ireland provides approximately 0.52 % of GNP for development assistance in 2011.52 This commitment was also made by the Minister for Foreign Affairs and Trade: Ireland’s aid programme is highly effective. We are committed to it because it is the right thing to do and because it is in our interests as a small country in an interconnected world. The Government is committed to the UN target of spending of 0.7% of GNP on official development assistance. We will seek to do so by 2015, the date set by the EU. This is a challenge but it is one we can meet if we can restore growth to the Irish economy.53 A review of the White Paper on Irish Aid was announced in June 2011, following a commitment set down in the Programme for Government.54 The Minister of State at the Department of Foreign Affairs and Trade outlined the review to a Dáil Committee: I referred to the importance of ensuring our overseas programme is responsive to the changing domestic and international economic and social context. I want to ensure our aid programme remains at the cutting edge of international practice in planning for the future and, in a very different domestic environment, the policies and programmes of Irish Aid remain relevant to the wishes of the Irish people. I also want to ensure we remain responsive to the considerable changes that are taking place in the countries where our aid is delivered. As part of this effort, I have initiated a review of the 2006 White Paper on Irish Aid. The review, which will be carried out over the coming year, will ensure we build on our international reputation for effective aid and maximise the contribution Ireland can make to the fight to end global poverty and hunger in light of developments at home and internationally over the past five years. It will give us a clear set of priorities for Ireland’s development programme and our international policy approach in the run-up to 2015, when

51

‘Statement of Common Purpose’ Programme For Government, Department of the Taoiseach, March 2011, p.57.

52

Minister of State at the Department of Foreign Affairs and Trade Dáil Debates, 13 July 2011, Volume 738, Column 634. 53

Minister for Foreign Affairs and Trade, Joint Committee on Foreign Affairs and Trade, 5 July 2011.

54

‘Statement of Common Purpose’ Programme For Government, Department of the Taoiseach, March 2011, p.57.

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the success of the millennium development goals will be measured, and beyond.55 During 2011, Irish Aid conducted operations in Ethiopia, Lesotho, Malawi, Mozambique, Tanzania, Timor Leste, Uganda, Vietnam and Zambia.56 During 2011, humanitarian aid was provided by Ireland to countries including Japan,57 Libya 58 and the Phillipines.59 The Minister of State at the Department of Foreign Affairs and Trade confirmed Ireland’s ongoing commitment to humanitarian aid in Haiti: Ireland pledged funding of €13 million for Haiti for the period 2010-2012 at a donor conference in New York in March 2010. By the end of this year, €11.5 million of this will have been disbursed and it is intended that the entire pledge will be met by early 2012.60

INTERNATIONAL TERRORISM

T

he agreed programme for government of the new coalition contained a commitment to ‘enforce the prohibition on the use of Irish airspace, airports and related facilities for purposes not in line with the dictates of international law.’ 61 In response to a question in the Dáil from Deputy Joe Costello, the Minister of State at the Department of Communications, Energy and Natural Resources explained the legislative and treaty framework within which US aircraft pass through Irish Airports and air space. He referred to the Air Navigation and Transport Act 1946, the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order 1973, Air Navigation (Foreign Military Aircraft) Order 1952 and the Chicago Convention of 1944.62 He went on to outline the State’s approach to complaints made: Where complaints of alleged unlawful activity concerning the use of Irish airports have been made to the Garda, investigations have ensued and, where appropriate, files have been submitted to the Director of Public Prosecutions. In no case has a direction to prosecute been given. On learning of the first allegation of US involvement in extraordinary rendition, the then Government made contact with the US authorities to seek assurances that such renditions had not taken place and would not take place through Irish airports and to make clear that such activity would be illegal under Irish law. Specific and unique assurances were sought and received

55

Minister of State at the Department of Foreign Affairs and Trade. Joint Committee on Foreign Affairs and Trade, 28 September 2011. 56

Irish Aid Annual Report 2011.

57

Minister of State at the Department of Foreign Affairs, Dáil Debates, 12 April 2011, Volume 729, Column 805.

58

Minister of State at the Department of Foreign Affairs, Dáil Debates, 22 March 2011, Volume 728, Column 236.

59

‘Minister Joe Costello authorises an emergency airlift for flood-hit Philippines’ Department of Foreign Affairs and Trade Press Release, 23 December 2011. 60

Minister of State at the Department of Foreign Affairs and Trade, Dáil Debates, 6 December 2011, Volume 748, Column 961. 61

‘Statement of Common Purpose’ Programme For Government, Department of the Taoiseach, March 2011, p.57.

62

Minister of State at the Department of Communications, Energy and Natural Resources, Dáil Debates, 9 June 2011, Volume 735, Column 107.

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from the US authorities that no such prisoners had been transferred through Irish territory, nor would they be without our express permission. None of the various investigations into allegations of extraordinary rendition revealed any evidence that rendition through Irish airports had occurred, nor is there any new information or allegation linking Irish airports to extraordinary rendition. To conclude, adequate protection for the integrity of Irish air space exists in the inspection powers available to the Garda under existing legislation and this is combined with the specific and high-level assurances received from the US on the issue of extraordinary rendition, reassurances we have no reason to question. 63 This position does not indicate any change from with the position expressed by the previous government in relation to extraordinary rendition.64

DISARMAMENT

T

he Biological Weapons Act was passed in July. The purpose of the act was to strengthen Ireland’s implementation of the State’s obligations under the 1972 Biological and Toxin Weapons Convention, as well as the 1925 Geneva Protocol and relevant elements of the United Nations Security Council Resolution 1540 of 2004. The Minister for Foreign Affairs noted that in creating specific offences related to the use of biological weapons, the legislation closed a potential gap in relation to non-state actors. He said: The difficulties of weaponising biological agents and then of successfully deploying a biological weapon against a target are considerable. That is true for states and more so for non-state actors. Moreover, there are significant dangers of infection or poisoning for those who might try to develop a biological weapon. It is partly for that reason that we have, thankfully, seen very few instances of biological weapons being used to date. That is not to understate the danger presented to society by any attempt to make or use a biological weapon. The fact that this country is not currently a location for groups seeking to develop or use those weapons does not mean that we should be unconcerned. On the contrary, it is absolutely essential that we should be in a position to successfully prosecute anyone who attempts to develop a biological weapon in this country. This requires the creation of clear and specific offences. The continuing absence from the Statute Book of such specific offences could paradoxically attract those types of dangerous people to this country precisely because they may believe that there is no clear law on the matter. Enactment of the Bill will ensure that this is not the case.65 The Minister for Foreign Affairs and Trade gave strong support for proposed treaty on the arms trade and committed Ireland to treating this as a priority foreign policy issue for the coming year:

63

Minister of State at the Department of Communications, Energy and Natural Resources, Dáil Debates, 9 June 2011, Volume 735, Column 107-08. 64

See de Londras, F., ‘International Law in Ireland’ (2008) 3 Irish Yearbook of International Law, pp. 93-94.

65

Minister for Foreign Affairs, Dáil Debates, 5 May 2011, Volume 731, Column 598.

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Alan Brady

An important objective for the coming year here will be to negotiate a strong and robust arms trade treaty at a diplomatic conference in New York. This must address the challenges posed by unregulated trade in conventional arms and their diversion to the illicit market, and it must prevent these weapons from threatening security and development or violating human rights and international humanitarian law. Ireland has been active in preparatory work for an arms trade treaty, and this continues to be a priority issue. There will also be a review in 2012 of the UN programme of action to prevent, combat and eradicate the illicit trade in small arms and light weapons which cause death and injury to hundreds of thousands of people every year, and Ireland will work to strengthen the programme of action.66 PEACE SUPPORT OPERATIONS

D

uring 2011, approximately 1,000 members of the Permanent Defence Force were deployed. The missions included postings with the UN, the EU, the OSCE and Partnership for Peace (NATO). The largest posting was the deployment of the 104th Battalion with the United Nations Interim Force in Lebanon (UNIFIL) with a total troop strength of 437.67 The 104th Battalion was replaced by the 105th Battalion in December 2011 upon the completion of the tour of duty of the former.68 At the time of moving the motion for the deployment in the Dáil, the Minister for Defence said: Lebanon continues to be viewed by the international community as a volatile environment requiring a robust and extensive international presence. UNIFIL plays a vital role in stabilising southern Lebanon and in particular the area adjacent to Israel. An effective UNIFIL presence helps to neutralise the potential for renewed conflict between Israel and either Lebanon or elements in Lebanon which would have potentially very negative and extensive onward impacts across the wider Middle East region. Since the unplanned withdrawal of the joint Irish-Finnish contingent from the UN mission in Chad last year, the Defence Forces and management in the Department have been examining all available options in terms of a deployment for the Defence Forces. In November 2010, the UN requested Ireland and Finland to contribute a mechanised infantry battalion amounting to 500 personnel to UNIFIL. The Finnish Government has also approved participation by the Finnish armed forces in this mission. Planning for the mission is ongoing in consultation with the UN and Finland.69 With regard to the duration of the deployment, the Minister said: If participation in UNIFIL is approved by the House, initial deployment would be for one year, subject to renewal of the mandate and a satisfactory review of the mission at that time. In line with standing policy that the duration of any deployment should be set at the outset of a mission, I consider that any such

66

Minister for Foreign Affairs and Trade, Dáil Debates, 22 September 2011, Volume 741, Column 275.

67

Department of Defence Annual Report 2011, at p. 34.

68

Department of Defence Annual Report 2011, at p. 35.

69

Minister for Defence, Dáil Debates, 21 April 2011, Volume 730, Column 790.

101

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deployment would be for a period of three to four years approximately and I propose that the UN be advised accordingly.70 The overall total commitment to Peace Support operations, by mission, during 2011 was as follows:71 Mission

1 Jan 2011

31 Dec 2011

UNTSO (Middle East)

12

12

MINURSO (Western Sahara)

3

3

MONUC (Democratic Rep of Congo)

3

3

UNOCI (Cote d’Ivoire)

2

2

UNIFIL HQ (Lebanon)

9

10

UNIFIL Infantry Battalion (Lebanon)

0

437

UNIFIL Sector West HQ (Lebanon)

0

8

EUFOR (Bosnia Herzegovina)

43

7

EU Nordic Battlegroup HQ (Sweden)

13

0

EU Austro-German Battlegroup

0

1

EUTM (Somalia)

2

7

KFOR HQ (Kosovo)

12

12

ISAF (Afghanistan)

7

7

OSCE

4

4

UNNY (New York)

1

1

EUMS (Brussels)

7

7

NATO/PfP(Belgium)

5

5

Irish Delegation to OSCE (Vienna)

3

2

ESDP/PSC (Brussels)

8

8

134

536

Total Personnel Overseas:

The deployment to EUFOR in Bosnia Herzegovina was reduced in July. This commitment level will be subject to ongoing review as the mission transitions from an executive role to training and supp

70

Minister for Defence, Dáil Debates, 21 April 2011, Volume 730, Column 790.

71

Source: Department of Defence Annual Report 2011.

102

Irish State Practice on the Law of the Sea 2011 DR RONÁN LONG ∗ INTRODUCTION

T

he law of the sea continues to play an important role in Irish foreign policy and this in turn is informed increasingly by the regulatory instruments and policy initiatives that have been adopted at European Union and regional seas levels. Indeed, one of the predominant features of recent legal developments in Ireland is the manner in which European regulatory instruments and policy initiatives continue to shape the substance of national legislation concerning the management and use of natural resources in the marine environment. In 2011, this influence is evident in a diverse range of national legislation, judicial decisions and policy measures, concerning matters such as: the battle to combat climate change, the protection and preservation of the marine environment, the development of offshore renewable energy, the delineation and delimitation of maritime boundaries, the exploitation of offshore hydrocarbon and fishery resources, the task of law enforcement at sea, as well as the regulation of maritime transport. Although it is difficult to discern any central strand running through developments in the law on these matters, it is nonetheless evident that Ireland is pressing ahead in giving full effect to its international and European commitments despite the fiscal austerity programme and the perilous state of public finances. During the report period, other highlights in Irish state practice include: the clarification of Ministerial responsibilities in relation to the management and use of the foreshore; a sterling performance by the Irish Coast Guard in relation to search and rescue and in taking appropriate measures to deal with vessel source pollution; the elaboration of a régime prohibiting carbon capture and storage on the seabed and in the water column; the making of regulations transposing the requirements of the Marine Strategy Framework Directive into Irish law; the elaboration of the Irish foreign policy position on the Israeli naval blockade on Gaza; as well as the declaration made by the Ireland accepting the compulsory jurisdiction of the International Court of Justice. A brief summary is provided below on these developments and a number of related matters.

ADMINISTRATION OF THE FORESHORE

T

he foreshore consists of the seabed and runs from the high water mark on the shoreline seaward to the limits of the territorial sea.1 The majority of the foreshore is owned and managed by the State on behalf of the people of Ireland in the interest of the common good.2

∗

National University of Ireland Galway

1

Foreshore Act 1933, s.1A as inserted by s.60 Maritime Safety Act 2005.

2

See, inter alia: R. Long Marine Resource Law (Dublin, Thomson Round Hall, 2006) , paras 2-01-2-83. Moore, M. Hale, and R. Gream Hall, History and Law of the Seashore and Foreshore. With a hitherto unpublished treatise [A narratiue legall and historicall touchinge the customes] (Stevens & Haynes, London, 1888), Re-printed in 1993. In Ireland, an excellent if

The Irish Yearbook of International Law 2011

Although the management and use of the foreshore is clearly within the exclusive jurisdiction of the State, it has nonetheless a significant international law dimension in that it is comprised of both internal waters and the territorial sea and thus comes within the scope of the provisions in Part Two of the 1982 United Nations Convention on the Law of the Sea (hereinafter Law of the Sea Convention).3 Moreover, all major foreshore projects are subject to legislation which transpose into Irish law the requirements set down in international environmental agreements and Union instruments concerning matters such as: environmental impact assessment, habitat and biodiversity protection, dumping at sea, environmental liability, as well as public access to justice in environmental matters under the Aarhus Convention.4 The regulatory burden in relation to foreshore development is thus highly prescriptive and onerous on both public and private bodies. As a matter of practice, the administration and management of development on or near the foreshore continues to be a pressing matter as is evident from the large number of foreshore applications and consents processed by the relevant departments in 2010-2011, which exceeded 150.5 Moreover, it also appears that the management and administration of the foreshore on a day-to-day basis is problematic and a further attempt was made in 2011 to bring clarity to the roles of the various government departments and state agencies that are vested with powers under the Foreshore Acts 1933-2009.6 More specifically, the Foreshore (Amendment) Act 2011 transfers functions concerning the administration use of the foreshore from the Minister of Agriculture, Food and Fisheries to the Minister for the Environment, Community and Local Government.7 This transfer of Ministerial vires is not complete in so far as foreshore functions pertaining to fishery harbour centres, aquaculture and to sea-fishing more generally remain with the Fisheries Minister.8 This includes foreshore powers relating to the processing and sale of seafish and manufacture of products derived from sea.9 Most of these products are for export and form a significant component of the Irish seafood industry, which is served by not alone Irish vessels but also by many vessels flying the flags of other Member States of the European Union that land their catches into Irish ports on a regular basis. In line with standard procedures concerning the administration of justice in Ireland, the Environmental Minister becomes party to legal proceedings in cases that were pending prior to the transfer of functions to his colleague.10 On the whole, it goes well beyond the scope of this paper to evaluate the law in Ireland as it applies to the foreshore. From an administrative law perspective, however, the complex division of responsibilities for foreshore licensing between the relevant Ministers based on the

somewhat dated source is E.J. Smyth, The Seashores of Ireland (published privately, Dublin, 1935). The latter contains a useful commentary on the Foreshore Act 1933. For a more recent treatment of the law as it applies to development on the foreshore, see S. Dodd, “Development on the Foreshore” (2006) 63(2) Irish Planning and Environmental Law Journal 63. 3

Irish Treaty Series No. 1 of 1998.

4

Ireland ratified the Aarhus Convention and its related agreements, which entered into force on 18 September 2012. On dumping at sea, see R. Long “Irish practice on the Law of the Sea 2009-2010”, Irish Yearbook of International Law 2009-2010, (Oxford, Hart Publishing, 2012), pp. 251-285. 5

Dáil Éireann Debate Vol. 737 No. 4, Col. 880.

6

No.12 of 1933. No. 39 of 2009.

7

No. 11 of 2011.

8

s.2 of the Foreshore (Amendment) Act 2011.

9

s.2(b)(ii) of the Foreshore (Amendment) Act 2011.

10

s.7 of the Foreshore (Amendment) Act 2011.

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nature of the application remains cumbersome and lacks coherence. Furthermore, it also appears to be entirely inconsistent with international best practice, where there is clear preference for a one-stop-shop approach to the licensing of all commercial and development activities in the marine environment including those activities that take place on or near the foreshore. A good example of an integrated and holistic approach to marine resource management can be seen in the Marine Management Organisation in the United Kingdom, which was established under the Marine and Coastal Access Act 2009 and exercises extensive statutory powers in relation to offshore planning and licensing.11 An opportunity to bring Irish foreshore legislation and administrative structures into line with best international practice may arise as soon as the European institutions bring forward the proposed legislation on integrated coastal zone management and marine spatial planning. This approach may entail the adoption of a Union horizontal directive in line with the scheme advanced by the European Commission on the subject.12 In Ireland, the Government has indicated that it will bring forward proposals for a major reform of the law applicable to the foreshore in due course and has commissioned a number of legal studies in this regard.13

SAVING LIFE AT SEA

S

ea areas under Ireland’s sovereignty and jurisdiction are on occasion a treacherous environment for mariners. International law requires every coastal State to establish, operate and maintain an effective search and rescue service and to cooperate with neighbouring States for this purpose.14 Moreover, Ireland’s emergency services have a demanding set of responsibilities under the International Convention for the Safety of Life at Sea (SOLAS) Convention and its 1988 Protocol,15 as well as many other international agreements pertaining to the safety of shipping. Among the latter, the 1979 International Convention on Maritime Search and Rescue requires Ireland as a Contracting Party to respond to a “distress phase”, which is described as “a situation wherein there is a reasonable certainty that a vessel or person is threatened by grave and imminent danger and requires immediate assistance”.16 This duty to render assistance applies to the master of all ships flying the Irish flag and extends to persons and ships in distress in sea areas both within and beyond national jurisdiction. 17 Emergency situations arise all too often in sea areas adjacent to Ireland. In 2011, for example, the Irish Coast Guard as the principal frontline service dealt with over 1,800 emergency incidents, saved 170 lives and rendered assistance to over 3,000 persons.18 The vast majority of these incidents pertained to vessels or individuals in distress at sea. Indeed, trends over the past five years in Ireland appear to suggest that the task of the Irish Coast Guard in discharging

11

See, inter alia: A. Slater, 'What is Marine Spatial Planning?' (2012) 14(1) Environmental Law Review 1-6, 2012H. Smith et al., "The integration of land and marine spatial planning", (2011) 15(2) Journal of Coastal Conservation 291303. 12

COM(2010) 771 final, Brussels, 17.12.2010.

13

Dáil Éireann Debate Vol. 737 No. 4, Cols 879-882.

14

Article 98(2), United Nations Convention on the Law of the Sea.

15

Irish Treaty Series No.3 of 1984, and No.7 of 2003.

16

Annex Chapter 1.3.11. Irish Treaty Series No 2 of 1994.

17

Article 98(1), United Nations Convention on the Law of the Sea.

18

Coast Guard Annual Report 2011 (copy with the author).

105

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international legal obligations to render assistance to vessels and persons at sea is becoming more onerous as is evident from the information presented in Table 1 below. 19 Table 1: Search and Rescue by the Irish Coast Guard 2006-2011 2006

2007

2008

2009

2010

2011

Incidents

1807

1961

1876

1893

1839

1817

Persons saved/assisted

4266

3488

3155

3127

3675

3563

Pleasure Craft

547

696

594

667

576

580

Merchant Craft

63

64

63

47

45

77

Fishing Craft

265

278

221

142

188

180

Pollution/Salvage Report

34

47

45

51

47

41

IRCG Coastal Units

720

822

707

766

795

912

IRCG Helicopter

458

469

450

512

470

553

RNLI

711

736

679

709

740

728

Community Rescue Boats Ireland Gardaí

148 70

96 58

99 50

146 53

122 51

124 50

False Alarms

142

142

136

132

140

118

SHIP CASUALTY INCIDENTS AND VESSEL SOURCE POLLUTION

T

he flag State is responsible under the Law of the Sea Convention for ensuring ships flying its flag comply with generally accepted international standards and are operated safely. 20 The problems associated with ship safety are manifest and sometimes acute in times of economic recession. Moreover, there are growing and perhaps understandable concerns in Ireland about the safety of global shipping and the threat to the coastal environment from vessel source pollution. These concerns appear to be well founded when one considers that the Coast Guard responded to 41 marine pollution and ship casualty incidents in 2011.21 In addition, it

19

Ibid.

20

Article 94 of the United Nations Convention on the Law of the Sea.

21

Op.cit. note 18.

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maintained an active preparation and preventative regime in line with obligations set down by the International Maritime Organization in a raft of highly complex international agreements including: the 1973 International Convention for the Prevention of Pollution from Ships and its 1978 Protocol;22 the International Convention for the Prevention of Pollution from Ships (MARPOL) and its 1987 Protocol;23 the International Convention on Oil Pollution Preparedness, Response and Co-operation and the Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances and its Protocol; 24 as well as the Bonn Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances.25 In line with work undertaken in previous years, the Coast Guard continued the approval process in 2011 of oil spill contingency plans for local authorities, as well as for ports and offshore exploration and production operations. This planning for emergencies at a local level is important in light of the obligations that arise under the ever-expanding array of EU instruments and national regulatory measures that are complementary to the aforementioned IMO agreements, which include: the Directive on Port State control;26 the Directive on waste reception facilities in EU ports;27 and Council Decision establishing a Community Civil Protection Mechanism.28 This complex system of regulatory instruments also includes Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system, which was amended in 2011 by Commission Directive 2011/15/EU.29 The latter amendment has been implemented in Ireland by means of the European Communities (Vessel Traffic Monitoring and Information System) Regulations 2010-2012.30 According to the explanatory note appended to the said regulations, the most recent amendments provide for three matters, namely: (1) an update of the safety criteria regarding certain oil-tanker products by substituting a new format in Schedule 3 of the Regulations, which deals with voyage data recorder systems; (2) an extension of the powers of intervention by Ireland to include assistance, salvage or towage companies in the event of incidents or accidents at sea; (3) the removal of an obligation on any company to use “SafeSeasIreland” or specified electronic means when placing itself at the disposal of the Irish Coast Guard in the event of an incident or accident at sea.31 The latter system is a sophisticated maritime tracking system that allows the Department of Transport to track and exchange information on vessels with the flag State and the vessel operator in line with EU, IMO and International Labour Organisation regulatory requirements. This system also satisfies the requirements of the Western European Tanker Reporting System, which requires single hull oil tankers carrying heavy grades of oil to report when passing through the Irish sector of the Western Europe Particularly Sensitive Sea Area.32

22

Irish Treaty Series No.11 of 1995.

23

Irish Treaty Series No.22 of 1995.

24

Irish Treaty Series No. 23 of 2001.

25

Irish Treaty Series No. 22 of 2013.

26

Directive 2009/16/EC, OJ L 131/57, 28.5.2009.

27

Directive 2000/59/EC, OJ L 332, 28.12.2000.

28

Council Decision 2007/779/EC, Euratom, OJ L 314, 1.12.2007.

29

Directive 2002/59/EC OJ L 208/10 , 5.8.2002, as amended by Commission Directive 2011/15/EU of 23 February 2011, OJ L 49, 24.2.2011. 30

S.I. No. 573 of 2010 and S.I. No. 71/2012.

31

European Communities (Vessel Traffic Monitoring and Information System) (Amendment) Regulations 2012, SI No 71/2012. 32

For a description of this system, see, IMO Circular SN/Circ.242.

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The Irish Yearbook of International Law 2011

Apart from the practical and demanding nature of its operational mandate, the Coast Guard represents Ireland at a number of regional international bodies including the European Maritime Safety Agency, the North Atlantic Coast Guard Forum, as well as at various working groups under the 1983 Agreement, which deal with pollution of the North Sea by oil and other harmful substances.

COMBATING CLIMATE CHANGE BY MEANS OF SEQUESTRATION AND FERTILISATION

T

here were several important developments in Irish legislation in 2011 as it applies to the environment. Although much of the focus of the legislation is on air quality and on the control of emissions,33 a number of the new legislative instruments have significant and longterm implications for the protection and preservation of the marine environment in sea areas adjacent to Ireland. Specifically, the first development relates to the prohibition on carbon capture and storage on the seabed and water column. The second major initiative concerns the all-important transposition of the Marine Strategy Framework Directive into Irish law. Both regulatory initiatives have a major international and regional dimension and will entail considerable cooperation and coordination with neighbouring States in the North-East Atlantic. They are examined separately here. The European Communities (Geological Storage of Carbon Dioxide) Regulations 2011 (hereinafter, the 2011 Regulations) transposes Directive 2009/31/EC and establishes a legal framework for carbon capture and storage with a view to combating climate change.34 The process of carbon capture and storage, otherwise known as sequestration in the law of the sea literature, is described in the Directive as a “bridging technology” that is aimed at mitigating the effects of climate change.35 This is a particularly illustrative euphemism, which suggests that the technology is intended to act as an interim technical solution to a pressing environmental problem, bridging from the current state of play to the ultimate solution of full emissions reduction and abatement in line with the agreed international and European thresholds for such reductions. Briefly described, carbon capture and storage can be viewed as a waste management process, which consists of the capture of carbon dioxide from industrial installations such as electricity power plants, its transport by pipeline or ship to a storage site in the natural environment, and the subsequent injection of the gas into a suitable underground geological formation for the purpose of permanent storage.36 Some of the most suitable sites that have been identified for this purpose are the depleted oil and gas fields in the North Sea and elsewhere.37 The OSPAR Commission have pointed that the process is not free from risk and

33

The European Communities (Greenhouse Gas Emissions Trading) (Amendment) Regulations 2011, SI No. 127 of 2011, amends the Greenhouse Gas Emission Trading Regulations of 2004 and 2010; the Air Quality Standards Regulations 2011 ; the European Communities (Control of Emissions of Gaseous and Particulate Pollutants from Non-Road Mobile Machinery) (Amendment) Regulations 2011, SI No. 263 of 2011; the Fluorinated Greenhouse Gas Regulations 2011, SI No. 279 of 2011; the Control of Substances that Deplete the Ozone Layer Regulations 2011, SI No. 465 of 2011. 34

SI No. 575 of 2011. Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide, and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006, O.J. No. L140/114, 5.6.2009. 35

See, for example, Recital 4 of Directive 2009/31/EC.

36

See, inter alia: B. Mets et al. (eds)., IPPC Special Report on Carbon Dioxide Capture and Storage (Cambridge, Cambridge University Press, 2005), p.7; S. Gilfillan, et al. (2009). Solubility trapping in formation water as dominant CO2 sink in natural gas fields. Nature. 458: 614-618. 37

Test projects are underway in the Sleipner field in the United Kingdom part of the North Sea, in the Snøvit field in Norway, and in the K12-B gas field in the Netherlands.

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that there is a particular risk of re-emitting stored carbon dioxide to the atmosphere, and local pollution risks to the quality and health of the marine environment.38 As is well documented in the literature, the legal barriers to the storage of carbon dioxide in geological formations under the seabed were removed through the amendment in 1996 of both the 1996 London Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, and the subsequent amendment in 2007 after protracted debate of the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (the OSPAR Convention).39 More specifically, the OSPAR Contracting Parties adopted a comprehensive package of measures that included, inter alia: amendments to the Annexes to the OSPAR Convention to allow the storage of carbon dioxide in geological formations under the seabed; a Decision to ensure environmentally safe storage of carbon dioxide streams in geological formations; and the adoption of the OSPAR Guidelines for Risk Assessment and Management of that activity.40 In parallel with these initiatives, there are several European Union Directives that are linked to Directive 2009/31/EC and are thus applicable to the environmental risks associated with carbon capture and storage including: the Integrated Pollution Prevention and Control Directive; the Environmental Impact Assessment Directive; and the Environmental Liability Directive.41 In general, the 2011 Regulations follow the central thrust of Directive 2009/31/EC in so far as their geographical ambit extends not only to the geological storage of carbon dioxide in the territory of the State, but also to storage in the exclusive economic zone and on the continental shelf as defined in the Law of the Sea Convention.42 In addition, there appears to be two features to the 2011 Regulations on carbon capture and storage that merit highlighting here. The first feature is that Ireland has emphatically exercised its discretion under Article 4 of the Directive and decided not to allow for any carbon storage in part or in the whole of the State, the exclusive economic zone (EEZ), or the continental shelf.43 Furthermore, storage at a site or complex extending beyond such areas is also prohibited.44 This thus extends the prohibition to carbon storage in the continental shelf as opposed to on the continental shelf (emphasis added). The latter prohibition could also be interpreted as removing the scope for sequestration in seabed areas beyond national jurisdiction, that is to say, storage at sites that are geologically or otherwise linked with the high seas and the international seabed area. This blanket prohibition on carbon sequestration is aimed at affording Ireland the opportunity to await developments and to monitor the progress by key players in this nascent technological field, as well by other EU Member States, which have committed substantial resources to the implementation of the regulatory framework underpinning this relatively new and untested technology. 45 In this context, it is

38

OSPAR Commission, Quality Status Report 2010, pp.16-18.

39

OSPAR Decisions 2007/1 and 2007/2 provide for inter alia: ban on storage of carbon dioxide in the water column; framework for environmentally safe offshore carbon dioxide capture and sequestration in geological formation of the sub-seabed, in force 15 January 2008. For a concise description of these measures, see, P. Sands, et al., Principles of International Environmental Law, 3rd Ed., (Cambridge, Cambridge University Press, 2012) pp.366-371. 40

Available at: http://www.ospar.org.

41

Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, OJ L 24/8, 29.1.2008; Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L 175/40, 5.7.1985; Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143/56, 30.4.2004. 42

Regulation 3(2), European Communities (Geological Storage of Carbon Dioxide) Regulations 2011.

43

Regulation 4(1), European Communities (Geological Storage of Carbon Dioxide) Regulations 2011.

44

Regulation 4(2), European Communities (Geological Storage of Carbon Dioxide) Regulations 2011.

45

Explanatory Note, European Communities (Geological Storage of Carbon Dioxide) Regulations 2011.

109

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noteworthy that state practice both within and beyond the EU varies considerable with several countries such as the United Kingdom and Australia adopting proactive measures that differ significantly from the qui vivra verra approach taken by Ireland.46 Instructively, the position in Ireland is subject to review in light of a European Commission report to the European Parliament on the operation of Directive 2009/31/EC in the Member States by 2015.47 The latter report will address carbon capture and storage, technical progress and scientific knowledge. This in turn ought to provide Ireland with a more comprehensive overview of the status of a relatively new technology, which is aimed at mitigating the effects of climate change, but runs the potential risk of polluting the ocean and damaging the marine environment.48 The second feature of the 2011 Regulations is that they prohibit storage of carbon in the water column.49 The latter prohibition thus appears to preclude the practice of what is commonly referred to as ocean fertilisation. This is triggered by the intentional dumping of materials such as iron compounds in the ocean to promote the growth of plankton that absorbs atmospheric carbon dioxide. As a climate change mitigation process, this practice remains controversial in so far as the environmental consequences of fertilisation are not yet fully understood or indeed assessed by the scientific community.50 This position has been compounded by scientific experiments in the Southern and Pacific Oceans, which have provoked considerable debate and further controversy.51 In response to scientific uncertainty and perhaps as a manifestation of the precautionary principle, there have been several international initiatives to ensure that ocean fertilisation activities are not carried until there is an adequate scientific basis to justify such activities. In particular, work has been undertaken under the aegis of the International Maritime Organisation.52 Furthermore, Parties to the London Convention and the 1996 Protocol have agreed an assessment framework with which to assess scientific research proposals involving ocean fertilisation.53 The latter framework could very well be a crucial step in resolving the intractable nature of this longstanding problem as it will allow for scientific research to continue and simultaneously reduce the risk of environmental damage. Following on from the scientific uncertainty associated with such activities, the general approach under international and regional law is to prohibit ocean fertilisation apart from relatively small-scale scientific research projects that pose little or no threat to the environment. Accordingly, the prohibition by Ireland of carbon storage in the water column as set out in the 2011 Regulations accords with the approach taken by Contracting Parties to the London Convention and Protocol,54 by Contracting Parties to the OSPAR Convention,55 and the

46

See, for example, the Energy Act 2008 in the United Kingdom and the Offshore Petroleum and Greenhouse Gas Storage Act 2008 in Australia. 47

Explanatory Note, European Communities (Geological Storage of Carbon Dioxide) Regulations 2011.

48

See, OSPAR Commission, Effects on the marine environment of ocean acidification resulting from elevated levels of CO2 in the atmosphere (London, OSPAR Commission, 2006). 49

Regulation 4(3), European Communities (Geological Storage of Carbon Dioxide) Regulations 2011.

50

See, International Panel for Climate Change, Fourth Assessment Report of Climate Change. Available at: http://www.ipcc.ch. 51

See, inter alia: R. Rayfuse et al., “Ocean Fertilization and Climate Change: The Need to Regulate Emerging High Seas Uses”, (2008) 23 International Journal of Marine and Coastal Law 297–326. 52

UNGA A/Res/ 66/231 of 5 April 2012, paras 154-156.

53

Res. LC-LP.2(2010) on the assessment framework for scientific research involving ocean fertisilation, 14 October 2010. 54

International Maritime Organization, document LC 30/16, annex 6, resolution LC-LP.1 (2008).

55

OSPAR Decision 2007/1 prohibits the storage of CO2 in the water column or on the seabed.

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approach advocated by the Conference of the Parties to the Convention on Biological Diversity in 2008.56 Apart from the prohibition on sequestration and fertilisation, the 2011 Regulations make provision for a number of miscellaneous matters, including: the designation of a competent authority for the purpose of their implementation and that of the Directive; transboundary cooperation with a neighbouring Member State in the case of the transboundary transport of carbon dioxide, or the establishment of a transboundary storage site or a transboundary storage complex; the provision of information to the public in accordance with the European Communities (Access to Information on the Environment) Regulations 2007;57 as well as provisions dealing with enforcement and penalties.58 Two other regulatory schemes were amended to supplement the carbon capture and storage regime, namely: the European Communities (Environmental Liability) (Amendment) Regulations 2011, which amend previous regulations concerning environmental liability with regard to the prevention and remedying of environmental damage as a result of the operation of geological carbon dioxide storage sites;59 and the Environmental Protection Agency Act 1992 (First Schedule) (Amendment) Regulations 2011, which apply the Directive 2008/1/EC on integrated pollution prevention and control to the capture of carbon dioxides streams for the purpose of geological storage.60 In summary, Irish law on carbon capture and storage accords with the approach taken by the European Union, the OSPAR Commission, and at the International Maritime Organization. Furthermore, the prohibition is fully consistent with the Decision taken by the Conference of the Parties to the 1992 Convention on Biological Diversity, which in accordance with the precautionary approach precludes ocean fertilisation activities until there is adequate scientific evidence.61 AN INTEGRATED APPROACH TO MARINE ENVIRONMENTAL MANAGEMENT

The Marine Strategy Framework Directive is the single most important EU instrument aimed at protecting and preserving the marine environment in a comprehensive and holistic manner. From the perspective of public international law, the Directive implements many obligations codified in international agreements and other instruments that are binding on both the EU and Ireland.62 Amongst others, these include: the 1982 Law of the Sea Convention; the 1992 OSPAR Convention;63 the 1992 Convention on Biological Diversity;64 as well as the 27 fundamental principles enunciated by the Rio Declaration on Environment and Development.

56

Decision IX/16 C adopted at the ninth meeting of the Conference of the Parties to the Convention on Biological Diversity. See United Nations Environment Programme, document UNEP/CBD/COP/9/29, annex I. 57

SI No. 133 of 2007.

58

Regulations 5 through to 9, European Communities (Geological Storage of Carbon Dioxide) Regulations 2011.

59

SI No. 307 of 2011 amends the European Communities (Environmental Liability) Regulations 2008, SI No. 547 of 2000. 60

SI No. 308 of 2011.

61

C(4) of Decision IX\16, UNEP/CBD/COP/DEC/IX, 30.05.2008.

62

Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) OJ L 164/19, 25.6.2008. 63

Irish Treaty Series No.7 of 1998 and No.8 of 2003.

64

Irish Treaty Series No.2 of 1997.

111

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The Directive has been subject to a considerable body of academic commentary and there is a major push in the Member States to implement its comprehensive provisions.65 Suffice to note here that the overall aim of the instrument is to protect the resource base upon which all marine-related economic and social activities depend. This requires all Member States to achieve good environmental status (GES) of marine waters by 2020 at the latest.66 GES is defined as: …the environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions, and the use of the marine environment is at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations.67 As is well documented in the academic literature, the normative approach advanced by the Directive is ecosystem-based management of the marine environment.68 In order to achieve this objective, it provides a sophisticated an iterative approach to environmental management that entails Ireland and other Member States within the same marine region working together to achieve GES. The first step in the complex path towards full implementation was taken in 2011 when the Minister for the Environment, Community and Local Government adopted the European Communities (Marine Strategy Framework) Regulations 2011, which transpose into Irish national law the requirements of the Directive.69 More specifically, the said Regulations require the development of a marine strategy for Ireland’s marine waters. The aim of the strategy is to achieve GES in Ireland’s marine waters by the year 2020 in line with the scheme set down by the Directive. For this purpose the Regulations require the completion of an initial assessment of the status of Ireland’s marine waters, a determination of GES and the establishment of a series of environmental targets and associated indicators in 2012.70 Two years later, Ireland must establish and implement monitoring programmes for ongoing assessment and regular updates of targets.71 The following year, a programme of measures must be designed to

65

See, inter alia: R. Long, “The Marine Strategy Framework Directive: A new European approach to the regulation of the marine environment, marine natural resources and marine ecological services” (2011) Journal of Energy and Natural Resources Law 29 (1) pp. 1-44 L. Juda “The European Union and the Marine Strategy Framework Directive: Continuing the Development of Ocean Use Management”, (2010) 41 ODIL 34–54; and by the same author, The European Union and Ocean Use Management: The Marine Strategy and the Maritime Policy,” (2007) 38 ODIL 259– 282; Hans-Joachim Rätz et al., “Complementary roles of European and national institutions under the Common Fisheries Policy and the Marine Strategy Framework Directive”, (2010) 34 Marine Policy 1028–1035; N. Westaway “The New European Marine Strategy Framework Directive” (2008) 10 Env L Rev 218-224; S. Fletcher “Converting science to policy through stakeholder involvement: an analysis of the European Marine Strategy Directive” (2007) 54 Marine Pollution Bulletin 1881–1886; L. D. Mee et al., “How good is good? Human values and Europe’s proposed Marine Strategy Directive (200 8) 56 Marine Pollution Bulletin 187–204; A. Borja “The new European Marine Strategy Directive: difficulties, opportunities, and challenges. (2006) 52 Marine Pollution Bulletin 239–42. 66

Art 1 of of Directive 2008/56/EC.

67

Art 3(5) of Directive 2008/56/EC.

68

R. Long, “Legal Aspects of Ecosystem-Based Marine Management in Europe” in A. Chircop, M. L. McConnell, S. Coffen-Smout (ed.), OCEAN YEARBOOK Vol. 26, (Boston/Leiden, Brill Academic Publishers, 2012) pp.417-484. 69

S.I. No. 249 of 2011.

70

Regulation 5(3)(a)(i) of S.I. No. 249 of 2011.

71

Regulation 5(3)(a)(iv) of S.I. No. 249 of 2011.

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achieve or maintain GES with a view to ensuring their entry into operation by 2016.72 As indicated, the ultimate aim of the Directive is to achieve GES by 2020.73 Typical of this new generation of Union environmental instruments, the Directive is focused on contributing to the fulfilment of the obligations that are set down in regional agreements including the OSPAR Convention. This is clearly evident in the transposition regulations, which provide that the Minister, in implementing a marine strategy, may coordinate actions with third countries having sovereignty or jurisdiction over waters in the same marine region using relevant international forums, including mechanisms and structures established under the Regional Sea Conventions.74 Inexplicably, although Ireland satisfied the initial transposition deadline, the Marine Institute has since fallen well behind in its obligations to undertake the initial assessment of the marine environment and to present the requisite reports and technical scientific submissions to the European Commission in line with the scheme of the Directive.75 As a result of this failure, Ireland has been red-flagged by the European Commission along with Bulgaria, Malta and Poland.76

WHALING

I

n line with the International Convention for the Regulation of Whaling,77 the International Whaling Commission (IWC) adopted a moratorium on commercial whaling in 1982 and this is still in force today.78 Ireland has fully supported this moratorium and has sought to forge international consensus on the matter.79 Controversially, since the introduction of moratorium, both Japan and Iceland have conducted whaling for scientific purposes. In a significant move, Australia instituted proceedings against Japan before the International Court of Justice regarding the legality of the scientific whaling programme and these proceedings were pending in 2011.80 This was supported by New Zealand, which filed a declaration of intervention in the proceedings under Article 63 of the Statute of the Court.81 Against this background, the work of the IWC has been contentious and under the spotlight. Ireland has played a proactive role in attempting to bridge the impasse at the IWC and has sought in the past to achieve a rapprochement between diverging views on some of the key issues underpinning the dispute. In July 2011, Ireland attended the 63rd Annual Meeting of

72

Regulation 5(3)(b) of S.I. No. 249 of 2011.

73

Article 1 of Directive 2008/56/EC.

74

Regulation 6(2)(a) of European Communities (Marine Strategy Framework) Regulations 2011. S.I. No. 249 of 2011. 75

Articles 8,9 and 10 of Directive 2008/56/EC.

76

See European Commission Scoreboard at: http://ec.europa.eu/environment/marine/eu-coast-and-marinepolicy/implementation/scoreboard_en.htm. 77

Irish Treaty Series No.21 of 2010.

78

Rule 10(e) of the Schedule to the 1946 Whaling Convention.

79

See . Long “Irish practice on the Law of the Sea 2009-2010”, Irish Yearbook of International Law 2009-2010, (Oxford, Hart Publishing, 2012), pp. 251-285. 80

Whaling in the Antarctic (Australia v. Japan), International Court of Justice, Press Release No. 2010/16, 1 June 2010. 81

Press Release International Court of Justice, No. 2012/34, 21 November 2012.

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the IWC, which took place in the Channel Islands under the stewardship of the UK. There were several resolutions adopted at this meeting including one on safety-at sea in response to the high profile NGO protest activities that took place in the southern ocean. This particular resolution noted that the Commission and Contracting Governments do not condone and in fact condemn any actions that are a risk to human life and property in relation to the activities of vessels at sea.82 This resolution noted the primacy of the IMO on safety at sea and recalled that the Maritime Safety Committee had adopted a similar resolution condemning "any actions that intentionally imperil human life, the marine environment, or property during demonstrations, protests or confrontations on the high seas".83 On the other pressing matters, the meeting failed to agree by consensus to create a whale sanctuary in the South Atlantic and this issue will be raised again at the annual meeting in 2012. Establishing a whale sanctuary has been on the agenda of the annual meeting for a number of years and the Commission are fully committed to making a decision on this issue should agreement not be achieved by the Contracting Governments in 2012. Several other housekeeping matters were addressed at the 63rd Annual Meeting. Most notably, in response to a proposal tabled by seventeen EU countries, which did not include Ireland, the Committee agreed by consensus a resolution that also incorporated some changes to its Rules of Procedure and Financial Regulations.84 Importantly, these changes provide that the Commission shall not accept external funds from: (1) sources that are known, through evidence available to the Commission, to have been involved in illegal activities, or activities contrary to the provisions of the Convention; (2) individual companies directly involved in legal commercial whaling under the Convention; or (3) organisations which have deliberately brought the Commission into public disrepute.85 Furthermore the new rules also require that the payment of dues to the IWC from Contracting Governments will have to take place by electronic bank transfer.86 These measures should help resolve longstanding concerns about transparency and good fiscal practices at meetings of the IWC.

FISHERIES

T

he reform of the regulatory framework underpinning the common fisheries policy has major impications for the fisheries sector in Ireland. The Irish fleet is small in comparative terms at a European level but this belies the important contribution that the fishing industry makes to regional development in parts of Ireland where there are few alternative sources of employment and where there are strong historical connections with the fishing industry. The pelagic fleet is very modern and the most important segment of the Irish fishing fleet from a commercial standpoint. These vessels target a number of stocks in the North-east Atlantic both within and beyond national jurisdiction as far afield as Norway and Jan Mayen. The principal pelagic species of interest are mackerel, herring and blue whiting, and several of these stocks come within the scope of management measures adopted by the North-East Atlantic Fisheries Commission. Similar to other vessels registered in the Member States of the EU, Irish vessels are subject to strict EU fisheries management measures concerning licenses, fishing permits, fishing

82

IWC Resolution 2011-2. Available at: archive.iwcoffice.org/meetings/resolutions/Resolution2011-2.pdf.

83

Resolution MSC. 303 (87) adopted on 17 May 2010.

84

IWC Resolution 2011-1 on improving the effectiveness of operations within the IWC.

85

Ibid.

86

Ibid.

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capacity, total allowable catches and quotas, fishing effort, technical conservation measures, and so forth. The exclusive competence of the EU to adopt such measures is rooted in the Treaty on the Functioning of the European Union and can be traced back to some seminal judgments of the Court of Justice of the European Union in the late 1970s and early 1980s.87 In this context, there is a very close relationship between international law, EU law, and national law as it pertains to the conservation and management of fisheries. In addition to the implementation of a comprehensive code of Union fisheries law, Ireland has enforcement and compliance responsibilities at port, coastal and flag State levels under international law.88 Furthermore, EU legislation requires all Member States including Ireland to ensure that appropriate measures are taken against the responsible parties when the rules of the CFP are infringed and this includes taking legal proceedings where appropriate.89 Indeed, the European Treaties provide a unique enforcement mechanism whereby the European Commission ensures compliance by the Member States with their obligations under Union law.90 In this context, the Court of Justice of the European Union has construed the concept of failure to fulfil obligations under the Treaties very broadly and as a consequence the mechanism for ensuring the effectiveness of Union fisheries conservation and management law far exceeds that which is available under public international law.91 As a result of the transfer of competence on matters covered by the Law of the Sea Convention from the Member States to the EU, the Court of Justice has exclusive jurisdiction to deal with disputes between Member States concerning fisheries and the marine environment.92 During the report period, there were a number of important judgments handed down by Irish courts which shed light on the practical aspects of fisheries law enforcement in Ireland. Most notably, the High Court judicial review proceedings concerning the activities of the Irish registered fishing vessel Atlantean are typical of the serious matters that can arise in relation to the implementation of a relatively straightforward administrative measure in the EU quota management system.93 In this instance, the Atlantean was unable to land its catch in Killybegs due to the unavailability of the local fish meal plant and subsequently decided to land its catch in Iceland before resuming a fishery for blue whiting. On return to the port of Killybegs, the vessel was detained and the Master charged with illegal fishing under the Blue Whiting (Fisheries Management and Conservation) Regulations 2006, which had come into force during the period when the vessel was at sea. The effect of said Regulations was to close this particular fishery and to make it an offence to engage in fishing for blue whiting. The proceedings are significant from both a regulatory perspective and from the practical aspects of fishery law enforcement in a sector that is characterised by highly prescriptive and complex legislation. In refusing an application for judicial review, which was pleaded on the basis that the applicant didn’t know that this particular blue whiting fishery was closed, the High Court was of the view that there was an elaborate administrative system in place whereby the authorities notified the fishermen’s representative organisation (in this particular instance, the Killybegs Fishermen’s Organisation Limited) and they in turn notified their members in the fishing industry. The nature and operation of that system was deemed by the Court as one that “is classically a matter for factual ascertainment and therefore one for the

87

Article 3(e) of the Treaty on the Functioning of the European Union.

88

See R. Long, P. Curran, Enforcing the common Fisheries Policy, Reprint, (London, John Wiley, 2008).

89

Art 25(1) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, OJ L 358/59, 31.12.2002. 90

Articles 258-260 Treaty Functioning European Union.

91

See R. Long (Article) “The EU and the Law of the Sea Convention at the age of 30”, International Journal of Marine and Coastal Law, Vol 27, No 4, December 2012, pp. 711-721. 92

93

Case C-459/03 Commission v Ireland [2006] ECR 1-4635. Faherty -v- Attorney General [2011] IEHC 222.

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court of trial”.94 Nonetheless, in a pragmatic approach the Court clarified the obligations that arise in relation to the practical aspects of fishery management and quota administration by finding that: Fishermen had a duty to ensure they kept up to date with such information. It was not necessary that they be avid readers of Irish Oifigiúil (official Journal) only that they paid heed to their own system for ascertainment of when various fisheries were closed.95 The Court also used this opportunity to clarify two other important points of administrative and criminal law as they apply to the fisheries sector. The first concerned the vires of the Minister and the Court was satisfied that it was the Oireachtas that had imposed criminal sanctions for the offences in question. As a consequence, the exercise of the statutory power of the Minister as set down in s. 224B of the Fisheries (Consolidation) Act 1959 to implement fisheries regulations was valid as this is an obligation that stems from Ireland’s membership of the EU.96 Accordingly, the Regulations did no more than implement the details of a policy clearly contained in the 1959 Act and this did not constitute an unauthorised delegation of legislative power.97 In general, the penalty or sanction that may be invoked for failure to comply with EU measures is a matter where Member States may exercise a certain discretion within the parameters set down by the European institutions. On this point, concerning the necessity of creating an indictable offence applicable to conservation and management measures under the CFP, the Court held that Ireland was free to choose the mode of implementation for EU measures and to support this finding it pointed to its previous decision in Kennedy v. The Attorney General,98 which was upheld subsequently by the Supreme Court.99 Accordingly, the sovereign independence of the State extended to the creation of an indictable offence to ensure compliance with the obligations that arise under the CFP. The case thus clarifies a longstanding concern of the Irish fishing industry concerning the appropriateness of using the criminal code as a means to address non-compliance by the sector with the regulatory regime that underpins the CFP. In this regard, Union law is well settled in so far as penalties/sanctions that are applicable to EU law must be effective, proportionate and dissuasive.100 The administrative difficulties associated with implementation of the regulatory regime underpinning the CFP as it applies in sea areas elsewhere in the EU were also evident in Bates & Anor -v- Minister for Agriculture, Fisheries and Food & Ors, where the plaintiffs established an entitlement to damages to compensate themselves for the economic loss incurred as a result of acting on the incorrect information provided by officials of the Department of Marine and Natural Resources as regards their entitlement to fish for scallops in the Bay of Biscay.101 By relying on a file copy of legislation in the Department, which did not state the legal position

94

Para 36(d), Faherty -v- Attorney General [2011] IEHC 222.

95

Para 36(f), Faherty -v- Attorney General [2011] IEHC 222.

96

Citing the dicta of Denham J. in Browne v. The Attorney General [2003] 3 I.R. 205.

97

Citing O’Higgins C.J. in Cityview Press Ltd. v. An Chomhairle Oiliúna [1980] I.R. 381, at p. 398.

98

Unreported, High Court, Ó Caoimh J., 30 July 2004.

99

[2005] IESC 36.

100

Case 68/88 Commission v. Greece [1989] ECR 2965.

101

[2011] IEHC 429.

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correctly, the defendants were held vicariously in breach of their duty of care to the plaintiffs at common law under the tort of negligence.

ENFORCING FISHERIES LAW

A

s is evident from the two aforementioned cases, the success of the CFP from a conservation perspective is very much dependent upon compliance by the industry with their regulatory obligations and an effective scheme of enforcement at coastal and flag State levels. There are limited resources for undertaking this task in Ireland. In 2011, for example, there were 790 personnel in the Air Corps and 1,004 personnel in the Naval Service.102 When compared to other coastal States such as New Zealand, both the Naval Service and Air Corps are small given the diverse range of operational tasks that they undertake in an adverse environment on a daily basis. Despite the general cutback on public expenditure in Ireland, the government has nevertheless shown considerable commitment to the task of law enforcement at sea and placed an order with a shipbuilding firm in the UK in 2011 for the acquisition of two new offshore patrol vessels for the Naval Service.103 The new vessels are part of a replacement programme for existing vessels and the first ship is scheduled for delivery in 2014 with the second to follow in 2015. The new vessels will be deployed on a range of military and civil law enforcement tasks at sea including fishery protection, illegal drug interdiction, search and rescue, and environmental protection. The Minister for Defence confirmed to the Dáil that the Naval Service is committed to having at least three vessels on patrol within the Irish exclusive economic zone at any one time and the two new vessels will help achieve this target.104 At an operational level, the Naval Service exercised its extensive powers to board fishing vessels from several EU Member States and third countries and to inspect their activities with a view to ensuring compliance with national and EU fisheries law. In 2011, the Minister for Defence reported that the Naval Service use a form of risk analysis to identify the vessels most suitable for boarding based upon a number of criteria including: the fishing vessel’s date of last offence, the date of last gear inspection, the number of days fishing in Irish waters, the species targeted and the method of fishing.105 If necessary, the Naval Service formally detains vessels where it is suspected that there is non-compliance with fisheries legislation and the vessels are directed to port where they are handed over to An Garda Síochána. Again the scale of the enforcement activity can be gauged from Table 2 below which shows the number and nationality of the vessels detained during the period 2009-2011.106

102

Parliamentary Question 12073/11. Dáil Éireann Debate Vol. 733 No. 1.

103

Parliamentary Question 38662/11. Dáil Éireann Debate Vol. 749 Col. 4.

104

Parliamentary Question 12134/11. Dáil Éireann Debate Vol. 733 No. 1.

105

Dáil Éireann Debate Vol. 741 No. 1

106

Ibid.

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Table 2: Fishing vessels detained by the Naval Service Fishing vessels detained by Irish Naval Service 2009, 2010 and 2011 2009

2010

2011

Total

Irish

4

3

7

14

Spanish

1

3

4

8

UK

5

2

2

9

French

5

0

0

5

Belgian

0

0

1

1

Total

15

8

11

37

Nationality

As has been the trend in recent years, the highest number of detentions related to vessels registered in Ireland and flying the Irish flag which is recorded as 14, followed by 9 vessels from the United Kingdom and 8 from Spain. The number of vessels boarded by the Naval Service remains high and vessels from 10 EU Member States and 7 third countries (Russia, Norway, Japan, Faeroes, Iceland, Greenland and Belize) were boarded and inspected in 2011 as is evident from the information shown in Table 3 below. Table 3: Nationality of fishing vessels boarded by the Naval Service in 2011 Nat

Jan 11

Feb 11

Mar 11

Apr 11

May 11

64

35

72

26

13

57

Spanish

12

24

73

27

19

UK

14

15

21

7

French

15

12

29

Belgian

2

1

German

6 6

Irish

Netherlands

Jun Jul 11 11

Aug 11

Sep 11

Oct 11

Nov 11

Dec 11

Tot

49

85

41

52

19

5

518

21

65

69

21

35

4

12

382

12

15

14

16

2

4

12

5

137

17

9

27

28

33

13

16

6

4

209

0

0

1

1

2

4

1

3

1

16

0

2

1

3

0

0

12

3

8

3

2

3

0

25

Lithuanian

0

0

0

Russian

9

0

9

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Norwegian

1

0

1

Estonian

0

0

0

Japan

0

0

0

Faeroes

0

1

1

Denmark

0

Portugal

0

Iceland

1

0 1

1 1

Greenland

0

Belize TOTAL

1

119

90

216

81

54

121 164

211

1

78

110

43

26

In preparation for the Irish Presidency of the EU, the Minister for Agriculture, Fisheries and Food, Mr. Simon Coveney T.D., held a bilateral meeting with the Spanish Fisheries Minister in March 2011.107 One of the objectives of the meeting was to discuss the planned reform of the CFP and to identify a number of areas of mutual interest to both Spain and Ireland. Both Member States recorded their commitment to working together to reform EU rules on discards, which leads to large amounts of fish being thrown back into the sea each year because of EU legislative restrictions on the retention of by-catch on board fishing vessels.108 On a related matter, the Minister also informed the Dáil that the government was keen to see the development of an electronic log book as this would ensure that vessels from Ireland and other EU Member States would record information on their catches and fishing effort in real-time. Such an approach would ensure greater compliance with EU quota and catch legislation.109

ISRAELI NAVAL BLOCKADE ON GAZA

T

he Irish Government has consistently supported the establishment of an independent Palestinian state and has taken a proactive approach to ensuring international recognition of this objective on the world stage, including pushing for the full admission of Palestine to the United Nations. Thus it is unsurprising to note that Ireland voted for the admission of Palestine as a member of UNESCO in October 2011. The practice of Israel in relation to maritime matters has varied considerably and has come to international attention as a result of the imposition of a naval blockade on Gaza. As is well

107

Parliamentary Question 7710/11, Dáil Éireann Debate Vol. 730 No. 1.

108

Ibid.

109

Ibid.

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known, Israel has also been proactive in conducting military operations against foreign flagged vessels in the Mediterranean Sea and this in turn has created some tension in bilateral relations with Ireland. Ostensibly, these vessels have been engaged in delivering humanitarian aid by sea to Gaza and drawing international attention to the political situation in Palestine. This in turn lead to a number of violent incidents between Israeli Defence Forces and the crew and passengers embarked upon vessels seeking to break the naval blockade. These incidents culminated in 2010 and 2011 when Israel used military force to uphold the blockade. Briefly stated, a flotilla of six ships left ports in Ireland, Turkey and Greece and participated in a non-governmental effort to deliver humanitarian aid to Gaza and to raise international awareness of the humanitarian situation in Palestine in May 2010. In controversial and tragic circumstances, nine persons on board the Turkish vessel, Mavi Marmara, were killed and many others were injured during the course of a boarding operation conducted by the Israeli Defence Forces in international waters. In 2011, the Saoirse with Irish participants embarked was intercepted while attempting to break the naval blockade and subsequently taken to Israel before the Irish citizens were deported back to Ireland. The Irish diplomatic response to these incidents was prompt and unambiguous. In July of 2011, the Tánaiste and Minister for Foreign Affairs and Trade reported to the Oireachtas Joint Committee on Foreign Affairs and Trade that he had two discussions with the Israeli Ambassador in Ireland.110 During the course of these discussions, he raised the concerns of the Irish Government about the rights of Irish citizens participating in the flotilla and their entitlement to engage in a peaceful form of political activity.111 The Tánaiste also put on record in the Dáil that he could not support the actions of Irish “citizens putting themselves at risk by attempting to break a declared naval blockade”, but that in the event of such action he affirmed the provision of normal consular assistance the Irish Embassy in Tel Aviv and by the Department of Foreign Affairs and Trade (DFAT) in Dublin.112 The Tánaiste reported that the DFAT had made clear to the appropriate authorities in Israel that the Irish citizens participating in the flotilla were intent on “a non-violent political protest, and …that any measure taken to enforce the blockade, including any interception of the ship should be carried out so as to ensure the safety of the citizens involved” in the protest.113 Throughout this period, the DFAT strongly urged vessels registered in Ireland and Irish citizens not to sail to Gaza or to attempt to break the naval blockade.114 Ireland’s position is also clearly evident from the statement made by the Tánaiste after meeting with the Israeli Ambassador to discuss the situation and bilateral relations in November 2011.115 In the statement, the Tánaiste emphasised that: the Government’s views on the unjust and counter-productive nature of the Gaza blockade are well known. Ireland and the EU have repeatedly urged Israel to open up the border crossings into Gaza to normal human, commercial and humanitarian traffic and to end a policy which ultimately only serves as a recruiting ground for extremism in Gaza. Positive steps in this direction by Israel, building on the announced intention earlier this week to allow UNRWA bring in $100 million of urgently needed reconstruction materials which I welcome and hope is now quickly implemented,

110

Discussion of Ireland’s Foreign Policy Priorities 2011. Joint Committee on Foreign Affairs and Trade Debate. 5.07.2011. 111

Ibid.

112

PQs 81 and 82, 15.11.2011. Dáil Éireann Debate Vol. 746 No. 3.

113

Ibid

114

Dáil Debates Vol:730 Col:847.

115

Department of Foreign Affairs Press Statement, 10 November 2011.

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would obviate any need for humanitarian-motivated flotillas of this kind to be mounted. I have also made it clear that I cannot advise any Irish national to participate in a venture which potentially brings them into harm’s way through seeking to break a naval blockade. I emphasised, however, to the Ambassador that if the flotilla does sail next week, then Israel must exercise all possible restraint and avoid any use of military force if attempting to uphold their naval blockade. In particular, I would expect that any interception of ships is conducted in a peaceful manner and does not endanger the safety of our citizens or other participants. I urged the Ambassador to ensure that this message was relayed to his authorities. At this time of momentous change and heightened tensions throughout the Middle East region, it is incumbent upon all of us interested in promoting a comprehensive peace between Israel and its neighbours to avoid any repetition of the completely unacceptable and unjustified violence which marked last year’s flotilla. The Government will continue working with all interested parties in the coming days to ensure this is the case.116 The compatibility of the naval blockade and the related incidents with international law has been the subject of several specialist studies and is well outside the scope of this paper.117 Suffice to note here that the Palmer Inquiry Report conducted under the good offices of the Secretary-General of the United Nations concluded that “the naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.” 118 Furthermore, it called for the implementation of Security Council resolution 1860 and that "Israel should continue with its efforts to ease its restrictions on movement of goods and persons to and from Gaza with a view to lifting its closure and to alleviate the unsustainable humanitarian and economic situation of the civilian population".119 In this context, it goes on to recommend that "all humanitarian missions wishing to assist the Gaza population should do so through established procedures and the designated land crossings in consultation with the Government of Israel and the Palestinian Authority".120 The Palmer Report in making recommendations to avoid similar incidents in the future pointed out that "attempts to breach a lawfully imposed naval blockade place the vessel and those on board at risk”.121 Moreover, “where a State becomes aware that its citizens or flag vessels intend to breach a naval blockade, it has a responsibility to take proactive steps

116

Ibid.

117

On blockades, see W. Heintschel von Heinegg, “Blockade”, in R. Wolfrum ed., Max Planck Encyclopedia of Public International Law, (Oxford, University Press, 2008). Also see inter alia: C. Migdalovitz, Israel's Blockade of Gaza, the Mavi Marmara Incident, and Its Aftermath, United States Congressional Report, 23 June 2010; S. Solomon, The Great Oxymoron: Jus In Bello Violations as Legitimate Non-Forcible Measures of Self-Defense: The PostDisengagement Israeli Measures towards Gaza as a Case Study, (2010) 9 (3) Chinese Journal of International Law pp. 501-536. 118

Sir Geoffrey Palmer, Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (New York, United Nations, September 2011). Available at: http://www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf. 119

Ibid at p.4.

120

Ibid.

121

Ibid at p.6.

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compatible with democratic rights and freedoms to warn them of the risks involved and to endeavour to dissuade them from doing so”.122 The approach taken by Ireland in relation to Irish citizens attempting to break the naval blockade appears to accord fully and a priori with the findings and recommendations of the Palmer Report.

DECLARATION ON COMPULSORY JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE

T

he peaceful settlement of disputes occupies a central place in Irish foreign policy. Further to this objective, Ireland made a declaration in 2011 accepting the compulsory jurisdiction of the International Court of Justice in relation to disputes with any other State accepting the same obligation under the Statute of the Court.123 This declaration accords with the practice of many States both within and beyond the EU. At the time of writing, 67 such declarations have been deposited with the Court in advance of any dispute arising. This number includes several declarations made by coastal States that border in the north-east Atlantic and which may be party to putative disputes with Ireland in relation to law of the sea matters. Moreover, the declaration by Ireland is fully consistent with the obligation codified in the Constitution of Ireland to settle international disputes peacefully by international courts and tribunals.124 That said, it should also be noted that Ireland has not made a declaration pursuant to Article 287 of the Law of the Sea Convention and indicated a preference for one of the four compulsory dispute settlement procedures established by the Convention. Furthermore, the declaration made by Ireland accepting the compulsory jurisdiction of the International Court of Justice appears in its present form to preclude the use of the other dispute settlement bodies enumerated in Article 287 of the Convention, namely: the International Tribunal for the Law of the Sea; an arbitral tribunal constituted in accordance with Annex VII; and a special arbitral tribunal constituted in accordance with Annex VIII.125 This is the case only in respect of disputes arising with states parties to the Convention that have also made declarations under Article 36 of the Statute of the Court and where the state concerned institutes proceedings against Ireland at the Court expressly citing Article 36 as the basis for the court's jurisdiction. Where on the other hand a state party to the Convention has made a declaration under Article 287 in favour of the International Court of Justice but has not made a declaration under Article 36 of the Statute, and then wishes to submit a dispute with Ireland concerning interpretation or application of the Convention to compulsory procedures, the competent court or tribunal will still be an Annex VII arbitral tribunal (the default choice under the Convention). By way of contrast to the Irish approach to international dispute settlement, the declaration by Germany accepting the compulsory jurisdiction of the International Court of Justice leaves open the possibility of other method of peaceful settlement including the International

122

Ibid.

123

Article 36(2) of the Statute International Court of Justice.

124

Article 29, Constitution of Ireland.

125

See R. Long ,“The European Union and Law of the Sea Dispute Settlement” in J. Barrett et al. (ed.) UNCLOS AT 30 (British Institute of International and Comparative Law, London, 2013), pp. 32.

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Tribunal for the Law of the Sea established in accordance with Annex VI, as well as an arbitral tribunal constituted in accordance with Annex VII. Of additional interest is that the declaration made by the United Kingdom, Ireland’s nearest neighbor in law of the sea and other matters, under Article 36 excludes from the International Court of Justice compulsory jurisdiction disputes involving present or former members of the Commonwealth.

DELIMITATION OF MARITIME BOUNDARIES AND OFFSHORE RENEWABLE ENERGY

T

he Governments of Ireland and the United Kingdom concluded an important memorandum of understanding (MOU) for the purpose of facilitating offshore renewable energy development in sea areas adjacent to Northern Ireland.126 Ostensibly, this MOU is founded on the belief that such development will benefit the entire island of Ireland and that it will provide much needed clarity on marine jurisdictional issues to potential investors in the sector.127 Under the terms of the MOU: (i)

(ii)

The two Governments may each arrange for the lease of the seabed to facilitate the development of offshore renewable energy installations, and for the licensing and construction and operation of each installation, up to their respective sides of the two lines constituted by the lines of coordinates at Annex A [of the MOU], and depicted at illustrative maps [reproduced below]. The terms of this Memorandum may be made public, in particular to potential developers.

At the outset, it ought to be noted that the MOU expressly provides that its conclusion is “without prejudice to the negotiation of the territorial sea boundaries”. Despite this caveat and its relatively informal status, the MOU is a significant development in Anglo-Irish affairs as the territorial sea boundaries between Ireland and the UK are not agreed in sea areas adjacent to Northern Ireland.128 As this author has noted elsewhere, the need for a territorial sea delimitation agreement between Ireland and the UK in the vicinity of Lough Foyle and Carlingford Lough is not pressing since the establishment of a cross-border implementation body (the Loughs Agency of the Foyle, Carlingford and Irish Lights Commission) under the British-Irish Agreement Act 1999, which is responsible for the management of aquaculture and a number of other marine matters in both Loughs.129 That said, several aspects of the MOU call for comment. The first issue relates to the methodology that was used which remains undisclosed and as a consequence it is not clearly apparent which geographical or geomorphologic factors, or special circumstances such as navigation, were taken into account for the purpose of agreeing the line. On the one hand, a brief non-technical examination of the line seaward of Carlingford Lough (shown below) appears to indicate that it is based on equidistance principle in accordance with Article 15 of the Law of the Sea Convention. The line in relation to Lough Foyle (shown below), on the

126

A copy of the MOU is available at: http://www.nio.gov.uk/mou_offshore_renewable_energy.pdf.

127

Department of Foreign Affairs and Trade, Press Release 15.12.2011.

128

See, R. Long Marine Resource Law (Dublin, Thomson Round Hall, 2006) paras 3–47 and 3–48.

129

On the role and function of this organisation see, R. Long Marine Resource Law (Dublin, Thomson Round Hall, 2006) para. 5–19.

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other hand, is less clear and there may have been more scope for the application of special circumstances in relation to a departure from the exact median line. The second issue relates to the horizontal datum, which is understood to be WGS 84 in line with practice under the 1988 Continental Shelf Delimitation Agreement.130 The third aspect relates to the agreed lines, which stop at the mouths of both Lough Foyle and Carlingford Lough. From an international law perspective, the latter two bays raises important and complex questions concerning baselines, maritime boundary delineation, as well the delimitation of boundaries internally within the bays.131 The published lines may thus form a useful starting point should the territorial sea boundaries be delimited between Ireland and the United Kingdom both within and beyond the bays at some future point in time. The fourth aspect relates to the boundary line concluded between Ireland and UK under the 1988 Continental Shelf Delimitation Agreement, which terminates 12 miles short of the coast and does not take into account coastal features in Northern Ireland.132 Clearly, this boundary line is of little utility for near shore economic development in sea areas adjacent to Northern Ireland. The 2011 MOU addresses this shortcoming and provides a practical technical solution, which will facilitate marine resource development in both Northern Ireland and Ireland, albeit limited to renewable energy development. Significantly, there appears to be long-standing state practice worldwide in relation to territorial sea delimitation, which supports the use of a single maritime boundary for the purpose of EEZ/continental shelf delimitation within the territorial sea. The agreed lines in the MOU could thus form a useful reference point for the purpose of future intergovernmental negotiations on this matter. Finally, in relation to the legal status of the MOU, what will be important in due course will be the number and the duration of seabed leases that are granted by each government to facilitate the development of offshore renewable energy installations. Undoubtedly, these leases will give rise to binding rights and obligations for public and private parties in both jurisdictions. They will form an important element in determining Irish and UK state practice on maritime delineation and delimitation.

130

Although both Lines are listed in an Annex to the MOU to an accuracy of three decimal places, there is no mention of the datum on the World Geodetic System. A similar lacuna exists in relation to Ireland’s baseline legislation. See R. Long Marine Resource Law (Dublin, Thomson Round Hall, 2006) para. 3-24 to 3-29. 131

See C. Symonns, “The Maritime Border Areas of Ireland, North and South: An Assessment of Present Jurisdictional Ambiguities and International Precedents Relating to Delimitation of 'Border Bays”' (2009) 24 IJMCL 457. 132

Agreement between the Government of Ireland and the Government of the UK concerning the delimitation of areas of the continental shelf between the two countries (Irish Treaty Series No.1 of 1990); UK Treaty Series No.20 of 1990, Cm.1735; (1989) 13 Law of the Sea Bulletin No.48. For a detailed description of the dispute as well as an analysis of the Agreement, see C. Lysaght, “The Agreement on the Delimitation of the Continental Shelf between Ireland and the UK” (1990) 3 Irish Studies in International Affairs 81. D.H. Anderson provides a summary of the salient points of the Agreement, a copy of the Agreement and appended maps, in Boundary Report 9–5(a) International Maritime Boundaries (J.I. Charney and L.M. Alexander ed., Nijhoff, Dordrecht, 1993), pp.1767–1779. See also, inter alia: Decaux, “L’Accord Anglo-Irlandais de Delimitation du Plateau Continental” (1990) XXXVI Annuaire Français de Droit International pp.757–771; and C. Symmons “The U.K./Ireland Continental Shelf Agreement, 1988: A Model for Compromise in Maritime Delimitation” in International Boundaries and Boundary Conflict Resolution (Grundy Warr ed., Durham, 1990), pp.390–397.

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Source: Department of Foreign Affairs and Trade & Department of Communications, Energy and Natural Resources (Ireland).

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Source: Department of Foreign Affairs and Trade & Department of Communications, Energy and Natural Resources (Irelan

126

Ireland and the European Union STEPHEN COUTTS∗ INTRODUCTION

I

reland has entered into a difficult period in its engagement with the European Union where both political elites and the general public will be forced to confront Ireland’s role in and attitude towards the European Union.1 This confrontation will be necessarily conditioned by both short term and long term changes in the European legal order. In the short term the Euro crisis and the response of the European Union has dominated the European political and legal agenda, almost to the exclusion of all else. Rapid though they may be, these changes are having and will continue to have a profound impact on the shape of the European Union and the nature of European integration. Ireland as a small, open Eurozone economy currently in a programme of financial assistance finds itself at the epicentre of these changes and yet not in a particularly strong position to influence developments. Change in government in 2011 and a stated policy of constructive engagement with Europe may reverse a decade long trend of at times ‘elite indifference verging on hostility’2 and a loss of reputational standing in Europe. Away from the high drama of the Euro crisis more gradual and long term changes in the nature of European integration and its impact on Irish law are increasingly apparent. EU law is no longer confined to market regulation and agricultural subsidies. Rather, over the last decade we have seen the gradual emergence of a distinctive European law in areas such as asylum, citizenship and criminal procedure that have come to some extent to eclipse the more traditional fields of European law. 2011 saw the continuation of this trend. Both long term and short term trends in European law emphasise the increasing importance of the EU and European law in the law and politics of Ireland, an importance that at times sits ill at ease with the oft cited democratic deficit of the European political system. One possible remedy is to emphasis the role that national parliaments can play in the European political process. The Oireachtas is generally seen as weak in this regard, a fact it has itself acknowledged. 2011 saw moves to rectify this situation with reform in the way it scrutinises EU legislation being introduced and the issuance of a ‘reasoned opinion’ under the subsidiarity mechanism both of which are discussed below. The present report will be structured as follows. Section 1 will discuss the rather dramatic short-term developments in European integration in light of the Euro crisis, mentioning where relevant Irish implementation or involvement. Section 2 will address the operation of EU law in Ireland, including case law, legislative developments and litigation involving Ireland before the Court of Justice arranged by specific policy fields. Finally Section 3 will outline the reforms to the role of the Oireachtas and EU law before a general conclusion is drawn.

∗

European Universty Institute

1

Laffan, B., Ireland and Europe 2010: An Unwelcome Critical Juncture (IIEA, Dublin, 2011).

2

Ibid, 2.

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1. THE EURO CRISIS: BAILOUT MECHANISMS AND ECONOMIC GOVERNANCE

T

he Euro crisis continued to dominate European politics throughout 2011 with significant implications for the impact of the EU on budgetary policy making in Member States and indeed for the future of European integration in general. Ireland entered its first full year in a programme of financial assistance and generally performed well. While Europe-wide responses to the crisis proceeded in fits and starts and often appeared to be a distinctively reactive process, efforts to establish a more secure and integrated Economic and Monetary Union (EMU) could be said to be gradually taking place. A process was put in place to replace the temporary bailout mechanisms of the European Financial Stability Mechanism (EFSM) and the European Financial Stability Facility (EFSF) with a permanent facility: the European Stability Mechanism (ESM). This was facilitated by a decision amending the Treaties via the simplified revision procedure contained in Article 48(6) TEU for the first time. Both the ESM and the decision to amend the Treaties have been the subject of proceedings in Irish courts.3 At the same time attempts have been made to address the structural flaws in the Euro by reinforcing what has come to be known as ‘economic governance’ through greater coordination of national budgets and the more rigorous enforcement of budgetary rules contained in the Stability and Growth Pact. Ireland’s Bailout Program 2011 marked the first full year of the program of financial assistance jointly provided by the EU and the IMF to Ireland that was agreed in late 2010.4 Ireland’s aid is provided by a mixture of the European Financial Stability Mechanism (EFSM) (a fund drawn directly from the EU’s budget), the European Financial Stability Facility (EFSF) (a private company established under Luxembourg law designed to raise funds for Eurozone states) and the International Monetary Fund (IMF). Ireland was the first state to receive funds under the EFSM and EFSF and has since been joined by Portugal.5 Greece’s troubles meanwhile continued and it required a second bailout in July. 6 As is normal with IMF programmes, the financial assistance granted to Ireland was subject to strict conditionality contained in a Memorandum of Understanding signed in December 2010,7 the implementation of which would be reviewed periodically by representatives of the European Commission, the European Central Bank and the IMF. These periodic reviews were generally favourable, considering Ireland ‘well on track8 in the implementation of fiscal and economic adjustment policies. Indeed in contrast to the troubled state of the Greek bailout, Ireland was labelled a ‘success story’ by the head of the EFSF in October 2011.9

3

Thomas Pringle v The Government of Ireland et al [2012] IEHC 296 before the High Court and Thomas Pringle v The Government of Ireland et al [2012] IESC 47 before the Supreme Court. 4

See Coutts S, ‘Report: Ireland and the EU’ (2009-2010) 4-5 Irish Yearbook of International Law 285, 293 ff.

5

Statement by the Eurogroup and ECOFIN Ministers (Brussles, 8 April 2011, MEMO/11/227).

6

Council of the European Union, Statement by the Heads of State or Government of the Euro Area and EU Institutions (Brussels, 21 July 2011). 7

EU/IMF Programme of Financial Support for Ireland - Programme Documents, 1 December 2010.

8

European Commission, 'Results of the third Review Mission show Ireland well on track' (Brussels, 9 September 2011, MEMO/11/588, 2011). 9

See http://ec.europa.eu/ireland/economy/financial_assistance_programme_ireland/european_financial_stability_faci lity/index_en.htm.

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The newly elected Fine Gael/Labour government had promised a renegotiation of the bailout during the election campaign, a promise that was reiterated in their Programme for Government.10 In July 2011 a second bailout for Greece offered an opportunity to re-examine some aspects of the Irish bailout and a general agreement was reached to reduce the interest rates charged by the EFSM/EFSF from six per cent to between three and half and four per cent and to extend the maturity of the loans.11 The European Stability Mechanism In the original design for EMU not only were bailouts not provided for, they were explicitly prohibited; the theory being to allow the rigours of market forces to discipline profligate Member States.12 The reality was however somewhat different and became fully apparent at the beginning of the financial crisis when a number of Member States found themselves in financial difficulties. The response has been a series of emergency measures of varying form and at times questionable legality. The original bailout of Greece was a set of ordinary bilateral loans between sovereign states. Following this, two instruments were established for use in future bailouts; a Union instrument based on a regulation, the European Financial Stability Mechanism, and a private company under Luxembourg law, the European Financial Stability Facility. These however were always intended to be a temporary response to what was seen as an emergency situation in the periphery of the Eurozone. In an effort to bring legal and financial stability to the question of bailouts Eurozone leaders announced in 2010 the creation of the European Stability Mechanism (ESM), a permanent bailout fund existing as a separate treaty based international organisation and signed a treaty to bring it into existence in 2011. While it remains an international organisation that exists in parallel to the European Union it remains closely linked functionally, legally and institutionally to the European Union. The ESM’s creation was announced in December 2010 and a treaty was signed in March of 2011.13 The new organisation, being founded by sovereign states through an international Treaty, technically remains outside the main body of European Union law yet is clearly related to the EU in a number of ways. Firstly its very purpose is to provide financial stability for the Euro,14 the establishment of which is a core objective of the European Union.15 Secondly membership of the Euro and membership of the ESM will be parallel.16 Thirdly, as is explained in further detail below, the ESM is provided for in EU law by the future Article 136(3) TFEU, allowing for the creation of such bailout mechanisms.17 Finally institutions of the European Union will be involved in the operation of the ESM in various ways. The Court of Justice will have jurisdiction per Article 273 TFEU, to hear disputes between ESM members regarding the ESM Treaty18 and a member of the European Commission and the European Central Bank will

10

Government for National Recovery 2011-2016 (2011) available at http://per.gov.ie/wpcontent/uploads/ProgrammeforGovernmentFinal.pdf. 11

Essentially extending the new terms agreed for Greece to Ireland and Portugal see Council of the European Union, Statement by the Head of State or Government of the Euro Area and EU Institutions (Brussels, 21 July 2011), para 10. 12

Louis, JV, ‘Les Résponses à la Crise’ (2011) Cahiers de Droit Européen 353.

13

See European Council 16-17 Decemeber Conclusions EUCO 30/1/10 REV 1. The date of its entry into force was originally intended to be 1 January 2013 but was since brought forward to 1 July 2012, a date that has since been delayed by a case brought before the Bundesverfassungsgericht see Scally, D. ‘German Ruling Stalls ESM’ The Irish Times (Dublin, 17 July 2012) http://www.irishtimes.com/newspaper/world/2012/0711/1224319791885.html. 14

Article 3 Treaty Establishing The European Stability Mechanism.

15

Article 3(4) TEU.

16

See Recital 7 ESM Treaty.

17

See Recital 2 Ibid.

18

Art 32(3) Ibid.

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hold observer status on the Board of Governors. Finally in the context of any program of financial assistance, the European Commission and European Central Bank will play a central role.19 Member States and the Union are prohibited from assuming the liabilities of other Member States under Article 125 TFEU although financial assistance is allowed for under exceptional circumstances under Article 122 TFEU. To overcome this apparent prohibition on bailouts the European Council made known its intention to add a new third paragraph to Article 136 TFEU at the same time as the announcement of the ESM. This was to be achieved by the simplified revision procedure contained in Article 48(6) TEU and a Council decision to that effect was adopted on 25 March 2011.20 The decision is to enter into force on 1 January 2013 after having been approved by all Member States in accordance with their respective constitutional requirements.21 In Ireland the fact that the European Council decision expands neither the competences of the Union nor its objectives would imply that a constitutional referendum would not be required.22 This proved to be the opinion of the Government, which approved the European Council decision by an Act of the Oireachtas, incorporating it within the European Communities Act 1972 in June of 2012.23 This opinion was not however shared by all. An independent T.D., Thomas Pringle, challenged the ESM Treaty and the decision to amend Article 136 TFEU before the Irish courts. While upholding the legality of both measures under the Irish constitution the Supreme Court referred a number of questions to the Court of Justice, including whether the simplified revision could be used to add the proposed paragraph 3 to Article 136 TFEU.24 A hearing was held before the Court of Justice on 23 of October 2012 and a judgment delivered on 27 November 2012 upholding the compatibility of the ESM Treaty with Union law. In particular it found that the ESM Treaty did not amount to an encroachment on Union competences in the areas of monetary and economic policy, nor did it breach Article 125 TFEU, the ‘no bailout’ provision.25 In finding that the Member States, acting through the ESM, did not breach the prohibition on bailouts the Court looked to the spirit and objective of the provision finding that ‘the prohibition laid down in Article 125 TFEU ensures that the Member

19

Bianco, G., The New Financial Stability Mechanisms and Their (Poor) Consistency with EU Law. (EUDO Working Paper, European University Institute, Florence, 2012 (forthcoming), 2012), 15 ff. 20

European Council Decision 2011/199/EU amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro [2011] OJ L91/1. While this is the first such decision to be taken after the new simplified amendment procedure was introduced Treaty of Lisbon the use of this procedure is intended to be particularly exceptional. See Bruno de Witte, ‘The European Treaty Amendment for the Creation of a Financial Stability Mechanism’ 2011 Swediesh Insitute for European Policy Studies European Policy Analysis. 21

Article 48(6) TFEU.

22

Barrett, G. ‘The Treaty Amendment on the European Stability Mechanism: Does It Require a Referendum in Ireland?’ (2011) 29 Irish Law Times 152. Although in 2012 independent TD Thomas Pringle disputed this before the High Court and Supreme Court (Thomas Pringle v The Government of Ireland et al supra note 3). While referring matters relating to the compatibility of the Council decision with EU law to the Court of Justice, the Irish courts accepted the compatibility of both the Decision and the ESM Treaty with the Irish constitution holding inter alia that it did not constitute an unconstitutional delegation of sovereignty to an international institution. 23

European Communities (Amendment) Act 2012. In addition to incorporating the European Council Decision amending Article 136 TFEU the Act also covered Croatia’s accession to the Union, anticipated in mid-2013, the protocol containing the Irish ‘guarantees’ subsequent to the first referendum on the Lisbon Treaty and finally allowed for a change to the number of MEPs. 24

Pringle (Supreme Court) (n 3). The Court of Justice accepted the Supreme Court’s request for the use of the accelerated procedure see Case C-370/12 Thomas Pringle v Government of Ireland et al (Court of Justice, Order of President of the Court, 4 October 2012). For an account of the hearing see Evin Dalkilic, Stefan Martini and Hannes Rathke, ‘Mr Pringle Goes to Luxembourg...’ (Verfassungsblog, 30 October 2012) accessed 30 October 2012. 25

See Case C-370/12 Thomas Pringle v Government of Ireland et al (Court of Justice, 27 November 2012, not yet reported).

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States remain subject to the logic of the market when they enter into debt, since that ought to prompt them to maintain budgetary discipline.’26 Given the ‘strict conditionality’ to be attached to any aid disbursed, the operation of the ESM is such as to ‘prompt that Member State to implement a sound budgetary policy’ thereby ensuring its compatibility with Article 125 TFEU.27 The relationship between the ESM and the amendment of Article 136 was also unclear and was included in the Supreme Court reference. The ESM Treaty itself mentions the decision to amend Article 136 TFEU in its preamble, yet at the same time the ESM enters into force prior to the decision amending Article 136 TFEU taking effect. Commentators such as Ruffert have noted the questionable legality of financial bailouts within the context of EMU, particularly in light of Article 125(1) TFEU, prohibiting either the Union or Member States assuming liability for the debts of other Eurozone Member States, and the rather limited scope of Article 122(2) TFEU, allowing for financial assistance to Member States in ‘severe difficulties caused by natural disasters or exceptional occurrences beyond its control’.28 However, as Barrett points out ‘if the existing “bailouts” of Greece, as well as the deployments of the European Financial Stability Mechanism and the European Financial Stability Fund in favour of Ireland and Portugal were legal, it is not clear why a more permanent mechanism carrying out in effect the same task as these rescue funds would not also be legal.’ 29 It seems therefore that if one takes the position that an amended Article 136 TFEU is necessary to secure the legality of the ESM then one must admit the illegality of prior bailouts and perhaps the temporary illegality of the ESM as a matter of EU law. On the other hand if one accepts the legality of the Union’s actions in respect of Greece, Ireland and Portugal then the future Article 136(3) TFEU would appear to be superfluous and unnecessary. When debating the European Council decision before the Seanad the Tánaiste attempted to both underline the need for the Article 48(6) TEU amendment while at the same time denying it was the legal basis of the ESM, stating that the ‘decision was introduced with a view to providing a legal underpinning to the European Stability Mechanism, ESM. The change to Article 136 of the TFEU is separate and distinct from the ESM treaty but the two are evidently related. Members will note the entry into force of the ESM does not require the prior entry into force of the amendment of Article 136.’ 30 Despite the somewhat confused statement, there is a certain logic in the Tánaiste’s position. Even if one accepts the essential legality of previous bailouts, the introduction of Article 136(3) still serves a purpose of ensuring legal certainty and ultimately market stability, after all an underlying purpose of the ESM. The very confusion and ambiguity surrounding the relationship between Article 125(1) TFEU (the ‘no bailout’ provision) and the ESM justifies the amendment. Thus far the courts have accepted the legality of the existing bailout mechanisms,31 however this does not mean that the ESM would be immune from future challenge, particularly in light of the fact that it marks a move from ad hoc and temporary bailout schemes (plausibly permitted by the emergency provisions of Article

26

Ibid, para 135.

27

Ibid, para 137.

28

Article 122(2) TFEU. For discussions on the legal doubts surrounding the conformity of previous bailouts with Union law see Louis, JV., ‘Guest Editorial: The No-Bailout Clause and Rescue Packages’ 2010 47 CML Rev 971 and Ruffert, M., ‘The European Debt Crisis and European Law’ 2011 48 CML Rev 1777. 29

Barrett, G., ‘The Treaty Amendment on the European Stability Mechanism: Does It Require a Referendum in Ireland?’ (n 23). 30

Senead Debate 26 June 2012, Vol. 216, No. 4 Tánaiste and Minister for Foreign Affairs and Trade (Deputy Eamon Gilmore). 31

In particular the Bundesverfassungsgericht (the German Federal Constitutional Court) See the judgment of 7 Sept. 2011, 2 BvR 987, 1099 and 1485/10, available at www.bundesverfassungsgericht.de/entscheidungen/rs20110907_2bvr098710.html; press release in English: discussed briefly by Ruffert (n 30).

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122(2) TFEU) to a permanent mechanism. In the interests of both legal and market certainty, it is probably best that the ESM is placed on more secure legal foundations to remove any doubts that may persist concerning its validity in the eyes of European law. 32 Any such doubts were removed in the response of the Court of Justice to the Supreme Court’s reference holding that the ESM was in fact compatible with Union law, including Article 125 TFEU. Additionally the Court found that Decision 2011/199 merely ‘confirmed’ a pre-existing power of the Member States. While perhaps unsatisfactory and certainly inelegant from a legal point of view, such an outcome was probably inevitable considering the political and economic stakes at issue.33 Economic Governance – Putting the ‘E’ in EMU In addition to placing the bailout system of the Eurozone on a more secure and permanent footing, 2011 saw European leaders attempting to remedy a fatal design flaw in the construction of the Euro; the coupling of a strongly unified monetary union with a weak system of financial and budgetary coordination. Throughout the year attempts were made to shore up the economic side of the Economic and Monetary Union (EMU) and a set of measures designed to strengthen ‘economic governance’ in the Eurozone gradually took shape. The year started off with a loose arrangement for the coordination of national budgets, progressed to more precise and binding measures of firstly soft then hard law, and finally concluded with an announcement to raise budgetary discipline to the level international and constitutional law. Four sets of legal measures can be identified that were either made operational for the first time, adopted or announced in 2011. The ‘European Semester’ announced in 2010 operated for the first time in 2011, the Euro-Plus Pact was concluded in March of that year, the ‘six-pack’ of European legislative measures were passed in November and finally in December a number of European states announced their intention to proceed with a ‘Fiscal Compact Treaty’, a treaty that was drafted and signed in early 2012. The measures amount to a coordination of budgetary policy on certain key areas, obligations to take into account the recommendations of other actors including the European Commission, and to meet certain budget deficit targets. Given the limitations that currently exist for Ireland’s budgetary policy making in light of the EU/IMF program and the independent need for fiscal consolidation these measures are unlikely to have a significant impact in the short term. However, in the medium to long term Ireland will have a reduced scope for independent budgetary policy flowing from these measures. The European semester is essentially an administrative arrangement to allow the budgetary policies of Member States to be coordinated and subjected to a form of peer review. 34 It was announced by the European Commission on 12 May 2010, and was made operational for the first time in 2011.35 ‘It proposes to align national budget and policy planning through the establishment of a “European semester” for economic policy coordination, so that Member States would benefit from early coordination at European level as they prepare their national budgets.’ 36 Budgetary procedures are henceforth to be broken into a ‘European semester’, involving discussion and communication with the European authorities in the first half of the

32

Seyad, S. ‘A Legal Analysis of the European Financial Stability Mechanism’ (2011) 26 Journal of International Banking Law and Regulation 421, 429. 33

Indeed as stated by Weiler and Eijsibouts (prior to the judgment of the Court of Justice ) ‘[p]olitically speaking the die is cast and the treaties are in safe harbour. For whatever the merits of a sharp distinction between constitutional law and politics neither the Bundesverfasungsgericht nor the Court of Justice, nor any other court, is in a position to block or hamper the treties any more – and perhaps they never were. The political (and financial) stakes are simply too high’ Willem Eijsbouts and Joseph Weiler, ‘Editorial’ (2012) 8 European Constitutional Law Review 367, 368. 34

It should be noted that while beginning as an administrative arrangement it was quickly subsumed into binding Union law by the passage of Regulation 1175/2011/EU.34 35

European Commission, Reinforcing economic policy coordination (COM(2010) 250 final, 2010).

36

European Commission, Mastering economic interdependence: Commission proposes reinforced economic governance in the EU (Brussels, 12 May 2010, IP/10/561 2010).

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year and a ‘national semester’ involving the formulation and adoption of the national budget in the second half of the year. In Ireland the operation of the 2011 European semester would appear to have been a largely governmental affair with minimal input from the Oireachtas; a worrying sign in light of the significance of this process for future budgetary policy. The national plans that were transmitted to the Commission were not subject to plenary debate but were laid before the Houses of the Oireachtas on the very same day as submission to the Commission; a practice that is hardly conducive to meaningful reflection by parliamentarians. Indeed key members of the Dáil would appear not to have been aware of the fact that these documents were laid before the House of the Oireachtas.37 As the Taoiseach himself stated: the ‘“European semester” is one of those phrases that has entered into European jargon very quickly, without, I suspect, many people appreciating what exactly is involved.” 38 Given the likely impact of the European semester on budgetary policy in future it is to be hoped that this particular situation will change and that the Oireachtas will be fully informed of and engaged in the new European stage of the budgetary process. On 11 March 2011 the European semester was complemented by the conclusion of the ‘Euro Plus Pact’, so-called because it included the Member States of the Euro group with a number of other EU Member States. In total twenty-three states signed up to the pact.39 It is essentially a statement of intent on behalf of the governments concerned to coordinate their economic policy making in a number of key areas.40 The pact covers areas of policy that predominantly fall within national competences that will henceforth be coordinated according to common principles. While no doubt important from a policy perspective and prefiguring in a number of ways more concrete legislative developments in the six pack, it is an instrument of ‘soft law’ and underscores the competence of individual Member States to identify the precise policy mixture to be applied. Of perhaps greater importance than any legal impact was its symbolic value in affirming the intention of the Euro group to act in concert and to address issues of economic and budgetary coordination. In November of 2011 the economic governance in the EU shifted from an administrative and declaratory to a firmly legally binding character with the adoption of the comprehensive ‘sixpack’ set of legislative measures. These were without doubt the most important legal development in the governance of the Euro in 2011.41 Consisting of five regulations and a directive, the six-pack was intended to speed up and intensify both budgetary and economic coordination between Eurozone Member States, strengthen the enforcement of budgetary discipline and finally introduce an element of common macro-economic planning at the European level. It consisted of an overhaul of the Stability and Growth Pact (SGP), the introduction of a new mechanism to address broader potential macro-economic imbalances and finally provisions to ensure a minimum standard of national budgetary practices, including in the collection of statistics.

37

Pearse Doherty TD requested that the Taoiseach present the plans to the Dáil when in fact, as became apparent from the Taoiseach’s answer, they had been laid before the Houses over a week previously. Dail Debates, 11 May 2011, Vol 732, col 21. 38

Dáil Debates, 13 April 2011, Vol 730, col 30, The Taoiseach.

39

European Council 24/25 March 2011 Conclusions EUCO 10/1/11 Rev 1. In addition to the Eurozone Member States Bulgaria, Denmark, Latvia, Lithuania, Poland and Romania joining in adopting the pact. See http://ec.europa.eu/economy_finance/economic_governance/index_en.htm. 40

Namely to foster competitiveness, to foster employment, to ensure sustainability of the public finances and finally to reinforce financial stability. Ibid, 15. 41

The Fiscal Compact Treaty being formally adopted in 2012.

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As part of the six pack the Commission proposed a major overhaul of the rules of the Stability and Growth Pact (SGP). Regulation 1175/2011, amending Regulation 1466/97, significantly alters the preventative side of the SGP. 42 It introduces the “European Semester”, described above, into the regulation, thus raising it from the level of an administrative practice to one regulated by binding, directly effective European law. The amended Regulation also involves a closer degree of examination of national budgetary rules by European authorities. Regulation 1177/2011 amends Regulation 1467/97 and considerably strengthens the corrective aspect of the SGP in particular its ‘excessive deficit procedure.’ 43 If, after a number of steps involving warnings and recommendations, a Member State does not take effective action to remedy budgetary situation deemed in breach of the SGP, the Council shall impose sanctions. 44 Furthermore a decision to impose sanctions will now automatically include fines in addition to whatever other measures the Council might deem appropriate.45 The enforcement of both the preventative and corrective elements of the SGP is strengthened by Regulation 1173/2011.46 A system of deposits is introduced allowing the Commission to request the lodgement of a deposit by Member States on foot of various decisions in both the preventative and corrective stages of the SGP. These deposits can ultimately be transformed into fines if the excessive deficit persists and the Member State does not take effective action to tackle it. Importantly all of these measures, including the decisions to request deposits and the adoption of fines, are to be ‘quasi-automatic.’ Under the previous regime a positive decision of the Council taken by qualified majority voting was required to impose fines for breach of the SGP. Under the new system, once proposed by the Commission, measures will be deemed to be adopted by the Council unless a qualified majority opposes them; the so called ‘reverse qualified majority’ rule. In addition to overhauling the SGP and the coordination of budgetary policy the six-pack introduces a complementary system for monitoring and correcting macroeconomic imbalances. Regulation 1176/2011 47 establishes a system for detecting, preventing and correcting significant macroeconomic imbalances and is enforced by Regulation 1174/2011.48 Under the system European authorities will be authorised to conduct broad assessments of macro-economic developments in the Eurozone. A ‘macro-economic imbalance’ is defined as ‘any trend giving rise to macroeconomic developments which are adversely affecting the economy of a Member State or the Union.’ 49 Similar to the enforcement procedures under the SGP, the ‘excessive

42

Regulation (EU) 1175/2011 amending Council Regulation (EC) No 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [2011] OJ L 306/12 and Council Regulation (EC) 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [1997] OJ L 209/1 as amended by Council Regulation (EC) No 1055/2055 of 27 June 2005 and Regulation (EU) 1175/2011 of 16 November 2011. 43

Council Regulation (EU) No 1177/2011 amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure [2011] OJ L 306/33 and Council Regulation (EC) 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure [1997] OJ L 209/6 as amended by Council Regulation (EC) 1056/2005 of 27 June 2005 and Council Regulation (EU) 1177/2011 of 8 November 2011. 44

Art 6(2) Council Regulation (EC) 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure [1997] OJ L 209/6 [as amended]. 45

Art 8 Ibid.

46

Regulation (EU) 1173/2011 on the effective enforcement of budgetary surveillance in the euro area [2011] OJ L 306/1. 47

Regulation (EU) 1176/2011 on the prevention and correction of macroeconomic imbalances [2011] OJ L 306/25.

48

Regulation (EU) 1174/2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area [2011] OJ L 306/8. 49

Regulation (EU) 1176/2011 on the prevention and correction of macroeconomic imbalances [2011] OJ L 306/25 art

2.

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imbalance procedure’ contained in Regulation 1176/2011 involves various stages of communications, recommendations and notices between the Member State concerned and the European authorities with the ultimate possibility of a quasi-automatic fine under Regulation 1174/2011 if the Member State’s actions in correcting a significant imbalance are deemed to be insufficient. The final element of the 6-pack, Directive 2011/85, imposes harmonised standards of budgetary formulation and financial forecasting including in the collection and presentation of statistics.50 It also ensures that adequate budgetary procedures are applied to all levels and sectors of government activity. This directive is to be implemented in Ireland through a combination of the Fiscal Responsibility Act and statutory instrument.51 The deadline for transposition is December 2013. On a similar note Regulation 1173/2011 allows for the possibility of an intrusive Commission investigation and the imposition of fines in the case of deliberate or negligent falsification of statistics.52 The changes at the level of Union secondary law - i.e. changes reinforcing the SGP, complementing it with a broader perspective of macroeconomic imbalances, and ensuring that proper budgetary procedures are followed at a national level—are significant. They establish a wide-ranging and intrusive system of budgetary coordination with relatively strong enforcement mechanisms. The five regulations are directly effective in the national legal order and all six measures, as Union legislation, enjoy primacy over national law. Moreover Member States can be brought before the Court of Justice and be fined for breach of these measures. Nonetheless in December of 2011 the Council met in Brussels with the stated intention of strengthening economic governance at the level of primary law. 53 From that perspective the Council was a failure. After dramatic late-night discussions, the UK Prime Minister, David Cameron, having failed to obtain agreement to ‘repatriate’ certain competences, vetoed any change to the European Treaties. Undeterred, the remaining Member States pushed forward and announced their intention to sign a separate ‘Fiscal Compact’ taking the form of a separate treaty under public international law. 54 The new fiscal compact would essentially internalise the obligations of the SGP at the level of national constitutional law. It would oblige Member States to introduce into their domestic law a ‘golden rule’ to maintain their budgets either in balance or surplus. It is to be introduced at a constitutional or equivalent level and to contain an automatic correction mechanism. Following the 2011 December European Council conclusions the proposed treaty was drafted and signed in a remarkably short time at the beginning of 2012.55

50

Council Direcive (EU) 2011/85 on requirements for budgetary frameworks of the Member States [2011] OJ L 306/41. 51

‘EU Legislation’ (Department of Finance) http://www.finance.gov.ie/viewdoc.asp?DocID=3916. Accessed 9 August 2011. 52

Chapter V Regulation (EU) 1173/2011 on the effective enforcement of budgetary surveillance in the euro area [2011] OJ L 306/1. 53

Gow, D. and Traynor, I., ‘Sarkozy and Merkel unveil two-speed EU plan to shore up euro’ The Guardian (London, 7 December 2011) available at http://www.guardian.co.uk/world/2011/dec/07/sarkozy-merkel-two-speed-euplan. Accessed 16 August 2012. 54 Statement by the Euro Area Heads of State or Government (Brussels, 9 December 2011) . 55

A final draft was presented on 31 January 2012 and signed by all Member States of the Union except the United Kingdom and the Czech Republic on 2 March 2012. It is to be ratified by 1 January 2013 and signatory states will have until 1 January 2014 to implement its provisions. Following an opinion of the Attorney General the Irish Government decided to proceed by way of referendum, inserting a new clause into Article 29 of the Constitution. The referendum was passed on 31 May 2012 with 60% of votes cast in favour. See ‘Fiscal Compact Referendum Results’ (Irish Times), http://www.irishtimes.com/topics/fiscal-treaty-referendum/results/index.html. Accessed 16 August 2012.

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Much has been said of measures taken to tackle the financial crisis and the implications for the process of European integration.56 Aside from questions regarding the legality of the bailout mechanisms alluded to above, particular concerns have been raised regarding the intergovernmental and fragmented nature of the integration that is currently taking place in the context of Euro governance. Both the political process and the outcome of the responses to the Euro crisis, not least those of 2011, have been characterised as inter-governmental rather than supranational.57 Decisions setting up the various bailout mechanisms and formulating the broad outlines of the new structure of economic governance have been dominated by the actions of a small number of key Member States, not least of all France and Germany. 58 Major policy decisions have been developed and announced by the European Council, the institution representing heads of government or state, intended to formulate broad policy guidelines which up until recently operated largely as a formalised international summit. The Commission, the European institution explicitly configured to represent the interests of the Union as a whole rather than individual Member States, has been largely side-lined from the broad policy decisions, as has the new President of the Council.59 The ESM is a creature of public international law rather than a European institution. It will not be directly subject to European law and will be governed by the national Ministers for Finance.60 The Euro Plus pact is a framework for international cooperation and discussion rather than a supranational procedure while the decision to proceed outside the Union framework in establishing the ‘Fiscal Compact’ was perhaps one of the most blatant and explicit examples of circumventing the ‘Union method’.61 The European semester clearly retains a system of coordination of national budgets rather than instituting a European or federal budgetary mechanism. Furthermore whereas the Commission will no doubt have an important role, the policy discussions and ultimate instructions will be the result of economic policy choices made by national governments acting within the European Council. While certain aspects of the six pack no doubt strengthen the role of the supranational European institutions one cannot but agree with the editors of Legal Issues of Economic Integration in noting that there is: No common vision, proposed by the Union executive and discussed in the European Parliament, ultimately to be agreed in the Council, but ad hoc agreements between national capitals will decide economic policy choices. The euro crisis tilts Europe in the direction of inter-governmentalism rather than in the direction of a federal fiscal union.62 An additional feature of integration to date in the context of the Euro crisis has been the differing extent of various Member States’ participation in the various measures and

56

For a selection see Editorial, ‘Perspectives on the Euro Crisis’ 2011 38 Legal Issues of Economic Integration 107, Louis, JV., ‘Guest Editorial: The No-Bailout Clause and Rescue Packages’ (n 30) Louis, ‘Les Résponses à la Crise’ (n 12), Ruffert, (n 30) and Kocharov, A. (ed), ‘Another Legal Monster? An EUI Debate on the Fiscal Compact Treaty’ 2012 EUI Working Papers LAW 2012/09. 57

Ruffert (n 30).

58

Mac Amhlaigh, C., ‘The Dual Character of Supra-nationalism and the euro-crisis’ (Eutopia Blog, 7 December 2011) http://eutopialaw.com/2011/12/07/the-dual-character-of-supra-nationalism-and-the-euro-crisis/#more-814. Accessed 16 August 2012. 59

See Louis, ‘Les Résponses à la Crise’ (n 12).

60

Bianco (n 19).

61

It should be noted that the original intention was to amend the European Treaties rather than form a separate extra-Union agreement. Nonetheless the willingness of the national leaders to proceed once it proved impossible to follow normal Union procedures is striking. Having said that, it is not unreasonable to suggest that part of the responsibility for this dramatic result can be laid at the feet of the UK government. 62

LIEI Editorial (n 59), 109.

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institutions – an example of so called ‘multi-speed Europe’. The Fiscal Compact Treaty and the process that lead to its creation is perhaps the most striking and visible example of such a rupture in the uniform application of European law, creating an extra-EU Treaty to achieve policy goals that were explicitly opposed by certain Member States. But varying levels of participation are also evident in the ESM and the Euro Plus Pact. Of course so-called asymmetrical or differentiated integration is nothing new in the European Union.63 However, previous forms of asymmetrical integration have, at least in theory, been seen as a means of furthering integration, circumventing obstacles created by a temporary lack of political will or technical difficulties amongst a small number of Member States who nonetheless remain however awkwardly involved in the integration process.64 The current fragmentation appears to be of a different nature in terms of its scale, significance and permanence. Moreover as a method of governance it would appear to be becoming increasingly normalised.65 It remains to be seen if the measures discussed above presage an increasing fragmentation if not disintegration of the EU legal order. Ireland, perhaps through economic necessity rather than explicit political choice, is now firmly situated in the group of Member States pressing ahead with deeper integration in the area of economic matters having participated in all measures to date. Its position as a small, open Eurozone economy in a bailout program that may in the relatively near future require a further bailout means it is not in a particularly strong position to influence events66 and to the extent that it does, it would no doubt be in favour of bringing greater stability and certainty to the management of the Euro. In contrast to the Area of Freedom, Security and Justice and the Schengen free travel area Ireland has not tracked the position of the United Kingdom in securing a semi-detached status. The position of Ireland and the choices available to it have of course been largely determined by its membership of the Euro, a decision made in 1992 with the signing of the Treaty of Maastricht. At this remove it is evident that this was a decision with lasting and far-reaching consequences that has significantly affected Ireland’s political options when faced with the current deepening of European integration. 2. EU L AW IN IRELAND

T

he changing nature of European integration from being predominantly economic and market orientated to more politically sensitive areas such as immigration and criminal procedure is becoming increasingly apparent in the Irish legal order. This trend continued in 2011. Major areas of jurisprudential activity in relation to European law included the European Arrest Warrant, asylum and citizenship law while on the legislative side significant measures were adopted in environmental law and communications and data protection. Meanwhile in its interventions before the Court of Justice Ireland focused on areas of traditional concern including citizenship, taxation, discrimination and employment matters. European Arrest Warrant

63

See generally de Búrca G. and Scott J. (eds), Constitutional change in the EU: from uniformity to flexibility? (Oxford, Hart Publishing 2000) and for a more theoretical account Walker, N., ‘Sovereignty and Differentiated Integration in the European Union’ 1998 4 European Law Journal 355. In relation to the Fiscal Compact see Bruno de Witte’s contribution in Kocharov (ed) (n 59). 64

Cantore C.M., and Martinico, G., ‘The new "Treaty on Stability, Coordination and Governance in the Economic and Monetary Union": Asymmetry or Dis-integration?’ (paper presented at the EUDO-CSF-STALS-LUISS workshop ‘The Constitutional Architecture of the Economic Governance’ at the EUI Florence, 23 March 2012). 65

See the comments of Marise Cremona in Kocharov (ed) (n 59).

66

For an overview of Ireland’s position in the EU in light of the bailout see Laffan, Ireland and Europe 2010: An Unwelcome Critical Juncture (n 1).

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Despite its relatively short history the European Arrest Warrant has generated a considerable body of law and jurisprudence in this state.67 A number of factors have contributed to the high volume of cases. The creation of an innovative system of judicial cooperation between legal systems with substantially different criminal law cultures in an area that traditionally raises questions of fundamental rights. The European Arrest Warrant Act 2003 (the 2003 Act) implementing the relevant Framework Decision68 in Ireland has been criticised as poorly drafted, resulting in frequent amendments to the legislation.69 This interpretative difficulty was compounded by the fact that in their interpretation the Irish courts felt themselves bound by the principle of conform interpretation announced in Pupino70 yet were prevented by a political decision of the State from making a preliminary reference to the Court of Justice.71 While the law in this area may have ‘stabilised’ in recent years72 it still generated a number of important decisions in 2011 including the high profile cases of Bailey73 and Adams.74 Important issues related to the effect of the deletion of the ‘flight’ requirement on cases that had already been decided, the role of the rights of family members, the operation of fundamental rights in the context of the 2003 Act, whether an arrest warrant could be issued in respect of the (judicial) investigative phase in certain civil law jurisdictions, the operation of the ne bis in idem principle and finally the operation of reciprocity with respect to extraterritorial jurisdiction. In addition to the substantial body of case law a Bill was introduced in August of 2011 to amend yet again the 2003 Act and to implement Framework Decision 2009/299/JHA relating to decisions rendered in the absence of the person concerned at the trial.75 While many of the amendments were technical or linguistic important changes included ensuring the involvement of the High Court at all stages of the proceedings and the clarification of the application of the Act to third countries. The Bill was passed by the Oireachtas 2012.76 Retrospective Application of the amended s.10 European Arrest Warrant Act 2003 – Abuse of Process and the Separation of Powers The emotive and long running Tobin saga and the question of ‘flight’ resurfaced before the High Court in 2011. A European Arrest Warrant was issued for Mr Tobin following his conviction and sentencing in a Hungarian Court for the death of two young children following a car accident. He successfully resisted his surrender on the grounds that his departure from Hungary, in circumstances where he had paid bail and informed the authorities, did not amount to ‘flight.’ 77 In 2009 the government amended the legislation and removed the

67

Fahey, E., EU Law in Ireland (Dublin, Clarus Press 2010), Chapter 9.

68

Council Framework Decision on the European arrest warrant and the surrender procedures between Member States [2002] OJ L 190/1. 69

Fahey (n 70) chpt 9.

70

Case C-105/03 Maria Pupino [2005] ECR I-5309.

71

Fahey (n 70) chpt 9.

72

Ibid.

73

Minister for Justice, Equality and Law Reform v Bailey [2011] IEHC 177.

74

Minister for Justice, Equality and Law Reform v Adams [2011] IEHC 366.

75

Council Framework Decision 2009/299/JHA amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [2009] OJ L 81/24. 76

European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012. It received the signature of the President on 24 July 2012. 77

Minister for Justice Equality and Law Reform v Tobin [2008] IESC 3.

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provision requiring that an individual had ‘fled’. The Hungarian authorities once again issued a European Arrest Warrant seeking the surrender of Mr Tobin who challenged the new order arguing that any fresh attempt to secure his surrender amounted to an abuse of process and a breach of the constitutional principle of the separation of powers.78 In the High Court Peart J was again assigned the case and rejected the arguments of the respondent. He found that the reissuing of an arrest warrant in respect of the same sentence did not amount to an abuse of process if the new request raised a different issue to be decided. Given the altered legislative context the issue was no longer whether an individual had ‘fled’ the issuing state but rather whether the respondent is simply “a person… on whom a sentence of imprisonment or detention has been imposed in that state in respect of an offence to which the European arrest warrant relates.” 79 The amendment of the legislation by the state and the subsequent attempt to apply the newly amended legislation to the respondent in respect of the same sentence did not breach the constitutional principle of the separation of powers. Rather the modification of the original 2003 Act took place to better reflect the Framework Decision and its application to the respondent was not a direct interference with the previous decision of the Supreme Court nor was the Oireachtas seeking to direct how a Court should dispose of a particular matter before it. After dismissing the other grounds raised by the respondent Peart J ordered the surrender of Mr Tobin to the Hungarian authorities. The decision was appealed to the Supreme Court with a majority rejecting the appeal on various grounds in June of 2012.80 In particular Hardiman and Fennelly JJ both found that the renewed pursuit of Mr Tobin, particularly in light of the excessive delay and other onerous circumstances of the case amounted to an abuse of process. O’Donnell J, making up the majority, did not find in favour of Mr Tobin on this ground specifically but allowed the appeal on the narrower ground that, in light of the discussion on abuse of process and separation of powers, a right could be said to have vested in Mr Tobin not to be surrendered. Applying s 21 of the Interpretation Act 2005 he found that this right was therefore not affected by the amendment of the 2003 Act.81 In general however a majority of the Court found that the amendment of the 2003 Act did not amount to an interference with a particular judicial decision and therefore did not therefore constitute a breach of the principle of the constitutional principle of the separation of powers.82 Article 8 ECHR and Right to a Family Life In the 2010 of Minister for Justice, Equality and Law Reform v Gorman83 the High Court refused to surrender an individual pursuant to a European Arrest Warrant on the grounds that to do so would amount to a disproportionate interference with the respect due to his family life under Article 8 ECHR given the exceptional circumstances of the case. While in general the courts

78

Mr Tobin also argued that the addition of the words ‘in that state’ implied that the issuing state should have been a Member State of the Union at the time of the sentencing, that he would suffer a breach of his right to a family life under Article 8 ECHR, that Ireland’s failure to legislate for Article 4(6) of the Framework Decision amounted to a breach of reciprocity. Peart J rejected all of these grounds. See Minister for Justice, Equality and Law Reform v Tobin (No 2) [2011] IEHC 72. 79

Ibid.

80

Minister for Justice, Equality and Law Reform v Tobin (No 2) [2012] IESC 37.

81

In doing so he distinguished the case of Tobin from that in Bailey by pointing to the ‘full hearing and determination of a request for surrender’ that had occurred in Tobin. In contrast ‘nothing had happened [in the case of Bailey] during the currency of the repealed legislation to give the individuals concerned any vested right’ Ibid, judgment of O’Donnell J para 71. 82

See in particular the judgment of O’Donnell J at paras 49 ff.

83

Minister for Justice, Equality and Law Reform v Gorman [2010] IEHC 210.

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adopted a restrictive approach to the application of Gorman in 2011,84 it was expanded by Edwards J in Minister for Justice, Equality and Law Reform v Bednarczyk to take into account respect due to the family life of not only the person being surrendered but also others who might be impacted by his or her extradition i.e. his or her family members.85 Here the Court found that ‘it is appropriate that the Court should consider the matter not just from the perspective of the respondent personally but with due regard to the Article 8 [ECHR] rights of all the family members that might be affected by the Court’s decision.’ 86 However, in order for the surrender of an individual to breach Article 8 ECHR a gross interference with the rights to privacy or family life would have to be demonstrated. The finding that the rights of all affected family members were to be taken into account in an Article 8 ECHR assessment under the 2003 Act was reiterated in Minister for Justice, Equality and Law Reform v N.87 Right to a Fair Trial In Minister for Justice, Equality and Law Reform v Adams Edwards J made an important appraisal of the approach to be followed in applying s.37 of the 2003 Act and in particular in the circumstances where the respondent contends that he or she will not receive a fair trial in the issuing state.88 Adams argued that concerns regarding the delay in proceedings, pre-trial publicity and the inability to field an impartial jury would result in an unfair trial in Northern Ireland and that therefore surrender should be refused under s 37 of the 2003 Act. Edwards J, following the Supreme Court cases of Stapleton89 and Brennan90, noted that a presumption existed that the judicial procedures in other Member States were sufficient to guard the fundamental rights of individuals, a test that had not been modified by the Supreme Court’s judgment in Hall.91 Building on the Stapleton test, Edwards J found that ‘as a matter of logic, intervention to protect a respondent’s rights should not be necessary in any case where that respondent can pursue an effective remedy before the courts of the issuing state.’ 92 Edwards J found that no evidence existed to suggest that such remedies would be inadequate in a Northern Irish Court. Section 21A ‘Decision to prosecute’ In January of 2011 the Supreme Court handed down an important judgment that highlighted the difficulties that arise when systems of judicial cooperation are established between legal systems with markedly different procedures. In particular it considered whether a request that an individual appear before an investigating magistrate in a civil law system of criminal procedure amounted to a ‘decision to prosecute’ within the meaning of s 21A of the 2003 Act. In Minister for Justice, Equality and Law Reform v Olsson93 O’Donnell J, with Murray CJ, Fennelly, Macken and MacMenamin JJ concurring, found that surrender could be ordered in such a situation. Mr Olsson, a Swedish national was required to appear before an investigating

84

See for example Minister for Justice, Equality and Law Reform v Ciechanowicz [2011] IEHC 106 and Minister for Justice, Equality and Law Reform v N [2011] IEHC 194. 85

Minister for Justice, Equality and Law Reform v Bednarczyk [2011] IEHC 136.

86

Ibid.

87

Minister for Justice, Equality and Law Reform v N [2011] IEHC 194.

88

Adams (n 77).

89

Minister for Justice, Equality and Law Reform v Stapleton [2008] 1 IR 669.

90

Minister for Justice, Equality and Law Reform v Brennan [2007] 3 IR 732.

91

Minsiter for Justice, Equality and Law Reform v Hall [2009] IESC 40.

92

Adams (n 77).

93

Minister for Justice, Equality and Law Reform v Olsson [2011] IESC 1.

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magistrate in Sweden in respect of robbery and arson offences. He contended that surrender could not be ordered by the High Court given no formal decision as such had yet been taken to charge and try him. Peart J in the High Court rejected the submissions of Mr Olsson considering that read in light of the purpose and objective of the underlying Framework decision, the 2003 Act permitted surrender in such a case. The Supreme Court, upholding the decision of the High Court, found that ‘the Act establishes a procedure for the reciprocal execution of warrants with legal systems, almost all of which differ in some ways, even at times significantly, from that of this jurisdiction. If the Act intended that only warrants emanating from a criminal justice procedure which was identical to that of Ireland would be executed here, then the Act would manifestly fail to achieve its object and indeed that of the Framework Decision.’ 94 Accordingly ‘the Act does not intend that words such as “charge” and “prosecution” should only be understood as meaning a charge or prosecution as in the Irish criminal justice system.’ 95 Read in light of Article 1(1) of the Framework decision and s.10 of the 2003 Act, s 21A could be taken to mean that ‘[t]he fact that a further decision might be made eventually not proceed, would not therefore mean that the statue had not been complied with, once the relevant intention to do so existed at the time the warrant was issued.’96 The finding was confirmed in the high profile case of Minister for Justice, Equality and Law Reform v Bailey97 in March of 2011 this time regarding a French decision requesting the surrender of Mr Bailey to appear before an investigating magistrate (juge d’instruction). Peart J, rejecting the respondent’s argument that no decision had been taken to charge or try him by the French authorities, cited the findings of O’Donnell J in Olsson finding that the French system bore a resemblance to that of the Swedish and that a similar conclusion could be made regarding the application of s 21A. The judgment was appealed to the Supreme Court, which in March of 2012 set aside the High Court’s decision.98 In reaching such a conclusion the Supreme Court both relied on the law as stated in Olsen, namely that ‘a court is to refuse to surrender a requester person when it is satisfied that no decision has been made to charge and try him’ 99 and at the same time distinguished the two cases on factual grounds. As stated by Denham CJ ‘[Olsen] was decided on its facts, and the facts in this case are different. That case turned on the evidence before the Court and this case turns on the evidence before this Court. I would distinguish the determination in that case, because of the facts of this case. However, the analysis is helpful.’ 100 Based on fresh evidence, in particular observations submitted by an official of the French court regarding the nature of the proceedings, the Supreme Court unanimously found that it was clear that the warrant had been issued for the purpose of ensuring Mr Bailey’s participation in an investigative process and that, unlike in Olsen, no decision had then been taken to try him as such. Ne bis in Idem The question of the application of the principle of ne bis in idem in the context of European Arrest Warrants arose in 2011 both in respect of decisions taken by authorities in the issuing state of an arrest warrant and, more unusually, those taken by authorities in the executing state.

94

Ibid.

95

Ibid.

96

Ibid.

97

Bailey (High Court) (n 76).

98

Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16.

99

Ibid, judgement of Denham CJ, para 97.

100

Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16, para 98, see also judgment of Fennelly J paras 107 ff.

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In Minister for Justice, Equality and Law Reform v Renner-Dillon101 the Supreme Court found a decision could not be considered final for the purposes of s 22 of the 2003 Act if there was no procedural obstacle to it being revised in the law of the state under which it was made. Following Mr Renner-Dillon’s surrender to the UK in 2008, new evidence emerged in relation to a separate instance of alleged rape committed in 1982. This incident had already been the subject of proceedings culminating in the acquittal of Mr Renner-Dillon. Following the emergence of new evidence the UK authorities sought to have the original acquittal quashed and a re-trial ordered in accordance with UK law. In order to proceed, the UK Court of Appeals required the consent of the Irish High Court to waive the condition of speciality that would otherwise prevent the prosecution of Mr Renner-Dillon for any offence that was not the subject of the original European Arrest Warrant. Section 22(8) prohibited the High Court from consenting to such a waiver if the act was one for which a ‘final decision’ had been taken. Finnegan J, with Murray CJ and Denham J concurring, after reviewing various decisions of the Court of Justice of the European Union102 found that the concept of a ‘final decision’ was an autonomous concept of European Union law and amounted to a decision that definitively bars further prosecution. It ‘constitutes a procedural obstacle to the possible opening or continuation of criminal proceedings in respect of the same acts against that person.’ 103 The 1983 acquittal of Mr Renner-Dillon did not constitute such an act in light of UK legislation allowing for the quashing and retrial of such matters in certain circumstances. Consent to waive the requirement of speciality was therefore permitted and the order of the High Court was upheld. A similar question was raised in the decision of Bailey,104 this time in relation to a decision taken by the authorities of the executing state, i.e. Ireland, not to prosecute. Mr Bailey was sought by the French authorities in relation to an investigation into the death of a French citizen in Co Cork in 1996. The same incident had been the subject of an investigation by the Irish police, a file had been prepared for the Director of Public Prosecutions who did not however proceed with the matter and informed Mr Bailey, through his solicitor of this decision not to proceed. Before the High Court Mr Bailey contended that the decision of the DPP not to prosecute constituted a final decision within the meaning of s 42 of the 2003 Act as interpreted in light of Article 3(2) of the Framework Decision. Following the Supreme Court decision in Olsson Peart J found that as a matter of Irish law the letter of the DPP at issue did not have as a consequence that the case had been finally disposed of by operation of any law under which prosecution is barred and rejected the respondent’s argument on this ground. Upon appeal the Supreme Court similarly held that Mr Bailey could not rely on s 42 to resist surrender. 105 Asylum Law Asylum law has rapidly become one of the areas of Irish law most affected by European law, a trend that continued throughout 2011. While there were no major legislative developments originating from Brussels European law matters were raised in a large number of cases before the Irish courts.106 Questions of European law arose in Irish courts relating to the procedural

101

Minister for Justice, Equality and Law Reform v Renner-Dillon [2011] IESC 5.

102

In particular the recent decision of Case C-261/09 Gaetano Mantello [2010] ECR I-11477.

103

Renner-Dillon (n 107).

104

Bailey (High Court) (n 76).

105

In particular it found that Mr Bailey could not continue to rely upon the now repealed s 42 (c) pursuant to which surrender was to be refused where a decision not to prosecute had been taken by the DPP as no ‘right’ not to be prosecuted had ever been vested in Mr Bailey. Although it should be noted that the appellant was successful on a number of other grounds, namely arguments based on s 21A and s 44 of the 2003 Act. See Bailey (Supreme Court) (n 104). 106

Leading to some delays in the processing of appeals see Office of the Refugee Applications Commissioner, Annual Report - 2011 (2012), 18.

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issues in the award of subsidiary protection and refugee status resulting in two separate preliminary references. Finally the operation of the Dublin II Regulation governing the allocation of responsibility for asylum claims throughout the EU was at issue in Irish cases both before domestic courts and the Court of Justice. Ireland was also condemned before the Court of Justice for failure to adequately implement the procedures directive. Mis-Implementation of the Procedures Directive Ireland, while opting into the Procedures Directive, had not adopted any legislation expressly implementing it, instead relying on its conclusion that existing provisions of Irish law sufficed to meet the requirements of the Directive.107 While it is true that a Member State is not obliged to introduce specific provisions where it considers no new legislation is necessary to implement a Directive, a Member State may still be required to notify the Commission of those national provisions it considers already provide for the implementation of the Directive. Not having received any notification from Ireland the Commission decided to proceed with an infringement action. In its judgment the Court of Justice found that Ireland had failed to supplement existing legislation with further measures before the transposition deadline of 1 December 2008 as was required.108 Later in the year the Government rectified the situation by the passage of Statutory Instrument No. 51 of 2011.109 Procedural Aspects of Subsidiary Protection Ireland is the only Member State of the European Union not to have adopted a system whereby applications for asylum are simultaneously assessed for possible subsidiary protection eligibility. 110 As a consequence the Procedures Directive is applicable only to asylum applications and does not extend to subsequent applications for subsidiary protection a point that was reiterated in a number of cases in 2011. In S.L. v Minister for Justice Equality and Law Reform Cooke J found that: The provisions of the Qualifications Directive apply to both forms of international protection. The Procedures Directive, on the other hand, applies only to applications for asylum, except where a Member State has availed of the option or entitlement to put in place a “one-stop” procedure in which a single application is made and then considered and determined in one process, covering both asylum and subsidiary protection. The Irish legislation has not, to date, taken that course and there is no obligation in Union law for it to do so.111 Cooke J repeated this finding in B.J.S.A. v Minister for Justice and Equality & Ors 112 and was confirmed by Ryan J in P.M. v Minister for Justice and Law Reform.113 More recently Advocate General Bot endorsed this view. 114

107

See S.L. v Minister for Justice and Law Reform & oths. [2011] IEHC 370.

108

Case C-431/10 European Commission v Ireland (Court of Justice, 7 April 2011, not yet reported).

109

European Communities (Asylum Procedures) Regulations 2011, SI 51/2011.

110

See Opinion of AG Bot in Case C-277/11 MM v Minister for Justice Equality and Law Reform (Opinion delivered 26 April 2012). 111

S.L. (n 115) para 6.

112

B.J.S.A. B.J.S.A. v Minister for Justice and Equality & Ors [2011] IEHC 381, para 13.

113

P.M. v Minister for Justice and Law Reform [2011] IEHC 409.

114

Case C-277/11 MM v Minister for Justice Equality and Law Reform (Court of Justice, 22 November 2012) para 79. Note however that the Court of Justice did find that a right to be head was contained in the Charter of Fundamental Rights and in particular its Article 41 on good administration, including and indeed especially where a procedure for subsidiary protection separate to asylum applications is employed.

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In addition to the question of the Procedures Directive a number of cases raised the issue of possible procedural implications that might flow from the application of the Qualification Directive to claims for subsidiary protection and in particular its Article 4 stipulating that applications for both refugee status and subsidiary protection are to be carried out ‘in cooperation’ with the claimant, eventually resulting in a preliminary reference. In March in Ahmed v Minister for Justice Equality and Law Reform Birmingham J noted that the application for subsidiary protection is made in addition to an asylum application during which there is extensive interaction between the applicant and the authorities.115 He found that the obligation to cooperate did not extend to furnishing the applicant with a draft decision for prior comment. Similarly in B.J.S.A. v Minister for Justice and Equality Cooke J underlined the fact that cooperation between the authorities and the applicant contained in Article 4 was reflected in the asylum claim procedure and did not need to be replicated in the context of a claim for subsidiary protection noting that ‘subsidiary protection is an adjunct of refugee status and is only extended to a person who is not a refugee.’ 116 However, in M.M. v MJELR117 Hogan J, while sharing the opinion expressed by Birmingham J in Ahmed, found that in light of the a decision of a Dutch Court apparently contradicting the previous Irish cases the opinion of the Court of Justice should be sought. Accordingly a reference was made pursuant to Article 267 TFEU. Judgment was delivered by the Court of Justice on 22 November 2012. It agreed with the High Court and Ireland that Article 4 of Directive did not imply a right to be informed of the elements of a decision and a right to comment on any provisional conclusions.118 However, such a right was to be found in the Charter of Fundamental Rights and in particular its Article 41 on the right to good administration, a provision of ‘general application’, and that national law should be interpreted in conformity with the Charter. Ultimately however it was for the national court to determine whether the Irish system met the requirements of the Charter. 119 Procedural Aspects of Asylum Claims The procedure for the award of refugee status and its compatibility with the Procedures Directive was called into question in a significant number of cases before the High Court. Two issues in particular were identified as being of particular importance and were the object of a reference to the Court of Justice in April 2011. In H.I.D. & B.A. v Refugee Applications Commissioner et al.120 the applicants claimed that the prioritisation of claims of refugee applicants of Nigerian nationality resulted in less time and care being taken over those applicants and hence they were placed at a procedural disadvantage. The power to order such prioritisation is governed by Article 23 of the Procedures Directive that, according to the applicants, contains an exhaustive list of the

115

Ahmed v Minister for Justice, Equality and Law Reform (Unreported, High Court, 24th March 2011).

116

B.J.S.A. (n 119) para 11.

117

M.M. v MJELR (Unreported, High Court, 18 May 2011).

118

Ibid. In making the reference Hogan J also made a request the urgent procedure found in Article 104 B of the Rules of the Court of Justice however this was refused. Of note in the Opinion of the Advocate General is the interpretation of Article 4(1) of the Qualification Directive in light of the Procedures Directive despite the fact that the procedures directive does not as such apply to claims for subsidiary protection in Ireland. The Advocate general did express broad agreement with the position of the Irish judiciary, finding that the procedural safeguards applied in any application for asylum should be taken into account when assessing the procedure for the award of subsidiary protection. 119

Ibid, para 94.

120

H.I.D. and B.A. v Refugee Applications Commissioner & ors [2011] IEHC 33.

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grounds on which such prioritisation could be based, a list that did not include the nationality of applicants. Cooke J found that the provision contained in Article 23 is discretionary and that the list of grounds for prioritisation it contains is open-ended and indicative rather than exhaustive. Finally Cooke J underlined the fact that while such applications may be dealt with in a prioritised manner this in no way impacted on the quality of the substantive review or the rights the asylum seeker is entitled to assert. 121 The second and more general issue raised was the compatibility of the Irish asylum system and the adequacy of its appeals procedures with the requirements of Article 39 of the Procedures Directive.122 At issue was whether the Refugee Appeals Tribunal (RAT) constituted a court or tribunal within the meaning of Article 267 TFEU and whether it was independent. Cooke J found against the applicants holding that the procedure before the RAT and the binding nature of both its jurisdiction and its findings were sufficient to make it a ‘court or tribunal’ within the meaning of Article 267 TFEU and hence sufficient within the meaning of the directive. Subsequent to the above finding by Cooke J the applicants sought leave to appeal to the Supreme Court during the course of which it was felt necessary that certain questions of Union law be addressed. Given the importance of the issues involved and its urgency Cooke J decided to stay the application and refer the above questions to the Court of Justice.123 Additionally, given the large number of similar cases pending the High Court requested that the matter be dealt with by the urgent procedure contained in Article 104 of the Rules of Procedure. The latter application was denied. The opinion of the Advocate General broadly agreeing with the Government’s position was delivered in September of 2012124 and the case is currently pending before the Court of Justice. In T.D. and A.D. v Minister for Justice Equality and Law Reform125 the 14 day time-limit contained in Section 5 of the Refugee Act 1996 within which an appeal could be made against a negative decision of a Refugee Applications Commissioner was found to be in breach of the principles of equivalence and effectiveness that govern the application of EU law rights in national procedures. Finding that the asylum procedure was most comparable to that employed in planning and environmental cases, where an eight week limit is applied, Hogan J found that ‘s. 5 of the 2000 Act does not comply with the principle of equivalence.’ 126 Similarly in relation to the principle of effectiveness, after considering recent decisions of the Court of Justice, Hogan J found that a 14-day time limit would render it excessively difficult for applicants to exercise their procedural rights, particularly in light of the particular circumstances and situation of the typical asylum seeker.127 The correct procedure regarding the application of the ‘exclusion clause’ of Article 12 of the Qualification Directive, barring an individual from claiming asylum in certain cases, in particular where he or she has committed crimes against humanity, was at issue in A.B. v

121

Ibid, paras 29-38.

122

The question of whether the appeals procedure provided for in Irish legislation provided an effective remedy was dealt with in a number of other cases before the High Court in 2011. In P.M. (n 121) Hogan J held that while there was a certain amount of confusion regarding whether the Minister’s ‘decision’ was indeed a decision of first or final instance the question of effective remedy did not arise as, in any case, the possibility of judicial review before the High Court afforded all necessary remedies. 123

H.I.D. (n 130).

124

Case C-175/11 H.I.D. & B.A. v Refugee Applications Commissioner & ors (Opinion of AG Bot, 6 September 2012).

125

T.D., N.D. and A.D. v Minister for Justice Equality and Law Reform & ors [2011] IEHC 37.

126

Ibid, para 30.

127

Ibid, para 31.

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Refugee Appeals Tribunal & ors. In granting leave for judicial review Hogan J was of the opinion that, while formally the Refugee Appeals Tribunal rejected the applicant’s claim for asylum in reality it ‘must have found that the applicant was in principle entitled to refugee status, subject only the question of an Article 1F exclusion.’ 128 At the full hearing Cooke J expressed agreement with the opinion of Hogan J on the issue of the application of the exclusion clause finding that, following the binding decision of the Court of Justice in Bundesrepublik Deutschland v B und D,129 if Irish authorities wished to bar an individual from refugee status based on the commission of crimes against humanity while a member of an organisation, an individualised assessment should be made.130 However, Cooke J differed from Hogan J in his assessment of the grounds for the Tribunal’s decision finding that independent of any assessment it may have made under the exclusion clause, the Tribunal did not in fact consider the applicant a refugee and that its comment on the application of the exclusion clause was ‘an expressly obiter observation on a secondary issue which had been the subject of “some debate at the oral hearing.”’ 131 Dublin II and the Common European Asylum System A case referred by the Irish High Court (joined to another case originating from the United Kingdom) relating to the operation of the Dublin II Regulation resulted in a major judgment of the Court of Justice in 2011 with significant implications for the application of fundamental rights in the Common European Asylum System. In NS v Secretary of State for the Home Dept132 a number of asylum applicants contested decisions of the Irish and UK authorities returning them to Greece under the rules of the Dublin II Regulation.133 The applicants claimed that such a return risked breaching their fundamental rights, a claim that was supported by a recent ruling of the European Court of Human Rights.134 The Court of Justice held that the Common European Asylum System (CEAS) was founded on the assumption that all participating Member States complied with fundamental rights and the provisions of the Geneva Convention. In rather dramatic terms it stated that ‘[a]t issue here is the raison d’etre of the European Union and the creation of an area of freedom, security and justice and, in particular the Common European Asylum System based on mutual confidence and a presumption of Compliance by other Member States with European Union law and in particular fundamental rights’ 135 Individual infringements of fundamental rights or the directives comprising the CEAS could not call into question the cooperation inherent in the CEAS should not result in the suspension of a transfer. However, if a Member State could not but be aware of a systematic deficiency in a receiving Member State it would be obliged by the general principles of Union law and relevant provisions of the Charter of Fundamental Rights (CFR) not to transfer the asylum seeker. Upon such a conclusion responsibility for the

128

A.B. v Refugee Appeals Tribunal & ors [2011] IEHC 198 para 10.

129

Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B und D (Court of Justice, 9 November 2010, not yet reported). 130

A.B. (n 139) para 15.

131

Ibid, para 19.

132

Joined Cases C-411/10 and C-493/10 NS v Secretary of State for the Home Dept (Court of Justice 21 December 2011, not yet reported). 133

N.S. was also significant in its consideration of the application of Protocol No 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom attached to the European Treaties, holding that in effect the Protocol did not affect the application of the Charter in cases where the UK was implementing or derogating from EU law. See generally Peers, S., ‘The 'Opt-out' that Fell to Earth: The British and Polish Protocol Concerning the EU Charter of Fundamental Rights’ (2012) 12 Human Rights Law Review 375. Ireland is not covered by the Protocol in question and while certainly of interest, that particular aspect of the judgment is not dealt with in the current report. 134

M.S.S. v Belgium & Greece App no 30696/09 (ECrtHR, 21 January 2011).

135

N.S. (n 143) para 83.

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application would fall to the next Member State according to the criteria listed in the Dublin Regulation.136 This however should not result in an undue delay and if necessary the transferring Member State may have to exercise its discretion under Article 3(2) of the Regulation and examine the application itself. N.S. confirms that Member States must interpret and implement European measures in conformity with their human rights obligations and that the Dublin System of transferring asylum applicants must be disapplied in certain cases.137 It thus transforms the Article 3(2) discretion, described as a ‘sovereignty clause’, into an obligation in certain circumstances.138 However, a number of questions remain concerning its application, not least regarding the burden, standard and methods of proof when applying the ‘systematic deficiencies’ test.139 N.S. also raises questions regarding the broader application of the CEAS and in particular its use of ‘mutual confidence’ in human rights standards between asylum authorities. The Court of Justice, in attempting to balance the needs of the CEAS with fundamental rights, has rejected the application of a conclusive presumption of compliance with fundamental rights standards but does permit a rebuttable presumption. Costello has criticised the judgment on this point, pointing out that: The Court’s reasoning also suggests that because the Dublin System embodies trust across the Member States, we must assume that that trust is justified by enshrining presumptions of compliance with fundamental rights. This comes close to asserting that because we believe it, it must be true.140 While perhaps not heralding the ‘death of mutual trust’ 141 NS does call into question its blanket application. Whether such a finding may be exported to other areas of the AFSJ where mutual trust is employed such as the European Arrest Warrant, as queried by Peers following the opinion of the Advocate General,142 has yet to be determined. What is certain is that human rights concerns and rights contained in the ECHR will henceforth play a greater role, however imperfect, in the application of the CEAS. Citizenship Ireland’s long-standing interest in matters concerning Union citizenship and in particular its application in the field of family reunification143 continued in 2011. In addition to intervening in

136

Council Regulation (EC) 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L50/1, Chapter III. 137

Buckley, J., ‘NS v Secretary of State for the Home Department (C-411/10)’ (2012) European Human Rights Law Review 205. 138

Lieven, S., ‘Case Report on C-411/10, N.S. and C-493/10, M.E and Others, 21 December 2011’ (2012) 14 European Journal of Migration and Law 223. 139

Ibid, and Costello, C. ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’ (2012) 12 Human Rights Law Review 287. As Costello points out at p 334 a transfer to Greece was a relatively straight forward case with numerous reports from credible NGOs, European and UN organisations pointing to serious deficiencies in the Greek asylum system all of which were given judicial backing by the ECrtHR’s judgment in M.S.S. 140

Ibid, 334.

141

Peers, S., ‘Court of Justice: The NS and ME Opinions - The Death of “Mutual Trust”?’ (Statewatch, 2011) http://www.statewatch.org/analyses/no-148-dublinmutual-trust.pdf. Accessed 11 August 2012. 142

143

Ibid. See in particular Case C-127/08 Metock v Minister for Justince Equality and Law Reform [2008] ECR I-6241.

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Ziolkowski 144 (clarifying the scope of the status of permanent residence under the Citizenship Directive) Ireland intervened in the triumvirate of cases redrawing the boundaries of family reunification rights for Union citizens namely Zambrano,145 McCarthy146 and Derrici.147 Zambrano established the principle that a Member State was precluded from deporting or denying a work permit to non-Union citizen family members upon whom a Union citizen was dependent where to do so would result in the Union citizen being forced to leave the territory of the Union.148 This was despite the fact that the applicants in Zambrano had never left their state of origin, namely Belgium, and hence had never exercised Union rights of free movement. The extension of citizenship rights of family unification to so-called purely internal situations, previously considered outside the scope of Union law, combined with the brevity and terseness of the reasoning of the judgment led to a significant degree of legal uncertainty and criticism from scholars.149 However, the subsequent cases of McCarthy and Derici substantially reduced the potential scope of Zambrano and clearly limited it to cases where denying rights of residence to non-Union citizen family members would have as a direct consequence the removal of the Union citizen child from the territory of the Union.150 Ireland does not have a particularly strong record when it comes to family reunification matters.151 It is the only Member State not to have adopted legislative measures in this area for migrants152 and it has not opted into the Family Reunification Directive for third country nationals.153 Indeed the gulf between the rights of family reunification enjoyed by mobile and non-mobile EU citizens under Irish law is striking.154 The ruling in Zambrano was always likely to be followed with great interest in this jurisdiction and indeed its impact was made apparent when the Minister for Justice issued a statement undertaking to re-examine all cases to which that ruling would potentially be relevant.155 However, after a number of months it became ‘clear that the Department of Justice and Equality has chosen to interpret, and apply, the judgment as narrowly as possible’, restricting its application to Irish citizen children (and not

144

Joined Cases C-424/10 and C-425/10 Ziolkowski & ors v Land Berlin (Court of Justice, 21 December 2011, not yet reported). 145

Case C-34/09 Gerardo Ruiz Zambrano v Office national de l'emploi (Court of Justice, 8 March 2011, not yet reported).

146

Case C-434/09 Shirley McCarthy v Secretary of State for the Home Department (Court of Justice, 5 May 2011, not yet reported). 147

Case C-256/11 Derici & ors v Bundesministerium fur Inneres (Court of Justice, 15 November 2011, not yet reported).

148

Zambrano (n 156) para 43.

149

For an initial reaction see Nic Shuibhne, N., ‘Seven Questions for Seven Paragraphs’ (2011) 36 European Law Review 161. Also see Hailbronner & Thym, ‘Casenote C-34/09, Zambrano v ONEm’ (2011) 48 CML Rev 1253. 150

Although uncertainties and inconsistencies remain, see Nic Shuibhne, N., ‘(Some of) The Kids are All Right - Case note on Case C-434/09 Shirely McCarthy v. Secretary of State for the Home Department and Case C-256/11 Dereci and others v. Bundesministerium fur Inneres’ (2012) 49 CML Rev 349. 151

See Hickey, A., and Fanning, R., ‘Family Rights and Reverse Discrimination: Cohabiting Couples in the Irish Immigration System and the Impact of EU Law’ (2011) 10 Hibernian Law Journal 172. 152

Ibid, 177.

153

Council Directive 2003/86 on the right to family reunification [2003] OJ L 251/12, recital 17.

154

Hickey and Fanning (n 162).

155

‘Statement by Minister for Justice, Equality and Defence, Mr Alan Shatter, TD, on the implications of the recent ruling of the Court of Justice of the European Union in the case of Ruiz Zambrano’ (Department of Justice and Equality, 21 March 2011) http://www.justice.ie/en/JELR/Pages/PR11000019. Accessed 16 August 2012.

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other EU citizens) who are resident in the state and whose parents were obliged to leave the state.156 In 2011 the application of Zambrano did arise in before the Irish courts in Lofinmakin but only when the applicant was seeking leave to appeal to the Supreme Court.157 Given the circumstances Cooke J was of the opinion that the High Court was effectively obliged to grant a certificate of appeal. To do otherwise would render it a court of final appeal within the meaning of Article 267 TFEU thus obliging it to refer the matter to the Court of Justice and that ‘[i]f it is necessary that a question be referred, it is preferable that it be formulated after the issues have been fully argued before the Supreme Court in the light of the Zambrano judgment.’ 158 More generally Cooke J found that: Where the High Court is not in a position to resolve definitively an issue involving the interpretation of a provision of Union law, the point of law becomes a matter of exceptional public importance and it is not only desirable but mandatory that an appeal be allowed so that the State’s obligation under Article 267 can be discharged.159 Finally outside the area of family reunification, Union citizenship was also discussed in a case concerning the acquisition of Irish citizenship in Mallack v Minister for Justice, Equality and Law Reform.160 After underlining the absolute discretion afforded the Minister in deciding whether to accept or decline a naturalisation application Cooke J proceeded to consider whether, in light of the decision of the Court of Justice in Rottmann,161 the Minister was obliged to take into account Union law and in particular rights contained in the Charter of Fundamental Rights and the general principle of proportionality. Distinguishing the present case from that of Rottmann, which concerned the withdrawal of citizenship, Cooke J held that a decision to grant citizenship did not entail any element of Union law. The Charter and related rights are applicable only ‘in respect of citizens of the Union.’ 162 The applicant, by definition, was not at the time of application an Irish citizen and hence not a Union citizen. Union law therefore, while it may have an impact on an act withdrawing national and hence Union citizenship, does not constrain the Minister’s discretion when awarding citizenship. The case was appealed to the Supreme Court which delivered its judgment on the 6 December 2012 finding on the basis of national constitutional and administrative law that the Minister is in fact under a duty to give reasons. In light of this finding it did not find it necessary to analyse the Union law dimension of the appeal.163

156

See Lynn, M., ‘Citizenship and Residence Rights in Ireland’ (paper presented at conference, Union Citizenship in Practice, held at the Irish Centre for European Law Dublin, 3 November 2011). 157

Lofinmakin & ors v Minister for Justice, Equality and Law Reform & Ors [2011] IEHC 116. During the main proceedings the applicant had relied upon Article 24 of the Charter of Fundamental Rights rather than Article 20 TFEU on which Zambrano was based. 158

Ibid, para 6.

159

Ibid. The impact of Zambrano was also raised in Saleem v Minister for Justice, Equality and Law Reform [2011] IEHC 223. 160

Mallak v Minister for Justice, Equality and Law Reform [2011] IEHC 306.

161

Case C-135/08 Janko Rottmann v Freistaat Bayern [2010] ECR I-01449. The Court of Justice holding that when withdrawing national citizenship a national authority was also withdrawing Union citizenship. It should therefore have regard to principles of Union law and in particular proportionality in any such assessment. 162

Mallak (High Court) (n 171) para 29.

163

See Mallak v Minister for Justice Equality and Law Reform [2012] IESC 59.

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Taxation Taxation continues to be an area of particular interest for Ireland as was demonstrated by the submission of a Reasoned Opinion by the Dáil on the Common Consolidated Corporate Tax base. Ireland also was active before the Court of Justice as an intervener in taxation matters and made submissions in three judgements delivered in 2011 164 while lodging an application to intervene in another case during the year. 165 While major attempts by the Union to legislate on tax matters did not materialise in 2011 a Directive on cooperation between Member States when recovering claims relating to taxation was implemented in Ireland by statutory instrument.166 Environemnt Ireland frequently finds itself before the Court of Justice in infringement proceedings for its environmental record and 2011 was no exception.167 Before the Court of Justice the Commission successfully prosecuted Ireland for failure to implement the Environmental Impact Assessment Directive and lodged a further two infringement actions against Ireland. Ireland also intervened in a single case of environmental law168 and in the related areas of food hygiene legislation169 and biotechnology. 170 Additionally an important decision relating to the polluter pays principle and the role the intention of the Oireachtas might play in the interpretation of implementing legislation was decided by the High Court in 2011. 2011 also saw a large volume of regulation implementing European law taking effect, mostly it must be said via statutory instrument. Perhaps reflecting a recent focus of public attention, implementing legislation dealing with global warming issues and in particular encouraging the use of renewable energy figured high on the agenda. Thus, in accordance with European law, public bodies are now under obligations to take into account the energy efficiency in their general procurement procedures,171 and in particular for vehicles172 legislation was introduced regulating the process of carbon capture,173 the marketing of renewable energy174 and the design requirements of

164

Case C-93/10 Finanzamt Essen-NordOst v GFKL Financial Services AG (Court of Justice, 27 October 2011, not yet reported), Joined Cases C-106/09 P and C-107/09P European Commission v Gibralter & UK (Court of Justice, 15 November 2011, not yet reported) Case C-540/09 Skandinaviska Enskilda Banken AB Momsgrupp v Skatteverket (Court of Justice, 10 March 2011, not yet reported) and Joined Cases C-106/09 P and C-107/09P European Commission v Gibralter & UK (Court of Justice, 15 November 2011, not yet reported). 165

Case C-86/11 European Commission v UK (action brought on 24 February 2011, pending). Additionally two actions were lodged against Ireland by the European Commission in 2011. Case C-85/11 European Commission v Ireland (action brought 24 February 2011, pending) and Case C-108/11 European Commission v Ireland (action brought 2 February 2011, pending). 166

Council Directive concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures [2010] OJ L 84/1 implemented in Ireland via European Union (Mutual Assistance for Recovery of Claims relating to Taxes, Duties and Other Measures) Regulations 2011 SI No 642 of 2011. 167

See Fahey (n 70), 77.

168

Case C-585/10 Niels Møller v Haderslev Kommune (Court of Justice, 15 December 2011, not yet reported).

169

Case C-381/10 Astrid Preissl KEG v Landeshauptmann von Wien (Court of Justice, 6 October 2011, not yet reported).

170

Case C-34/10 Oliver Brüstle v Greenpeace eV (Court of Justice, 18 October 2011, not yet reported).

171

European Union (Energy Efficient Public Procurement) Regulations 2011 SI No 151 of 2011.

172

European Communities (Clean and Energy-Effecient Road Transport Vehicles) Regulations 2011 SI No 339 of 2011. 173

European Communities (Geological Storage of Carbon Dioxide) Regulations 2011 SI No 575 of 2011 and Envirnomental Protection Agency Act 1992 (First Schedule) (Amendment) Regulations 2011 SI No. 308 of 2011. 174

European Communities (Renewable Energy) Regulations 2011 SI No 147 of 2011.

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175

energy related products. Other major pieces of legislation included an overhaul of the regulations relating to wild birds and their habitats176 and amendments to the Environmental Impact Assessment regime.177 In Arklow Holidays Ltd v An Bord Pleanála & ors178 the Supreme Court considered the impact the EU law principles of equivalence and effectiveness might have on the rule in Henderson v Henderson179, precluding the litigation of points that could have been raised in previous related proceedings. After considering the case of Kraaijeveld BV v Holland, the Supreme Court upheld the finding of the High Court that the Henderson v Henderson rule did not in fact breach the principles of equivalence and effectiveness, being manifestly equivalent and that an effective remedy was available given that the an applicant may raise those issues at the time of an original challenge. In Environmental Protection Agency v Neiphin Treading Ltd180 dealing with the interpretation of the Waste Management Act 1996 and in particular the ability of the High Court to make ‘fallback’ orders on individual officers or shareholders of a company, Edwards J made important findings regarding the status of the ‘polluter pays principle’ in the context of the Waste Framework Directive and more generally regarding the principles to be followed when interpreting domestic legislation implementing EU directives. In doing so he expressly departed from the findings of previous decisions of the High Court, in particular Wicklow County Council v Fenton (No 2).181 After a lengthy overview of the origins and applications of the polluter pays principle in EU environmental law and policy and in particular in legislation concerning waste disposal Edwards J came to the conclusion that that the principle, while binding upon Union institutions when formulating Union environmental policy, is not a directly applicable principle that can be said to legally bind the Member States. Nonetheless, concurring with O’Sullivan J in Fenton (No 2.) he found that ‘it is implicit in the Waste Framework Directive that any such system [of enforcement] would require to be an effective system where liability is determined with reference to the “polluter pays” principle, and that in Ireland effect was given to the requirement by the enactment of s.57 and s.58 respectively of the 1996 Act’.182 Nonetheless where he differed from the prior decision of O’Sullivan J was in the proper construction to be given to sections 57 and 58 of the 1996 Act. While accepting the applicability of the principle of conform interpretation he noted its limitations, in particular that such an interpretation cannot lead to a contra legum result. In assessing whether a particular interpretation amounted to a contra legum result regard should be had of the intention of the Oireachtas when passing the national act. Thus, in the opinion of Edwards J, ‘O’Sullivan J in the application of a purposive and teleological approach to the interpretation of s.57 & s. 58, respectively, of the 1996 Act, focussed unduly on the intention of the European legislators and insufficiently upon the

175

European Union (Ecodesign Requirements for certain Energy-related Products) Regulations 2011 SI No 203 of 2011. 176

European Communities (Birds and Natural Habitats) Regulations 2011 SI No 477 of 2011.

177

European Union (Environmental Impact Assessment and Habitats) Regulations 2011 SI No. 473 of 2011, European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011SI No 584 of 2011 and European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 SI No 456 of 2011. 178

Arklow Holidays Ltd v An Bord Pleanála & ors [2011] IESC 29.

179

Henderson v Henderson (1843) 3 Hare 100.

180

Environmental Protection Agency v Neiphin Treading Ltd. [2011] IEHC 67.

181

Wicklow County Council v Fenton (No 2.) [2002] 2 IR 583.

182

Neiphin Treading Ltd. (n 192) para 6.43.

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intention of the Oireachtas’ 183 The Oireachtas had not intended to allow for the corporate veil to be pierced and for fall back orders to be made against individuals for the civil liability of their companies. Rather than interpret the Act contra legum, Edwards J was forced to come to the conclusion that the Oireachtas had failed to adequately transpose the directive.184 Before the European Court of Justice Ireland’s transposition of the Directive 85/337/EC185 on environmental impact assessments was, yet again, found to be deficient. In Case C-50/09 Commission v Ireland186 the Court found that the requirement contained in the Planning and Development Act 2000 for planning authorities to receive, verify and take account of environmental impact assessments as part of a planning application did not meet the requirements of Article 3 of the directive and the obligation ‘on the competent environmental authority, to carry out itself an environmental impact assessment.’ 187 Furthermore a gap was found to exist in the administrative structure allowing for the possibility for a decision of the Environmental Protection Agency to be taken in the absence of an environmental impact assessment having been carried out. Additionally Ireland had failed in its obligations under the directive by excluding virtually all demolition works from the scope of the implementing legislation. In 2011 the Commission initiated two separate infringement proceedings against Ireland in environmental matters, both for failing to comply with earlier judgments finding Ireland in breach of its Union law obligations188 including the 2009 judgment on septic tank charges.189 Finally the Supreme Court has referred a matter of interpretation of the Habitats Directive 190 to the Court of Justice.191 Data Retention and Communications The area of communication and data retention continues to be a growing area of European law and would appear to be of particular interest for Ireland especially in information technology matters. Ireland intervened in cases lodged in 2011 relating to IT related intellectual property, 192

183

Ibid, para 6.44.

184

Ibid, para 6.45.

185

Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment OJ [1985] L 175/40 (Environmental Impact Assessment Directive). Note this directive has since been replaced by Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (codification) [2012] OJ L 26/1. 186

Case C-50/09 European Commission v Ireland (Court of Justice, 3 March 2011, not yet reported).

187

Ibid, para 44.

188

Judgment has since been delivered imposing a lump sum payment on Ireland. The amount was however limited in light of the economic circumstances of the state in the context of the economic crisis. SeeCase C-279/11 Commission v Ireland (Court of Justice, 19 December 2012, not yet reported), para 78. 189

Case C-188/08 Commission v Ireland [2009] ECR I-172.

190

Council Directive on the conservation of natural habitats and of wild fauna and flora OJ [1992] L 206/7 (Habitats Directive). 191

Case C-258/11 Sweetman & ors v An Bord Pleanala (reference made 26 May 2011, pending).

192

Case C-138/11 Compass-Datenbank GmbH v Republic Osterreich (Court of Justice, 12 July 2012, not yet reported) Case C-128/11 UsedSoft GmbH v Oracle International Corp. (Court of Justice, 3 July 2012, not yet reported).

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IT related competition matters a unified patent court.194

193

Stephen Coutts

and in the opinion of the Court on the question of establishing

On the legislative side, 2011 saw the passage of major pieces of legislation implementing European law in relation to communications and data retention. Legislation was passed overhauling the provision of postal services195 while the regulatory framework for electronic communications providers and users was updated via statutory instrument.196 The Data Retention Act 2011 was passed in the last days of the Fianna Fáil/Green government, marking the long overdue implementation of the 2006 Data Retention Directive.197 Ireland has not had a particularly good record in the field of data retention and its regulation of the field has, in the words of McGarvey, ‘been non-transparent and undemocratic, leaving the state little to be proud of.’ 198 Ireland was one of the original proponents of such a provision at a European level proposing a Framework Decision in 2004 along with three other Member States.199 That particular proposal failed and was replaced by a Directive based on the regulation of the internal market. In 2006, in a rare example of Ireland initiating litigation before the Court of Justice, the Irish Government unsuccessfully challenged the Directive on the grounds of its legal basis.200 Despite concerns relating to the impact of the measure on human rights and in particular the right to privacy, Ireland did not challenge the measure on those grounds, no doubt motivated by the fact that its own existing measures were if anything more restrictive. 201 The High Court has however since referred the matter to the Court of Justice raising questions relating to fundamental rights.202 Other concerns with the directive related to the burden it might place on business and the wide degree of discretion afforded Member States in its implementation.

193

Compass-Datenbank GmbH v Republic Osterreich. Application brought March 2011.

194

Opinion 1/09 Opinion delivered pursuant to Article 218(11) TFEU (Court of Justice, 8 March 2011, not yet reported).

195

Communications Regulation (Postal Services) Act 2011.

196

European Communities (Electronic Communications Networks and Services) (Access) Regulations 2011 SI No 334 of 2011, European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 SI No 335 of 2011, European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 SI No 333 of 2011, European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 SI No 336 of 2011 and European Communities (Electronic Communications Networks and Services) (Universal Service and Users’ Rights) Regulations 2011 SI No 337 of 2011 implementing Directive 2009/136/EC amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws [2009] OJ L 337/11 and Directive 2009/140/EC amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services [2009] OJ L 337/37. 197

Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L 105/54 (Data Rentention Directive). The deadline for transposition was September 2007, see art 15. 198

McGarvey, S., ‘The 2006 EC Data Retention Directive: A Systemic Failure’ (2011) 10 Hibernian Law Journal 119, 159.

199

Draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences including terrorism COPEN 132 TELCOM 160. 200

Case C-301/06 Ireland v European Parliament and Council [2009] ECR I-593.

201

See Murphy, C., EU Counter-Terrorism Law: Pre-Emption and the Rule of Law (Oxford, Hart Publishing 2012), 172.

202

Case C-293/12 Digital Rights Ireland v Minister for Communications, Marine and Natural resources et al (reference made 11 June 2012, pending).

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Ireland made ample use of the discretion afforded Member States in the Directive in its implementing legislation applying the maximum permitted period for retention of two years. The Labour party were particularly critical of the act, opposing its passage in the Dáil with Deputy Sherlock stating that ‘This legislation is so flawed that it will have to be completely rewritten if the Labour Party is to support it. It is bad for business, too costly to implement, undemocratic and the oversight provisions are too weak.’ 203 The potential impact of the Europeanisation of the regulatory framework for electronic communication providers was highlighted in Telefonica O2 Ireland Ltd v Commission for Communications Regulation204 where it was argued during a disclosure hearing that a higher ‘European’ standard of review rather than the traditional Irish standard should be applied in judicial review proceedings in the area. In particular it was argued that Article 4(1) of Directive 2002/21205 providing for an ‘effective remedy’ implied that a “manifest error” or “serious and significant error” threshold should be applied. Clark J deferred deciding the issue and directed that a modular trial be held to determine to appropriate test. Equality Law Ireland demonstrated a preference for intervention in cases before the Court of Justice in the area of equality law intervening in total of four cases where judgement was delivered in 2011, including where the issue of gender discrimination in insurance was struck down.206 In the related area of employment law Ireland intervened in two judgements handed down in 2011.207 Additionally in July of 2011 the Court of Justice replied to a reference made by the High Court in 2010 regarding the rights of parties to access confidential information in discrimination proceedings. The Court of Justice used the opportunity to make remarks concerning the burden of proof in such matters and to clarify the operation of the preliminary reference system in legal systems such as Ireland, characterised by adversarial proceedings. In Patrick Kelly v National University of Ireland (UCD)208 the applicant challenged a decision of the Equality Authority regarding his failure to obtain a place in a Masters program. Before both the Circuit and High Courts he sought the disclosure of information held by the respondent, in particular the qualifications of other candidates. Both Courts refused the order. However, being unsure regarding the possible impact of European law on the matter, and in particular Directive 76/207 establishing the principle of equal treatment209 and Directive 97/80 relating to

203

Dáil Debates, 8 October 2009, Vol 691, coll 287 (Deputy Séan Sherlock).

204

Telefonica O2 Ireland Ltd v Commision for Communications Regulation [2011] IEHC 256.

205

Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (Framework Directive) [2002] OJ L 108/33. 206

Case C-310/10 Ministerul Justitiei si Libertatilo Cetatenesti v Agafitei & Ors (Court of Justice, 7 July 2011, not yet reported), Case C-447/09 Reinhard Prigge & Ors v Deutsche Lufthansa AG Court of Justice, 13 September 2011, not yet reported) and Case C-123/10 Brachner v Pensionsversichungsanstalt (Court of Justice, 20 October 2011, not yet reported). Case C- 236/09 Association Belge des Consommateurs Test-Achats ASBL & ors v Conseil des ministres (Court of Justice, 1 March 2011, not yet reported) considered the case of sex discrimination in car insurance. 207

Case C-109/09 Deutsche Lufthansa AG v Gertraud Kumpan (Court of Justice, 10 March 2011, not yet reported) and Case C-477/09 Defossez v Wiart & Ors (Court of Justice, 10 March 2011, not yet reported). 208

Case C-104/10 Patrick Kelly v National University of Ireland (University College, Dublin) (Court of Justice, 21 July 2011, not yet reported). 209

Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L 39/40 and Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex [1998] OJ L 14/6.

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the burden of proof in such cases, Justice.

Stephen Coutts 210

the High Court decided to refer the matter to the Court of

Dispensing with an opinion of the Advocate General, the Court of Justice found that while those directives did not establish an explicit entitlement, refusal to disclose such information in certain circumstances could compromise the objectives of the directive. While it was a question of fact to be established by the national court211 European law relating to confidentiality may have an impact.212 The Court of Justice reiterated the fact that the procedure under Article 267 TFEU is one of dialogue and cooperation between the national court and the Court of Justice and that although the national court ‘is at liberty to request the parties to the dispute before it to suggest wording suitable for the question to be referred, the fact remains that it is for it alone ultimately to decide both its form and content.’ 213 Accordingly the fact that Ireland operates a largely adversarial judicial system does not affect the application of Article 267 TFEU.

3. THE OIREACHTAS AND EU L AW

T

he Oireachtas has traditionally been considered a weak legislature suffering from executive dominance and a set of electoral incentives that militate against individual members cultivating a strong interest in national law making.214 This weakness was even more pronounced in relation to European matters.215 In a report published in 2010 a sub-committee of the Oireachtas identified a number of failings in the functioning of the Oireachtas in EU Affairs216 and contained a number of recommendations aimed at improving its improvement. In 2011 the newly elected government took up a number of these recommendations in its Program for Government and reiterated before the Dáil its intention to implement them.217 In particular it promised to reform the system of reviewing EU legislative proposals by ‘mainstreaming’ responsibility for scrutiny to relevant sectoral committees and introduce a ‘scrutiny reserve’ system preventing Ministers from agreeing to a proposal in Council before it had been reviewed by parliament. It also promised to introduce measures obliging ministers to appear before the relevant Oireachtas committee prior to attending Council meetings and to discontinue the wholesale use of statutory instruments as a means of implementing EU law. 218 The government introduced the first of these reforms, namely the mainstreaming of the EU scrutiny function, in 2011. Previously the scrutiny of EU legislative proposals was carried out

210

Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L 39/40. 211

Patrick Kelly (n 220) para 38. While leaving it to the High Court to decide, the Court of Justice did imply that UCD’s offer to provide the applicant with part of the information would suffice, see para 37. 212

Ibid, para 55.

213

Ibid, para 65.

214

Barrett, G., ‘Oireachtas Control over Government Activity at European Union Level: Reflections on the Historical Context and the Legal Framework’ in Barrett G., (ed), National Parliaments and the European Union: the Consitutional Challenge for the Oireachtas and other Member State legislatures (Dublin, Clarus Press 2008) and Laffan, B., ‘The Parliament of Ireland: A Passive Adapter Coming in from the Cold’ in Maurer, A. and Wessels, W., (eds), National Parliaments on their ways to Europe: Losers or Latecomers? (Baden-Baden, Nomos 2001). 215

For a historical overview of the role of the Oireachtas in European Affairs see Fahey (n 70) chpt 8.

216

Houses of the Oireachtas, Review of the Role of the Oireachtas in European Affairs (Report of the Joint Committee on European Affairs and the Joint Committee on European Scrutiny, 7 July 2010). 217

Dáil Debates, 31 March 2011, Vol 729, no 1, Brendan Howlin.

218

Government for National Recovery 2011-2016 (n 10), 25-26.

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by a specialised Committee, the Joint Committee on European Scrutiny (JCES). Upon the establishment of the committees for the 31st Dáil the JCES was abolished leaving the Joint Committee on European Affairs (JCEA) as the sole specialised committee on European matters. Individual legislative proposals are now to be sent directly to the relevant sectoral committee, which is also responsible for assessing the compatibility of the proposal with the principle of subsidiarity and issuing a reasoned opinion if it feels this is necessitated.219 The JCEA retains responsibility for Ireland’s broader relationship with the EU and general questions of European integration analysing such documents as the Commission’s Annual Work Program. Additionally it exercises scrutiny and subsidiarity control functions in relation to foreign affairs and trade and performs the more specialised roles for national parliaments provided for by the Treaty of Lisbon in the operation of the passerrelle provisions,220 Treaty amendments and the accession of new Member States.221 While it is perhaps too early to draw definitive conclusions, the reforms are an improvement. Comparative studies have demonstrated that ‘decentralised’ systems of scrutiny perform better in relation to both the quantity of matters that are scrutinised and the quality of that scrutiny. 222 Under the previous system the JCES, as a consequence of the sheer volume of its workload, only conducted a cursory scrutiny of many EU proposals, in effect rubber stamping them, while sectoral committees failed to analyse important provisions that fell within their remit. The new system should allow the JCEA to concentrate on following general developments at a European level and liaising with key policy makers in the European institutions while sharing the burden of EU scrutiny with sectoral committees, bringing their particular sectoral expertise to bear on EU proposals. At the same time such a system will bring more Members into contact with European matters and should ensure that a greater section of the Oireachtas is aware of the significance and increasing importance of EU law within the domestic legal order. Nonetheless, for such a system to work sectoral committees that may have previously concentrated exclusively on domestic rules should be properly resourced, in particular with research staff familiar with EU law and policy making, in order to adequately perform their role in relation to EU matters. The issuance of the first (and so far only) reasoned opinion contesting a European proposal on grounds of subsidiarity by the Oireachtas is perhaps evidence that the new ‘mainstreamed’ system of EU scrutiny may be bearing some fruit. The reasoned opinion notes the subsidiary related concerns of the Oireachtas in relation to the Commission’s proposal on a common consolidated corporate tax base (CCCTB).223 It does appear to be motivated more by a general political opposition to the proposal rather than a specific legal concern with subsidiarity. 224

219

2011 also saw the only instance of the Oireachtas issuing such a reasoned opinion in the matter of the Commission’s proposal of create a Common Consolidated Corporate Tax Base (‘CCCTB’) (COM(2011)121), Dáil Eireann, Reasoned Opinion on the Proposal for a Council Directive on a Common Consolidated Corporate Tax Base (COM(2011)121) (2011) available at http://www.ipex.eu/IPEXL-WEB/scrutiny/CNS20110058/iesea.do. 220

With one exception, the Joint Committee on Justice, Defence and Equality is responsible for the Dáil’s involvement in the family law passerrelle contained in Article. 221

Joint Committee on European Affairs, Orders of Reference (8 June 2011), available at http://www.oireachtas.ie/parliament/oireachtasbusiness/committees_list/eu-affairs/role/. Accessed 16 August 2012. 222

Raunio, T., ‘Ensuring Democratic Control over National Governments in European Affairs’ in Barrett, G., (ed), National Parliaments and the European Union: the Consitutional Challenge for the Oireachtas and other Member State legislatures (n 226). 223

Proposal for a Council Directive on a Common Consolidated Tax Base (CCCTB) (COM(2011) 121 final).

224

Furthermore it contains somewhat problematic and unclear argumentation. In particular its admission that ‘27 different national corporate tax systems inherently impede the proper functioning of the internal market’ would appear to be an argument in favour of the exercise of the Union’s powers to fully harmonise corporate tax rates rather than simply the tax base, something a majority of parties of the Dáil no doubt wish to avoid. Dáil Eireann, Reasoned Opinion on the Proposal for a Council Directive on a Common Consolidated Corporate Tax Base (n 231), para 2(b).

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Nonetheless it should be acknowledged that the subsidiarity control, while expressed in legal terms, is an inherently political process225 and any engagement by the Oireachtas in European political discourse, particularly such an institutionalised engagement, should be seen as a positive democracy-enhancing develop- ment. Even if it did not result in the ‘yellow card’ being activated and a review of the proposal by the Commission226 it allowed the parliamentary opposition to the measure in Ireland to be formally articulated. Furthermore the increased awareness of the mechanism and the formal role that national parliaments now occupy at a European level may stimulate further interest and activity by the Oireachtas in relation to European matters.227 However, mainstreaming, while important, remains only one piece in the jigsaw of improving Oireachtas performance in EU matters. Such a practice undoubtedly improves the scrutiny of EU legislation and may indirectly lead to a more active role for the Oireachtas in the implementation of EU law. However mechanisms to control the actions of government when acting as a European legislator, i.e. in Council, need to be put in place. As noted above the Government has committed itself, both in its Programme for Government and in statements before the Dáil, to introduce other measures designed to strengthen the position of the Oireachtas in particular providing for an obligation for Ministers to attend the relevant committees prior to Council meetings and the introduction of a scrutiny reserve system. Additionally the wholesale use of Statutory Instruments to implement major pieces of European legislation is an exceptionally executive-friendly means of transposing directives and arguably circumvents the prerogatives of the Oireachtas, particularly where a significant degree of discretion is left to national authorities.228 As Fahey has noted, ‘the institutional consideration of EU affairs [by the Oireachtas] is limited and piecemeal and that a failure to adequately engage with challenges as they arise has resulted in rather haphazard engagement with European matters.’229 It is hoped that the reforming zeal of the new government in this area will not flag and that the full set of measures outlined in the Program for Government will be implemented in the near future. CONCLUSION

T

he European Union has entered into a period of rapid change. Developments are dynamic and represent a moving target. Definitive conclusions are therefore difficult to reach,

225

See in particular expert evidence furnished to the House of Commons during its investigation into the role of national parliaments under the Treaty of Lisbon. See House of Commons European Scrutiny Committee, Subsidiarity, National Parliaments and the Lisbon Treaty (Thirty-third Report of Session 2007-08, HC 563, 2008). 226

In the end parliaments of nine Member States raised subsidiarity concerns amounting to 13 votes (each Parliament having two votes with each house having a single vote in a bicameral system and two votes if the Member State employs a unicameral system). In order for the yellow card system to be activated reasoned opinions, representing one third of total votes i.e. 18, need to be issued. See www.ipex.eu. 227

As stated by Barrett ‘It may be (and indeed it is to be hoped) that the consciousness on the part of national parliamentarians that there will now be a system under which the input of national parliaments may make a difference at European level may motivate and stimulate national parliaments and governments alike into better equipping and resourcing national legislatures to take seriously the role they occupy in relation to the European legislative process’ Barrett, ‘Introduction - A New Improved Formula? The Treaty of Lisbon and National Parliaments ’ in Barrett, G. (ed), National Parliaments and the European Union: the Consitutional Challenge for the Oireachtas and other Member State legislatures (n 226) p xli. 228

Although the Supreme Court has given the government rather wide scope for the use of statutory instruments in its jurisprudence on the ‘necessitated’ clause of Article 29.4.10° of the Irish constitution. See Fahey (n 70) Chapter 5 and Barrett, G., Reviewing the Role of the Oireachtas in European Affairs (IIEA, Dublin, 2010). 229

Fahey (n 70) 105.

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particularly when taking a snapshot such as a single year into account. Nonetheless certain trends can be discerned from a review of Ireland and the EU in 2011. Despite the promise of the Treaty of Lisbon to settle to some extent the level of political union and institutional change in the EU, the story of Ireland’s involvement with the European Union in 2011, and indeed the European Union more generally, has been ever increasing integration. At a domestic level the impact of the European Union on the Irish legal landscape indicates a gradual but significant change in the nature of European integration and its effect on Irish law. Questions of European law are touching upon fields such as asylum law, criminal procedure and citizenship that would in previous decades been seen as areas of ‘high politics’ lying clearly in the realm of national competences. The shift from a purely economic and market based European Economic Community to a more politically focused and broadly based European Union would appear to have come of age. The increasingly political nature of the Union’s activities combined with the continued weakness of direct democratic processes at a European level will require that national repositories of democratic legitimacy, including national parliaments, engage in a constructive and explicit fashion with the European Union. While encouraging steps have been taken in this regard in Ireland, more can and should be done. At the supranational level the Euro crisis and the EU’s response to it have dominated the agenda and will no doubt mark the beginning of a new phase in the economic, legal and ultimately political integration of the European Union. This has not however been the result of an increasing sense of social and political affiliation between the peoples of Europe but rather is a consequence of the ‘remorseless logic’ of the Euro. Whether this can be squared with the persistence of national interests and the continuing importance of national actors and indeed national democratic processes remains to be seen. Already worrying trends in the political dynamics and legal outcomes have been noted, including the inter-governmental nature of these developments and the resulting asymmetrical integration. Ireland, as a small Member State in a financially and politically weakened position has not been in a position to influence significantly these developments yet remains profoundly affected by them. Its decision to adopt the Euro and its subsequent economic and financial collapse have ensured that it is now a participant in all measures to increase integration, a position driven perhaps more out of economic necessity than political choice. Active and constructive engagement from a genuinely European in addition to a national perspective, as the current government claims to be pursuing, may go some way in attenuating this weakness.

158

Human Rights Developments in Ireland 2011 COLI N SMITH B.L.∗ INTRODUCTION

I

reland’s human rights record came under international scrutiny in 2011 as the social cost of the State’s economic decline continued to be felt. The State continued to lose cases before for the European Court of Human Rights by reason of its failure to address excessive delays in the judicial system. At the United Nations, the verdict in the State’s first Universal Periodic Review was mostly positive. There was criticism, however, of the continued marginalisation of Travellers in Ireland and the State’s failure to provide redress to the women who had suffered in the Magdalene Laundries. The Irish performance at the UN Committee against Torture in Geneva was, perhaps, the low-point of the human rights year. The nadir came with the implausible claim by Sean Aylward, Secretary General of the Department of Justice and Equality, that the vast majority of women in the Magdalene Laundries had gone there voluntarily or with the consent of their parents or guardians. Mr Aylward’s subsequent elevation to the European Committee on the Prevention of Torture surprised many human rights advocates, and was greeted with dismay by advocates and NGOs.

1. LEGISLATIVE DEVELOPMENTS A. Proposed Constitutional amendments

O

n 27 October 2011 the people of Ireland voted on two proposed amendments to the Constitution of Ireland. The referendum was held on the same day as the Presidential election. Both amendments to some extent concerned the right to a fair trial before an independent and impartial tribunal established by law as guaranteed by Article 6 of the European Convention on Human Rights 1950. By the 29th amendment, the government sought to reduce the pay of judges in the context of the severe recession affecting the Irish economy. The Attorney General had advised the government that judges’ remuneration could not be reduced in the absence of a Constitutional amendment because Article 35.5 of the Constitution provided that ‘[t]he remuneration of a judge shall not be reduced during his continuance in office.’ The prospect of a Constitutional amendment was criticised by members of the Judiciary. A memorandum warning against an attack on judicial independence was posted on the Courts Service website, but later removed at the request of the Minister for Justice and Equality.1 The Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Bill 2011 (No. 44 of 2011) was published on 25 July 2011. It proposed that section 5 of Article 35 be repealed and replaced by the following text:

∗

Law Library Dublin

1

R Kennedy, ‘The Judiciary in Political Debates: The Sound of Silence’ (2011) 29 ILT 198.

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The remuneration of a judge shall not be reduced during his continuance in office save where it is necessary to address a serious threat to the State’s economy, there is a compelling need to stabilise the State’s finances and as a consequence it is necessary to effect a reduction in public service remuneration; in such circumstances any reduction in the remuneration of all public servants or in the remuneration of a class of public servants may be applied to effect a comparable reduction in the remuneration of all members of the judiciary. Nearly 80% of voters approved the proposed amendment. The Bill was signed by the newly-elected President of Ireland, Michael D Higgins, on 17 November 2011. The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 (No.47 of 2011) proposed to confer the power to hold inquiries on the Houses of the Oireachtas. Article 15.10 provided that: Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties. The Bill proposed that Article 15.10 would become Article 15.10.1 and that the following text would be inserted as Article 15.10.2-4: 2° Each House shall have the power to conduct an inquiry, or an inquiry with the other House, in a manner provided for by law, into any matter stated by the House or Houses concerned to be of general public importance. 3° In the course of any such inquiry the conduct of any person (whether or not a member of either House) may be investigated and the House or Houses concerned may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates. 4° It shall be for the House or Houses concerned to determine the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2° applies. The government argued that the amendment would allow the Houses of the Oireachtas to investigate the collapse of the Irish banking system without the need for inefficient and expensive Tribunals of Inquiry. Opponents of the Bill, including the Irish Council for Civil Liberties, argued that the amendment contained inadequate guarantees of fair procedures and would create a ‘kangaroo court.’ In the event, the proposed amendment was rejected by just over 53% of voters. B. The Biological Weapons Act 2011 The Biological Weapons Act 2011, which became law on 10 July 2011, gives domestic effect to Ireland’s obligations under the Geneva Gas Protocol 1925 and the Biological Weapons Convention 1972, which prohibit, inter alia, the manufacture and use of biological weapons. Ireland ratified the Geneva Gas Protocol on 29 August 1930 and the Biological Weapons Convention on 27 October 1972. Section 2(1) of the Act criminalises the development, production and use of microbial or other biological agents or toxins for any hostile purpose (that is, any non purpose other than one which is prophylactic, protective or otherwise peaceful). Section 2(2) criminalises the stockpiling, acquisition, possession, retention and transfer of such agents or toxins. Section 3 of the Act criminalises the commission by Irish citizens or companies of these acts abroad. The adoption of these measures increased the States compliance with its obligations under international humanitarian law treaties. 160

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C. Civil Law (Miscellaneous Provisions) Act 2011 Part 10 of the Civil Law (Miscellaneous Provisions) Act 2011 amended the Irish Nationality and Citizenship Acts 1956-2004 to provide for the naturalisation of the civil partners of Irish citizens. Part 11 of Act amended the Immigration Act 2004 to make it an offence for a nonnational to fail to present ID documents or to furnish information when asked to do so by a member of the Garda Síochána. The Act creates a defence of reasonable cause for such a failure. The changes were intended to remedy the principal defects identified in section 12 of the Act of 2004 by the High Court in ED v. Director of Public Prosecutions.2 The Equality, Integration, Disability and Human Rights (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 139/2011) enabled the transfer of all equality and human rights issues to the Department of Justice and Law Reform, now the Department of Justice and Equality after the formation of the new Fine Gael-Labour government in March 2011.

2. HUMAN RIGHTS CASES INVOLVING IRELAND BEFORE INTERNATIONAL COURTS

I

n 2011, the extraordinary delays in criminal and civil proceedings before the Irish Courts led the European Court of Human Rights to find violations by the State of Article 6 of the ECHR. These cases followed the Court’s judgment in McFarlane v. Ireland 3 in which a delay of over eight years in criminal proceedings was held by the Strasbourg Court to be unreasonable. In Superwood Holdings v. Ireland 4 the Strasbourg court considered one of the longest-running disputes in the history of Irish civil litigation. The applicant company claimed IR£2,000,000 from their insurers to cover loss suffered as a result of a fire which occurred in 1987. The insurers denied liability, arguing that Superwood’s claim was so grossly exaggerated as to be fraudulent. The company initiated proceedings against the insurers seeking damages for wrongful repudiation. The dispute continued in the High Court and the Supreme Court for 22 years, until in 2004 the Supreme Court struck out Superwood’s appeal for failure to furnish security for costs. Superwood complained that the length of the proceedings was incompatible with the ‘reasonable time’ requirement laid down in Article 6 § 1 of the Convention. The Government contested the claim. In its judgment, the Court stated that the reasonableness of the length of proceedings had to be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicants and of the relevant authorities, and the importance of what was at stake for the applicants. The Court considered that while the complexity of the case and the conduct of Superwood contributed in no small part to the delay in the proceedings, those factors alone did not explain the overall length of the proceedings. The Court examined the conduct of the authorities and recalled in particular that States are required to organise their systems to deal with cases within a reasonable period of time. The Court did not consider that sufficient diligence was exercised by the authorities to bring lengthy proceedings to a speedy conclusion and found that many of the delays were attributable to the competent authorities and contributed importantly to the overall length of the proceedings. In the circumstances, the Court held that the length of the proceedings was excessive and failed to meet the ‘reasonable time’ requirement. Accordingly, the Court found that there had been a breach of Article 6 § 1 of the Convention.

2

[2011] 1 IR 205.

3

Application No. 31333/06, 10 September 2010.

4

Application no. 7812/04, 8 September 2011.

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The case of TH v. Ireland 5 concerned an applicant who was arrested on a charge of sexual assault in 1995. He sought to stay the prosecution by way of judicial proceedings. Those proceedings lasted nearly a decade, and in 2006 the Applicant complained to the European Court of Human Rights that the length of the proceedings was incompatible with the ‘reasonable time’ requirement laid down in Article 6 § 1 of the Convention. He also claimed a violation of his entitlement to an effective remedy under Article 13. His trial was fixed for November 2007 but he died in July 2007, bringing the criminal proceedings to an end. His sister was permitted to take over his application to the European Court of Human Rights. In its judgment the Court noted that the delay in the proceedings amounted to a period of 11 years and 10 months and recalled that it had already found violations of Article 6 § 1 of the Convention in cases raising similar issues, including Barry v. Ireland6 and McFarlane v. Ireland.7 The Court found that the Irish Government had not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court found a breach of Article 6 § 1 and further held that there had also been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time. Two more delay cases, JB v. Ireland 8 and Enright v. Ireland, Application9 were struck out of the list when settlements were reached between the parties. The applicants in Okon v. Ireland 10 were less fortunate. They were Nigerian asylum seekers who challenged a decision of the Refugee Appeals Tribunal (RAT) to affirm a recommendation of the Refugee Applications Commissioner that they not be declared refugees by way of judicial review. The Application was heard by the High Court in July 2007. By March 2011, no judgment had been delivered and the applicants complained of an Article 6 § 1 violation to the European Court of Human Rights. In its decision on admissibility, the Court recalled that decisions regarding the entry, stay and deportation of aliens do not concern the determination of civil rights or obligations or of criminal charges within the meaning of Article 6 § 1 of the Convention. The Court observed that the judicial review proceedings concerned solely a challenge to the refusal by the RAT of their asylum claim and that those proceedings did not engage Article 6. The Court therefore found that the application was inadmissible, being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 thereof. The applicants in Adio v. Ireland 11 also had their complaint dismissed as inadmissible. They complained that the refusal of the Minister for Justice to consider their applications for leave to remain under the IBC/05 scheme because said applications were made out of time violated their rights to respect for their private and family life under Article 8 of the Convention. The Court found that the applicants had not demonstrated that they could not apply to the Minister for leave to remain raising their constitutional and Convention rights, or that the Minister would not have the power to determine any such application and grant residency to them. The Court noted that an unfavourable response (or indeed a lack of response) from the Minister could then be the subject of an application to the High Court for leave to apply for judicial review on the basis of those constitutional and Convention rights. Accordingly, the Court rejected the applicants’ complaints as being premature since, apart from an application within the IBC/05 Scheme, they had not taken any steps to apply for an entry visa or residence

5

Application No. 37868/06, 8 December 2011.

6

Application No. 18273/04, 15 December 2005.

7

Application No. 31333/06, 15 10 September 2010.

8

Application No. 9519/07 21 June 2011.

9

Application No. 61138/08, 21 June 2011.

10

Application no. 22255/11, 13 December 2011.

11

Application no. 8596/08, 17 May 2011.

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permit or to request leave to remain in Ireland. The Court said that given such prematurity, the applicants could not claim to be victims of a violation of the Convention. For these reasons the Court therefore declared the applicants’ complaint incompatible ratione personae with the provisions of the Convention. Also found to be inadmissible was the case of Izevbekhai and Others v. Ireland.12 The case concerned a Nigerian woman and her two daughters who arrived in Ireland in January 2005. Ms. Izevbekhai applied for declarations of refugee status on her own behalf and on behalf of her daughters. The basis of her claim for refugee status was that she was in fear for her own life and the lives of her daughters if they were returned to Nigeria, as a result of threats from the family of her husband to carry out female genital mutilation (FGM) on her daughters. She claimed that an elder daughter had died in Nigeria as a result of complications arising from female genital mutilation. Their applications for refugee status in Ireland were refused, and they made representations to the Minister for leave to remain temporarily in the State. These representations were rejected and the Minister made deportation orders in respect of all three applicants in November 2005. Ms. Izevbekhai went into hiding and her children were taken into care by the HSE. She was later apprehended by Gardaí and placed in detention. In March 2008, the Applicants made applications to the Minister for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations (S.I. No. 518) 2006. The Minister refused to consider their applications for subsidiary protection because the deportation orders had been made before the coming into force of the Regulations. A High Court challenge to the Minister’s decision was unsuccessful, as was an appeal to the Supreme Court.13 In the meantime, government officials reopened their investigation into Ms Izevbekhai’s claims about the death of her eldest daughter in Nigeria. The investigation concluded that the documents she had relied upon in support of her claim were forgeries and that no such child had ever existed. Affidavits to this effect were filed in the Supreme Court. The Supreme Court dismissed the appeal on technical grounds and no findings were made as regards the Minister’s allegations of forgery. The applicants took their case to Strasbourg and complained that there was a real risk that the minor Applicants would be exposed to FGM if they were expelled to Nigeria in violation of Article 3 ECHR. They also invoked Articles 6, 13 and 14 of the Convention to challenge the adequacy of the domestic remedies available to them in that respect. In November 2008 the Court made its first Rule 39 indication in an Irish case, asking Ireland not to deport the applicants until their case had been determined. When the admissibility of the case was considered, the Court found that the information presented by the Government with respect to the documents relied upon by Ms Izevbekhai gave strong reasons to question the veracity of the applicants’ core factual submission concerning the death of a child in Nigeria as a result of FGM and that Ms Izevbekhai’s response to the core issue of credibility was unsatisfactory. Having considered country of origin information with respect to the incidence of FGM in Nigeria and the particular circumstances of Ms Izevbekhai and her children, the Court held that she and her husband could protect their daughters from FGM if returned to Nigeria. The Court therefore found that the applicants had failed to substantiate the claim that Ms Izevbekhai’s daughters would face a real and concrete risk of treatment contrary to Article 3 of the Convention upon return to Nigeria. The Court concluded that their complaint was therefore manifestly ill-founded and resultantly inadmissible. With respect to the applicants’ complaint invoking Articles 6, 14 and 13, the Court stated once more that it was wellestablished in its case-law that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations, or of a criminal charge, within the meaning of Article 6 § 1 of the Convention. The complaint under Article 6 was therefore dismissed as being incompatible ratione materiae with the provisions of the Convention. The Court also stated that their claim that the domestic procedures set up to examine immigration issues were inadequate was not, in itself, demonstrative of a

12

Application no. 43408/08, 17 May 2011.

13

I and Others v. Minister for Justice, Equality and Law Reform [2009] IEHC 61, High Court, McGovern J., 27 January 2009; Izevbekhai and Others v. Minister for Justice, Equality and Law Reform, [2011] 1 ILRM 398.

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discriminatory difference in treatment within the meaning of Article 14 of the Convention. Finally, the Court recalled that Article 13 requires a remedy in domestic law only in respect of an arguable claim of a violation of the Convention and held that, having regard to the Court’s conclusions with respect to their complaints under Articles 3, 6 and 14, the Applicants’ complaint under Article 13 could not be sustained. Ireland was also involved in ground-breaking human rights litigation before the Court of Justice of the European Union. Joined Cases C-411/10 and C-493/10, N. S. v. Secretary of State for the Home Department and M. E. and Others v. Refugee Applications Commissioner, 21 December 2011, concerned the interplay between States’ obligations under the Convention and under Union law. The cases focused on interpretation of the Dublin Regulation 2003 which establishes a mechanism for determining the EU Member State responsible for examining an asylum application lodged in one of the Member States. The cases related to asylum seekers in Ireland and the UK who sought to avoid being returned to Greece under the Dublin Regulation in circumstances were it had become apparent that asylum procedures in Greece suffered from serious shortcomings. The proportion of asylum applications granted was Greece very low, judicial remedies were absent and conditions for the reception of asylum seekers were appalling. The Strasbourg Court had already condemned the Greek system in MSS v. Belgium and Greece 14 and had found that Belgium had violated Article 3 ECHR by returning the Applicant to Greece under the Regulation. In Case C-493/10 M. E. and Others v. Refugee Applications Commissioner, the applicants, who hailed from from Afghanistan, Iran and Algeria, applied for asylum in Ireland having previously entered Greece, although none of them had applied for asylum there. The applicants argued that the procedures and conditions for asylum seekers in Greece were inadequate, and that Ireland was required to take responsibility for them under Article 3(2) of the Dublin Regulation. The High Court stayed the domestic proceedings and referred a number of questions to the Court of Justice. A similar reference was made by the Court of Appeal in the UK in N. S. v. Secretary of State for the Home Department, and the cases were considered together by the Luxembourg Court.15 Asked whether a decision adopted by a Member State on the basis of Article 3(2) of the Dublin Regulation to examine a claim for asylum which is not its responsibility under the criteria in the Dublin Regulation falls within the scope of EU law, the Court replied in the affirmative. The question of whether a Member State is obliged to assess compliance of a receiving Member State with EU fundamental rights and whether a conclusive presumption that a receiving Member State will observe fundamental rights is precluded. The Court stated that it had to be assumed that the treatment of asylum seekers in all Member States complied with the Charter, the 1951 Geneva Convention, and the ECHR, but that it was not inconceivable that the system might experience major operational problems. The Court ruled that Article 4 of the Charter of Fundamental Rights of the European Union (which prohibits torture and inhuman treatment and punishment in the same terms as Article 3 ECHR) must be interpreted as meaning that a Member State may not transfer an asylum seeker under the Dublin Regulation where it cannot be unaware that systematic deficiencies in the asylum procedure and reception conditions in a receiving Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment under Article 4.

14

Application No. 30696/09, 21 January 2011.

15

[2010] EWCA Civ 990.

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3. HUMAN RIGHTS IN THE SUPERIOR COURTS A. Due Process and Fair Procedures

T

he case of ED v. Director of Public Prosecutions and Another16 raised issues relating to due process and fair procedures in the context of immigration control. ED claimed to be a national of Liberia. She arrived in Ireland in 2008 with her Nigerian daughter and two Nigerian boys unrelated to her. The group travelled on forged passports. She was arrested in Dublin Airport and charged with an offence that she, being a non-national, failed to produce on demand to an Immigration Officer or member of An Garda Síochána, a valid passport or other equivalent document which established her identity and nationality and failed to give a satisfactory explanation of the circumstances which prevented her from doing so contrary to ss. 12(1)(a) and (2) and s. 13 of the Immigration Act 2004. ED appeared before the District Court on this charge and was remanded in custody. While on remand she applied for asylum and was issued with a Temporary Residence Certificate pursuant to s. 9 of the Refugee Act, 1996. When she appeared again in the District Court, the judge decided that the initial charge was null and void. He made no order and ED was released, only to be rearrested again nearly two months later for the same offence. She was granted bail by the District Court. She then applied for and was granted leave to seek by way of judicial review a permanent injunction restraining her prosecution under s. 12 of the Immigration Act 2004 and a declaration that the section is unconstitutional and incompatible with the State’s obligations under Articles 5, 6, 7 and 14 of the ECHR. When the substantive application for judicial review was heard by Kearns P. in the High Court, ED argued that s. 12 of the Act of 2004 was constitutionally objectionable on three grounds: firstly, the words purporting to create the offence were impermissibly vague and imprecise; secondly, the section was a disproportionate interference with the equality provisions of the Constitution; and thirdly, the procedure provided for under the section constituted or permitted a breach of process in that she ought to have been prosecuted under s. 11 of the Act of 2004 (which creates the offence of entering the State without a valid passport) or she ought to have been detained under s. 9 of the Refugee Act, 1996, which allows for civil detention of asylum seekers in certain limited circumstances. The High Court held that s. 12 was not sufficiently precise to reasonably enable an individual to foresee the consequences of his or her acts or omissions or to anticipate what form of explanation might suffice to avoid prosecution. Furthermore, the Court noted that there was no requirement in s. 12 to warn of the possible consequences of any failure to provide a ‘satisfactory’ explanation. Consequently, the Court held that the offence was ambiguous and imprecise and that it lacked the necessary clarity to create a criminal offence. The Court acknowledged the potential of s. 12 to breach ED’s rights, noting that it offended against the privilege against self-incrimination as recognised by the Constitution and Article 6 of the ECHR. On the issue of whether s. 12 was a disproportionate interference with the equality provisions of the Constitution, the Court held that Article 40.1 was not infringed having regard to the need in the public interest for the State to have suitably strict measures to deal with undocumented entrants into the State. The Court further stated that ED could legitimately complain that s. 11 and not s. 12 should have been used in her case, and that unfairness could arise because she could be subjected to repeated prosecutions and be guilty of a criminal offence on each and every occasion. In conclusion, the Court expressed the view that while s. 12 was designed as an immigration control mechanism, its vagueness was such as to fail basic requirements for the creation of a criminal offence and that, as drafted, it gave rise to arbitrariness and legal uncertainty. For these reasons, the Court granted an injunction restraining the DPP from taking any further steps in the prosecution arising from ED’s second arrest and a declaration that s. 12 was inconsistent with Articles 38.1 and 40.4.1 of the Constitution of Ireland.

16

[2011] 1 IR 205.

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B. Equality The Constitutional guarantee of equal treatment was considered by the High Court in BG v. District Judge Catherine Murphy and Others (No. 1)17 and BG v. District Judge Catherine Murphy and Others (No. 2).18 BG was a 49 year old man with significant mental disabilities and intellectual deficits charged with the sexual assault of a female, contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 (as amended). When BG originally came before the District Court it was indicated that the DPP would consent to summary disposal of this indictable offence, but only if BG were to plead guilty. BG’s mental disabilities raised a fitness to plead issue and District Judge Murphy concluded that she had no jurisdiction in the matter. BG was sent forward on bail to the next sitting of the Dublin Circuit Court so that his fitness to plead could be determined. BG (No.1) concerned the proper interpretation of the fitness to plead provisions of the Criminal Law (Insanity) Act 2006. Hogan J held that District Judge Murphy was correct to rule that the question of fitness to plead was one for the Circuit Court in light of the relevant provisions of s. 4 of the Insanity Act 2006 BG (No. 2) concerned the fact the relevant legislation would permit the District Court to dispose of the case against BG only where the Court could be satisfied that he understood the nature of the charge. This was to beg the very question which the 2006 Act required first to be determined by the Circuit Court. This anomalous situation would result in BG facing trial by Circuit Court rather than the District Court if found fit to plead, with attendant exposure to more severe penalties if convicted. The High Court (Hogan J) held that this situation offended against the equality guarantee in Article 40.1 of the Constitution. Rather than strike the offending section down however, the Court declared that, should BG be found fit to plead by the Circuit Court and subsequently plead guilty, for the sentencing judge to apply a maximum sentence of more than the equivalent sentence that would have been available to the District Court had his fitness to plead already been established and had he so pleaded guilty before the District Court, would be to breach BG’s constitutional right to equality under Article 40.1 of the Constitution.

4. HUMAN RIGHTS TREATIES A. Treaty Body Reform

N

ovember 2011 saw the hosting by Ireland of a meeting known as ‘Dublin II.’ This meeting was the second in a series of gatherings which brought together members of UN Human Rights Treaty Monitoring Bodies. There are nine such bodies monitoring the implementation of UN human rights conventions and examining reports by States on their implementation of these conventions. As more States ratify the conventions, however, the Treaty Bodies are facing the challenge of a considerable increase in workload and a significant backlog in their consideration of reports and of individual complaints. The Dublin II Outcome Document was signed by the Treaty Monitoring Bodies experts present and endorsed by other participants. The Document encouraged States to ratify without reservations all international human rights treaties, and to accept communications and inquiry procedures. It recommended that States guarantee the independence, expertise, competence and availability of Treaty Monitoring Body members by conducting nominations through open and transparent selection processes. The Document also recommended that the Treaty

17

[2011] IEHC 359.

18

[2011] IEHC 445.

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Monitoring Bodies work closely with regional mechanisms and with the UN Charter-based system of special procedures. Interestingly, the meeting proposed that some Treaty Monitoring Bodies sessions should be held in different regions and that all public meetings be webcast. States were also encouraged to submit detailed and focused reports in full and on time, and it was recommended that all Treaty Monitoring Bodies adopt new general comments and revise old ones to ensure consistency with evolving human rights standards.19 B. The Committee on the Elimination of Racial Discrimination In February 2011, Ireland’s compliance with the UN Convention on the Elimination of Racial Discrimination (CERD) was considered by the Committee established under the Convention. In its report to the Committee, the Government defended its record in tackling racism and dismissed claims it is neglecting the human rights of Travellers and asylum seekers.20 Diarmuid Cole, Director General of the Department of Community, Equality and Gaeltacht Affairs, made a presentation to Committee which highlighted the moderate tone of the debate on immigration in the election campaign. Mr Cole told the Committee that Ireland was experiencing a steep decline in inward migration and a resumption of emigration. Members of the committee, which is composed of independent human rights experts, raised concerns about the length of time asylum seekers spend in direct provision centres awaiting decisions on their claims. Mr Cole said the Government was satisfied the services provided to asylum seekers represented the most efficient and effective means of support while they awaited decisions on their applications. He said over €1 billion was spent on the asylum system over the past five years, of which over €400 million was spent on direct provision. The Committee also challenged Mr Cole on the Government’s refusal to recognise Travellers as an ethnic group and its failure to incorporate the CERD into domestic law. Mr Cole said the State accepted the right of Travellers to their cultural identity but that the outgoing Government had not concluded that Travellers were ethnically different from the majority of Irish people. Mr Cole said progress had been made in tackling housing, education, employment and healthcare issues affecting Travellers. The Irish Human Rights Commission had earlier briefed the Committee in private session on their concerns about the treatment of asylum seekers, Travellers and cuts to the budgets of human rights and equality groups in the Republic.21 A coalition of NGOs, the Alliance Against Racism, had sent a shadow report outlining areas where it believes the State is failing to meet its commitments under the convention. The NGOs recommended that the State recognise Travellers as an ethnic group, process asylum seekers within six months and provide the right to work to them after this time, review the direct provision system for asylum seekers to meet concerns about resident welfare, and support non-and multi-denominational schooling.22 In its Concluding Observations on Ireland’s report, the Committee recommended that budget cuts for human rights bodies should not result in the stifling of their activities to effectively monitor the protection of human rights and particularly racial discrimination, and said that Ireland should ensure that the functions of the bodies that have been closed are fully transferred and subsumed by the existing or new institutions. The Committee also expressed

19

Strengthening the United Nations Human Rights Treaty Body System, Dublin II Meeting Dublin, 10 – 11 November 2011, Outcome Document. 20

CERD/C/IRL/3-4.

21

Irish Human Rights Commission, Submission to the UN CERD on the Examination of Ireland’s Combined Third and Fourth Periodic Reports, November 2010, available at http://www2.ohchr.org/english/bodies/cerd/cerds78.htm. 22

The reports by the Equality & Rights Alliance, Galway Refugee Support Group, Migrant Rights Center Ireland National Youth Council of Ireland, Pavee Point Travellers Centre, National Traveller Women’s Forum, NGO Alliance against Racism , ENAR Ireland and Atheist Ireland are available at http://www2.ohchr.org/english/bodies/cerd/cerds78.htm.

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concern at Ireland’s ‘persistent refusal’ to recognise Travellers as an ethnic group, notwithstanding that they satisfy the internationally recognised criteria. To this end, the Committee urged Ireland to work concretely towards recognising Travellers as an ethnic group. The Committee also recommended that Ireland pursue efforts aimed at strengthening the protection of all people from racial discrimination by improving the Immigration and Residence Protection Bill 2010 to provide for (a) the right of migrants to judicial review against administrative actions and prescribe reasonable periods within which to do so; and (b) the right of migrant women in abusive relationships to legal protection by providing them with separate residence permits. The Committee encouraged the Government to take all necessary steps with a view to expediting the processing of asylum applications so that asylum-seekers do not spend unreasonable periods of time in asylum centres which might have negative consequences on their health and general welfare. The Committee also recommended that Ireland incorporate the CERD into its legal system to ensure its application before Irish Courts in order to afford all individuals its full protection.23 In accordance with article 9, paragraph 1, of the Convention and rule 65 of its amended rules of procedure, the Committee requested Ireland to provide information, within one year of the adoption of the Concluding Observations (i.e. by April 2012), on Ireland's follow-up to the recommendations contained in the Concluding Observations. The report noted that while substantial cuts in their funding had taken place, the budgets of the Equality Authority and of the Irish Human Rights Commission had been largely protected in the 2012 budget round. The report referred to the Government’s proposals to amalgamate the Equality Authority and Human Rights Commission. The report also stated that the question of the recognition of Travellers as an ethnic minority had been the subject of extensive discussion at meetings of the National Traveller Monitoring and Advisory Committee and that discussions with the five national Traveller organisations had revealed a divergence of opinion among Irish Travellers in relation to the question of ethnicity. The report further observed that the Minister for Justice and Equality has decided to republish the Immigration, Residence and Protection Bill and that the judicial review provisions of the Bill were among a number of provisions being examined. The report also claimed that the current legal framework in Ireland provided no impediment to the grant of separate residence permits to women in abusive relationships. It was claimed that a number of permissions had already been granted in these circumstances and that applications were considered sympathetically and on a case by case basis. With respect to recommended incorporation of the Convention, the report stated that the Oireachtas had already enacted laws giving effect in legislative form to the obligations involved in the agreement.24 C. The Committee against Torture On 23-24 May 2011, the UN Committee against Torture considered Ireland’s initial report submitted under Article 19 of the UN Convention against Torture 1984. Officials of various government departments answered questions about the Irish report. The report touched on treatment of asylum seekers, detention of minors, funding of the Irish Human Rights Commission and protection of victims of human trafficking. Sean Aylward (then Secretary General of the Department of Justice) told the Committee that it was understood that the vast majority of women in the Magdalen Laundries had gone there voluntarily or with the consent of their parents or guardians.25 Mr Aylward also told the Committee that the Irish asylum

23

CERD/C/IRL/CO/3-4.

24

Information on Ireland’s follow-up to recommendations contained in the Concluding Observations of the United Nations Committee on the Elimination of Racial Discrimination (UNCERD) following examination of Ireland’s Combined 3rd and 4th Periodic Report by UNCERD, available at http://www.integration.ie/website/omi/omiwebv6.nsf/page/AXBN-8VMK3F15323926en/$File/Concluding%20Observations%20Recommendations%20Response.pdf. 25

UN Committee against Torture, Summary record of the 1005th meeting held at the Palais Wilson, Geneva, on Tuesday, 24 May 2011, at 3 p.m., UN Doc CAT/C/SR.1005, para 4.

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system was being undermined by misinformation, propaganda and what amounted to a legal racket among immigration lawyers.26 His criticism of immigration lawyers was rejected by the Irish Refugee Council.27 In its Concluding Observations on the Irish report, the Committee signalled its concern about the reduction of financial resources for human rights institutions and the use of Irish airports by rendition flights. The Committee recommended that Ireland investigate the considerable drop in positive determinations for refugee status to ensure that applications are processed following due process. On the subject of prison conditions, the Committee recommended that Ireland adopt specific time frames for the construction of new prison facilities which comply with international standards and expedite the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the establishment of a national preventive mechanism. The Committee said that it was deeply concerned at the continuing practice of ‘slopping out’ in some Irish prisons, which, it said, amounted to inhuman and degrading treatment. The Committee also recommended that Ireland intensify its efforts to tackle inter-prisoner violence and take urgent measures to house remand prisoners separately from sentenced prisoners.28 In the light of the conclusions of the Report of the Commission to Inquire into Child Abuse (The Ryan Report), the Committee recommended that Ireland indicate how it proposes to implement all the recommendations of the Commission to Inquire into Child Abuse and indicate the time frame for doing so.29 The Committee also recommended the institution of prompt, independent and thorough investigations into all cases of abuse as found by the Ryan Report and, if appropriate, the prosecution and punishment of perpetrators and the provision of redress to victims. The Committee also recommended that Ireland institute prompt, independent and thorough investigations into all complaints of torture and other cruel, inhuman or degrading treatment or punishment that were allegedly committed in the Magdalene Laundries and, in appropriate cases, prosecute and punish the perpetrators with penalties commensurate with the gravity of the offences committed, and ensure that all victims obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible. Furthermore, the Committee recommended that the Government take appropriate measures to end the detention of children in St Patrick’s Institution and move them into appropriate facilities. The Committee also called for the prohibition of all corporal punishment of children in all settings, a public campaign to educate parents and the general public about its harmful effects, and the promotion of positive non-violent forms of discipline as an alternative to corporal punishment. Furthermore, the Committee urged Ireland to clarify the scope of legal abortion through statutory law and provide for adequate procedures to challenge differing medical opinions as well as adequate services for carrying out abortions in Ireland. In December 2011, Sean Aylward was elected to the Council of Europe’s Committee for the Prevention of Torture following four ballots by the Council’s Committee of Ministers Deputies, despite not being the first choice of the Legal Affairs and Human Rights Committee, which had recommended NUI Galway law lecturer Donncha O’Connell.30 The Equality and Rights Alliance, an umbrella group of trade unions and human rights bodies including Justice for

26

CAT/C/SR.1005, para 61.

27

J Smyth, ‘Lawyers reject claims of legal racket’ Irish Times, 5 May 2011.

28

CAT/C/IRL/CO/1.

29

CAT/C/IRL/CO/1, paras 20-21. See also the Report of the Commission to Inquire into Child Abuse, 20 May 2009, available at http://www.childabusecommission.com/rpt/. 30

C Coulter, Aylward elected to torture post, Irish Times, 12 December 2011.

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Magdalenes and the Irish Council for Civil Liberties, expressed surprise and disappointment at Mr Aylward’s election.31 D. Independent Expert on Human Rights and Extreme Poverty In January 2011, UN Independent Expert on Human Rights and Extreme Poverty Dr Magdalena Sepúlveda Carmona visited Ireland at the invitation of the Government. She met members of the Oireachtas, former Minister of State for Equality Mary White, representatives of eight government departments and a number of NGOs. In her reports, Dr Carmona concluded that the economic and financial crisis had wrought havoc on Ireland, with grave implications for the Irish people.32 She noted that unemployment was rising and that increasing numbers of people were living in poverty and social exclusion. She said that the impact of the crisis had been severe, particularly for the most vulnerable groups. Dr Carmona criticised the Government for seeking to reduce the budget deficit by imposing deep cuts in public spending while maintain a low tax regime. She said that this course of action was likely to have a major impact on the most vulnerable in society. She observed that reductions in public expenditure affected the poorest and most vulnerable with the most severity, whereas some increase in taxation rates could place the burden on those who are better equipped to cope. She described the Universal Social Charge as a regressive tax and welcomed the new Government’s plan to review the charge. She expressed concern that cuts to budgets of the Irish Human Rights Commission, the Equality Authority, the Ombudsman for Children and the National Disability Authority had substantially reduced their capacity to protect the most disempowered in society. Dr Carmona reminded the Government that human rights are not a policy option, dispensable during times of economic hardship. She said it was vital that Ireland immediately undertake a human rights review of all budgetary and recovery policies to ensure compliance with human rights principles. The report also called on Ireland’s fellow EU Member States to consider a reduction in the interest rate on the bailout received in November 2010, saying they needed to consider their own international obligations to the poor.

5. REPORTS UNDER INTERNATIONAL HUMANITARIAN LAW TREATIES

A

rticle 7 of the Ottowa Anti-Personnel Landmines Convention 1997 and Article 7 of the Oslo Convention on Cluster Munitions 2005 oblige each State Party to 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 the Conventions for that State Party on various aspects of implementation. The information provided under Article 7 of both Conventions must be updated by the States parties annually. In April 2012, Ireland furnished reports under Article 7 of both Conventions for the year 2011.33 Both 2011 reports indicate full compliance with the State’s obligations under the Conventions.

31

Ibid.

32

A/HRC/17/34, A/HRC/17/34/Add.1 and A/HRC/17/34/Add.2.

33

Ireland’s reports pursuant to Article 7 of the Ottowa Anti-Personnel Landmines Convention 1997 and Article 7 of the Oslo Convention on Cluster Munitions 2005 are available at http://www.unog.ch/80256EDD006B8954/%28httpAssets%29/067DE41D42340E3FC1257A06002FA12B/$file/Irela nd+2011.pdf and http://www.unog.ch/80256EDD006B8954/%28httpAssets%29/84782E9E40D7BB50C12579F100361ABA/$file/IRE LAND+2011.pdf respectively.

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6. UNIVERSAL PERIODIC REVIEW

T

he Universal Periodic Review (UPR) is one of the major innovations of the United Nations (UN) Human Rights Council (established in 2006 to replace the UN Commission on Human Rights). Under the system, the Human Rights Council reviews the domestic human rights records of all 192 UN Member States every four years. The reviews are conducted by the UPR Working Group, consisting of the 47 members of the Human Rights Council. 48 countries are reviewed each year. Ireland’s first review under UPR took place on 6 October 2011. The Government submitted a National Report on its domestic human rights situation in advance of the review.34 The UN drew up a summary of all of its previous human rights recommendations to Ireland and compiled a stakeholder compilation report, synthesising more than 60 submissions from Irish civil society, as well as from the Irish Human Rights Commission.35 Irish NGOs highlighted the need for constitutional protection of children s rights, family law reform, modernisation of prison policy and overhaul of mental health law. Civil society actors also reminded the State of the need to ratify the Optional Protocol to the UN Convention Against Torture (in order to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment) and the UN Convention on the Rights of Persons with Disabilities. Appearing before the UPR Working Group, the Minister for Justice and Equality, Alan Shatter TD, was questioned about conditions in Irish prisons. Fifteen states, including the USA and Iran, expressed concern about poor sanitation, overcrowding and violence among detainees. The Minister stated that the issues would be raised in Dublin, but took issue with claims that excessive violence was a major concern. The Minister defended Ireland’s record on children’s rights and reaffirmed an absolute commitment to hold a referendum in 2012 to enshrine children’s rights in the Constitution. He said that Ireland would implement the 2010 judgment of the European Court of Human Rights in A, B and C v. Ireland36 and that an expert group would be appointed in November 2011 to deal with the issue of abortion in an adequate and comprehensive way. Several States, including Afghanistan and Pakistan, challenged the Minister on treatment of Travellers in Ireland. The Minister noted concerns about health problems and said he was giving serious consideration to conferring ethnic minority status on the community. Questioned on Ireland’s treatment of refugees, the Minister stated that a new immigration Bill, including 300 amendments to a previous draft, would soon be tabled. He said that waiting times for citizenship applications would be reduced and that the asylum process would be streamlined. On the subject of treaty ratifications, the Minister told the Working Group that Ireland hoped to ratify the new protocol to the International Covenant on Economic, Social and Cultural Rights by the end of 2011 and that this would permit people to take cases to the UN if they felt they had been wronged by the state on issues such as health, education and housing. The Minister committed Ireland to ratification of the UN Convention on the Rights of Persons with Disabilities and the Optional Protocol of the UN Convention against Torture. The Working Group’s recommendations included legal recognition for children’s rights, strengthening our legal framework to protect vulnerable people such as women, older people and those with disabilities, and developing and adopting a gender parity law.37 These recommendations were accepted. Seventeen recommendations were partially accepted and

34

A/HRC/WG.6/12/IRL/1.

35

A/HRC/WG.6/12/IRL/2, A/HRC/WG.6/12/IRL/2/Corr.1 and A/HRC/WG.6/12/IRL/3.

36

Application no. 25579/05, 16 December 2010.

37

A/HRC/19/9.

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four were rejected. One of those rejected was a recommendation to recognise Travellers as an ethnic minority.38

38

A/HRC/19/9/Add.1.

172

Human Rights in Northern Ireland 2011 PROFESSOR BRICE DICKSON∗

INTRODUCTION

2

011 was a relatively quiet year in Northern Ireland as far as developments in human rights law are concerned. The Northern Ireland Assembly did enact at least five Acts that have a human rights dimension to them, but there was little UK-wide legislation to speak of. Conversely, there were very few court decisions within Northern Ireland of any significance, whereas at the level of the UK Supreme Court there were at least 20 decisions that impacted on the protection of human rights in some way. Little emerged from the European Court of Human Rights that directly affected the law within Northern Ireland, and not much was said about Northern Ireland by UN or Council of Europe treaty-monitoring bodies. On the research and investigation front, several useful reports were issued by watchdog bodies such as the Criminal Justice Inspectorate, the Equality Commission for Northern Ireland, the Northern Ireland Human Rights Commission and the Prisoner Ombudsman. The Police Service and the bodies that monitor its performance (the Policing Board and the Police Ombudsman), as well as the reviewers of anti-terrorism legislation, produced valuable analyses which touch upon human rights issues. How to deal with the past (i.e. the years of conflict) was a constant concern, while by way of contrast there was virtually no further debate about whether there should be a Bill of Rights for Northern Ireland.

TERRORISM AND ORGANISED CRIME 1

W

hat the police call ‘security-related incidents’ (i.e. those with some connection to ‘the troubles’ in Northern Ireland) were less common in 2011 than in 2010. There were 60 shooting incidents (compared with 81 the previous year)2 and 67 bombing or incendiary incidents (compared with 90 in 2010). There was one fatality (Constable Ronan Kerr) and 83 other casualties, compared with two and 116 respectively in 2010, but these figures include the 76 victims of paramilitary punishment attacks (94 in 2010). There was also a drop in the number of people arrested on suspicion of involvement in terrorism (151 compared with 205 in 2010) and likewise in the number of such persons who were charged with an offence (32 as opposed to 48). On the other hand, more firearms were found in searches than in any year since 2005 (160) and more explosives than since 2007 (33 kgs). Most of the attacks on the

∗

Queen’s University Belfast

1

The statistics cited in this section, unless otherwise indicated, are taken from those compiled by the Police Service of Northern Ireland: see www.psni.police.uk (under Security Situation Statistics). 2

These include paramilitary ‘punishment’ attacks where firearms were fired, and also incidents where shots were heard and later confirmed.

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security forces were perpetrated by so-called dissident republican groups, that is, people who disagree with the peace settlement reached in the Belfast (Good Friday) Agreement of 1998. The International Monitoring Commission, which was created in 2004 to monitor continuing paramilitary activities and the UK government’s commitment to normalisation measures, was wound up in March 2011, but in its final report to the UK Parliament it noted that: Paramilitary violence is still a real issue. Dissident republicans are an active and serious threat, especially at the moment against members of the [police]. They apparently seek to undermine community policing. Loyalists, though they have decommissioned and with varying degrees of success have led members away from crime, have yet to inspire confidence that they are capable of finally going away as paramilitary organisations, as [the IRA] has.3 The Department of Justice’s Organised Crime Task Force confirmed the view that some members or former members of paramilitary groups remain heavily involved in organised crime, even if on the surface they claim to be opposed to it. Dissident republicans were said to be ‘prolific smugglers of fuel and tobacco products into Northern Ireland’ and to be involved in extortion, tiger kidnappings, weapons procurement and armed robberies.4 In his fourth annual report the independent reviewer of the Justice and Security (NI) Act 2007, Robert Whalley, reported that from August 2010 to July 2011 ‘[o]verall there was no lessening of the security threat and in the view of some people it got worse. The formal assessment of the threat by the Security Service has remained at “Severe”, the second highest in the tiered level of threats, throughout the period under review’.5 An unpublished report by Lord Carlile of Berriew QC into the operation of the arrangements for handling national security matters in Northern Ireland found that ‘there are no difficulties of any significance in the inter-operability between the Police Service of Northern Ireland and the Security Service’ and that there was a commendably sound working partnership between the two organisations.6 More detailed statistics on the treatment of terrorist suspects are available only on a financial year basis.7 From April 2010 to March 2011, 195 persons were arrested in Northern Ireland on suspicion of involvement in terrorism,8 only 17 of whom (9%) were detained for longer than 48 hours. All but eight of the persons arrested requested access to a solicitor and all of these requests were immediately granted. Forty-one of the persons arrested (21%) were charged with offences. These included two charges of murder, 45 firearms offences, 17 explosives offences, eight offences of possessing items for terrorist purposes, six offences of collecting information useful to terrorists and three offences of belonging to a banned organisation.9 Under the power to stop and search conferred by section 44 of the Terrorism Act 2000 (which was discontinued in July 2010) there were as many as 11,262 vehicles and 9,156 persons stopped. Robert Whalley reports that in the year August 2010 to July 2011 the number

3

HC 1149 (4 July 2011), para 15.2.

4

Annual Report and Threat Assessment: Organised Crime in Northern Ireland, 2011, p 16.

5

Paras 76-7. The UK government published a new version of its counter-terrorism strategy (CONTEST) in 2011, but this said little that was specific to Northern Ireland. It did note, however, that the threat from Northern Irelandrelated terrorism had grown, particularly in Great Britain (para 1.10). 6

Press Release by the Northern Ireland Office, 19 December 2011.

7

The latest being the Northern Ireland Terrorism Legislation: Annual Statistics 2010/11, published by the Northern Ireland Office in November 2011. 8

Under the Terrorism Act 2000, s 41.

9

According to the PSNI’s statistics there was a total of 1,243 ‘offences against the State’ recorded in Northern Ireland during this period.

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of stops in relation to the security situation in Northern Ireland fell by 49%, but that there was a steep rise of 158% in the use of the power to stop and search under the Justice and Security (NI) Act 2007. A 35% fall in the number of people being stopped and questioned was heavily outweighed by a 12-fold increase in the number of stops and searches of people, premises and vehicles.10 Amendments to the counter-terrorism stop and search powers applicable in Northern Ireland have since been made by the Protection of Freedoms Act 2012.11 Regarding case law in this area, the most significant decisions were probably those by the UK Supreme Court relating to the use of a ‘closed material procedure’ in cases raising national security concerns. In Al-Rawi v Security Services 12 the 8-judge bench held that courts had no common law power to use such a procedure during the trial of a civil claim for damages. Unless Parliament chooses to change the system, all the courts can do is consider an application for public interest immunity in the public interest. But in a case heard by the same judges immediately after Al-Rawi, Tariq v Home Office,13 it was held (with Lord Kerr dissenting in part) that in employment tribunals a claimant can be excluded from aspects of the proceedings, together with his or her legal representatives, on grounds of national security. The Court of Appeal had required the Home Office to provide the ‘gist’ of its case to Mr Tariq, but the Supreme Court said that was unnecessary. They did not think that a closed material procedure in an employment tribunal was incompatible with either Article 6 of the European Convention on Human Rights or with EU Law. At the time of writing, at the end of 2012, the UK government’s proposals to permit closed material procedures in civil cases are being considered by Parliament in the Justice and Security Bill.14 In other notable court cases, a court in Lithuania convicted a dissident Irish republican, Michael Campbell, of attempted weapons smuggling for the Real IRA and sentenced him to 12 years in prison.15 In February 2011, Gerry McGeough, a former member of the IRA, was convicted in Belfast of the attempted murder of a part-time member of the Ulster Defence Regiment in 1981 and was sentenced to 20 years in prison.16 As a result of the provisions in the Northern Ireland (Sentences) Act 1998, enacted in the wake of the Good Friday Agreement, he will be required to serve just two years, but there has been a campaign to have him released before then.17 In July 2011 two dissident republicans, Michael McKevitt and Liam Campbell, lost their appeal against a judge’s ruling in 2009 that they were responsible in civil law for the bomb in Omagh in 1998, which killed 29 people, and that they should pay damages of £1.6 million to relatives of the victims.18 Two other appellants won their appeals, although one of them, Colm Murphy, was ordered to face a retrial of the civil claim against him. In March the Divisional Court in Belfast rejected an application by Colin Duffy and others for a declaration that the pre-charge detention provisions in the Terrorism Act 2000, which at that time allowed for extensions of the detention up to a total of 28 days, were incompatible with the right to liberty protected by Article 5 of the European Convention on Human Rights.19 Fourteen

10

Note 5 above, para 397; see too paras 122-151, 198-236 and App B.

11

ss 59-63.

12

[2011] UKSC 34, [2012] 1 AC 531. Lord Rodger had also been scheduled to hear the appeal but died before it was concluded. 13

[2011] UKSC 35, [2012] 1 AC 452.

14

Currently clauses 6-12.

15

www.bbc.co.uk/news/uk-northern-ireland-15388614.

16

R v McGeough [2011] NICC 7 and [2011] NICC 16.

17

www.freegerry.com.

18

Breslin et al v McKevitt et al [2011] NICA 33.

19

Duffy’s Application for Judicial Review (No 2) [2011] NIQB 16; see too B Dickson, ‘Article 5 of the ECHR and 28-day pre-charge detention of terrorist suspects’ (2009) 60 NILQ 231.

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loyalists, allegedly connected to the Ulster Volunteer Force, were tried in Belfast during the closing months of 2011 for a range of offences going back a decade or more, including murder. It was the first ‘supergrass’ trial for 25 years, prosecution evidence being provided by brothers David and Robert Stewart who, because they were ‘assisting offenders’,20 had previously received sentences of just three years for their part in a murder.21 In February 2012, after a 71day trial, the judge acquitted all but one of the 14 defendants and branded the evidence from the Stewart bothers as unreliable and ‘infected with lies’.22 It is likely that the whole experience has made the police and prosecution services more wary about using such a trial technique in the future. Dealing with the past Throughout 2011 debate continued intermittently on what further steps should be taken to deal with the past in Northern Ireland, but nothing was done by the UK or Northern Ireland governments to put concrete measures in place. Following the UK government’s announcement that it accepted there was collusion in the murder of the solicitor Patrick Finucane in 1989 and that it was asking Sir Desmond De Silva QC to review all of the papers relating to the murder,23 the Northern Ireland Human Rights Commission issued a statement calling for a full public inquiry.24 The final report of the public inquiry into the murder of another solicitor, Rosemary Nelson, in 1999, made it quite clear that the police had failed to pass on warnings they had received that Mrs Nelson’s life was in danger from loyalist paramilitaries.25 The findings suggest that the police’s failure to respond to the real and immediate threat to Mrs Nelson’s life was a violation of Article 2 of the European Convention on Human Rights, although no such claim has been brought to the courts. The final report of the Hamill Inquiry was put on hold in 2011 because of pending criminal prosecutions of a former police officer. Calls were again made for an inquiry into killings perpetrated by members of the British army’s Parachute Regiment in the Ballymurphy area of Belfast in 1971; British Irish Rights Watch has been particularly active on this issue.26 In the Supreme Court there was a significant volte-face by the Justices in In re McCaughey.27 Departing from the precedent set in Re McKerr,28 they ruled that the duty to thoroughly investigate suspicious killings extended to those deaths occurring before the commencement of the Human Rights Act, provided significant steps in the investigation remained to be taken at that date. In so deciding the Justices applied a decision of the Grand Chamber of the European Court of Human Rights in Šilih v Slovenia,29 itself an indication that the UK’s top court is prepared to reverse its own position if Strasbourg considers it to be out of line with what the European Convention requires. A further dimension to dealing with the past was addressed by the Supreme Court in R (Adams) v Secretary of State for

20

Under the Serious Organised Crime and Police Act 2005, ss 71-75.

21

[2010] NICC 8.

22

R v Haddock et al [2012] NICC 5.

23

HC Debs, vol 533, col 335, 12 October 2011 (per Owen Paterson, Secretary of State for Northern Ireland).

24

Press Release, 8 February 2011.

25

The Rosemary Nelson Inquiry Report, HC 947, 23 May 2011.

26

See the Annual Report of British Irish Rights Watch 2011, p 15.

27

[2011] UKSC 20, [2012] 1 AC 725.

28

[2004] UKHL 12, [2004] 1 WLR 807.

29

(2009) 49 EHRR 996.

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30

Justice, where Raymond McCartney and Eamonn MacDermott, who had both been convicted in Northern Ireland’s Diplock Courts in 1979, succeeded in obtaining recognition that they had suffered a miscarriage of justice which qualified for compensation under the Criminal Justice Act 1988.31 The Justices held by five to four that the doubt cast on the police’s credibility at the time of the defendants’ interrogation meant that there was a new fact which so undermined the evidence against them that no conviction could possibly be based on it.32 This opens the door to many more compensation claims by persons who challenge their convictions in Diplock Courts. Controversy plagued the Office of the Police Ombudsman throughout the year, the main allegations being that the Police Ombudsman was not adequately ensuring the independence of his office and that investigations of ‘historical’ complaints were not being dealt with as well as they might have been. The Office’s Chief Executive, Sam Pollock, resigned in April 2011 and later publically accused the Ombudsman of compromising the office’s independence. In June a report by an independent reviewer concluded that there was weak leadership in the office.33 The Ombudsman himself, Al Hutchinson, asked the Criminal Justice Inspector to investigate whether there was the proper degree of independence between his office and the police, and in September 2011 the Inspector reported that, while there were no major worries about the Ombudsman’s handling of current cases, there were significant concerns around how ‘sensitive, complex and high profile historical cases’ were being handled.34 According to the report, there were serious divisions within the senior management of the organisation which had created a dysfunctional environment and impacted negatively on staff morale, and the office’s reports had been ‘heavily influenced and buffeted by feedback from non-governmental organisations, families, their legal representatives and the Police Service’.35 Mr Hutchinson announced that he was accepting the recommendation that his office should cease working on historical cases until a better system for handling them could be devised and he said that he would step down early from his position, which he did in January 2012. Six months later he was succeeded in the post by Michael Maguire, who had previously been the Chief Inspector of Criminal Justice. Notwithstanding the Northern Ireland Executive’s antipathy to further expensive public inquiries into past atrocities, it did agree to set up an inquiry into historical institutional child abuse,36 largely on the back of the Ryan Commission in the Republic of Ireland.37 In 2011 the US Congress seriously considered ending its financial support for the International Fund for Ireland because, while it recognised that more still needed to be done to preserve the peace in Northern Ireland, enough had already been achieved to allow the Fund to be wound down. Eventually, however, the US administration allocated $2.5 million to the Fund.38

30

[2011] UKSC 18, [2012] 1 AC 48.

31

s 133.

32

Lord Kerr, a former Lord Chief Justice of Northern Ireland, was one of the five Justices who held in favour of the appellants. 33

www.bbc.co.uk/news/uk-northern-ireland-13978341. The review was conducted by Tony McCusker, Chairman of the Community Relations Council. 34

An Inspection into the Independence of the Office of the Police Ombudsman for Northern Ireland.

35

Press release by the Criminal Justice Inspectorate, 5 September 2011.

36

For the terms of reference see www.northernireland.gov.uk/statement-to-assembly-hia-inquiry-tor.

37

The Commission to Inquire into Child Abuse (2009). See Kristin Archick, Northern Ireland: The Peace Process, Congressional Research Service, Washington DC, 6 March 2012. For the US Department of State report on human rights in the UK in 2011, including Northern Ireland, see www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper. 38

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Criminal law and policing The Supreme Court sent further messages to all three jurisdictions in the United Kingdom when it held in Fraser v HM Advocate that the prosecution’s failure to disclose certain evidence to the defence team in a Scottish murder trial meant that the defendant’s trial had been unfair under Article 6 of the European Convention and that his conviction should be quashed.39 In a later case from Scotland raising a devolution issue, Ambrose v Harris, the Supreme Court ruled that evidence obtained from answers given by a suspect prior to being questioned at a police station in the presence of a solicitor was admissible in two appeals but not in the third.40 Only Lord Kerr was prepared to hold that Article 6(3)(c) of the Convention meant that if a suspect was liable to incriminate himself at any time when he or she was questioned by the police, a lawyer’s presence was required. Lord Kerr again dissented in a comparable case considered by the Supreme Court a few months later, McGowan v B,41 where the Lord Advocate wanted to rely upon answers given by a suspect in police custody who, before being interviewed, had been informed of his right to legal advice but had waived it. In yet another Scottish case, heard alongside Ambrose v Harris, the Supreme Court ruled in HM Advocate v P (this time with Lord Kerr’s concurrence)42 that the rule requiring a suspect in police custody to have access to a solicitor before his or her answers to questions are admissible as evidence does not extend to evidence obtained indirectly as a result of what he or she said and which has an independent existence. So in that case the Crown was permitted to rely on P’s friend’s evidence about a conversation he had had with P, even though the friend was only contacted by the police because P had said (in the absence of a solicitor) that his friend could back up his statement. In one further Article 6 case reaching the Supreme Court, Serious Organised Crime Agency v Gale, 43 the Justices unanimously ruled that there was no violation of the European Convention on Human Rights when the civil rather than the criminal standard of proof was applied to the question whether the appellants could be required to give up property to the value of £2 million,44 even though they had not been convicted of the criminal activity from which the property was allegedly derived. This is a ruling which could potentially play a significant role in the police’s pursuit of ill-gotten gains in Northern Ireland, although it does seem to somewhat blur the line between criminal and civil justice systems. That line was further blurred by the introduction of an offender levy by the Justice Act (NI) 2011,45 the first piece of legislation on criminal justice issued by the Northern Ireland Assembly since the historic devolution of power in that field in 2010. The levy means that adults who are convicted of a crime must pay between £5 and £50 to a Victims of Crime Fund which will be used to improve support services for victims, thereby helping to promote the right of such victims to an effective remedy for the human rights violation which they have suffered through a third party’s criminal conduct. The same Act expands the ‘special measures’ that can be taken to facilitate the giving of evidence by vulnerable and intimidated witnesses.46 The Criminal Justice Inspectorate produced a report on the care and treatment of victims and witnesses in December 2011.47 At the strategic level, this called for case management to be

39

[2011] UKSC 24.

40

[2011] UKSC 43, [2011] 1 WLR 2435.

41

[2011] UKSC 54. [2011] 1 WLR 3121.

42

[2011] UKSC 44, [2011] 1 WLR 2497.

43

[2011] UKSC 49, [2011] 1 WLR 2760.

44

Under the Proceeds of Crime Act 2002, Pt 5.

45

ss 1 -6.

46

ss 7-13.

47

The Care and Treatment of Victims and Witnesses in the Criminal Justice System in Northern Ireland.

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placed on a statutory footing to help avoid delays, for ‘victims’ champions’ to be appointed within the Police Service, the Prosecution Service, the Courts Service and the Probation Board, and for the establishment of coordinated Witness Care Units across Northern Ireland. The Inspectorate noted that, according to a recent survey, 23 per cent of respondents were dissatisfied with their overall contact with criminal justice agencies, a figure which needed to be significantly reduced. Two important amendments were made to the law on bail during 2011. By section 91 of the Justice Act (NI) 2011 the power to grant compassionate bail to persons who have been remanded in custody was extended to magistrates’ courts (previously only the Crown Court and High Court could grant it). Furthermore, by section 92 a person who has been refused bail by a magistrates’ court can now make a repeat application to the Crown Court even though there has been no change to his or her circumstances. However, no alteration was made to the legislation concerning the time during which a person can be remanded on police bail. In Connelly’s Application for Judicial Review48 the Divisional Court refused to follow the High Court of England and Wales in this respect,49 holding instead that the current legislation was compatible with Article 5 of the European Convention on Human Rights. In England and Wales emergency legislation was rushed through Parliament, and with retrospective effect.50 On the policing front, the Justice Act (NI) 2011 increased the accountability mechanisms for the Police Service of Northern Ireland by providing for the amalgamation of previously separate bodies into combined Policing and Community Safety Partnerships.51 These groups will assist the Northern Ireland Policing Board to ensure that the Police Service adheres to its policing plans. If they work effectively the new partnerships will improve community-police relationships and help to reduce crime rates. In May 2011 the Criminal Justice Inspectorate for Northern Ireland issued a generally positive report on the way in which the Police Service understands what is required from a customer perspective regarding the accessibility of services, standards for service delivery and achievement of better outcomes.52 The Inspector called for better co-ordination of projects within the Police Service to ensure greater consistency of service across Northern Ireland and he confirmed the view that the police needed to reduce the abstraction of neighbourhood police officers from their main task (80 per cent of their time should be spent on neighbourhood policing). The Northern Ireland Policing Board issued a thematic review on policing with children and young people53 and also a 140-page annual report (its seventh) on the Police Service’s compliance with the Human Rights Act 1998.54 As well as comprehensively reviewing the extent to which the Police Service has implemented the Board’s previous recommend-ations, 55 the 2011 report makes 16 additional recommendations.56 These include that the Police Service should consider how to make better use of expertise in the community when delivering specialist training packages, that it should provide an analysis of how it is dealing with applications to have fingerprints and DNA profiles and samples destroyed, that it should review and report on its intelligence policies and procedures, and that it should develop a hate

48

[2011] NIQB 62.

49

In R (Chief Constable of Great Manchester Police) v Salford Magistrates’ Court and Paul Hookway [2011] EWHC 1578 (Admin). 50

Through the Police (Detention and Bail) Act 2011.

51

ss 20-34.

52

Police Service of Northern Ireland Customer Service.

53

Your Say on Policing.

54

Human Rights Annual Report 2011.

55

See Appendix 2 of the report.

56

See Appendix 1 of the report.

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crime strategy. Since these annual reports began in 2005, the Police Service has implemented 176 recommendations. In March 2011 the Northern Ireland Office brought to an end the 10-year-old practice whereby 50 per cent of positions as new police officers were reserved for applicants from a Catholic background.57 The percentage of Catholic officers in the Police Service had by then reached 29.76 per cent, far short of the 45 per cent in the population as a whole, but enough of an improvement on the pre-2001 figure to justify removal of the positive discrimination measure. Both nationalist and republican politicians condemned the removal of the 50:50 rule as premature; they would have liked it to remain in place until at least 40 per cent of the police were from a Catholic background.58 Prisons Throughout 2011 a row rumbled on concerning the strip searching of dissident republican prisoners at Maghaberry Prison. The prisoners resented the frequency of the searches but the Prison Service insisted they were necessary for security reasons. Several dissident republicans conducted a dirty protest at the prison.59 By the end of the year the Minister for Justice was still deliberating on whether to install full body scanners, which have the potential to make stripsearching virtually redundant. An application for judicial review of the policy of routine full body searching of prisoners on entering and leaving Maghaberry Prison was unsuccessful. 60 Republican and loyalist prisoners are still held in separate parts of the prison, away from each other and from other prisoners. This is an expensive policy, but one that may be necessary, given the risks to life which requiring a more integrated system might engender. More generally, the Minister for Justice continued his efforts to reform the Prison Service, prompted by two hard-hitting reports from a Prison Review Team, an interim one in February and a final one in October.61 These painted a picture of a somewhat outmoded and dysfunctional organisation, with too many of the staff displaying a mindset more suitable to the dark days of the troubles than to the post-Good Friday Agreement situation. A severance scheme was offered to encourage long-standing staff to leave with a generous financial package. The plan is to greatly reduce the size of the Prison Service and to divest it of a mindset overly fixated on security rather than on rehabilitation. In June 2011 the Criminal Justice Inspectorate published a report on the way reports are compiled by probation officers for use by courts when they are considering how to sentence people who have been convicted of crimes.62 About 6,000 of these pre-sentence reports are produced each year. The Inspectorate praised the high quality of the reports and noted the high level of satisfaction on the part of the judges who make use of them. It recommended that greater use should be made of ‘specific sentence reports’ to help district judges in magistrates’ courts decide whether to punish someone with a community service order or a probation order. More research also needs to be done to see if sentencing decisions taken by judges correlate with the sentencing options outlined in pre-sentence reports. The Inspectorate also published reports on inspections of three places of detention in Northern Ireland. The report on Woodlands Juvenile Justice Centre was very positive.63 It

57

Northern Ireland Office, Press Release, 22 March 2011.

58

See the summary of party positions at www.agendani.com/party-policy-summary-2.

59

See the Annual Report of British Irish Rights Watch 2011, p 11.

60

Brendan Conway’s Application for Judicial Review [2011] NIQB 40.

61

Review of the Northern Ireland Prison Service: www.prisonreviewni.gov.uk/final-prison-review-oct11.pdf.

62

Pre-Sentence Reports.

63

An Announced Inspection of Woodlands Juvenile Justice Centre, November 2011.

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found that children were being given high levels of care and control and that standards of healthcare and education were also high. Overall the Centre was recognised as ‘a model of good practice’. The report on Ash House (Hydebank Wood Women’s Prison) noted some improvement since the last inspection in 2007 but concluded that the women’s needs regarding exercise, education, training and healthcare would never be properly met until the Prison Service created a separate and dedicated women’s establishment.64 The creation of collaborative partnerships with external education and training providers was called for as a matter of urgency. The report on Hydebank Wood Young Offenders Centre was the least complimentary.65 The institution displayed many of the faults apparent in the women’s prison, including bullying, and was said to be a fundamentally unsuitable place in which to hold children under the age of 18. While excellent new safeguarding procedures had been introduced, they were not being effectively implemented; discipline processes were not ageappropriate and the quality of education and training was far short of what was required. The recommendation was repeated that 17-year-old children should be held at the Juvenile Justice Centre, not at the Young Offenders Centre. To complete the picture, the Criminal Justice Inspectorate also issued reports on the systems in place to manage the resettlement of prisoners and on the arrangements for protecting the public against potentially dangerous prisoners once they have been released from prison. The former noted that the Prison Service had benefited from the resources allocated to it to provide offending behaviour programmes so that prisoners could demonstrate to the Parole Commissioners that they were safe to be released.66 Additional staff had been appointed, colocated offender management teams were working well together, and there was a better environment for some life sentence prisoners, better engagement with the voluntary and community sector and greater effort to address the resettlement needs of short-term and remand prisoners.67 The report on public protection arrangements was equally reassuring, given that they concern the management within the community of serious offenders, including sex offenders.68 The inspection found that all the justice organisations participating in the arrangements had improved their performance: they were communicating better, especially with social services, and a new assessment process was providing greater consistency. Again, the picture compared favourably with those in Great Britain and the Republic of Ireland. Sadly, during 2011 there were four deaths amongst prisoners in Northern Ireland, two at Maghaberry and two at Hydebank Wood (one each at the Women’s Prison and the Young Offenders Centre). In 2011-12 the Prisoner Ombudsman issued reports into six deaths and received 373 complaints from prisoners, a 14 per cent increase on the previous year. In 2010-11 she had made 230 recommendations for improvements in the Prison Service; her report for 2011-12 announced that 90 per cent of these had been accepted by the Service. The Minister for Justice is committed to placing the Prisoner Ombudsman’s office on a statutory footing, but even by the end of 2012 this had not yet occurred. In the wake of the UK’s ratification of the Optional Protocol to the UN Convention Against Torture, which requires national preventive mechanisms to be established to ensure that illtreatment does not occur in places of detention, the report on the first year of the UK’s mechanism was published in February 2011.69 As far as Northern Ireland is concerned, the four bodies which conduct the monitoring are the Policing Board’s independent custody visitors (who visit police stations), the Independent Monitoring Boards (whose members visit prisons),

64

Report on an unannounced short follow-up inspection of Hydebank Wood Women’s Prison, March 2011.

65

Report of an unannounced short follow-up inspection of Hydebank Wood Young Offenders Centre, March 2011.

66

As required by the Criminal Justice (NI) Order 2008.

67

An inspection of prisoner resettlement by the Northern Ireland Prison Service, October 2011, v.

68

An inspection of public protection arrangements in Northern Ireland, June 2011.

69

Monitoring Places of Detention: First Annual Report of the UK’s National Preventive Mechanism, February 2011, Cm 8010.

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the Criminal Justice Inspectorate, and the Regulation and Quality Improvement Authority (which inspects the provision of health and social care in places of detention). Some of the key concerns already emerging from the collective work of these bodies (and the 14 associate bodies in Great Britain) are the way in which the mental health needs of those in custody are dealt with and the special needs of other vulnerable groups such as women and young people. The National Preventive Mechanism’s second report, covering the period April 2010 to March 2011, shows that the rate of imprisonment in Northern Ireland in 2011 was 93 per 100,000, while in England and Wales it was 152, and in Scotland 153.70 Amongst the concerns raised by the Independent Monitoring Boards were the availability of drugs in prisons, the limited time prisoners were allowed to out of their cells, the insufficient quantity and range of purposeful activity, and overcrowding. As regards judicial decisions, prisoners in Northern Ireland may one day benefit from the clarity brought by two decisions of the Supreme Court to the rules of public law relating to the detention of foreigners. In R (Lumba) v Secretary of State for the Home Department the Court held, by six to three, that the Home Secretary’s failure to publish a change of government policy relating to the deportation of foreign national prisoners made their continued detention under the new policy unlawful.71 Similarly, in R (SK (Zimbabwe)) v Secretary of State for the Home Department the Supreme Court ruled that the Home Secretary’s failure to conduct regular reviews of the detention of a foreign national, as required by the government’s published policy, made that person’s continued detention unlawful.72 As in the Lumba case, however, there was no clear decision that the illegality should be remedied by anything other than an award of nominal damages. The Supreme Court’s decision in R v Smith (Nicholas) was not such good news for prisoners: it means that a sentence of imprisonment for public protection can lawfully be imposed on a person recalled to prison who had previously been released from a life sentence on licence.73 The Justices said that the legislation in question required the sentencing judge to immediately impose such a sentence if there was a significant harm to the public.74 On the exercise of discretion, although it was not sensible to impose imprisonment for public protection in circumstances where it would achieve no benefit, in this case the sentencing court was able to express its clear finding that Mr Smith did in fact satisfy the dangerousness provisions of the 2003 Act.75 In Irwin’s Application for Judicial Review Treacy J rejected the claim that it was unlawful for prison wardens at Magilligan Prison to carry out routine headcounts and body checks of prisoners in their cells on a two-hourly basis between approximately 10.00pm and 7.00am each night.76 In Reilly’s Application for Judicial Review, however, the Court of Appeal reversed Treacy J and held that on the facts of that case the applicant had no right to an oral hearing when the Parole Board was considering whether he should be released from prison.77

70

Monitoring Places of Detention: Second Annual Report of the UK’s National Preventive Mechanism, February 2012, Cm 8282. The figure for the Republic of Ireland seems to be 98: see en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate (last accessed 2 January 2013). 71

[2011] UKSC 12, [2012] 1 AC 245.

72

[2011] UKSC 23, [2011] 1 WLR 1299. This too was a split decision, by three to two. Lords Rodger and Brown dissented in both Lumba and this case. 73

[2011] UKSC 37, [2011] 1 WLR 1795.

74

Under the Criminal Justice Act 2003, s 225(1)(b).

75

[2011] UKSC 37, [2011] 1 WLR 1795.

76

[2011] NIQB 107.

77

[2011] NICA 6.

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Private and family life The Justice Act (NI) 2011 relaxed slightly the restrictions placed on the disclosure of information relating to family proceedings held in private.78 This might mean, for example, that the Northern Ireland Commissioner for Children and Young People may in future be able to make use of such information for campaigning or investigative purposes. Several UK Supreme Court decisions during the year upheld in novel circumstances the concept of family life under Article 8 of the European Convention on Human Rights. In ZH (Tanzania) v Secretary of State for the Home Department the Court ruled that removing a mother from the United Kingdom as an illegal immigrant would, on the facts, constitute a disproportionate interference with her right to respect for her family life because it would mean overriding the best interests of her child, who was entitled to stay in the United Kingdom: the child’s interests were allowed to trump the State’s interest in maintaining its immigration policy.79 Likewise, in R (Aguilar Quila) Secretary of State for the Home Department Article 8 was held to be an insuperable obstacle to the imposition of a ban on the entry for settlement in the United Kingdom of foreign spouses or civil partners unless both parties were aged 21 or more.80 In Hounslow LBC v Powell the Supreme Court followed its ruling of the previous year in Manchester City Council v Pinnock81 and held that Article 8 must at least be considered when a local housing authority applies to a court to obtain possession of properties let on an ‘introductory tenancy’ basis or to people who are homeless: in such circumstances, when considering whether it would be proportionate to award possession to the housing authority, the court must give a reasoned decision as to whether a fair balance would thereby be struck between the authority’s property rights and the occupier’s Article 8 rights.82 Finally, in R (GC) v Commissioner of Police of the Metropolis the Supreme Court held that the police’s statutory discretion to retain biometric data obtained from criminal suspects who were not subsequently proceeded against or were acquitted could be exercised in a rational and proportionate manner which did not involve the type of blanket retention of data which the European Court had previously condemned in S and Marper v UK.83 On the other hand, in the tug-of-love case of In re E (Children) (Abduction: Custody Appeal)84 the Supreme Court dismissed the mother’s appeal against a ruling that she must return her two young daughters to Norway, from where she had abducted them. Baroness Hale stressed that the best interests of the child are already at the centre of the whole process laid down by the Hague Convention on the Civil Aspects of International Child Abduction 1980. In the courts of Northern Ireland, Weatherup J had to decide in King v Sunday Newspapers Ltd what damages should be awarded to a plaintiff who had successfully argued that a newspaper had misused private information.85 The information comprised the plaintiff’s (incorrect) address, details of his partner’s identity, a photograph of him and his partner,

78

s 95.

79

[2011] UKSC 4, [2011] 2 AC 166.

80

[2011] UKSC 45, [2012] 1 AC 621. The ban had been imposed by para 277 of the Immigration Rules (with effect from 27 November 2008) and was intended to deter forced marriages. Lord Brown dissented, saying that this was a matter better left to elected politicians and that disapplying the Immigration Rule went beyond what was required by the European Court’s case law to date. 81

[2010] UKSC 45, [2011] 2 AC 104.

82

[2011] UKSC 8, [2011] 2 AC 186.

83

[2011] UKSC 21, [2011] 1 WLR 1230 (Lords Rodger and Brown again dissented). In S and Marper v UK (2009) 48 EHRR 50 the European Court had overturned a decision of the House of Lords in R (S and Marper) v Chief Constable of South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196. 84

[2011] UKSC 27, [2012] 1 AC 144. The Justices clarified the import of the European Court’s decision in Neulinger and Shuruk v Switzerland [2011] FLR 122. 85

[2011] NIQB 101.

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details of his partner’s family, and information about his child. Having reviewed the level of damages awarded in comparable English cases, the judge held that £1,000 would suffice as compensation, a sum based mainly on the fact that the newspaper had published information about the plaintiff’s child. Social and economic rights In the continuing absence of any Bill of Rights-based protection of social and economic rights in Northern Ireland, courts continued to consider such claims through the law on judicial review. Thus, in McClean’s Application for Judicial Review McCloskey J issued a declaration that the Western Health and Social Care Trust, in withdrawing the applicant’s domiciliary cleaning service and failing to reinstate it, had acted unlawfully by failing to ensure that all material information and considerations were taken into account and by impermissibly taking into account the applicant’s disability-related benefits.86 Likewise, in PF and JF’s Application for Judicial Review Girvan LJ held that the South Eastern Health and Social Care Trust should reconsider its decisions relating to the level of direct payments for care being provided to PF.87 In Yemshaw v Hounslow London Borough Council the UK Supreme Court extended the protection of the homelessness legislation to victims of domestic violence who had not actually been struck by their partner but had been otherwise abused.88 But in R (McDonald) v Royal Borough of Kensington and Chelsea, where the issue was whether the Borough had acted unlawfully by amending the appellant’s care package so as to provide her with incontinence pads or absorbent sheets (even though she was not in fact incontinent) rather than with a night-time carer, the Supreme Court ruled that it had not.89 In R (G) v Governors of X School scant regard was paid to a teaching assistant’s right to work when, during a disciplinary hearing before a school’s governors, he was not permitted to have legal representation at the hearing even though the governors were bound to report their decision to dismiss him so that the Secretary of State could consider including his name on the list of persons deemed unsuitable to work with children: Article 6 of the European Convention had apparently not been breached.90 In Secretary of State for Children, Schools and Families v Fletcher the rule limiting the term of employment of teachers in ‘European schools’ to nine years was held to be justifiable under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.91 However, the teachers did succeed in establishing that their employment had a sufficient connection with the United Kingdom to allow them to bring an unfair dismissal claim in a UK employment tribunal.92 In the Supreme Court the Justices let it be known that discrimination on the basis of nationality can sometimes be permitted, even in the context of EU law.93 The Northern Ireland Assembly was unusually productive during 2011, issuing more Acts (29) than even the Parliament at Westminster (25). Amongst those affecting socio-economic rights were the Autism Act (NI) 2011, the Damages (Asbestos-related Conditions) Act (NI)

86

[2011] NIQB 19.

87

[2011] NIQB 20.

88

[2011] UKSC 3, [2011] 1 WLR 433.

89

[2011] UKSC 33. Baroness Hale dissented.

90

[2011] UKSC 30, [2012] 1 AC 167. Lord Kerr dissented.

91

[2011] UKSC 14, [2011] 2 All ER 417.

92

Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] UKSC 36, [2011] 4 All ER 1020.

93

Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11, [2011] 1 WLR 783. This case concerned a claim for state pension credit by a Latvian woman living in the UK.

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2011, the Commissioner for Older People Act (NI) 2011 and the Safeguarding Board Act (NI) 2011. Each in their own way has the potential to enhance the protection of human rights in Northern Ireland, although a lot will depend on the dedication of those charged with their implementation. In October 2011 Claire Keatinge was appointed as the first Commissioner for Older People. Amongst other things, she can assist older people with their complaints and launch formal investigations. More broadly, there was little progress on the equality law front in Northern Ireland during 2011. The Equality Commission continued to publish useful guides, reports and codes of practice, notably a report setting out the history of inequalities in the education sector in Northern Ireland.94 However, the Northern Ireland Executive made no further commitment to a Single Equality Bill, which had been promised years earlier, thereby keeping Northern Ireland behind the rest of the United Kingdom, which now has the Equality Act 2010. The UK government also continued to ignore calls for a Bill of Rights for Northern Ireland, but the Northern Ireland Human Rights Commission, which has been pressing for such a Bill since 2000, joined its counterpart in the Republic of Ireland in issuing an interesting document on a Charter of Rights for the island of Ireland as a whole.95 The UK government set up a Commission to consider whether there should be a Bill of Rights for the United Kingdom, which many commentators viewed as a thinly-disguised attempt to downgrade the Human Rights Act 1998. That Commission is not due to report until the end of 2012. How its recommendations will affect the prospects of a separate Bill of Rights for Northern Ireland will be of great interest to those who have campaigned for such a document for so long. The Northern Ireland Human Rights Commission acquired full ‘A’ status at the international association of national human rights institutions,96 and issued (together with the Law Centre (NI)) an online guide to migrants’ rights.97 It also commented on the Northern Ireland Executive’s much-delayed Programme for Government 2011-15, pointing out that in an age of austerity special consideration needs to be given to vulnerable groups such as victims of crime, members of the travelling community and the poor.98 In December 2011, the NIHRC submitted a report to the UN’s Human Rights Council prior to that body’s consideration of the Universal Periodic Review of the UK’s human rights record in 2012.99 The three issues highlighted were the failure of the Northern Ireland Executive to get involved in implementing human rights treaties to the full extent necessary, the need for the Executive to counter the political discourse and media coverage in Northern Ireland which fuels a negative perception of human rights and diminishes public confidence in the concept, and the failure of both the UK government and the Northern Ireland Executive to put in place a comprehensive framework for transitional justice in Northern Ireland. Just prior to the submission of that report the UN Deputy High Commissioner for Human Rights, Kyung-wha Kang of South Korea, visited Northern Ireland, and a few weeks later the Council of Europe’s Commissioner for Human Rights, Thomas Hammerberg, also visited, making the protection of the rights of Travellers and people with disability the main focus of his attention

94

Inequalities in Education: Facts and Trends 1998-2008. See too its Fair Employment Monitoring Report No 21.

95

The Advice of the Joint Committee on a Charter of Rights for the Island of Ireland, available at www.nihrc.org/documents/charter%20of%20rights/charter-of-rights-advice-june-2011-final.pdf. 96

Press Release by the NIHRC, 7 July 2011, available at www.nihrc.org/index.php/news/item/136-united-nationsawards-the-human-rights-commission. See too the Chart of the Status of National Institutions (p 6), available at nhri.ohchr.org/EN/Documents/Chart%20of%20the%20Status%20of%20NIs%20%2830%20May%202012%29.pdf. 97

Available at www.lawcentreni.org/publications/migrant-workers.html. www.nihrc.org/documents/advice-to-government/2011/programme-for-government-comments-december2011.pdf. 98

99

Available at www.nihrc.org/documents/treaty-and-international-work/2011/submission-to-un-human-rightscouncil-universal-periodic-review-of-uk-november-2011.pdf.

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Book Reviews

ON THE FRONTLINES: GENDER, WAR, AND THE POST-CONFLICT PROCESS by Fionnuala Ní Aoláin, Dina Francesca Haynes and Naomi Cahn (Oxford University Press, 2011. ISBN: 978-0195396652) The topic of women and war has attracted a surprising amount of international legal and policy attention in the last decade. The United Nations Security Council, having never given gender much thought, passed five resolutions on women, peace and security over the ten year period from 2000 to 2010. Various United Nations agencies now address gender and armed conflict as part of their strategic priorities, and state governments from both the global North and South must produce action plans and regular updates on their steps to mainstream gender into post-conflict programming. On one level, these legal and quasi-legal developments are depressingly technocratic (the production of national action plans, for example), with the radical edge of gender analysis seemingly buried deep under layers of paper work. On another level, there is something monumental about explicitly linking the masculine enterprise of armed conflict with the lives of women. This is, after all, the point of the Security Council’s actions: to recognise that armed conflict has profoundly gendered effects (on women, men, and children) that simply will not be seen, given entrenched gender biases, unless decision-makers are mandated to go looking for them. And what are these gendered effects? Fionnuala Ní Aoláin, Dina Haynes and Naomi Cahn set about answering that question in On the Frontlines, a study that examines the gendered dimensions of conflict and the array of post-conflict processes aimed at assisting states transition from periods of armed conflict or political violence. Here’s my prediction: On the Frontlines will become the ‘go to’ book for policy-makers (in both intergovernmental and national institutions) and academics working broadly in the area of post-conflict reconstruction. Let me start this review with some numbers. With 272 pages of text, On the Frontlines provides a detailed and authoritative discussion of the main developments that comprise international law and policy on post-conflict rebuilding. The eleven chapters cover the gendered experiences of, and policy issues in: different forms of conflict (chapter two); security and security sector reform (chapter three), international interventions (chapter four); peacekeeping (chapter five); disarmament, demobilization and reintegration (DDR, chapter six); post-conflict criminal accountability (chapter seven); non-criminal remedies for atrocities (chapter eight); post-conflict law and political reform (chapters nine and ten), and post-conflict development (chapter eleven).There are 73 pages of footnotes that, on their own, are an invaluable resource (and it’s worth noting that these footnotes are not padded in the way law journals in the United States seem strangely fond of). This book, in short, is thorough. It is also a desperately needed piece of scholarship, and an invaluable tool for policymakers; a rare combination. At one level, this is a simple book. The authors’ aim is summarised in one sentence on the first page: “we seek to explore the role that gender plays in the construction and implementation of the post-conflict transitional process”. And each subsequent chapter does this. Open the book to chapter four on “Engendering International Intervention” and you will find the objectives for that chapter nicely summarised on page 82 as exploring (among other things) the gendered contexts and limitations of international intervention. Each chapter also includes a section that explains how gender should be included to meaningfully advance the aims of post-conflict rebuilding. Chapter four, for example, includes a discussion of how a “gender-positive international intervention” could be structured to “capture the possibilities of the transitional moment to alter women’s lives for the better” (82). The eleven chapters combined provide a map of the different ways that post-conflict reconstruction and transition is gendered both in orientation (incorporating masculine biases in program design, for example) and effect (exacerbating gender inequalities, for example, by 189

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directing DDR programs to male and not female combatants). Some of this material, of course, can be found in other publications, but one of the strengths of this book is that it is the only publication that brings the extensive array of feminist research on women, peace and security together in one place. This synthesis of a growing scholarly and policy field is the first indicator that, on another level, this is a complex book. In addition to distilling vast bodies of research on conflict and post-conflict, a difficult enough task on its own as I explain below, the authors also formulate new conceptual frameworks to advance, for example, the mainstreaming of gender in international law and policy. Gender mainstreaming was a policy innovation that got underway in the 1990s at intergovernmental organisations, such as the United Nations and European Union, and which mandated the consideration of gender impacts in all policy decisions. The critiques of gender mainstreaming are too vast to list here. But the authors, in light of those critiques, propose a variant on mainstreaming that they call ‘gender centrality’ (see pp. 10-15). Whether ‘gender centrality’ is anything more than a more vigorous implementation of mainstreaming is hard to discern at this point, but conceptually it provides a touchstone for the authors. Throughout the volume, the authors explore the theme of ‘inclusion’ of women in peace and security initiatives as required by Security Council resolution 1325. For example, women are now expected to be ‘included’ in peace talks. Feminists have noted, though, that this ‘inclusion’ is often tokenistic and occurs too late in the peace negotiation process to be meaningful.1 Taking on board feminist critiques of ‘inclusion’ of women as potentially hollow, the authors draw on gender centrality to argue for an approach to women’s participation that is much more substantive than that suggested by Security Council Resolution 1325. Each chapter, in its ‘policy-prescription’ section, argues for a more robust role for women in postconflict rebuilding and transition, sometimes providing specific guidance on what actual, meaningful inclusion or consultation with women should look like. Another innovation – if that is the right word - relates to the interdisciplinary breadth of this book. The three authors are all based in law faculties in US universities, yet the topics covered go well beyond the accountability frameworks that tend to preoccupy lawyers working in this field. The chapters on development and governance, for example, are a welcome addition to a scholarly and policy discussion that too often views ‘ending impunity’ as the most pressing, post-conflict, goal. Chapter 11 makes the original argument for a concept of ‘social services justice’ that “refers to the range of potential services (social, economic, medical) that can be provided to victims both short and long term outside of the limited sphere of holding perpetrators criminal responsible …” (p. 262). And, chapter seven provides a welcome analysis of the limits of criminal accountability as a form of transitional justice for women. The breadth of this book, while laudable, brings with it distinct challenges. The reach of the authors’ ambitions in this volume mean that each chapter – from security sector to rule of law reform – has to find a balance in distilling key themes from an emerging (and far from finished) scholarship that is often based in context-specific field research and ethnographic study. How to do this in a way that does not distort the nuance of field research, yet finds something meaningful to say at the level of policy prescription? For the most part, the chapters in this volume strike the right balance. The discussion of the gendered experiences of, and needs for security, for example, is outstanding and should be essential reading for the army of scholars, lawyers, and criminologists flocking to the international security studies field. The same is true for the chapter on law reform and constitutional design (chapter nine). Less successful, in my reading, are the chapters on governance and development (chapters ten and eleven), even while I see these two chapters as marking the strength of this book as an interdisciplinary inquiry. Both these topics – governance and development – are vast fields in

1

C Bell and C O’Rourke, “The Impact of UNSC Resolution 1325 on Peace Processes and Their Agreements” (2010) International and Comparative Law Quarterly 1.

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Book Reviews

their own right, making the distillation of over-arching principles relating to the post-conflict context even more difficult. Chapter 11, on the gendered dimensions of development and transition, for example, seemed to skirt some of the hard questions about development—and about who makes development decisions—in the context of post-conflict transition. Gender equality has been given a greater emphasis in post-conflict development initiatives, and has been a focus for international funders. How have these gender sensitive programs aimed at post-conflict development fared to date? How far do they go in addressing the authors’ concerns in this chapter? Another difficulty confronting the authors in this undertaking is the perennial problem of any feminist inquiry that makes gender the central analytical framework: the relationship between gender and other relations of dominance, such as race, colonialism, and so on. The authors are clearly alive to the perils of treating gender as an undifferentiated category, and note in the introduction the “undercarriage of neocolonial attitudes” (p. 18) found in western interventions in conflict and peace-building. Yet this volume, and indeed most of the literature on women, peace and security, does not fully interrogate the intersections of gender, race and colonialism that structure both conflict and international interventions.2 The issue of intersecting forms of oppression would seem to be most powerfully relevant to one of the central themes of this book: how to make ‘inclusion’ substantive and meaningful as a governance strategy. The post-conflict context can be particularly volatile as different groups, whose identities as groups have been structured or hardened through periods of conflict, vie for access to resources and power. The question of representation in this climate is difficult. Which women should be included in peace negotiations, for example? Which women will be consulted and listened to in needs assessments? Can meaningful gender consultation even be accomplished in an arena over-determined by, for example, ethnic or regional identity?3 The softcover of On the Frontlines carries a photograph from what is presumably a warzone in the twentieth or twenty-first century. It pictures a large, green armored army truck (a tank?) that is additionally fortified with an inbuilt metal grate encircling the body of the vehicle. Walking alongside the truck/tank is a woman on her own, in her 30s or 40s, well dressed with a fashionable over-coat, matching scarf over her hair, and stylish pumps. She seems to be ignoring the truck that towers over her. As an image, this photo is both mundane and iconoclastic. In some respects, it looks like a lot of other photos of warzones that have populated the international press in the last twenty years: the brute force of weaponry placed alongside the soft-bodies of civilians. This juxtaposition of the military and the (feminised) civilian is now a staple comment on the tragic dimensions of modern warfare that takes place alongside, and on the bodies of, civilians. There is, in this respect, nothing out of the ordinary about this photo. But the picture is also iconoclastic in that the combination of women and military force still jars one’s sensibilities. In western mythmaking, the armed might of the state is meant to protect the civilian home-front. It is not clear in this photo if the looming truck/tank is protecting this well dressed woman or is yet another obstacle she negotiates in her daily life. Is she frightened as she passes this vehicle? Did she have to travel a long way to go around this truck/tank? What challenges or indignities did she endure in her journey? And how does her experience affect the ability of this society to achieve peace, or move beyond conflict? As Fionnuala Ní Aoláin, Dina Haynes and Naomi Cahn argue in this book, international decision-makers need to be asking and answering questions such as these. Addressing the gendered effects of armed conflict impacts on a society’s transition from conflict to postconflict, violence to peace. On the Frontlines provides a much needed template for how scholars

2

But see A Mama and M Okazawa-Rey, “Militarism, Conflict and Women’s Activism in the Global Era: Challenges and Prospects for women in Three West African Contexts” (2012) 101 Feminist Review 97. 3

S Kouvo, “Taking women Seriously? Conflict, State-Building and Gender in Afghanistan”, in S. Kouvo and Z. Pearson (eds)., Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Oxford, Hart Publishing, 2011), 159.

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and policy-makers can pursue the questions that need to be answered about gender, conflict and post-conflict.

DORIS BUSS Carleton University

THE UN HUMAN RIGHTS TREATY SYSTEM: LAW AND PROCEDURE by Suzanne Egan (Bloomsbury Professional, 2011, ISBN: 9781847661098) “The challenge for any student, practitioner, advocate or interested observer of [UN human rights procedures]” is, Suzanne Egan asserts at the end of the introductory chapter, “to reach a critical understanding of their capacity to affect meaningful change in the lives of oppressed individuals, having due regard to their intrinsic limitations.” Fortunately, Egan’s The UN Human Rights Treaty System: Law and Procedure provides an excellent starting point from which to confront this challenge. Given the profound changes to the international human rights landscape within the UN over the past decade, it is timely that a work such as this text should set the scene in the clear, methodical approach that the author adopts. Coupled with the recent growth in the theory and practice of international human rights law, as well as its increasing visibility on university curricula both at undergraduate and postgraduate levels, Egan’s text makes a valuable contribution to the literature and would be an excellent resource for those studying the UN human rights system at both undergraduate and postgraduate levels. The complex system of UN human rights treaties and mechanisms is one that students frequently have difficulty mastering. Structurally, the text is logically delineated and the material is presented in manageable and succinct form. Part I of the text deals with the foundations of the UN human rights treaty system and within this examines in detail the institutions and structure of the UN and the human rights treaties. One of the major strengths of this work is the extensive referencing throughout. Students will no doubt be grateful for the expansive bibliography which includes many of the seminal primary and secondary sources, introducing the reader to the differing opinions on the efficacy of the UN treaty system. As well as this, Egan frequently resorts to the travaux of the treaties under discussion, giving both student and practitioner an interesting insight into the history and genesis of the major international human rights treaties. Part II explores the UN reporting and investigative procedures, considering the periodic reporting procedures, inquiry procedures and preventive mechanisms. Egan’s analysis of the current procedures at the end of chapter 4 is particularly incisive. Considering the expectation that textbooks promote critical thinking rather than simply providing detailed information, Egan’s critique interspersed throughout the text is welcome. Part III of the text provides a thoroughly comprehensive review of the individual complaints procedures under the various human rights treaties, including the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention Against Torture; the Convention on the Elimination of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities; the International Convention on the Protection of the Rights of All Migrant Workers and their Families; the International Covenant on Economic, Social and Cultural Rights; and the International Convention for the Protection of All Persons from Enforced Disappearances. The draft Optional Protocol to the Convention on the Rights of the Child, which would allow for an individual complaints procedure under the convention, is also considered. An excellent 192

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assessment of the work of the treaty bodies is provided here, which highlights some of the crucial case law as well as the other functions of the treaty bodies such as the issuing of general comments. The chapters examine the procedure and admissibility criteria for each treaty body as well as the requirement of exhaustion of domestic and conclude with a useful appraisal of the work of each body. Part IV of the text turns to reform of the UN human rights treaty system and tracks the proposals for reform which, Egan notes, have been on the UN agenda for at least two decades. The discussion here centres on the reports of Philip Alston as well as the various initiatives undertaken to attempt to enhance coordination between the treaty bodies and the proposals for a unified standing treaty body. One important issue that Egan notes has received limited attention in discussions on reform is the “extent to which greater complementarity might be developed between the treaty body system and the universal periodic review procedure being operated by the Human Rights Council” (p. 476). Although perhaps beyond the remit of the current text, it would have been interesting to have the author’s assessment of this question. The UN human rights treaty system is usually dealt with as one aspect in textbooks dealing more broadly with international human rights law as an aspect of international law, with some notable exceptions such as Bayefsky’s The UN Human Rights Treaty System: Universality at the Crossroads (Martinus Nijhoff, 2001) and Mertus’ The United Nations and Human Rights (Routledge, 2009). This text, dedicated entirely to what is a burgeoning and intricate system, provides a necessary comprehensive critique. Aimed primarily at students and practitioners of human rights law the text will undoubtedly be indispensable for both.

EDEL HUGHES University of East London

DETENTION IN THE ‘WAR ON TERROR’: CAN HUMAN RIGHTS FIGHT BACK? by Fiona de Londras (Cambridge University Press, 2011. ISBN: 978-0521197601) This thoughtful and intelligent book reflects on the impact of the reaction to the events of 11 September 2001 on one field of law, that of detention for other than the proven commission of a criminal offence. It is true that as the author acknowledges ‘internment or preventive detention of suspected terrorists has long been a feature of counter-terrorism and responses to other kinds of violent threat’ (p 2) but she judges the 11 September focus of her study to be nevertheless valuable, for three reasons in particular, all of them rooted (broadly speaking) in the times in which we live: first, that this is (unlike earlier eras) ‘an age of human rights’ (p 3); second, the US-dominated unipolar world in which the events of that day occurred; and third the fact of ‘the coalition of the US and the UK in the context of the “War on Terror” [having] constituted a powerful hegemon in a highly securitised world’ (p 3). If you were examining the thesis this book is based on rather than (just) reading the book, you’d use up the first hour or so of the viva with a careful interrogation of these assumptions. So far as previous panics were concerned, human rights surely played an important politicolegal role in controlling state action in Northern Ireland: remember all those Amnesty reports, court proceedings and UN visitors – I imagine it often felt like an ‘age of human rights’ to the UK officials being berated by the latest visiting delegation or Strasbourg judge. Is unipolarity just a fancy word for saying one of the countries under scrutiny felt it could do what it liked, and the other could always be relied upon to trot along behind - but if so in what way does this make responses to terrorism (rather than other stuff) different today than they were, say, when it was the Red Army Faction in Germany or ETA in Spain (not to mention the IRA where the 193

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mini-feud between Her Majesty’s Government and Irish America had little if anything to do with the Cold War)? And where does the Gramscian stuff about hegemon take you if not into very different territory than that occupied by what is essentially a very good legal study of particular responses to a specific event in a particular place? The ‘particular responses’ that mainly concern the author are those of the US and the UK. This is both a strength and a weakness but more the former than the latter. Betraying (but not in a disconcerting way) its origins as a thesis, the book does not get to them directly, lingering initially in a neat theoretical framing of responses to terrorism in terms of ‘panic and fear’ (ch 1). The work of Stan Cohen, David Garland and Ulrich Beck is used to explain a kind of ‘”bottom-up” popular panic’ (p 10) which dovetails with the ‘”Top-down” manufactured’ panic (p 19) more familiar to critics of government action in this field to produce quite a momentum in the direction of coercive laws and executive action. On the top-down problem, the author is convincing in the way she uses the five indicators of moral panic formulated by Goode and Ben-Yehuda and almost biting (in my opinion justifiably so) about the argument of Eric Posner and Adrian Vermeule that ‘panic or fear does not necessarily result in repressive decision-making’ (p 30) – something which, to be effective, this book very much needs not to be the case, and on the evidence presented here clearly is not: as de Londras wryly puts it, ‘the likelihood of a so-called “libertarian panic” is slim, to say the least’ (p 34). Theory done (enough to satisfy examiners and keep the readers interested but without so much that the volume plunges into the alienatingly abstract), the book turns its attention to its core subject, the law of detention in the US and the UK. There are three main chapters here, all clear and impressively authoritative. Chapter two sets out the right to be free from arbitrary detention so far as it was in place in the US and UK at the moment of the 11 September attacks, considering not so much domestic law but mainly the content of international human rights law and its importance within each jurisdiction. It would be wrong to regard this chapter as of ‘merely’ historical interest - without it, the true nature of the post 11 September drama would not be appreciated. After all, as de Londras convincingly shows, at the time of the attacks of that day ‘the standards of international human rights law and their applicability in times of emergency and times of conflict were quite clearly established’ (p 69) and even ‘if – as a matter of their own constitutional arrangements – the US and the UK were not always bound by international human rights as a domestic matter, these standards were binding on them internationally’ (p 70). The story in chapters three and four that flows from this will be more familiar to readers familiar with the last decade or so of writings on terrorism and human rights but it is nevertheless entirely useful to have it gathered together so effectively in a single place – this is of course a recounting of the effort made by the US and the UK to promote ‘the alleged “difference” of the “War on Terror” and Al Qaeda, to argue that international human rights law either did not apply at all or, while applicable, required recalibration to increase the level of permissible state action’ (p 70). All the usual events are here, packaged as first executive and then legislative actions detrimental to liberty. The separation of the two does not always work, with the two merging from time to time (particularly where the UK is concerned) and – particularly this time with regard to the US – the book sometimes glides too quickly from detention into the ‘War on Terror’ as such. The analysis is conventional in that the author deplores what liberals usually deplore and applauds what liberals applaud – but the labelling here is not a cheap shot, more a quick summary of a position that strikes this reader as well judged, and not the less so because it happens also to be conventional wisdom. There are very few slips that I could spot: ‘Michael Winnick’ (p 110) is probably David Winnick MP and not the egregious Michael Winner turned Labour politician (though the name similarity may explain the slip). I mentioned a weakness in the approach a moment ago. It is hardly fair to call it that since it is inherent in the selection of the focus – inevitably when running with the US and UK alone you miss the big stories on detention that are being played out elsewhere, to the detriment of many more people (in all likelihood) than in the two chosen jurisdictions, but without a fraction of the attention given to either. It might be in this negative precedent-setting that the “War on Terror” will be seen to have done its most damaging work. We shall, perhaps, find out at some point in the future – but that would be a different book from the one the author offers the reader here, so less a weakness so much as an observation about the need for further 194

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study. (On which See V V Ramraj, M Hor, K Roach and G Williams (eds), Global Anti-terrorism Law and Policy 2nd edn (Cambridge: Cambridge University Press, 2012) and K Roach, The 9/11 Effect Comparative Counter-Terrorism (Cambridge: Cambridge University Press, 2011)). And what about the question in the title: can human rights fight back? The answer is an unequivocal ‘yes’, almost a ‘yes!’. The field is a resilient one, on account of ‘the relatively insulated nature of international legal institutions’ reaction to panic’ (p 213) and also because of the way in which domestic adjudication on detention (and of course much else besides) draws strength from ‘the nature, form and resilience of international human rights law’ (p 272), underpinning a move away from deference to power at exactly those points where such moves need to be made if liberty is to be preserved. Both points strike me as true, original and important – and each is well made in the course of a gripping final two substance chapters. There is a disarming aspect to the author’s optimism here: she finds and frankly reports that it flies in the face of the downbeat expectations about human rights’s inability to stand up to power that she brought to the study at the outset: ‘My starting suspicion was that exploring this hypothesis would reveal a depressing picture of international human rights law bending to hegemonic will’ (p 4). But her ‘pleasant surprise’ (p 5) is that she was wrong. Wrong when the book came out maybe, but how right now? President Obama’s National Defense Authorization Act (NDAA) 2012 (which came after this book of course) contained a new provision granting the US military far-reaching powers to indefinitely detain people – not only those identified as enemies on a battlefield, but others perceived by the military as having ‘supported’ the enemy. That law has now been carried forward into 2013. And Guantanamo remains open of course, with the recent NDAA for 2013 having prohibited the Administration from spending any money to make further transfers out of the facility more likely. Of the 166 prisoners who reportedly remain, 86 have been cleared for release but have nowhere to go. On a lesser scale to be sure, Britain has its draconian bail conditions, its Terrorism Prevention and Investigation Measures (TPIMs) together with its closed court sessions, its truncated judicial review and its contaminated ‘special’ advocates, able to appear for a suspect but without being able properly to take instruction. All this is human rights compatible, just as Guantanamo bedding down in perpetuity - has cloaked itself in a veneer of slightly due process. Fight-backs do not always produce victory.

CONOR GEARTY London School of Economics & Matrix Chambers

THE SIGNATURE OF EVIL: (RE)DEFINING TORTURE IN INTERNATIONAL LAW by Steven Dewulf (Intersentia, 2011. ISBN: 978-1780680217) Since the events of 11 September 2001, in the context of the ‘war on terrorism’, the practice and the prohibition of torture have been sources of contentious academic discourse. Much of the debate has revolved around the question of whether torture can ever be justified or excused in extreme circumstances, that is, in so-called ticking bomb scenarios.4 The practice of (or involvement in the practice of) torture by certain liberal democratic states has also motivated a

4

This literature is too abundant to cite. For a sample of some of some writing on the subject, see S Levinson (ed.) Torture: A Collection (Oxford, Oxford University Press, 2004) and Y. Ginbar, Why not torture terrorists? Moral, practical, and legal aspects of the ‘ticking bomb’ justification for torture (Oxford, Oxford University Press, 2008).

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number of authors to attempt to understand, more broadly, the continued persistence of torture and its interconnectedness with contemporary law and politics.5 Unsurprisingly, also in the light of the Bush administration’s efforts to manipulate the meaning of the term, the definition of torture has been central to these discussions.6 Steven Dewulf’s monograph, The Signature of Evil: (Re)Defining Torture in International Law, was also prompted by this ‘war on terrorism’ context; by, as he notes in the prelude, the ‘pictures taken at Abu Ghraib and the stories told of the regime in Guantanamo Bay’ (p. 8). In the light of the wealth of writing on the subject, one might suspect that there is little new to add and few stones left to be unturned. Arguably, however, despite the furore of the past number of years, we are no closer to understanding what it intrinsically is that makes an act of ill-treatment an act of torture. As a consequence, we have (also arguably) failed to mount a sustainable defence of the prohibition of torture capable of counteracting future attempts to undermine it. By offering a uniquely detailed analysis of the definition of torture in international law, as interpreted at international, regional and national levels, Dewulf, with this study, already contributes to our understanding of the current status(es) of the definition. Moreover, by employing this analysis with his critique for the purpose of reaching a new definition of torture, Dewulf provokes the reader to reflect deeply on what kind of behaviour or acts the international prohibition on torture ought to capture and on how these acts are distinguishable from other forms of ill treatment prohibited under international law. These are not questions of singularly academic significance. The precise meaning of the term ‘torture’ and the essential or dominant constituent elements of the definition of torture are issues yet to be pinned down in a coherent, agreed manner. Even the Committee against Torture, charged with monitoring implementation of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, has referred to the indeterminate nature of the definition of torture vis-à-vis other acts of ill-treatment, by noting in its General Comment No 2: ‘In practice, the definitional threshold between ill-treatment and torture is often not clear’.7 In the belief that torture is, and ‘should remain[,] different from other forms of ill-treatment’, Dewulf strives to correct this kind of reasoning (p. 463). Dewulf, then, sets himself the ambitious task of redefining torture under international law. In order to perform this task, he structures the book around two distinct questions. Firstly, he asks: ‘What constitutes ‘torture’ under international law?’ (p. 13). Part I of the study, which forms the bulk of the monograph, is dedicated to answering this question by ‘defining the present-day notion of torture’ (p. 31). Secondly, he addresses the more difficult question of how torture ought to be interpreted (p. 13). Thus, in part II of the study, he presents the elements he considers essential to (as well as the element he considers unnecessary in) his redefinition of torture. The rationale for the study is underpinned by the absence of ‘one unambiguous, definite and completely satisfactory definition of torture in international law’ (p. 449). In that regard, Dewulf argues that a unified, rather than a fragmented, approach, might remedy the danger of loopholes and of ‘expansive interpretation’ (p.p. 449-450). As his starting point for the examination of the definition of torture under international law, Dewulf, quite logically, takes Article 1 of the Convention against Torture, which reads: For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such

5

See, for example, P. Kahn, Sacred Violence: Torture, Terror, and Sovereignty (The University of Michigan Press, 2008) and JT Parry, Understanding Torture: Law, Violence and Political Identity (The University of Michigan Press, 2010). 6

See, in particular, M. Nowak and E. McArthur, ‘The Distinction between Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2006) 16 Torture 147; M. Nowak, ‘What Practices Constitute Torture? US and UN Standards’ (2006) 28 Human Rights Quarterly 809; UNCHR ‘Report of the Special Rapporteur on the Question of Torture, Manfred Nowak’ (2005) UN Doc E/CN.4/2006/6 § 39; N. Rodley and M. Pollard, The Treatment of Prisoners Under International Law (Oxford, Oxford University Press, 3rd edn, 2010) p.p. 82-145. 7

UNCAT ‘General Comment 2’ (2007) CAT/C/GC/2/CRP.1/Rev.4 para. 3.

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purposes as obtaining for him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. This is a reasonable basis for analysis since, as Dewulf notes, the Convention’s definition provides a reference point for, and is applied by, other bodies, including the regional human rights courts and international criminal tribunals (p. 80). Dewulf divides the definition into six basic elements: severe physical or mental pain or suffering; act or omission; intent; specific purpose; the perpetrator; and the victim (p. 82). With the definition deconstructed as such, he examines each element in meticulous detail. Unsurprisingly, he devotes most of his attention to the three elements which have proved the most difficult to pin down or to reach agreement on across the various branches of international law and in the jurisprudence of the various international and regional courts and committees. These are the element of severity of physical or mental pain or suffering, the element of purpose and the perpetrator-relevant element or ‘public official-requirement’ (p. 363). These three elements are also fundamental to Dewulf’s suggested redefinition of torture, elaborated in part II of the study. The redefinition offered by Dewulf consists of a three tiered understanding of torture. The definition retains, as ‘absolute’, elements already contained within the Convention against Torture definition; that is, at least one perpetrator, intentional infliction and a direct victim. In addition, the definition emphasises the relativity of the severity element and of the element of purpose. Dewulf incorporates, in all three tiers, the notion that the victim must, ‘at least to a certain extent’, be in the ‘factual power’ of the perpetrator. For two tiers of his redefinition, he adds the idea of dehumanisation of the victim. He deletes altogether the public official requirement (p.p. 535537). In summary, torture, according to Dewulf, should mean: conduct consisting of one or more acts or omissions by which: -severe physical or mental pain or suffering is intentionally inflicted on a person who is in the factual power of the perpetrator in order to obtain a confession or information from him or a third person, or to coerce, intimidate or punish this person or a third person, or to conduct an experiment; or -serious physical or mental pain or suffering is intentionally inflicted on a person who is in the complete factual power of the perpetrator and all but dehumanised in order to obtain a confession or information from him or a third person; or -extreme physical or mental pain or suffering is intentionally inflicted on a person who is in the complete factual power of the perpetrator and all but dehumanised to afford sadistic pleasure for any reason based on discrimination of any kind. With this definition, Dewulf aims to allow for a description of the act which is both broad and flexible, thereby preventing overly constricted interpretations. He also intends the definition to include scope for an evolving understanding of the term. In addition, and ambitiously, Dewulf has in mind a definition of torture which concretises the act at the apex of abuse whilst, simultaneously, allowing the other acts that lie on the ill-treatment spectrum to be drawn in from the margins in order to be considered egregious violations in their own right. In other words, he wishes to extend the ‘special stigma’,8 currently attached to torture, to inhuman and degrading treatment or punishment. In order to exact this in practice, he envisages reserving torture for a limited category of acts, thereby, shifting attention to the other prohibited acts (p. 560).

8

This phrase was first adopted by the European Court of Human Rights in the case of Ireland v United Kingdom, see Ireland v United Kingdom (App no 5310/71) ECHR 18 January 1978, para. 167.

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Throughout the examination in Part I, Dewulf takes into account the treaties and jurisprudence of the relevant human rights treaty bodies and of the regional human rights bodies, in particular the European Court of Human Rights, as well as the applicable provisions of international humanitarian law and the case law of international criminal tribunals. The study offers some insightful analyses of more recent jurisprudence. For example, the analysis of the European Court Grand Chamber judgement in Gäfgen v Germany 9 is astute. Dewulf observes a potential trend, suggested in the famous case of Selmouni v France,10 by which the Court seems to consider, as mitigating factors, contexts in which torture occurs, such as ‘heightened tension’. This, as Dewulf points out, ‘comes very close to recognising that when a person acted out of anger or with a noble cause in mind, or was under a great deal of pressure, the violence he inflicted could somehow be understandable’ (p. 151). In this study, Dewulf also mines through an abundance of relevant secondary sources. His copious referencing leads one to wonder whether he has missed anything at all. Recognising that torture has a context beyond law and that this context is vital to an accurate understanding of the practice, he does not shy away from dealing with, amongst others, medical, historical and anthropological sources. The depth of engagement with the element of ‘severe physical or mental pain or suffering’, for example, is intensified by his engagement with perspectives on pain and suffering from the medical world (p. 100). Likewise, although not necessarily new research as such, the purposive element of the definition is given a clear context through his reflection on the purposes for which torture has historically been applied (pp 244-251, 262-267). In regard to the public official requirement, Dewulf discusses the move away from the public official requirement in international criminal law, which has occurred in order to take account of acts of torture committed by non-state actors in the context of war crimes and crimes against humanity. This analysis is not in itself novel; but Dewulf presents this as a building block for his eventual argument in favour of bringing domestic violence and private torture within the scope of the definition (p. 394). This inclusive and contextual approach taken by Dewulf, complimented by a refreshing and detailed analysis of controversial issues such as domestic violence, allows the study to present itself as something of a sourcebook on the definition of torture. The comprehensiveness of Dewulf’s study is one of its major strengths. Towards the end of the monograph, Dewulf pre-empts the possibility that not all will be convinced by his (re)definition of torture (p. 557). In fact, he anticipated this reviewer’s reaction. Putting aside Dewulf’s dissolution of the ‘public official-requirement’, which is certainly controversial, it is his ambitious attempt to weave together a definition allowing for flexibility whilst maintaining the (extra)special stigma of torture that fails to convince. Like the European Court, Dewulf is reluctant to let go of an extra severity requirement for the act of torture. The application of the severity element is far from uniform in the Court’s jurisprudence. At times, it appears arbitrary, for which it is criticised. Dewulf’s creation of additional terms such as ‘serious’ and ‘extreme’ along with severe, seems to add to rather than to alleviate this problem. Taking his definition in isolation, how, for example, should ‘extreme’ be interpreted? I see Dewulf’s preference for maintaining the severity requirement as related to his insistence that torture is the ‘ultimate horror’, ‘at the top of the pyramid of evil’ and so on (p. 560). The fact that the prohibition of torture is a peremptory norm of international law indicates that it is indeed considered to be one of the worst crimes. Perhaps this is due to the kinds of gruesome practices that it historically and contemporaneously entails. Perhaps, however, it is a jus cogens norm because of the absolute absence of any justification for its practice. What is problematic is the fact that emphasis on severity fails to make the concept of torture more tangible; on the contrary, it makes the concept of torture more abstract. This abstraction of the concept of torture from its reality (that is, the practice of torture as a widespread and mundane phenomenon), is aggravated by the use of dramatic terms such as

9

Gäfgen v Germany (App no 22978/05) ECHR 1 June 2010.

10

Selmouni v France (App no 25803/94) ECHR 28 July 1999.

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‘mental rape’ (p. 503), and ‘agony’ (p. 502), which do not contribute concretely to our understanding of the act. Dewulf, in pre-empting disagreement, notes that ‘there will always be differences of opinion’ (p. 557). For me, his (re)definition exposes fundamental problems with our legal understanding of torture. I am not convinced that Dewulf’s (re)definition brings us closer to understanding the act of torture. Perhaps this is a difference of opinion. The monograph, at any rate, provides a solid platform for debate.

MICHELLE FARRELL University of Liverpool

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Documents 2011

DOCUMENT 1 STATEMENT ON RUSSIAN INVOLVEMENT IN THE FORGING OF IRISH PASSPORTS DUBLIN, 1 FEBRUARY 2011

Department of Foreign Affairs and Trade, I February 2011 Statement on Russian involvement in the forging of Irish Passports Following the disclosure last June of a long-standing Russian espionage operation in the United States, the Garda Síochána were asked to investigate evidence that a number of false Irish passports might have been used by Russian espionage agents. This investigation was undertaken in conjunction with the Passport Service of the Department of Foreign Affairs. The investigation has now been completed. The Garda Síochána report concludes that there is an entirely persuasive picture of Russian intelligence service involvement in the manufacture and use of false documents based on the acquisition of details of six genuine passports belonging to Irish citizens. The Government today considered the findings of the Garda Síochána report and agreed to a course of action proposed by the Minister for Foreign Affairs. The Secretary General of the Department of Foreign Affairs subsequently met with the Russian Ambassador this afternoon to inform the Ambassador that the activities of Russian intelligence services in connection with the forgery of Irish passports and the effective theft of the identity of six Irish citizens are completely unacceptable and not the behaviour the Government would expect from a country with which we have friendly relations. The Ambassador was also told that the accreditation of a named member of his staff with diplomatic status is to be terminated, in line with the provisions of the Vienna Convention on Diplomatic Relations. The individual in question has been asked to leave this jurisdiction by a specified date. It is regrettable that this action has been necessary. However, the primary responsibility of the Government is to ensure the security and well-being of Irish citizens, which includes protection of the integrity of Irish passports. The Government, by today’s action, has once again made clear that it will not tolerate the fabrication and use of forged Irish passports by agents of a foreign State. It is hoped that it will be possible to move on from this disturbing incident and to develop further the relationship between Ireland and the Russian Federation which is fundamentally strong and which has significant potential.

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DOCUMENT 2

UN HUMAN RIGHTS COUNCIL : S PECIAL SESSION ON LIBYA

GENEVA, 25 FEBRUARY 2011

Permanent Representative of Ireland, Mr. Gerard Corr

Address to the UN Human Rights Council: Special Session on Libya, Geneva, 25 February 2011 Ireland strongly welcomes the holding of this Special Session on Libya and hopes to see a clear and unequivocal resolution as its outcome. This Council has been very active in condemning other uses of excessive force against civilians and there is a clear need for it to do so today in the case of Libya. The people of Ireland support the people in Libya at this difficult juncture in their history and condemn unreservedly the use of violence against innocent civilians. Like other speakers, we have been horrified by widespread and persistent reports that live ammunition, snipers and heavy weaponry including fighter jets are being used on the order of Libya’s leaders against their own people. There are also credible reports of extrajudicial killings, arbitrary arrests and torture of peaceful demonstrators. This appalling brutality is completely unacceptable and amounts to a clear violation of the Government of Libya’s responsibility to protect its population. My Government, along with EU partners, fully supports Tuesday’s UN Security Council statement which calls upon the Libyan authorities to immediately stop this bloody repression, to honour its responsibility to protect the civilian population, and to respect human rights and international humanitarian law. We also endorse the clear statement issued on 23 February by High Representative Ashton on behalf of the EU. Ireland also fully endorses the call for an independent international investigation into the human rights violations in Libya. Those ordering these attacks, and those carrying them out, should be aware that they will be held to account. The refusal of many Libyan security forces personnel to carry out attacks against civilians is commendable. We welcome the African Union statement on Libya and urge any countries whose nationals may be participating in operations against Libyan civilians to take measures to prevent this. The popular dissent in Libya can only be met with inclusive and meaningful national dialogue aimed at meeting the legitimate aspirations of the Libyan people. In neighbouring Egypt national dialogue has now commenced, and an irreversible transition to democracy has begun. Libya’s leaders have so far chosen a different path, but it is clearly evident that violence simply brings further violence. The

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repressive approach of the Libyan authorities has enraged the Libyan people. Their grievances and legitimate wish to have a greater say in their destiny will not go away. We applaud the courage of the Libyan people and offer the sympathies of the Irish people to the bereaved and the injured. The Libyan government has an obligation to protect not only their own citizens but those of other nationalities. Libya must allow international human rights monitors and humanitarian aid agencies into the country so that the wounded and those fleeing violence can be helped. Foreign nationals wishing to leave Libya must be assisted. I further call upon Libya, as the Security Council has demanded, to immediately stop blocking the internet and mobile phone networks, and to lift all restrictions on the media. Such efforts will not stop the international community finding out about what is happening in Libya, and are hampering citizens in Libya who are trying to contact their families and flee from this violence. Ireland is currently considering with its EU partners what effective and urgent measures can be taken in relation to Libya. This Special Session is one of many signals that the international community is united, fully engaged and ready to take appropriate action. The Libyan people do not stand alone. Note to the Editor: The UN Human Rights Council in Geneva held a Special Session today at the request of the EU and others (including Ireland) to discuss the critical human rights situation in Libya. Ireland, although not a current member of the HRC, addressed the meeting to express the Government's grave concerns on this issue. The HRC this evening adopted a Resolution which, inter alia, condemned the attacks on civilians in Libya, urged the Libyan authorities to respect the will of the people, allow the passage of humanitarian aid and the exit of foreign citizens, and recommended that the UN General Assembly consider suspending Libya from the HRC.

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DOCUMENT 3 MARY MCALEESE’S ADRESS TO THE ICJ THE HAGUE, 2 MAY 2011

Address by the President of Ireland, Mary McAleese, to the International Court of Justice The Hague, Monday 2 May 2011

Mr. President, Members of the Court, Ladies and gentlemen. Thank you for your warm welcome. It is an honour to address you in the distinguished surroundings of the Peace Palace in The Hague, the International Law Capital of the World. The seventeenth-century lawyer and philosopher Francis Bacon once said “the place of justice is a hallowed place” and as the world court, the ICJ here in the stunningly beautiful Peace Palace is exactly that, a hallowed, a sanctified place for all those who believe in the rule of good law. It is no coincidence either that through the name of this beautiful building, international justice is so closely and intimately linked with peace. It has often been said that justice and peace cannot each exist without one another. How many conflict ridden parts of the world, how much of human history bears powerful witness to that simple reality. I thank you, Mr. President, and each Member of this Court for making the cause of international justice and world peace your personal vocation and life’s work. Since the law was my own first calling, it is truly a privilege to address this Court, the principal judicial organ of the United Nations, the place that says to the world’s bullies and betrayers of human rights that there is a day of reckoning, there is a calling to account before all of humanity. My own country’s long and unhappy experience as a colonised nation, which had to fight not just for independence but for the recognition of the civil and human rights of its people distilled into an unshakeable desire to see international disputes resolved peacefully through the architecture of a globally agreed system of international structures and law. For us independence was the pathway to participation as a free and equal member of the community of nations. The first meeting of Dáil Éireann, the Irish Parliament, was convened on 21 January 1919 and adopted not only a Declaration of Independence and a provisional Constitution, but also a “Message to the Free Peoples of the World”. This Message proclaimed that: “Ireland today reasserts her historic nationhood the more confidently before the new

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world emerging from the war, because she believes in freedom and justice as the fundamental principles of international law.” Ireland’s commitment to an international community based on the rule of law was also evident in the following years. One of the first acts of the Irish Free State was to apply for membership of the League of Nations, which it joined on 10 September 1923, 12 months after Hungary and 18 days before Ethiopia. The Irish Government registered the Anglo-Irish Treaty of 1921 as an international agreement in accordance with Article 18 of its Covenant on 11 July 1924 and Ireland remained a committed member of the League until its dissolution. Indeed the League’s last Secretary General, Sean Lester, was an Irish man, a native, like myself, of County Antrim in what was to become Northern Ireland following the partition of Ireland. Born into an Ireland that was part of the British Empire, born into a Protestant family in a strongly pro Union, pro Empire town, this remarkable and somewhat forgotten man became persuaded by the idea of independent nationhood and captivated by the idea of the League of Nations. He became Ireland’s permanent delegate to the League of Nations in 1929 just in time to for Ireland’s post-ratification acceptance of the compulsory jurisdiction of the Permanent Court of International Justice in 1930. In 1937 the Irish people adopted a new constitution, Article 29 of which affirms the commitment of the Irish People to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality. Article 29 also accepts the generally recognised principles of international law as Ireland’s rule of conduct in its relations with other States and affirms the principle of the pacific settlement of international disputes by international arbitration or judicial determination. The Constitution also contains forward looking provisions on the fundamental rights of each individual human person. These provisions preceded the development of international law in the post-World War Two era, but they are based on the same principle that the protection of the individual, his and her right to dignity and freedom, must be the foundation on which all legal systems  global, regional or domestic  are grounded. More recently, the British-Irish Agreement, signed in Belfast on Good Friday, 1998, set the scene for the resolution of the long-standing politico/sectarian conflict in Northern Ireland by exclusively peaceful means. The Agreement created a context of new laws and structures which guaranteed parity of esteem, equality of citizenship and the vindication of citizens civil and human rights. It was overwhelmingly endorsed by the people of the island both North and South, in separate referendums and it has since then formed the basis for stable government in Northern Ireland as well as vastly increased cross-border co-operation. When Ireland became a member of the United Nations, and a party to the Statute of this Court, in 1955 our then Minister for External Affairs, Liam Cosgrave explained that Ireland’s vision was to “take our place in the comity of nations and do our part to secure what small nations have always required, the maintenance of peace”. Since 1955, membership of the United Nations has been the cornerstone of Ireland’s foreign policy and has always been grounded in the reality that, in the still relevant words of Sean Lester, “[t]he organisation of peace is not a question of sentimentality nor even of abstract justice, but of vital concern, perhaps of life and death”.

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As a member of the United Nations and as a country with a tradition of military neutrality, Ireland has brought its unique voice and charism to issues such as disarmament, peacekeeping, human rights and development. Our Defence Forces and our national Police Force, An Garda Siochana, have served with distinction in many of the United Nations international peace-keeping missions. The negotiation of the Nuclear Non-Proliferation Treaty was the outcome of a process that began with the adoption of the so-called “Irish resolution” by the General Assembly in 1961. Ireland was the first State to ratify the Convention in July 1968 and we continue to play an active part in the Treaty régime. In May 2008, Ireland hosted and chaired the Dublin Diplomatic Conference at which the Convention on Cluster Munitions was negotiated and adopted by consensus. Ireland ratified the Convention in December of that year and is active in promoting its universalisation and implementation. We are also a strong supporter of the work of the United Nations Peacebuilding Commission. We are firmly committed to the principles of the Universal Declaration of Human Rights and are party to key international human rights treaties, including the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, as well as the conventions on racial discrimination, women’s rights, the rights of children and the prevention of torture. Ireland has signed and is committed to ratifying the International Convention on Enforced Disappea-rances and the International Convention on the Rights of Persons with Disabilities. We are active participants in the human rights work of the United Nations in the General Assembly in New York and the Human Rights Council in Geneva. Our foreign policy is strongly supportive of international efforts to end impunity for genocide, war crimes and crimes against humanity, including through the implementation of the concept of Responsibility to Protect. We have ratified the Geneva Conventions of 1949 and their 1977 Protocols and supported the establishment of courts and tribunals to try, where necessary, those charged with the most serious of these crimes. We also know from our own history the ignominious role played by poverty in the disempowerment and oppression of too many people and so you will find in Ireland a long standing commitment both at community and political level, to the fight against global poverty, hunger and disease, to development issues and to practical solidarity with the world’s poor. Ireland’s commitment to effective multilateralism is also reflected in our almost 40-year membership of the European Union, a community based explicitly on the rule of law, the promotion of democracy, human rights and the strict observance of international law, including the principles of the United Nations Charter. We are, too, members of the World Trade Organization, the Bretton Woods Institutions, the Council of Europe and the Organization for Security and Co-operation in Europe, the chairmanship of which Ireland takes over in 2012 for the first time. So clearly a commitment to the rule of law in international relations is the golden thread running through all aspects of Irish foreign policy. We believe emphatically that international law, including global, regional and bilateral agreements, can and does play a key role in promoting democracy, human rights, peace and prosperity, including through the harmonious and equitable development of world trade and the solving the gamut of global problems from restrictive trade practices to climate change. Needless to say Ireland fully endorses the efforts of the United Nations to develop, promote and implement international norms and standards. In this context

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we are proud that the current Legal Counsel to the United Nations is an Irish lawyer, Patricia O’Brien, the first woman to hold the post. Mr. President, as you yourself have said: “To structure a system of values and to make accountable those who break it, we need the rule of law in our international community.” A key component of the rule of law at international level is the work of international courts and tribunals, with the International Court of Justice, the world’s highest court, at its centre. In its 65 years the Court has never been busier and with the impressive list of cases on its docket, the years ahead are already well accounted for. The range of issues covered is vast and bewilderingly complex  from the use of force in international relations, international humanitarian law, human rights, international criminal justice, international immunities, environmental issues and territorial and maritime boundary disputes. Your diligent, painstaking pursuit of outcomes through credible, internationally respected processes is part of the glue that holds humanity together in some kind of order, some kind of mutually intelligible dialogue. As an island state with considerable interests in the sea and its resources we regard this Court’s Judgments in the Anglo-Norwegian Fisheries case and the North Sea Continental Shelf cases as seminal. The principles recognized by these decisions enabled the significant extension of the maritime jurisdiction of coastal States such as Ireland. Ireland was an active participant in the Third Conference on the Law of the Sea  which culminated in the adoption of the United Nations Convention on the Law of the Sea in 1982. The Convention, rightly called the “Constitution for the Oceans”, builds on these important Judgments. The Court continues to play a vital role in law of the sea matters, providing valuable guidance not only to those participating in proceedings but to the international community as a whole. In the words of Judge Tanaka in the Barcelona Traction case: “The most important function of the Court . . . is to be found not only in the settlement of concrete disputes, but also in its reasoning, through which it may contribute to the development of international law.” Ireland has participated in the work of the Court having made submissions in four recent advisory proceedings  the Legality of the Use by a State of Nuclear Weapons in Armed Conflict; the Legality of the Threat or Use of Nuclear Weapons; the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory; and the Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo. As an indication of the Irish Government’s commitment to the rule of law in international relations, it has recently taken the decision that Ireland will accept the compulsory jurisdiction of the Court and signalled its intention to lodge a declaration to that effect by the end of 2011. The number of judgments and opinions issued by the Court in recent years is a notable and welcome development. It is testimony to the increased recourse to the law in settling international disputes and the confidence which the international community places in this Court’s integrity, independence and expertise. You have earned that integrity and respect the hard way, for as the famous Irish playwright

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George Bernard Shaw once said: “Peace is not only better than war, but infinitely more arduous.” The volume of your work here certainly reflects that fact but we are deeply grateful that there are many great legal minds in this place dedicated to the vindication of the dignity of the human person and to the steady, relentless promotion of international peace through an uncompromising love of justice. Mr. President, Members of the Court, in the words of the distinguished former President of the Court, Judge Rosalyn Higgins: “International law . . . in a world often divided by politics, is our common language.” Thank you for the privilege of visiting the Court today and the opportunity to address you in that universal tongue which we hope will one day silence the bullies and give voice to a new world order where peace and justice reign for all humanity. Go raibh míle maith agaibh go léir. ___________

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DOCUMENT 4 CONCLUDING OBSERVATIONS OF THE COMMITTEE AGAINST TORTURE: IRELAND UNITED NATIONS, 17 JUNE 2011

United Nations CAT/C/IRL/CO/1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatmentor Punishment Forty-sixth session 9 May - 3 June 2011 Consideration of reports submitted by States parties under article 19of the Convention Concluding observations of the Committee against Torture Ireland

1. The Committee against Torture considered the initial report of Ireland (CAT/C/IRL/1), at its 1002nd and 1005th meetings (CAT/C/SR.1002 and 1005), held on 23 and 24 May 2011. At its 1016th meeting (CAT/C/SR.1016), held on 1 June 2011, it adopted the following concluding observations. A.

Introduction

2. The Committee welcomes the submission of the initial report by the State party but regrets that it was submitted after a delay of eight years, which has prevented the Committee from monitoring the implementation of the Convention in the State party. The Committee also notes that the State party report generally followed the guidelines but that it lacked specific information on the implementation of the Convention. 3. The Committee notes with appreciation that a high-level delegation from the State party met with the Committee during its forty-sixth session, and also notes with appreciation the opportunity it had to engage in a constructive dialogue covering many areas under the Convention. The Committee also commends the State party for the detailed written replies that it provided during the consideration of the State party report. that that that that that that that it provided during

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B.

Positive aspects

4. The Committee welcomes the ratification by the State party of the following international and regional instruments: (a) International Covenant on Civil and Political Rights, on 8 December 1989; (b) International Convention on the Elimination of All Forms of Racial Discrimination, on 29 December 2000; (c) Convention on the Rights of the Child, on 28 September 1992; (d) Convention on the Elimination of All Forms of Discrimination against Women, on 23 December 1985; (e) United Nations Convention against Transnational Organized Crime, on 17 June 2010; (f) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, on 17 June 2010; (g) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, on 18 June 1993; (h) Council of Europe Convention on Action against Trafficking in Human Beings, on 13 July 2010. 5.

The Committee welcomes the enactment of the following legislation:

(a) Criminal Law (Human Trafficking) Act of 2008; (b) International Criminal Court Act of 2006. 6. The Committee also welcomes the development of the National Action Plan to Prevent and Combat Trafficking of Human Beings in Ireland, 2009-2012. 7. The Committee further welcomes the development of the National Strategy on Domestic, Sexual and Gender-Based Violence, 2010-2014. C. Principal subjects of concern and recommendations Reduction of financial resources for human rights institutions 8. While welcoming the commitment by the State party to provide resources for human rights institutions, the Committee expresses concern at information received on the disproportionate budget cuts to various human rights institutions mandated to promote and monitor human rights, such as the Irish Human Rights Commission (IHRC), in comparison to other public institutions. Furthermore, while noting the decision to move IHRC from the Department of Community, Equality and Gaeltacht Affairs to the Department of Justice and Equality, the Committee regrets that IHRC does not have direct accountability to Parliament and lacks financial autonomy (art. 2). The Committee recommends that the State party should ensure that the current budget cuts to human rights institutions, in particular the Irish Human Rights Commission, do not result in the crippling of its activities and render its mandate ineffective. In this regard, the State party is encouraged to strengthen its efforts in ensuring that human rights institutions continue to effectively discharge their mandates. Furthermore, the 214

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Committee recom-mends that the State party should strengthen the independence of IHRC by, inter alia, ensuring its direct accountability to Parliament and financial autonomy in line with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles). Rendition flights 9. The Committee is concerned at the various reports of the State party’s alleged cooperation in a rendition programme, where rendition flights use the State party’s airports and airspace. The Committee is also concerned at the inadequate response by the State party with regard to investigating these allegations (art. 3). The State party should provide further information on specific measures taken to investigate allegations of the State party’s involvement in rendition programmes and the use of the State party’s airports and airspace by flights involved in “extraordinary rendition”. The State party should provide clarification on such measures and the outcome of the investigations, and take steps to ensure that such cases are prevented. Refugees and international protection 10. While taking note that asylum applications falling under the Dublin II Regulation are subject to appeal before the Refugee Appeals Tribunal in the State party, the Committee is concerned that the lodging of an appeal does not have suspensive effect on the impugned decisions. The Committee is also concerned that while the draft immigration, residence and protection bill of 2008 contains a prohibition on nonrefoulement, the bill does not set out the procedure to be followed. Furthermore, the Committee takes note of reports indicating the considerable drop in positive determinations for refugee status (arts. 3 and 14). The Committee recommends that the State party pursue efforts aimed at strengthening the protection of persons in need of international protection. In this regard, the State party should consider amending the draft immigration, residence and protection bill in order to bring it into line with the requirements of the Convention, in particular with regard to the rights of migrants to judicial review over administrative actions as also recommended by the Committee on the Elimination of Racial Discrimination (CERD/C/IRL/CO/3-4, para. 15). The Committee also recommends that the State party consider amending its legislation so that the lodging of an appeal before the Refugee Appeals Tribunal has suspensive effect on the impugned decision. Furthermore, the Committee recommends that the State party investigate the considerable drop in positive determinations for refugee status to ensure that applications are processed following due process.

Prison conditions 11. The Committee notes the State party’s efforts to alleviate overcrowding in prisons through, inter alia, the construction of new accommodation in existing prison facilities and the upgrading of some of these facilities, as well as through the adoption of alternative non-custodial measures to reduce the number of individuals who are being sent to prison, such as the adoption of the Fines Act of 2010. The Committee, however, remains deeply concerned at reports that overcrowding remains a serious problem (arts. 11 and 16).

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The Committee recommends that the State party: (a) Adopt specific time frames for the construction of new prison facilities which comply with international standards. In this regard, the Committee requests the State party to inform it of any decisions taken with regard to the Thornton Hall prison project; (b) Adopt a policy focusing on the development of alternative, non-custodial sanctions, including the enactment of the bill amending the Criminal Justice (Community Service) Act 1983, which provides that judges will be required to consider community service as an alternative to custody in all cases where a custodial sentence of 12 months or less is appropriate; (c) Expedite the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the establishment of a national preventive mechanism. 12. While noting the efforts by the State party to provide all cells with in-cell sanitation, the Committee is deeply concerned at the continuing practice of “slopping out” in some of the prisons in the State party, which amounts to inhuman and degrading treatment (arts. 11 and 16). The Committee recommends that the State party strengthen its efforts to eliminate, without delay, the practice of “slopping out”, starting with instances where prisoners have to share cells. The Committee further recommends that until such a time as all cells possess in-cell sanitation, concerted action should be taken by the State party to ensure that all prisoners are allowed to be released from their cells to use toilet facilities at all times. 13. The Committee notes the clarification provided by the State party on the use of special observation cells. The Committee also notes with interest that, following a recommendation by the Inspector of Prisons, the Prison Service is in the process of designating safety observation cells for medical reasons only, which will be covered by an amendment to the prison rules (arts. 11 and 16). The Committee recommends that the State party ensure that it follows the guidance given by the Inspector of Prisons in his report dated 7 April 2011 that appropriate use should be made of safety observation cells and close observation cells. 14. The Committee is concerned at reports that deficiencies have been identified in the standard of health care provided in a number of prisons in the State party (arts. 11 and 16). The Committee recommends that the State party improve health care in all prisons, taking into account the guidance provided by the Inspector of Prisons as stated in his report dated 18 April 2011. Inter-prisoner violence 15. The Committee notes the measures taken by the State party to address interprisoner violence. However, it remains concerned at the continued high rates of incidents in some of the prisons, and at reports of allegations by prisoners from the Traveller

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community in Cork Prison that they are consistently subjected to acts of intimidation by other prisoners (arts. 11 and 16). The Committee recommends that the State party intensify its efforts to tackle interprisoner violence by, inter alia: (a) Addressing the factors contributing to inter-prisoner violence, such as the availability of drugs, the existence of feuding gangs, lack of purposeful activities, lack of space and poor material conditions; (b) Providing sufficient members of staff who also receive training on the management of inter-prisoner violence; (c) Addressing the issue of intimidation of the Traveller community and investigating all allegations of such intimidation. The Committee also recommends that the State party provide statistical data so as to enable the Committee to evaluate the effectiveness of the State party’s measures to tackle inter-prisoner violence. Separation of remand prisoners 16. While welcoming the efforts by the State party to keep sentenced and remand prisoners in separate accommodation areas in so far as possible, the Committee is concerned at the continued lack of separation of such persons (arts. 11 and 16). The Committee recommends that the State party take urgent measures to house remand prisoners separately from sentenced prisoners. Detention of refugees and asylum-seekers 17. The Committee is concerned at the placement of persons detained for immigration-related reasons in ordinary prison facilities together with convicted and remand prisoners (arts 11 and 16). The Committee recommends that the State party take measures to ensure that all persons detained for immigration-related reasons are held in facilities that are appropriate to their status. Complaint and investigation mechanisms 18. The Committee notes the information provided by the State party with regard to the investigation of complaints by prisoners against prison staff relating to incidents which allegedly occurred in the following prisons: Portlaoise, on 30 June 2009; Mountjoy, on 15 June 2009 and 12 January 2010; Cork, on 16 December 2009; and Midlands, on 7 June 2009. The Committee notes with concern that in all these cases there have been no independent and effective investigations into the allegations of ill-treatment by prison staff. The Inspector of Prisons, in his report of 10 September 2010 entitled “Guidance on best practice for dealing with prisoners’ complaints”, concluded that there is no independent complaints and investigation body to investigate prisoners’ complaints and that present procedures followed do not accord with best practice, and recommended the establishment of an independent mechanism to receive and investigate complaints against prison staff (arts. 2, 12, 13 and 16). The Committee recommends that the State party: 217

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(a) Establish an independent and effective complaint and investigation mechanism to facilitate the submission of complaints by victims of torture and ill-treatment by prison staff and ensure that in practice complainants are protected against any intimidation or reprisals as a consequence of the complaints; (b) Institute prompt, impartial and thorough investigations into all allegations of torture or ill-treatment by prison staff; (c) Ensure that all officials who are allegedly involved in any violation of the Convention are suspended from their duties during the conduct of the investigations; (d) Provide the Committee with information on the number of complaints made concerning allegations of torture and ill-treatment by prison staff, the number of investigations carried out and the number of prosecutions and convictions, as well as on the redress awarded to victims. 19. The Committee welcomes the establishment of the Garda Síochána Ombudsman Commission (GSOC) in 2005, the members of which cannot be serving members or former members of the Garda Síochána (Police Force). GSOC is empowered to investigate complaints of torture and ill-treatment against members of the Garda Síochána. However, the Committee regrets that GSOC can also refer complaints to the Garda (Police) Commissioner, who can proceed with the investigations independently or under the supervision of GSOC, except complaints concerning the death of or serious harm to a person in police custody. The Committee is also concerned at the information that GSOC has submitted proposals for the amendment of the Garda Síochána Act of 2005 in a number of areas, including the power to allow GSOC to refer investigations back to the Garda Síochána, thereby allowing the police to investigate itself (arts. 2, 12, 13 and 16). The Committee recommends that the State party ensure by law that all allegations of torture and ill-treatment by the police are directly investigated by the Garda Síochána Ombudsman Commission and that sufficient funds are allocated to the Commission so as to enable it to carry out its duties promptly and impartially and to deal with the backlog of complaints and investigations which has accumulated. The Committee also requests the State party to provide it with statistical data on (a) the number of complaints of torture and ill-treatment filed against prison officers, the number of investigations instituted, and the number of prosecutions and convictions imposed; and (b) the number of cases that have been referred to the Garda Síochána. Follow-up to the Ryan Report 20. The Committee notes the efforts made by the State party concerning the plan it had adopted in 2009 in order to implement the recommendations of the report of the Commission to Inquire into Child Abuse, known as the Ryan Report. However, the Committee is concerned that, according to a statement made by the Ombudsman for Children in March 2011, significant commitments under the plan have yet to be implemented. The Committee is also gravely concerned that despite the findings of the Ryan Report that “physical and emotional abuse and neglect were features of the institutions” and that “sexual abuse occurred in many of them, particularly boys’ institutions”, there has been no follow-up by the State party. The Committee is also concerned that, despite the extensive evidence gathered by the Commission, the State party has forwarded only 11 cases to prosecution, out of which 8 were rejected (arts. 12, 13, 14 and 16). The Committee recommends that the State party:

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(a) Indicate how it proposes to implement all the recommendations of the Commission to Inquire into Child Abuse and indicate the time frame for doing so; (b) Institute prompt, independent and thorough invest-igations into all cases of abuse as found by the report and, if appropriate, prosecute and punish perpetrators; (c) Ensure that all victims of abuse obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible. Magdalene Laundries 21. The Committee is gravely concerned at the failure by the State party to protect girls and women who were involuntarily confined between 1922 and 1996 in the Magdalene Laundries, by failing to regulate and inspect their operations, where it is alleged that physical, emotional abuses and other ill-treatment were committed, amounting to breaches of the Convention. The Committee also expresses grave concern at the failure by the State party to institute prompt, independent and thorough investigations into the allegations of ill-treatment perpetrated on girls and women in the Magdalene Laundries (arts. 2, 12, 13, 14 and 16). The Committee recommends that the State party institute prompt, independent and thorough investigations into all complaints of torture and other cruel, inhuman or degrading treatment or punishment that were allegedly committed in the Magdalene Laundries and, in appropriate cases, prosecute and punish the perpetrators with penalties commensurate with the gravity of the offences committed, and ensure that all victims obtain redress and have an enforceable right to compensation, including the means for as full rehabilitation as possible. Children in detention 22. The Committee takes note of the policy of the State party to detain children in Children Detention Schools under the supervision of the Irish Youth Justice Service. However, the Committee is gravely concerned that 16- and 17-year-old males are still detained in St Patrick’s Institution, which is a medium-security prison that is custodial rather than a care facility designed for children. The Committee is also concerned that despite its commitment to end the detention of young children in St Patrick’s Institution, the State party has not yet finalized its decision to proceed with the construction of the new national children detention facilities (arts. 2, 11 and 16). The Committee recommends that the State party proceed, without any delay, with the construction of the new national children detention facilities at Oberstown. In the meantime, the Committee recommends that the State party take appropriate measures to end the detention of children in St Patrick’s Institution and move them into appropriate facilities. 23. The Committee expresses deep concern that the Ombudsman for Children has no mandate to investigate allegations of acts in violation of the Convention at St Patrick’s Institution, leaving children at that institution without access to any mechanism for lodging complaints (arts. 12 and 13). The Committee recommends that the State party review its legislation on the establishment of the Ombudsman for Children with a view to including in the mandate the power to investigate complaints of torture and ill-treatment of children held at St Patrick’s Institution.

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Corporal punishment 24. While taking note that corporal punishment is prohibited in schools and in the penal system, the Committee is gravely concerned that such punishment is lawful in the home under the common law right to use “reasonable and moderate chastisement” in disciplining children and also in certain alternative care settings (arts. 2 and 16). The Committee recommends that the State party prohibit all corporal punishment of children in all settings, conduct public campaigns to educate parents and the general public about its harmful effects, and promote positive non-violent forms of discipline as an alternative to corporal punishment. Prohibition of female genital mutilation 25. The Committee notes the intention of the State party to restore to the Seanad (parliament) Order Paper the Criminal Justice (Female Genital Mutilation) Bill which criminalizes female genital mutilation (FGM) and provides for related offences, some of which confer on courts extraterritorial jurisdiction. However, the Committee regrets the lack of legislation prohibiting FGM, even though data based on a 2006 census indicates that about 2,585 women in the State party have undergone FGM (articles 2 and 16). The Committee recommends that the State party: (a) Expedite the restoration of the Criminal Justice (Female Genital Mutilation) Bill to the new Seanad Order Paper; (b) Implement targeted programmes with a view to sensitizing all segments of the population about the extremely harmful effects of FGM; (c) Explicitly define under the law that FGM amounts to torture. Abortion 26. The Committee notes the concern expressed by the European Court of Human Rights about the absence of an effective and accessible domestic procedure in the State party for establishing whether some pregnancies pose a real and substantial medical risk to the life of the mother (case of A, B and C v. Ireland), which leads to uncertainty for women and their medical doctors, who are also at risk of criminal investigation or punishment if their advice or treatment is deemed illegal. The Committee expresses concern at the lack of clarity cited by the Court and the absence of a legal framework through which differences of opinion could be resolved. Noting the risk of criminal prosecution and imprisonment facing both the women concerned and their physicians, the Committee expresses concern that this may raise issues that constitute a breach of the Convention. The Committee appreciates the intention of the State party, as expressed during the dialogue with the Committee, to establish an expert group to address the Court’s ruling. The Committee is nonetheless concerned further that, despite the already existing case law allowing for abortion, no legislation is in place and that this leads to serious consequences in individual cases, especially affecting minors, migrant women, and women living in poverty (arts. 2 and 16). The Committee urges the State party to clarify the scope of legal abortion through statutory law and provide for adequate procedures to challenge differing medical opinions as well as adequate services for carrying out abortions in the State party, so that its law and practice is in conformity with the Convention. Violence against women, including domestic violence 220

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27. The Committee welcomes measures taken by the State party to prevent and alleviate gender-based violence, including the adoption of the National Strategy on Domestic, Sexual and Gender-based Violence, 2010-2014. However, the Committee is gravely concerned at reports on the continued high rates of domestic violence against women and at the cuts in funding, in 2009 and 2010, for refuge and support services for victims of violence. The Committee urges the State party: (a) To strengthen its efforts to prevent violence against women through, inter alia, the effective implementation of the National Strategy on Domestic, Sexual and Genderbased Violence, including the collection of relevant data; (b) To enhance its support and funding of refuge and support services provided for victims of domestic violence; (c) To institute prompt, impartial and thorough investigations into allegations of domestic violence, and where appropriate, prosecutions and convictions; (d) To amend the Domestic Violence Act of 1996 so as to include clear criteria to grant safety and barring orders and extend eligibility for all parties who are or have been in an intimate relationship, regardless of cohabitation, in line with internationally recognized best practice; (e) To ensure that migrant women with dependent immigration status who are experiencing domestic violence be afforded independent status under legislation. Treatment of persons with mental disabilities 28. The Committee expresses concern at the fact that the definition of a voluntary patient is not sufficiently drawn to protect the right to liberty of a person who might be admitted to an approved mental health centre. The Committee further regrets the lack of clarity on the reclassification of mentally disabled persons from voluntary to involuntary (arts. 2 and 16). The Committee recommends that the State party review its Mental Health Act of 2001 in order to ensure that it complies with international standards. The Committee, therefore, recommends that the State party report on the specific measures taken to bring its legislation into line with internationally accepted standards in its second periodic report. Protection of separated and unaccompanied minors 29. While taking note of information provided by the State party regarding the procedure to protect separated and unaccompanied minors under the mandate of the Health Service Executive, the Committee is deeply concerned that between 2000 and 2010, a total of 509 children went missing and only 58 were accounted for. The Committee further regrets the lack of information from the State party on the measures taken to prevent this phenomenon and to protect these minors from other forms of exploitation (arts. 2 and 16). The State party should take measures to protect separated and unaccompanied minors. It should also, in this regard, provide data on specific measures taken to protect separated and unaccomp-anied minors. Training of law enforcement personnel 221

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30. While welcoming the information provided by the State party on the general training programmes for the Garda Síochána, the Committee is concerned at the lack of specific training of both law enforcement personnel, with regard to the prohibition of torture and ill-treatment, and medical officers, on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (arts. 2, 10 and 16). The Committee recommends that the State party: (a) Ensure that law enforcement personnel are provided, on a regular and systematic basis, with the necessary training on the provisions of the Convention, especially with regard to the prohibition of torture; (b) Ensure that medical personnel and others involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment, as well as other professionals involved in the documentation and investigation of torture, are provided, on a regular and systematic basis, with training on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) and that the Manual is translated into all appropriate languages. The State party should also ensure that such training is also provided for individuals involved in asylum determination procedures; (c) Develop and implement a methodology to assess the effectiveness and impact of such educational and training programmes on the prevention of torture and illtreatment and regularly evaluate the training provided for its law enforcement officials; (d) Strengthen its efforts to implement a gender-sensitive approach for the training of those involved in the custody, interrogation or treatment of women subjected to any form of arrest, detention or imprisonment; (e) Strengthen its efforts to ensure the training of law enforcement personnel and others on the treatment of vulnerable groups at risk of ill-treatment, such as children, migrants, Travellers, Roma and other vulnerable groups; (f) Strengthen professional training in hospitals, medical and social institutions. 31. The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Convention on the Rights of Persons with Disabilities, and the International Convention for the Protection of All Persons from Enforced Disappearance. 32. The State party is requested to disseminate widely the report submitted to the Committee, summary records and the present concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations. 33. The Committee requests the State party to provide, within one year, follow-up information in response to the Committee’s recommendations contained in paragraphs 8, 20, 21 and 25 of the present document. 34. The Committee invites the State party to submit its next treaty-specific report within the limit of 40 pages. The Committee also invites the State party to update its common core document (HRI/CORE/1/Add.15/Rev.1) in accordance with the requirements of the common core document contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/GEN.2/Rev.6), approved by the Inter-Committee Meeting of the human rights treaty bodies, and to observe the limit of 222

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80 pages. The treaty-specific document and the common core document together constitute the reporting obligation of the State party under the Convention. 35. The State party is invited to submit its next report, which will be the second periodic report, by 3 June 2015. __________________

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DOCUMENT 5 STATEMENT ON GOVERNMENT RECOGNITION OF SOUTH SUDAN DUBLIN, 9 JULY 2011

Department of Foreign Affairs and Trade, Press Office, 9 July 2011

Government Recognises the Independence of South Sudan The Tánaiste and Minister for Foreign Affairs and Trade, Eamon Gilmore T.D., announced today that the Government has recognised the independence of the Republic of South Sudan. Recognition by Ireland follows the declaration, earlier today in Juba, of independence by the Government of Republic of South Sudan. All EU Member States have agreed to recognise the Republic of South Sudan in accordance with their own domestic procedures. The Tanaiste said: “I very much welcome the coming into existence of the Republic of South Sudan as the concrete expression of the will of the southern Sudanese people, following their overwhelming vote in favour of independence in January of this year. The EU has been an active participant with others in the international community in working towards this day. I wish to also acknowledge the important role played by the United Nations and its mission to Sudan, UNMIS, as well as the African Union and IGAD.” “The holding of the referendum and the subsequent establishment of the State were foreseen under the terms of the Comprehensive Peace Agreement of 2005. Also foreseen in that Agreement was the resolution of a wide range of issues including border demarcation and oil revenues, which remain outstanding. The international community must remain engaged to find ways in which these issues can be resolved. The establishment of normal relations between the Government of the Republic of Sudan and the Government of the Republic of South Sudan is important not only for their own peoples, but also for the region as a whole.” The Tánaiste also said “Continuing violence in Southern Kordufan and the resulting humanitarian crisis remains a major concern. I welcome the recent agreement between the parties on political and security arrangements in Blue Nile and Southern Kordufan but call on them to conclude a cessation of hostilities agreement as a matter of urgency and to allow full humanitarian access. I also call on the Government of the Republic of Sudan and the Government of the Republic of South Sudan to respect the agreement on Abyei and to cooperate fully with the Ethiopian peacekeeping mission and the UN as it seeks to improve the humanitarian situation on the ground.” 225

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Ireland has a long history of providing humanitarian assistance in both parts of Sudan and the Government is committed to supporting the fledgling country as the new Government in Juba takes responsibility for the future of its people. Ireland will play its part internationally to help resolve outstanding issues between Sudan and South Sudan, and will also seek to provide what assistance we can to the very vulnerable population of the new State. A team from Irish Aid recently visited South Sudan to assess needs and we will continue to provide humanitarian assistance in the first instance.”

Note for Editors: Jan uary 2011, the people of South Sudan voted In a referendum held from 9-15 January 2011, the people of South Sudan voted 99% in favour of secession from Sudan. The referendum was held under the terms of the 2005 Comprehensive Peace Agreement, to which the EU was a witness signatory. Ireland is represented at the independence ceremonies today in Juba by our Ambassador to Ethiopia. Irish Aid supports both the UN and Humanitarian NGOs working in Sudan and to date in 2011 has disbursed nearly €7 million for urgent humanitarian needs. €5m of this was provided to the United Nations Common Humanitarian Fund in Sudan, for allocation by the UN’s Humanitarian Coordinator to agencies operating locally. The remainder was provided to NGOs such as Concern, World Vision, Medecins sans Frontieres and Goal.

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DOCUMENT 6

STATEMENT TO UN ON RESPONSIBILITY TO PROTECT: IRELAND NEW YORK, 12 JULY 2011

IRELAND

Statement by

H.E. Ms. Anne Anderson Permanent Representative

General Assembly interactive thematic debate on “The role of regional and sub-regional arrangements in implementing the responsibility to protect”

New York 12 July 2011

PERMANENT M ISSION OF IRELAND TO THE UNITED NATIONS 885 SECOND AVENUE, NEW YORK, NY 10017 TELEPHONE 212 421-6934 FAX 212 752-4726 [email protected]

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Mr President, I would like ot make a few preliminary points before turning to the specific issue of regional and sub-regional arrangements in implementing the Responsibility to Protect. Firstly; These annual GA debates are welcome and important. All of our heads of State and government, acting unanimously, mapped out the doctrine of Responsibility to Protect in their 2005 Summit Outcome Document. The membership in its entirety thus has ownership of the concept, our GA debates help us to exercise this ownership. Secondly; We appreciate the emphasis which the preparatory papers have placed on the Responsibility to Protect as an operational, not just conceptual, doctrine. The relevant paragraphs of the 2005 Summit Outcome Document clearly deliniate the scope and specifitiy of the doctrine, and the respective responsibilities of individual states and of the international community. There is an explicit commitment to individual and collective action. Alongside an acceptance of the need for continued consideration by the General Assembly. In the almost six years since adoption of the outcome Document, it has seemed at times as if the sentence on continued consideration risked obscuring other passages of the text. Of course, we need and welcome constructive and probing discussion, and we are mandated to carry forward that discussion. But the United Nations is more than a debating society, and a world of urgent needs does not allow us the leisure to circle endlessly around philosophical concepts. The history of Responsibility to Protect will be written through its application or nonapplication in particular circumstances. When and how we apply the doctrine, whether we are faithful to the three-pillar approach, whethere we hold ourselves to the principle of nonselectivity, that is how we will be judged. Thirdly; Ireland strongly emphasises the preventiive aspects of the doctrine - the importance of helping states to build capacity to ensure the protection of their citizens. That is why, to cite a couple of examples, we have been active in security sector reform in Timor Leste and we are helping in Liberia to strengthen its police force. It is also why we have contributed over $2 million to supporting UN mediation efforts in the years since adoption of the Summit Outcome Document and why we have been such consistent supporters of UN peacebuilding. Mr President, On the role of regional bodies, it is extremely useful to be reminded of what is being done by the various bodies we have heard from in the course of today’s debate. These regional bodies span all contintents, while each is shaped by the experience and circumstances in its own part of the world, there is obvious and ample scope for cross-learning Ireland is of course active within the EU in promoting Responsibility to Protect, and we align ourselves with the earlier EU statement. In January 2012, Ireland will assume the Chairmanship of the OSCE. During our Chairmanship-in-office we will continue to promote the OSCE principles of democracy, rule of law and respect for human rights, both through the Organisation’s field activities and its central institutions, including the High Commissioner on national Minorities and the Office of Democratic Institutions and Human Rights.

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In all parts of the world, individuals whose fundamental rights are at risk must be able to rely on multiple layers of protection: local, national, regional, global. The first and most effective layers are those closest to home. The thrust of international efforts must be to help buttress those initial layers, strengthening local and national capacities to act. I find the Secretary- General’s report we are discussing today particularly good in its treatment of the complex interaction between the various layers. Paragraph 24 of the Report strikes a judicious balance, giving full weight to the uniquely valuable insights which regional partners can bring, while at the same time recognising that “it should not be assumed that they are always right… Sometimes more distant observers will have a borader or more balanced perspective”… Paragraph 24 concludes that “the challenge is to find the practices and processes that are most likely to achieve both the proper balance and the best outcomes from these complex interactions”. That is a very serious point, and it is imperative that we get these interactions to work better. Regional actors have huge responsibilities. As well as successes to which we can point, we all have failures that weigh heavily on our consciences. A searing experience for me personally was the participation in the early 90s, in an EU Mission to investigate the rape of women in the former Yugoslavia. It is impossible to forget the reproach, the particular anguish, in the question we so often encountered: “How could you have let it happen to us… to members of your European family?” For people everywhere, the failure of your own - whether they be your fellow Europeans, your fellow Africans, your fellow Asians, your fellow Americans - are felt most bitterly. But the Secretary-General’s report is right: “Politics, profits and national interests come into play at the regional and sub-regional levels, just as they do in the deliberations of intergovernmental bodies in the United Nations”. Which of us who has participated in regional groupings has not experienced it to some degree: the unease about criticising a neighbour, the consciousness of imperfections in our own societies which can make us hesitate to speak out clearly even when we know we should? If that critical interaction of which the Secretary-General’s report speaks is to function better, then we have work to do at both regional and global levels. At a regional level, we have to ensure that a reflexive solidarity with neighbouring governments does not trump our human solidarity - the responsibilities we have to those women and men who see us as members of their extended regional family and accordingly feel they have a special claim on our understanding and support. If we as neighbours have a uniquely valuable insight, which entitles us to special consideration of our views and a special space for us to act, then this must be matched by a commensurate will and capacity to act. At the international level, the readiness to give a special hearing to regional actors must be genuine. It cannot be just a question of embracing the views of regional actors if they happen to chime with our own. What is required is a consistently careful weighng of the analysis and views of those closest to the problem, and with special insights that this closeness brings. And if we are genuine in the emphasis we place on the importance of protection at regional level, we will be ready to help build capacity to ensure that this protection can be meaningfully exercised.

Mr President,

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As we further develop and make operational the doctrine of Responsibility to Protect, this question of the interplay between national, regional and international actors will become even more critical. Given the particular sensitivity of the Third Pillar action, it is especially important to work towards greater coherence and common purpose when action within that Pillar is envisaged. The Secretary-General’s report in its final section rightly emphasises the importance of the Security Council employing the full range of instruments which the Charter has placed at its disposal. Chapter VII decisions are by definition agonising. We are all acutely conscious that this year, in relation to Libya, the Security Council for the first time has cited the Responsibility to Protect in the preamble of a Chapter VII Resolution. Given the significance of this step, it is critically important that in the unfolding of events, the interplay between regional actors and the Security Council develops in the most careful, considered and responsible way. Mr President, Ireland’s foreign policy illustrates the strong attachment of successive Irish governments to the concepts central to the Responsibility to Protect. I avail of today’s debate to reaffirm that we will continue to give clear and practical expression to that attachment.

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DOCUMENT 7 TANAISTE STATEMENT ON DEVELOPMENTS IN LIBYA DUBLIN, 22 AUGUST 2011

Department of Foreign Affairs and Trade, 22 August 2011 Statement by Tanaiste on developments in Libya I welcome what now appears to be the end of the Gaddafi dictatorship in Libya. I have previously made clear our view that Colonel Gaddafi and his family have no role in the future government of Libya, and he should now depart without further violence. Yesterday I watched the hope and emotion as the pace of events quickened and the rebels surged towards and entered Tripoli, and the population celebrated what looks like the end of the dictatorship which has ruled Libya for 42 years. In the end the forces of the dictator, which had no real popular support, seem to have withered away. The fighting is probably not yet over, but we can hope now that the Libyan revolution can be brought quickly to a successful end with the minimum of bloodshed. The Libyan National Transitional Council is now the only authority in Libya, and I hope they will quickly be able to establish an effective government over the whole country. I have met their representatives, and was impressed by their vision of an inclusive and democratic future for all Libyans, and the thought-out plans they had for achieving it. The international community will look to them to respect human rights and the rule of law, including in respect of prisoners, and to restore peace and stability. Libya now faces urgent tasks of reconstruction, reconciliation and development. Ireland, both nationally and with our European Union partners, will do all we can to help. I will be discussing these issues with my EU colleagues in the coming weeks. During these past weeks, as the fighting drew close to Tripoli, my Department=E2=80=99s Consular services remained in close contact with the remaining Irish families there, and made arrangements for possible evacuation. We believe that all Irish citizens are safe at this time. We have also had many representations over recent months from the Libyan community in Ireland, and I offer them my congratulations on what should be a hopeful new beginning in their homeland. Finally, we have now watched popular demands for change sweep away oppression in Tunisia, Libya and Egypt. The Arab peoples have shown us that they have the same desire for freedom and democracy as we do, and they will not be intimidated. I hope, even at this late stage, that the authorities in Syria and elsewhere will learn this lesson.

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DOCUMENT 8 SUMMARY RESPONSE TO TANAISTE CONCERNING THE CLOYNE REPORT DUBLIN, 3 SEPTEMBER 2011

Summary of the Response to Mr Eamon Gilmore, Tánaiste and Minister for Foreign Affairs and Trade of Ireland, concerning the Cloyne Report On 14 July 2011, following the publication of the Report of the Commission of Investigation into the Diocese of Cloyne (Cloyne Report), Mr Eamon Gilmore, Deputy Prime Minister (Tánaiste) and Minister for Foreign Affairs and Trade of Ireland, in the course of a meeting with the Apostolic Nuncio in Ireland, Archbishop Giuseppe Leanza, conveyed the Irish Government’s request for a response from the Holy See to the Report and to the Government’s views in its regard. 1. General remarks about the Cloyne Report The Holy See has carefully examined the Cloyne Report, which has brought to light very serious and disturbing failings in the handling of accusations of sexual abuse of children and young people by clerics in the Diocese of Cloyne. The Holy See wishes to state at the outset its profound abhorrence for the crimes of sexual abuse which took place in that Diocese and is sorry and ashamed for the terrible sufferings which the victims of abuse and their families have had to endure within the Church of Jesus Christ, a place where this should never happen. It is very concerned at the findings of the Commission concerning grave failures in the ecclesiastical governance of the Diocese and the mishandling of allegations of abuse. It is particularly disturbing that these failures occurred despite the undertaking given by the Bishops and Religious Superiors to apply the guidelines developed by the Church in Ireland to help ensure child protection and despite the Holy See’s norms and procedures relating to cases of sexual abuse. However, the approach taken by the Church in Ireland in recent times to the problem of child sexual abuse is benefitting from ongoing experience and proving more and more effective in preventing the recurrence of these crimes and in dealing with cases as they arise. 2. Issues raised by the Cloyne Report The Holy See’s Response addresses in detail the various charges made against it, which seem to be based primarily on the Cloyne Report’s account and assessment of the letter addressed to the Irish Bishops on 31 January 1997 by the then Apostolic Nuncio, Archbishop Luciano Storero, concerning the response of the Congregation for the Clergy to the document Child Sexual Abuse: Framework for a Church Response (the Framework Document). The Commission of Inquiry asserts that this response gave comfort to those who dissented from the stated official Church policy and was unsupportive especially in relation to reporting to the civil authorities.

The Holy See wishes to state the following in relation to the response of the Congregation for the Clergy:

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- The Congregation described the Framework Document as a “study document” on the basis of information provided by the Irish Bishops, who described the text not as an official document of the Irish Bishops’ Conference, but, rather, as a “report” of the Irish Catholic Bishops’ Advisory Committee on Child Sexual Abuse by Priests and Religious, recommended “to individual dioceses and congregations as a framework for addressing the issue of child sexual abuse.” - The Irish Bishops never sought the recognitio of the Holy See for the Framework Document, which, in accordance with canon 455 of the Code of Canon Law, would have been required only if they intended it to be a general decree of the Conference binding on all its members. However, the lack of recognitio itself did not preclude the application of the document’s guidelines, since individual Bishops could adopt them without having to refer to the Holy See. This is, in fact, what generally happened in Ireland. - The Irish Bishops consulted the Congregation to resolve difficulties relating to some of the content of the Framework Document. The Congregation offered advice to the Bishops with a view to ensuring that the measures which they intended to apply would prove effective and unproblematic from a canonical perspective. For this reason, the Congregation drew attention to the requirement that these measures should be in harmony with canonical procedures in order to avoid conflicts that could give rise to successful appeals in Church tribunals. The Congregation did not reject the Framework Document. Rather, it wanted to ensure that the measures contained in the Framework Document would not undermine the Bishops’ efforts to discipline those guilty of child abuse in the Church. At the same time, it is important to bear in mind the decision of the Holy See in 1994 to grant special provisions to the Bishops of the United States to deal with child sexual abuse in the Church. These provisions were extended to the Bishops of Ireland in 1996 to assist them to overcome difficulties that they were experiencing at that time (cf. Part Six of the Response). - Meeting canonical requirements to ensure the correct administration of justice within the Church in no way precluded cooperation with the civil authorities. The Congregation for the Clergy did express reservations about mandatory reporting, but it did not forbid the Irish Bishops from reporting accusations of child sexual abuse nor did it encourage them to flout Irish law. In this regard, the then Prefect of the Congregation, Cardinal Darío Castrillón Hoyos, in his meeting with the Irish Bishops at Rosses Point, County Sligo (Ireland), on 12 November 1998 unequivocally stated: “I also wish to say with great clarity that the Church, especially through its Pastors (Bishops), should not in any way put an obstacle in the legitimate path of civil justice, when such is initiated by those who have such rights, while at the same time, she should move forward with her own canonical procedures, in truth, justice and charity towards all.” It should be noted that, at the time, not only the Church but also the Irish State was engaged in efforts to improve its own legislation on child sexual abuse. To this end, the Irish Government organized an extensive consultation on mandatory reporting in 1996 and, after taking into account the reservations expressed by various professional groups and individuals in civil society – views broadly in line with those expressed by the Congregation – it decided not to introduce mandatory reporting into the Irish legal system. Given that the Irish Government of the day decided not to legislate on the matter, it is difficult to see how Archbishop Storero’s letter to the Irish Bishops, which was issued subsequently, could possibly be construed as having somehow subverted Irish law or undermined the Irish State in its efforts to deal with the problem in question. 3. Issues raised by Irish political leaders The Holy See wishes to state the following in relation to some of the reactions of Irish political leaders: - While the Holy See understands and shares the depth of public anger and frustration at the findings of the Cloyne Report, which found expression in the speech made by the Taoiseach, Mr Enda Kenny, in Dáil Éireann on 20 July 2011, it has significant reservations about some aspects of the speech. In particular, the accusation that the Holy See attempted “to frustrate an Inquiry in a sovereign, democratic republic as little as three years ago, not three decades ago” is unfounded. Indeed, when asked, a Government spokesperson clarified that Mr Kenny was not referring to any specific incident. 234

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In fact, accusations of interference by the Holy See are belied by the many Reports cited as the basis for such criticisms. Those Reports – lauded for their exhaustive investigation of sexual abuse and the way it was managed – contain no evidence that the Holy See meddled in the internal affairs of the Irish State or was involved in the day-to-day management of Irish dioceses or religious congregations with respect to sexual abuse issues. Indeed, what is impressive about these Reports, and the vast information that they rely upon, is that there is no support for these accusations. In this regard, the Holy See wishes to make it quite clear that it in no way hampered or sought to interfere in any inquiry into cases of child sexual abuse in the Diocese of Cloyne. Furthermore, at no stage did the Holy See seek to interfere with Irish civil law or impede the civil authority in the exercise of its duties. - The Holy See would also point out that the text of the then Cardinal Joseph Ratzinger quoted by Mr Kenny in his speech is taken from No. 39 of the Instruction on the Ecclesial Vocation of the Theologian, published by the Congregation for the Doctrine of the Faith on 24 May 1990. This text is concerned neither with the manner in which the Church should behave within a democratic society nor with issues of child protection, as Mr Kenny’s use of the quotation would seem to imply, but with the theologian’s service to the Church community. - In his meeting with the Apostolic Nuncio, the Tánaiste and Minister for Foreign Affairs and Trade, Mr Eamon Gilmore, stated that “among the most disturbing of the findings of the Cloyne report is that the Vatican authorities undermined the Irish Church’s own efforts to deal with clerical child sexual abuse by describing the framework document adopted by the Bishops’ Conference as a mere ‘study document’.” As is made clear in the Holy See’s Response this description was based on the explanations of its nature as provided by the Irish Bishops and in the published text itself. In no way was it a dismissal of the serious efforts undertaken by the Irish Bishops to address the scourge of child sexual abuse. - With regard to the motion passed in Dáil Éireann on 20 July 2011, and by Seanad Éireann a week later, deploring “the Vatican’s intervention which contributed to the undermining of the child protection framework and guidelines of the Irish State and the Irish Bishops” the Holy See wishes to clarify that at no stage did it make any comment about the Irish State’s child protection measures, let alone seek to undermine them. The Holy See observes that there is no evidence cited anywhere in the Cloyne Report to support the claim that its supposed “intervention” contributed to their “undermining”. As for those of the Irish Bishops, the Response offers sufficient clarifications to show that these were in no way undermined by any intervention of the Holy See. 4. Concluding remarks In its Response, the Holy See offers a presentation of the Church’s approach to child protection, including the relevant canonical legislation, and refers to the Holy Father’s Letter to the Catholics of Ireland, published on 19 March 2010, in which Pope Benedict indicates his expectation that the Irish Bishops will cooperate with the civil authorities, to implement fully the norms of canon law and to ensure the full and impartial application of the child safety norms of the Church in Ireland. The publication of the Cloyne Report marks a further stage in the long and difficult path of ascertaining the truth, of penance and purification, and of healing and renewal of the Church in Ireland. The Holy See does not consider itself extraneous to this process but shares in it in a spirit of solidarity and commitment. In a spirit of humility, the Holy See, while rejecting unfounded accusations, welcomes all objective and helpful observations and suggestions to combat with determination the 235

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appalling crime of sexual abuse of minors. The Holy See wishes to state once again that it shares the deep concern and anxiety expressed by the Irish authorities, by Irish citizens in general and by the Bishops, priests, religious and lay faithful of Ireland with regard to the criminal and sinful acts of sexual abuse perpetrated by clergy and religious. It also recognizes the understandable anger, disappointment and sense of betrayal of those affected – particularly the victims and their families – by these vile and deplorable acts and by the way in which they were sometimes handled by Church authorities, and for all of this it wishes to reiterate its sorrow for what happened. It is confident that the measures which the Church has introduced in recent years at a universal level, as well as in Ireland, will prove more effective in preventing the recurrence of these acts and contribute to the healing of those who suffered abuse and to the restoration of mutual confidence and collaboration between Church and State authorities, which is essential for the effective combating of the scourge of abuse. Naturally, the Holy See is well aware that the painful situation to which the episodes of abuse have given rise cannot be resolved swiftly or easily, and that although much progress has been made, much remains to be done. Since the early days of the Irish State and especially since the establishment of diplomatic relations in 1929, the Holy See has always respected Ireland’s sovereignty, has maintained cordial and friendly relations with the country and its authorities, has frequently expressed its admiration for the exceptional contribution of Irish men and women to the Church’s mission and to the betterment of peoples throughout the world, and has been unfailing in its support of all efforts to promote peace on the island during the recent troubled decades. Consistent with this attitude, the Holy See wishes to reaffirm its commitment to constructive dialogue and cooperation with the Irish Government, naturally on the basis of mutual respect, so that all institutions, whether public or private, religious or secular, may work together to ensure that the Church and, indeed, society in general will always be safe for children and young people.

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DOCUMENT 9 STATEMENT TO UN ON UNIVERSAL JURISDICTION DUBLIN, 12 OCTOBER 2011 Statement by Nuala Ní Mhuircheartaigh, Assistant Legal Adviser, Department of Foreign Affairs and Trade Sixth Committee United Nations General Assembly 66th Session, 12 October 2011 Agenda item 84: The scope and application of the principle of universal jurisdiction

Mr Chair 1. As this is the first time for me to take the floor in the 6th Committee, allow me to congratulate you and the members of the Bureau on your election. I can assure you of the full cooperation of the Irish delegation throughout the session. 2. Ireland welcomes this opportunity to comment today on the scope and application of universal jurisdiction. This is an important issue, although it is a topic on which there has often been much confusion. The debate and the upcoming Working Group are a worthwhile opportunity for us to exchange views and experiences. 3. For the purposes of today’s debate, I would like to first briefly set out Ireland’s general view on universal jurisdiction; before making some comments on our preferred approach to future consideration of this issue. Universal jurisdiction in the Irish domestic context 4. In our view the topics of universal jurisdiction; other categories of extra-territorial jurisdiction; the jurisdiction of international criminal tribunals; and the question of immunities are generally related, but must be considered and applied as separate and distinct concepts. 5. Exercise of extra-territorial jurisdiction of any type – including universal jurisdiction - is exceptional under Irish law. 6. In our view, universal jurisdiction consists of the exercise of jurisdiction over an offence irrespective of the place in which it was committed, the nationality of the accused, the nationality of the victim, or any other link with Ireland. 7. In Ireland exercise of universal jurisdiction is possible in only the most limited circumstances, for example in cases of torture or grave breaches of the Geneva Conventions. Prosecutions are not controlled by Government. In general, they are a matter for the Director of Public Prosecutions, which is a statutory office independent of the Government; and for the police, who are operationally independent of Government.

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Preferred approach to further discussion of universal jurisdiction 8. Concerning the debate at this session, we note that the upcoming Working Group of 6th Committee is tasked by General Assembly Resolution 65/33 with undertaking a “thorough discussion of the scope and application of universal jurisdiction”. We look forward to that discussion and would like to thank the Secretary General for his Report on this item, contained in document A/66/93, which will assist us in that regard. 9. Ireland has reviewed with particular interest Part VI of the Secretary General’s Report, which contains an account of the proposals of certain States for the further discussion of this item. 10. We have noted in particular the proposal of certain States (as set out at paragraph 168 of the Report) that the UN should establish an international commission, subsidiary to the General Assembly, to act as a “regulatory body on the exercise of universal jurisdiction”. Ireland is of the view that such a regulatory body would not be compatible with the purpose or character of universal jurisdiction. 11. We would also have concern about the proposal for either a general or a specific moratorium on the exercise of universal jurisdiction pending exhaustive debate on the issue in the General Assembly. 12. We are instead inclined to support the Swiss proposal (reflected at paragraph 149 of the Report) that, given its legal and technical character, the topic could usefully be added to the agenda of the International Law Commission. 13. In this regard, we note that the ILC already has some related topics on its agenda, namely the obligation to extradite or prosecute; and immunity of state officials from foreign criminal jurisdiction. Referring this issue to the ILC could therefore be a fruitful approach, as it would allow detailed, expert study of the scope and application of universal jurisdiction. If necessary, additional discussion of the topic by States in the framework of the 6th Committee could then be undertaken, on foot of the outcome of the ILC’s work. Mr Chair 14. The discussions of this Committee may sometimes be technical, but they are of real and concrete importance. This is particularly true of an item such as universal jurisdiction. 15. The technical aspects of our work should not obscure in our minds the reality that universal jurisdiction may often be the last defence against impunity. Ireland hopes our discussions can support that protection of last resort, on which we all rely. Thank you

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DOCUMENT 10 TANAISTE STATEMENT ON INTERCEPTION OF THE MV SAOIRSE DUBLIN, 4 NOVEMBER 2011

Department of Foreign Affairs and Trade, Press Office, 4 November 2011 MV Saoirse - Statement by the T=C3=A1naiste Commenting on the Israeli Navy interception earlier today of two vessels, including the MV Saoirse operated by the Irish Ship to Gaza campaign and with fourteen Irish nationals aboard, as they attempted to sail to Gaza, the Tanaiste and Minister for Foreign Affairs and Trade, Mr. Eamon Gilmore, T.D., stated: My initial reaction is one of relief that there has been no violence and that all the Irish nationals aboard the MV Saoirse are safe and well following this ordeal. My priority and responsibility throughout this whole episode, as in relation to previous flotillas attempting to sail to Gaza, has been to ensure that no harm would come to any Irish national involved and I am gratified that this has been accomplished. My Department both here and through our Embassy in Tel Aviv has been in constant contact throughout with the Israeli authorities in relation to this matter and have particularly urged that all possible restraint be exercised by Israel in carrying out any interception. I welcome that this clear message appears to have been heeded by the Israeli authorities. The priority must remain the safety and welfare of all those who have now been taken into Israeli custody. I will be continuing to press the Israeli authorities to allow the earliest possible consular access by Irish Embassy officials to any Irish nationals detained and brought to Ashdod. My views and those of the Government on the Gaza blockade are well known. We do not agree with it, regard it as contrary to international humanitarian law in its impact on the civilian population of Gaza, and have repeatedly urged Israel to end a policy which is unjust, counter-productive and amounts to collective punishment of 1.5 million Palestinians. My Department’s official advice to anyone seeking to sail to Gaza at present in an effort to challenge the blockade remains unchanged. I cannot recommend such a course of action, given the likelihood that it could pose a clear risk to the safety and welfare of those doing so and in light of Israel’s clear insistence that they will enforce their blockade. While Israel is entitled to prevent weapons and genuinely military materials entering Gaza, and therefore to stop and search cargoes, I do not accept that Israel has any right to prevent 239

The Irish Yearbook of International Law 2011

peaceful protestors or humanitarian aid from proceeding to Gaza. However, the priority above all must remain to seek to defuse any such situations which arise and ensure the safety and welfare of all those involved.

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Documents 2011

DOCUMENT 11 DECLARATION ON THE JURISDICTION OF THE ICJ DUBLIN, 15 DECEMBER 2011

Declaration on the Jurisdiction of the International Court of Justice Lodged: 15 December 2011 Ireland hereby declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes as specified in Article 36, paragraph 2, with the exception of any legal dispute with the United Kingdom of Great Britain and Northern Ireland in regard to Northern Ireland. The present Declaration shall take effect from the date of its receipt by the Secretary-General of the United Nations. The Government of Ireland reserves the right at any time, by means of a notification addressed to Secretary-General of the United Nations and with effect from the date of such notification, either to amend or withdraw the present Declaration; or to add to, amend or withdraw the foregoing reservation or any other reservations which may subsequently be made. Dublin, 8 December 2011. (Signed) Eamon Gilmore, T.D. Tánaiste and Minister for Foreign Affairs and Trade of Ireland

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