Guest Post: Ireland’s groundbreaking ‘Control of Economic Activity (Occupied Territories) Bill, 2018’ – Part I

I am very pleased to share Part I of this guest post by Gerry Liston on a very significant legislative development in Ireland in the context of business and human rights. Gerry Liston is a legal officer with the Global Legal Action Network and Sadaka – the Ireland Palestine Alliance and has worked with Senator Frances Black on the drafting and other legal aspects relating to the Occupied Territories Bill.

On the 24thJanuary the Dáil (Ireland’s lower house of parliament) voted by 78 votes to 45 in support of the Control of Economic Activity (Occupied Territories) Bill, 2018. The Occupied Territories Bill is a draft piece of legislation which, if enacted, will proscribe the importation and sale in Ireland of goods and services originating in settlements which have been illegally established on occupied territory. It also prohibits Irish companies from engaging in the extraction of resources from an occupied territory where this is carried out under the authority of the “occupying power” over that territory.

The Bill was first introduced to the Seanad (i.e. the Senate, Ireland’s upper house) in January 2018 by the independent Senator, Senator Frances Black and was passed by the Seanad on the 5th December. It was then introduced to the Dáil for “second stage” debate (which is confined to the principle of the Bill) on the 23rdJanuary by Niall Collins TD, the foreign affairs and trade spokesperson for Fianna Fáil (Ireland’s largest opposition party).

It was fitting that this debate happened to coincide, almost to the day, with the centenary of the first Dáil which convened in the Mansion House in Dublin on the 21stJanuary 1919. The resounding endorsement of the Occupied Territories Bill reaffirmed the commitment to international law and anti-colonialism expressed on the first Dáil’s behalf by Deputy Robert Barton as part of its “message to the free nations of the world,” in which he stated:

Ireland today reasserts her historic nationhood the more confidently before the new world emerging from the War, because she believes in freedom and justice as the fundamental principles of international law, because she believes in a frank co-operation between the peoples for equal rights against the vested privileges of ancient tyrannies, because the permanent peace of Europe can never be secured by perpetuating military dominion for the profit of empire but only by establishing the control of government in every land upon the basis of the free will of a free people.

General Application of the Occupied Territories Bill

While the Bill is capable of applying to any occupied territory, the debate surrounding it has focused predominantly on the Israeli occupation of Palestine. Indeed, it is only in relation to this situation of occupation that the Bill will apply automatically on enactment. Section 3 of the Bill defines the term “relevant occupied territories” (to which it applies) as follows:

In this Act, “relevant occupied territory” means a territory which is occupied within the meaning of the Fourth Geneva Convention, and which has been—

(a) confirmed as such in a decision or advisory opinion of the International Court of Justice,

(b) confirmed as such in a decision of the International Criminal Court,

(c) confirmed as such in a decision of an international tribunal, or

(d) designated as such for the purposes of this Act in a regulation made by the Minister pursuant to section 4.

The term “international tribunal” refers to a separate statutory definition of the “ad hoc” international criminal tribunals established by the United Nations.

Section 3 acknowledges the pre-eminent role of the government in matters of foreign affairs (in this case in determining whether a particular territory is occupied) but makes an exception where this question has already been determined by a competent international court. It is because the Israeli occupation of Palestine is the only current situation of military occupation which has been confirmed as such by an international court of the kind referred to in section 3 (i.e. the International Court of Justice in its 2004 advisory opinion on “the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”) that the Bill will only apply automatically on enactment to that situation.

Many Senators and TDs have, however, emphasised the applicability of the Bill to other situations of occupation, in particular the Moroccan occupation of Western Sahara. Indeed, the Global Legal Action Network’s recent complaint to Ireland’s National Contact Point for the OECD’s Guidelines for Multinational Enterprises in relation to Irish oil and gas company San Leon Energy plc in relation to its activities in Western Sahara highlights the potential of the Bill to have practical application beyond occupied Palestinian territory.

It is, on the other hand, important to note that the measures contained in the Bill pale by comparison to those already applied by Ireland in relation to certain other situations of occupation. For example, with regard to Russia’s occupation and annexation of Crimea and Sevastopol in Ukraine, Ireland, as a Member of the EU, already applies, in addition to a “ban on imports of goods originating in Crimea or Sevastopol unless they have Ukrainian certificates,” a range of other punitive measures designed to sanction Russia for its breach of international law.

Those critics who accuse Ireland for “singling out Israel” in seeking to enact the Occupied Territories Bill therefore ignore not only the fact that the Bill is capable of general application but also the fact that Ireland already sanctions other countries to a much greater extent for similar breaches of international law. Indeed, if Israel is “singled out” for special treatment in any way it is because it is not subjected to the types of sanctions that are reflexively (and rightly) applied by the international community to other countries who engage in similar breaches of international law to those being committed in Palestine. This is most starkly illustrated by the fact that since 1970, over one-quarter of all UN Security Council vetoes have been used (by the U.S.) to prevent sanctions, or even mere condemnation, in relation to Israeli breaches of international law. In reality, therefore, the difficulty Israel has with this Bill (which its government describes as the most extreme anti-Israeli legislation ever adopted by a Western country) is not that it singles out Israel for special treatment but that it fails to provide Israel with the special exemption which it is accustomed to receiving from the international community.

The Occupied Territories Bill as a Business and Human Rights Measure

The endorsement of the Occupied Territories Bill by both houses of the Oireachtas (Irish parliament) represents a significant commitment by Ireland to business and human rights principles. It gives effect in particular to Guiding Principle 7 of the UN Guiding Principles on Business and Human Rights which provides that, “Because the risk of gross human rights abuses is heightened in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by … [e]nsuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.”

In its recent report “Destination: Occupation Digital Tourism And Israel’s Illegal Settlements In The Occupied Palestinian Territories,” Amnesty International noted that:

A significant piece of legislation has been proposed in Ireland to prohibit the import or sale of goods or services from illegal settlements in territories deemed occupied under international law, or the facilitation of these actions. Significantly, this bill is proposed as a measure ‘to give effect to the State’s obligations arising under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War and under customary international humanitarian law’.

The report also notes how AirBnB, despite committing to ending the listing of accommodation in Israeli settlements, continues to list accommodation in occupied East Jerusalem. Much of its business in Israel and the oPt, the report further notes, is transacted through a Dublin-registered company. It therefore makes a specific recommendation to the Government of Ireland that it:

Take regulatory action to prevent Ireland-based companies, such as Airbnb Ireland (which handles all Airbnb business outside of the USA, China and Japan) from providing or facilitating the provision of tourism services, including holiday accommodation, activities and attractions, in illegal Israeli settlements or by settlers in the OPT.

All the government in fact needs to do implement this recommendation is to facilitate the enactment of the Occupied Territories Bill, section 8 of which makes it an offence to facilitate the provision of a service provided in an illegal settlement. It is therefore deeply disappointing that the government (which is a minority government) has not only opposed the Occupied Territories Bill from the outset but has made it clear that it intends to refrain from providing a “Money Message” in relation to the Bill, effectively blocking its progression beyond “second stage” on the basis of the financial implications to the State that would result from its enactment.

Part II of this post will be available tomorrow. 

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