Micheál Martin (Cork South Central, Fianna Fail)

I thank the committee for this opportunity to set out the Government’s approach to the Control of Economic Activity (Occupied Territories) Bill 2018. Our further consideration of this matter takes place against the backdrop of a deeply troubling situation in the West Bank, including east Jerusalem. The United Nations has reported record levels of settlement expansion and we are also witnessing unacceptable levels of settler violence. Ireland’s position and, indeed, that of the European Union is clear: settlements are illegal under international law and those responsible for settler violence must be held to account. This has been a long-standing priority for the Government. I welcome that successive rounds of European Union sanctions have been adopted against violent Israeli settlers this year and that further sanctions are under consideration. We will continue to actively press for such responses at EU level. It is also notable that other partners, such as the US and the United Kingdom, have also taken similar measures.

I welcomed the advisory opinion delivered by the International Court of Justice, ICJ, in July. The request by the General Assembly for this advisory opinion was strongly supported by Ireland in December 2022, so we took a proactive role in the genesis of the advisory opinion. The Government subsequently made submissions and shared its legal analysis through written and oral submissions to the court. Ireland’s core objective in making submissions in this case was to encourage the court to clarify the rights of the Palestinian people in international law and the opinion of the court largely confirmed the Government’s legal analysis. I thought that the Attorney General made a comprehensive and robust oral presentation to the court on the question of the occupation.

The advisory opinion has changed the legal context for the Control of Economic Activity (Occupied Territories) Bill 2018, so it was a significant moment, not just in our consideration but, we would argue at European level, in Europe's obligations in terms of responding to the ICJ's advisory opinion. The court’s principal conclusion was that Israel’s continued presence in the occupied Palestinian territory was unlawful and that it must be brought to an end as rapidly as possible. The court also identified a range of legal obligations for all states arising from that situation. These include a duty not to render aid or assistance in maintaining the illegal situation created by Israel in the occupied territories. The ICJ’s conclusions on this point were entirely consistent with the arguments made by the Attorney General on behalf of the Irish Government throughout the case.

While the ICJ’s advisory opinion is not in itself legally binding, the Government accepts that it represents an authoritative statement of applicable international law, which is binding on all states and international organisations. This is the changed legal context for the Bill. What has not changed is the EU’s exclusive competence in the field of trade for all its member states, including Ireland.

It was against this background that the Taoiseach asked the Attorney General to provide updated advice on the Bill. The advice provided to the Government remains that the Bill, in its present form, is incompatible with EU law and the Constitution. In its current form, it is unconstitutional. This advice reflects the conclusions also reached by this select committee in its detailed scrutiny of the Bill several years ago. The Attorney General has advised that if the EU does not take measures to limit or prevent trade with the settlements, there are exceptional grounds in EU law that could allow a member state to take measures itself. However, it is important to understand that these grounds have never been used before by a member state in similar circumstances. As a result, there remains a legal risk if we do take our own domestic measures.

In light of the new context provided by the advisory opinion, the Government has decided to review the Bill and prepare amendments. The purpose of the amendments will be to try to bring the Bill into line with European Union law and the Constitution and to reduce the risk of infringement proceedings against the State. The Government has also issued the money message necessary to enable the Bill to move to Committee Stage.

I stress, however, that the amendments required are not merely technical in nature. The Government’s analysis is that substantive amendment will be required to most, if not all, of the Bill’s provisions. At one stage, the Government considered whether it would table its own Bill. In fairness and in deference to the authors of the Control of Economic Activity (Occupied Territories) Bill 2018, the Government decided on taking the route of amending the latter. In the meantime, the Government will continue to press for action at the EU level.

I thank Senator Black, the sponsor of the Bill, for her constructive engagement. I have been in regular contact with her. Officials from my Department had a very useful meeting with her and her team last week, during which they went through the Bill in detail and proposed areas for amendment. With the permission of the Chair, I will ask one of my officials to go through some of those areas later. To give an outline, we have been advised that unilateral action by any EU member state in an area of exclusive EU competence such as trade can only be justified on public policy grounds under the European Union treaties and only then in the most exceptional circumstances. Public policy grounds are exceptional grounds in European Union law that could allow a member state to take measures itself. However, in the context of the Bill, public policy grounds for taking trade measures have never been used by a member state before in a case like that. In the past, public policy grounds have only been used to justify measures taken by a member state in response to public policy considerations unique to that member state.

In this case, Ireland would be adopting a measure in response to a public policy consideration, respect for international law, that applies throughout the European Union. There remains a risk, therefore, that legal action may be taken against Ireland. To justify the enactment of this Bill on the grounds of public policy, it will be necessary, for example, to limit the scope of the Bill to trade with the occupied Palestinian territory only. A Bill applying to the much broader category of all territories deemed occupied by international courts and tribunals or by Ministerial regulations could not be justified under EU law. This is because the EU has already adopted measures in relation to an occupied territory, like Crimea, for example, has not yet considered doing so, has not yet been asked to do so, etc. As a consequence, the power of the Minister to make regulations designating relevant occupied territories is, in its present form, incompatible with the Constitution and will need to be removed from the Bill.

That is just by way of illustrating some of the changes required. There are other areas as well. With the permission of the Chair, I will ask Mr. Smyth to comment on them.