Irish government urged to enact trade ban with Israeli settlements within a year

The Irish government is being urged to enact a bill banning trade with illegal Israeli settlements on Palestinian land within the next 12 months.

Frances Black, who first introduced the Occupied Territories Bill into the Dail in 2018, said that she does not mind if the ban is under her bill or new legislation.

But she said it was important the ban is not “watered down” in any new draft law.

The Senator’s Occupied Territories Bill bans trade of both goods and services with all illegally occupied territories, including illegal Israeli settlements on Palestinian land.

The government had committed to enacting the Senator’s bill after the UN’s top court issued an advisory opinion last July that said Israeli settlements built on Palestinian land were illegal.

The International Court of Justice (ICJ) said countries should “take steps to prevent trade or investment relations” that maintain these illegal settlements.

Micheal Martin, who is now Ireland’s premier, said in October that the advisory opinion provided “a very stateable case now” to enact the Occupied Territories Bill.

He said that substantial amendments would be needed to reflect the ICJ opinion and to make the bill legally “robust”.

But in January, Mr Martin said the Occupied Territories Bill would be replaced with fresh legislation and suggested “a full debate in the Dail” was now needed.

Ms Black said after making “huge progress” before the election, the government had now “backed away”.

“If they keep the same goods and services on their bill, I would be okay with that, but I do not want the bill watered down in any way,” she said.

“I’m concerned that they might get rid of services and we need both goods and services (banned), definitely.”

She added: “There is pressure on this government, the people of Ireland want this bill passed. They have committed to passing the bill and it’s absolutely vital that they stick to their commitment.

“I also would hope that if they do bring in their own legislation, that they would enact it in the first year of this term – that it would be enacted by this time next year.”

Campaigners involved in the drafting of the bill said they look forward to any legal challenge taken against it once it is enacted, as they feel strongly about the legality of a trade ban with illegal settlements.

They feel such a challenge, if won, could have far-reaching implications for the EU.

“If they come down on our side, they will set a precedent, not just for the Republic of Ireland, but for the entire European Union,” said Conor O’Neill, head of advocacy and policy at Christian Aid, one of the organisations involved in drafting the bill.

“That is one of the levers that we really want to pull with this. We are trying to poke at a grey area that has deliberately been left grey and ambiguous at EU level, whereby you robustly and strongly and repeatedly criticise the settlements as totally illegal, an obstacle to peace, a barrier to a two state solution, but on the on the other hand, you provide them with trade and economic and financial support.”

Gerry Liston, who is one of the original drafters of the bill, said that concerns raised by Irish governments over the years about the bill have been “legally wild” and made “in bad faith”.

Mr Liston, a senior lawyer with Global Legal Action Network and the Palestinian solidarity group Sadaka, said that government concerns about contravening EU law and the Irish Constitution are in contrast with its actions.

“Take the Apple tax case, for example. The government must have had legal advice back when those measures were being adopted – that were ultimately found to be in breach of EU law – that this raised a very real question around EU law,” he told PA.

“The compatibility of the Irish tax measures were much more likely to be found to breach the EU law than the Occupied Territories Bill, yet the government ploughed ahead anyway.

“Or, take a more recent example, the issue about super junior ministers. It’s pretty clear in the Constitution that there is a very real issue here, and constitutional lawyers have been saying this for a long time, but clearly attorneys general have been happy to green light it.”

Trade matters are an EU competency under EU law, but it has been argued that complying with the ICJ opinion is a justifiable defence.

“I think you could fairly summarise the Irish government’s position as ‘we broadly agree with you in principle, you’re right, but a national ban of this nature, we can’t do it because of EU trade law’,” Mr O’Neill said.

“There was no real principle to opposition, and we ended up in this sort of three or four year kind of legal detente, where we made the argument not just ourselves, but with the support of some of the most eminent and prominent legal scholars in the world – people who were involved in drafting the Treaty of Accession to the EU, former attorney generals in Ireland – really, really heavy hitters making the case that, yes, a banner of this nature would be permitted under EU law precisely because the trade that we’re talking about, the products or services we’re talking about, are the proceeds of crime.

“The settlements themselves are illegal, so a banner of this nature, while exceptional, would be permissible under Article 36 of the EU treaties.”

The bill’s backers also called government claims of it being unconstitutional, “a Trojan horse” and “a red herring”.

Mr O’Neill said that if the bill is amended to reflect the ICJ opinion, so that it applies only to occupied Palestinian land and not all occupied territories, then concerns about its constitutionality cease to apply.

He said the constitutional concerns were based on the bill defining an occupied territory based on judgements of an international court or tribunal, and if this decision receives the approval of the Dail and foreign affairs minister.

Concerns were raised that this would breach the “non-delegation doctrine” of the constitution, which states the Oireachtas cannot delegate its law-making function out, such as to an international court or minister.

Mr O’Neill said: “This broad suggestion of unconstitutionality, which I think is inaccurate, I would be concerned that it’s being used as a kind of a Trojan horse to slip in policy changes under the guise of it being required for some constitutional or legal reason.

“The big and most obvious one that’s been in the news a lot recently is the debate over whether the bill will implement exactly a full ban on all trade – physical goods and services – or whether services will be exempted.

“That has absolutely nothing categorically to do with the Constitution, that is an entirely political and policy choice.”

Mr Liston said: “It’s just a Trojan horse. They’re trying to justify all these proposed amendments, really watering down the bill under the cover of a constitutional argument that is really very narrow and taken care of by addressing the EU law issue, by making the bill Palestine specific.

“When you see what the International Court of Justice says, it requires much more than what the Occupied Territories Bill currently says. It’s already very narrow, too narrow to fulfil Ireland’s obligations.”