Mr. Conor O'Neill:

I sincerely thank the Chair and the committee for the opportunity to speak on behalf of the campaign to pass the occupied territories Bill, which is a broad and growing coalition of international aid agencies, trade unions, human rights organisations, academics and individuals. We, along with Senator Black, have made the case very clearly and consistently over many years why this legislation is both urgent and necessary, so in the interests of time I will not repeat those points. Instead, having worked hard to build a broad political consensus and strong public support, I want to focus on some of the remaining open questions, in particular the need and the capacity to include services in the legislation. I want to briefly touch on three things, namely, international law, EU law and the political choice that faces the committee.

Regarding international law, last year the International Court of Justice, in paragraph 278 of its landmark advisory opinion, held that all states are under an obligation "... to abstain from entering into economic or trade dealings ..." and to "... to prevent trade or investment relations ..." with the illegal Israeli settlements. This is hugely significant and also unequivocal. The primary judicial organ of the UN system made clear that not only is the occupation illegal and not only are the settlements illegal, but that all countries, including Ireland, are obliged not to trade with them. The exact policy proposed by the occupied territories Bill, which we drafted and tabled in 2018 with the leadership of Senator Black, is not some kind of optional extra we might consider but a firm and binding legal obligation under international law. Crucially, the ICJ does not make any distinction between trade in physical goods like fruit and vegetables on the one hand, and trade in intangible services like tech, tourism and IT on the other. Trade means trade. This should not be surprising because simply put, it is not the 1950s. In a modern, open economy an increasing proportion of our trade is in services. Based on the CSO data, about 70% of Ireland's trade with the wider world is in services, as is about 70% of our trade with Israel. The CSO regrettably does not publish specific data for the occupied Palestinian territories, but the general picture and general trend are very clear. We should not be talking about a trade ban that omits the majority of Irish trade. For the purposes of international law, ultimately it does not matter whether you are importing a box of olives produced on stolen Palestinian farmland or booking – or facilitating the booking of – a holiday rental in a stolen Palestinian home on a web platform. A euro of support is a euro of support. It all matters just the same.

The ICJ was clear that trade with the illegal settlements must end, full stop. To its credit, the Government has recognised this. Both the Taoiseach and the Tánaiste have spoken strongly, both here and at EU level, about our "obligations" as clarified by the ICJ. Complying with these obligations is explicitly stated as the basis of the legislation before the committee, in the proposed Long Title of the Bill. However, we cannot say we are going to give effect to those obligations while then exempting the parts that might be politically more challenging.

This is where the question shifts from international law to EU law and what an individual EU member state can or cannot do. We have made the case for years, with the support of some of the most eminent legal experts in the world - I am glad to say that after years of unnecessary delays it is also the position advanced by the Attorney General and the Government - that yes, trade is an EU competence and trade rules are generally set in Brussels but national-level restrictions of this nature are permitted where they can be justified under the public policy derogation in EU law. This allows member states some discretion and although it is interpreted narrowly by the EU courts, it applies in this case. Why? Precisely because the settlements themselves are illegal and we are merely seeking to uphold and indeed meet our obligations under international law. This is the so-called "narrow legal pathway" described by the Government. It has been set out in detailed and comprehensive legal materials, with extensive reference to EU case law, shared with the committee, and we welcome the fact that there will be further input on this question next week. However, as those experts have made clear, public policy provides a derogation not only from the free movement of goods but also that the freedom to provide services and the prohibitions on settlement services are also justified by reasons of public policy. This is the crucial point because what we are ultimately dealing with here is a principle in EU law that relates to national-level restrictions on trade. The argument the EU trade law barrier has somehow been raised for goods but remains down for services is in our view not supported by the evidence and is absolutely not sufficient to limit the ambition of the legislation.

I will finish by saying the key thing I would really like members to consider, having regard to both international and EU law, is that ultimately this is not solely a legal question but one of political will. Eminent experts have set out that the public policy derogation in EU law is available for both goods and services. However, even if we take the more conservative position at its height, there is at the very least a strong, reasonable, evidence-based case that a ban on trade in services is fully compliant with EU law. In that context, the question facing this committee and the Government is this - if we recognise the obligations set out by the ICJ, are we willing to do the trade element properly, ban both goods and services and then argue the public policy case before the EU courts if necessary to clarify that this is permissible and help to set an impactful standard and legal precedent not just here, but right across the EU? That is something significant and meaningful we can do. It is not unusual or uncommon and Ireland and other EU member states regularly differ on all manner of provisions in EU law, from tax to climate. We have the right to pursue a policy in good faith, argue the case and of course to respect any judgment of the courts. The Government has said it has no policy difference on this question. They have recognised the obligations clarified by the ICJ as regards trade, which means a full ban on all of it. The evidence regarding EU law is in our favour and there is a clear case to take to Europe if we think it matters enough. We believe it does and we urge the committee to support a full ban on all trade with the illegal Israeli settlements, in both goods and services, and to reflect this clearly in its report.