Oireachtas Joint and Select Committees
Wednesday, 9 July 2025
Joint Oireachtas Committee on Foreign Affairs and Trade
General Scheme of Israeli Settlements in the Occupied Palestinian Territory (Prohibition of Importation of Goods) Bill 2025: Discussion (Resumed)
2:00 am
John Lahart (Dublin South West, Fianna Fail)
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I advise members of the constitutional requirement that members must be physically present within the confines of the Leinster House complex to participate in public meetings. I will not permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, a member who attempts to participate from outside the precincts of Leinster House will be asked to leave the meeting. In this regard, I ask any member participating via MS Teams to confirm that he or she is on the grounds of the Leinster House complex prior to making his or her contribution to the meeting.
Members are also reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity either by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory regarding an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative that they comply with any such direction.
As the witnesses will probably be aware, the committee will publish the opening statements on its website following the meeting. Witnesses are reminded of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity either by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory regarding an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative that they comply with any such direction.
I thank everyone who sent in submissions for the committee’s pre-legislative scrutiny of the Israeli settlements in the occupied Palestinian territory (prohibition of importation of goods) Bill 2025. We have received upwards of 800 submissions and it will not be possible to acknowledge receipt of these. However, I would like to assure everyone that these have been received and will be considered by the committee when drafting its final report.
I welcome the witnesses for the pre-legislative scrutiny of the Israeli settlements in the occupied Palestinian territory (prohibition of importation of goods) Bill 2025. We have with us: Professor Takis Tridimas; Professor Panos Koutrakos; Ms Blinne Ni Ghrálaigh KC; and Professor Graham Butler. We will hear their opening statements followed by a question-and-answer session with members of the committee. I ask members to be concise in their questions to allow all members the opportunity to participate. The way we proceed with this is that every member has seven minutes to ask questions and receive answers to those questions from witnesses. We will probably get to a second round. I welcome the witnesses. We look forward to hearing from them on this important legislation. On that note, I invite Professor Takis Tridimas and Professor Panos Koutrakos to make their joint opening statement, to be followed by Ms Blinne Ni Ghrálaigh KC and Professor Graham Butler.
Professor Takis Tridimas:
We are grateful for the invitation to appear before the committee today. It is a great honour to have the opportunity to do so. I am Professor of European Union law and practise in this area as a barrister of England and Wales and as an advocate qualified in Greece. I have had the opportunity to litigate several cases before the Grand Chamber of the Court of Justice of the European Union.
Professor Takis Tridimas:
Our opening statement reflects our views as expressed in three opinions. The first dates from November 2018 and was written by me. The second and third were prepared jointly by the two of us in 2024 and 2025, respectively. A copy of those opinions has been submitted to the committee. We would like to stress that we approach the issues arising in this case strictly as legal experts. We do not express a view on the underlying political issues that arise in this case. We are here as jurists.
Our views can be summarised as follows. We will first discuss trade in goods and then trade in services. The importation of goods from third countries to the member states is part of the European Union's common commercial policy, which, under Article 3(1) of the Treaty on the Functioning of the European Union, is an exclusive competence of the EU. Under Article 2(1) of the Treaty on the Functioning of the European Union, “when the treaties confer on the Union exclusive competence in a specific area, only the Union may legislate ... the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts”. In relation to trade in goods from third countries, the Union has empowered member states to legislate. The main EU measure that governs the importation of goods from third countries is Regulation (EU) 2015/478 on common rules for imports. The import regulation essentially provides that, in principle, the importation of products from third countries is free, namely, it must not be subject to any quantitative restrictions. However, the principle of free importation is subject to the derogation clause of Article 24(2)(a). This states that the regulation shall not preclude the adoption or application by member states of “prohibitions, quantitative restrictions or surveillance measures on grounds of public morality, public policy or public security”.
Although the public policy exception is to be understood narrowly-----
John Lahart (Dublin South West, Fianna Fail)
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I just need to pause the professor for a moment. A vote has been called in the Dáil Chamber so I will ask the Vice Chair to take the chair. Is that agreed? Agreed. The professor may continue. I apologise for the interruption.
Professor Takis Tridimas:
Although the public policy exception is to be understood narrowly, in our view it allows Ireland to prohibit the importation and sale of goods originating in an occupied territory as defined in the Bill for the following reasons. First, the Bill seeks to comply with international law, in particular the Fourth Geneva Convention. Second, it seeks to protect human rights, namely, the right to self-determination. Third, it is fully in alignment with the avowed objectives of the European Union and the political stance of the Union on matters of occupied territories.
Allow me to proceed to the second aspect, which is trade in services. Trade in services with third countries also falls within the common commercial policy, which is an exclusive EU competence. In relation to services, there is no general measure similar to Regulation (EU) 2015/478, which applies to goods. This is owing to historical reasons and the peculiarities of the services. As a result, in relation to services, there is no clause similar to that laid down in Article 24(2)(a) of the import regulation which applies to goods and which expressly authorises a member state to impose restrictions on trade in services on grounds of public policy. Nonetheless, the absence of such a clause does not in itself mean that member states may not restrict trade in services from third countries to protect the public policy. I will now give the floor to Professor Koutrakos to explain the reasons.
Professor Panos Koutrakos:
In our view there are three main reasons for this. The first is that, under the primary law of the EU treaties, the freedom to provide cross-border services within the EU is subject to a public policy exception, which we find in Article 62 of the TFEU in conjunction with Article 52 of the TFEU. Trade in goods within the EU and trade in goods with third countries are also subject to a public policy exception within the EU by virtue of Article 36 of the TFEU, and trade in goods with third countries under Article 24 of the import regulation. The same applies to the free movement of capital, both within the EU and between the EU and third countries, as Article 65(1)(b) of the TFEU tells us.
It would be very odd if EU law were interpreted to mean that the powers of member states to restrict trade in services with third countries was significantly more curtailed than the power to restrict trade in goods, capital and in trade in services. In our view such a conclusion would be problematic and it would be justified by neither a systematic nor a purposive interpretation of EU law. It is difficult to see why, in contrast to all other areas referred to above, member states may not rely on the public policy exception in relation to trade in services with third countries in cases where an EU measure does not expressly prohibit such reliance. That is our first point.
Second, in this case, the primary objective of the Bill is not regulatory. It is rather to pursue a foreign policy objective. If the common commercial policy were interpreted as widely as to encompass any national foreign policy measure that had implications on trade, the freedom of member states to conduct effective foreign policy would be curtailed very substantially.
Third, the objective of the Bill pursued by the restriction on trade in services is consistent with the objectives of the EU common commercial policy. Article 21(2) of the TFEU expressly tells us that EU external action must seek to "consolidate and support democracy, the rule of law, human rights and the principles of international law", and to "preserve peace, prevent conflicts and strengthen international security". Under Article 21(3) of the TFEU, the conduct of the common commercial policy must pursue these objectives which, according to the case law of the Court of Justice, form an "integral part" of the common commercial policy.
On the basis of these three main reasons, we take the view that a member state may rely on public policy to restrict trade in services with a third country where such a restriction meets a number of conditions: it expresses a foreign policy choice on the part of a member state and pursues foreign policy objectives and not trade objectives, even though it may have effects on trade; it is adopted to comply with international law obligations which bind the member states and the EU, such as the Fourth Geneva Convention; it does not contradict a specific EU measure; and it complies with the principle of proportionality.
It is not only on the basis of a service-specific provision of EU law that member states may impose such restrictions. They may also do so on the basis of an express exception that is laid down in the Treaty on the Functioning of the European Union, and in particular in Article 347. This is a provision that has been viewed by the Court of Justice as not just exceptional but "wholly exceptional" for a number of reasons. It enables member states to deviate from any EU legislation in any policy field, therefore in trade in services with third countries too. It enables them to do so on three specific grounds of exceptional seriousness, including in the event of war, serious international tension constituting a threat of war, or to carry out obligations the state has accepted for the purpose of maintaining peace and international security. Reliance on this exceptional provision is subject to the exceptional jurisdiction of the Court of Justice under Article 348 of the TFEU.
In our view, a ban on trade in services in the context of this Bill would be justified under Article 347. First, its objective is to enable Ireland to carry out obligations it has accepted for the purpose of maintaining peace and international security. We understand that such a ban would be adopted to comply with the international obligations set out in the International Court of Justice advisory opinion of July 2024. Such a measure adopted by Ireland in order to comply with international law obligations as a UN member may be considered as a measure adopted to carry out obligations that Ireland has accepted for the purpose of maintaining peace and international security within the meaning of Article 347. Second, the ban also meets the principle of proportionality.
I will repeat one point that was made earlier by Professor Tridimas, that our approach to the issues arising for discussion is strictly legal. We do not express any view on the underlying political issues that arise in this case. I thank the committee and we are at the disposal of the committee members to answer any questions they may have.
Garret Ahearn (Fine Gael)
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I thank Professor Koutrakos and Professor Tridimas for their contributions. I now call on Ms Ní Ghrálaigh to give her opening statement.
Ms Blinne Ní Ghrálaigh:
A Leas-Chathaoirligh agus an coiste ar fad, thank you for the invitation to address you today on international law issues relevant to the proposed Bill. It is a real privilege to appear before the committee, and on a matter of such continuing, pressing importance, on which Ireland is leading the way. I will address members on the international legal framework to the proposed legislation; the exclusion of services from its current draft; and the interplay between international and EU legal obligations, relevant to the potential reinclusion of a prohibition on services in the final legislation.
With regard to the international legal framework, the International Court of Justice’s seminal 2024 advisory opinion is one of the main pillars of the current Bill. The ICJ advised unequivocally that Israel’s continued presence in the occupied Palestinian territory is unlawful and must be ended as rapidly as possible.
It violates the prohibition on the acquisition of territory by force and it denies the Palestinian people their right to self-determination. Israel’s policies and practices in the occupied Palestinian territories also violate Article 3 of the Convention on the Elimination of Racial Discrimination, which prohibits racial segregation and apartheid, and constitute serious violations of international humanitarian law, IHL. All of those violations are violations of jus cogens, or peremptory norms of international law, norms that must be complied with, allowing for no derogation. Their violation creates obligations on the part of all states and international organisations to ensure compliance, such is their foundational importance both to the international legal order and to the international community as a whole. Ireland is thus duly obligated not to recognise as legal the situation arising from Israel’s unlawful presence in the occupied Palestinian territories, nor to “render aid or assistance in maintaining” that situation. Ireland must therefore distinguish in its dealings, including in its trade dealings, between the territory of the State of Israel and the occupied Palestinian territories.
The relevant international legal context to the Bill is not limited to the 2024 advisory opinion. It also includes Israel’s ongoing military assault on Gaza and its people, which the ICJ has repeatedly found to give rise to a real and imminent risk to the right of Palestinians not to be subjected to genocide. Trade with Israel is trade with a state that the Dáil, including the Taoiseach and the Tánaiste, considers to be committing genocide. Trade with Israel is also trade with a state whose serving Prime Minister has International Criminal Court arrest warrants issued against him for atrocity crimes, including persecution and starvation; whose policies of famine and hunger, and the obligations to which they give rise for third states, are the subject of yet another advisory opinion to be delivered by the ICJ later this year. Trade with Israel is trade with a state that has turned Gaza into what the UN Secretary General describes as a “killing field”.
Just as Ireland is bound not to aid or assist in the maintenance of Israel’s illegal presence in the occupied Palestinian territories, it is also bound not to aid or assist in the maintenance of the unlawful situations created by Israel’s violations of the jus cogensprohibition of genocide and foundational norms of international humanitarian law. This is over and above Ireland’s distinct obligations pursuant to the Genocide Convention to prevent genocide by all means reasonably available, and to the four Geneva Conventions to ensure respect by Israel for their basic IHL rules.
As against that background, the Bill’s current narrow focus on goods fails to ensure compliance even with the duty set out in the advisory opinion requiring Ireland to distinguish between Israel and the occupied Palestinian territories in its dealings. That requires Ireland to “abstain from entering into economic or trade dealings with Israel ... which may entrench its unlawful presence” in the occupied Palestinian territories; and to “take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel”. The Long Title of the proposed Bill transposes that clause from the advisory opinion but critically omits the words “investment relations”. As a consequence, and as acknowledged on 1 July 2025 by the Department of foreign affairs, it serves at best to bring Ireland “towards compliance” with its obligations under international law. However, it does not fully comply with them. There is no basis in international law for differentiating between trade in goods and trade in services in the manner proposed, and no international law justification for legislating for less than full compliance by Ireland with an international obligation articulated by the ICJ. On the contrary, provision in a revised Bill for the prohibition of trade in services with Israeli settlements and with Israeli firms profiting from them, and provision for the prevention of investment relations that assist in maintaining the illegal situations created by Israel, is the minimum required for compliance by Ireland with its international obligations. It would transform the draft Bill from what risks being little more than window dressing into a truly impactful, precedent-setting piece of legislation.
However, full compliance by Ireland with its international obligations in relation to the situation in the occupied Palestinian territories would also require a detailed, comprehensive, urgent due diligence audit of all Ireland’s dealings with Israel, not just trade-related, but all cultural, diplomatic, economic, financial, political and military relations, to ensure that they do not contribute to or otherwise assist in Israel’s serious violations of peremptory norms of international law. Such a review is long overdue.
From an international law perspective, Ireland cannot avoid its international law obligations nor avoid responsibility for any breach of such obligations by claiming to act through an international institution or to be bound by its rules. This is recognised by the Court of Justice of the European Union, which considers that “the rules of customary international law”, which would include the jus cogensnorms to which I have referred, “are binding upon the Community institutions and form part of the Community legal order”, requiring that EU law be interpreted and applied in a way that does not cause member states to beach those obligations. That is consistent with the Vienna Convention on the Law of Treaties, which provides that compliance with peremptory norms trumps all treaty provisions, including trade agreements. It is also consistent with the fact that violations of peremptory norms give rise to binding obligations on the part of international organisations as well as states, as advised by the ICJ in its 2024 advisory opinion. That includes the EU itself. Any failure by Ireland to comply with its international legal obligations, whether in purported compliance with EU law or otherwise, would engage the international responsibility of Ireland for breach of those obligations. Consequently, the spectre of legal proceedings against Ireland, which is advanced as a rationale for excluding services from the Bill, would not in fact be avoided. Ireland could face international and domestic proceedings for any failure to comply with its international obligations, including for any assistance provided in maintaining the unlawful situations created by Israel’s serious violations of peremptory norms of international law. Ireland must therefore ask itself which risk is it willing to take. What side of history will it now choose to be on?
Go raibh maith agaibh, members of the committee. I look forward to answering any questions they may have.
Professor Graham Butler:
I appreciate the committee's invitation to appear before it today. It is an invitation that I did not solicit but was happy to accept. I take no political interest in or position on the underlying substantive issues here beyond those that are strictly legal. My contribution today will be one solely focused on matters of EU law. My analysis is based my work as a professor of law, as an academic specialising in EU constitutional law, EU internal market law and EU external relations law. In coming to my remarks today, I have considered EU primary law, EU secondary law, the case law of the Court of Justice of the European Union and the general scheme of the Bill proposed by the Tánaiste and Minister for Foreign Affairs and Trade, Deputy Simon Harris.
To make best use of today’s sitting, I have prepared an opinion for the committee, which I circulated to the committee's secretariat yesterday and that I hope has been forwarded to members. It is on that opinion that the following short remarks are based.
In good academic tradition, I take a perhaps slightly different view from previous speakers, and perhaps many committee members' position as well as the intentions of the Government with the proposed Bill. I come to that with the hope of providing some robust arguments that might provide a different perspective.
As the committee is aware from the other witnesses and the other hearings it has held thus far as part of this pre-legislative scrutiny, the core issue is the common commercial policy, CCP, that is, its external trade.
There is no doubt this is an area of exclusive competence of the European Union. Therefore member states are prohibited from unilaterally regulating trade with third states, unless expressly authorised to do so. As Professor Tridimas pointed out at the start, it is provided for in the general rule in Article 1(2) of the Basic Import Regulation of 2015 that quantitative restrictions should not be placed on the import or export of such goods. The proposed Bill seeks to ban imports from a specific third state, which would amount to a quantitative restriction and would therefore contravene this general rule of EU law.
That said, there is nothing like a rule in EU law without some potential exceptions. There is a narrow potential exception in Article 24(2) of that regulation, giving the possibility to member states to enact national measures on grounds of public policy among others, which we will call the potential exception to the general rule. As pointed out by previous speakers, this exception must be interpreted strictly and applied proportionately.
The case law on public policy exceptions mainly comes on the basis of intra-EU trade restrictions, but the court has generally set and maintained a high bar for member states to be able to invoke that exception. For the purposes at hand, we will say that the public policy exception is to be understood on an intra-EU basis and an extra-EU basis in a somewhat similar fashion. Without going through all the case law, which I have done in the opinion, the most up-to-date and contemporary position of the European Court of Justice so far is in the Confédération paysanne case, Case C-399/22, and the judgment of the court therein.
The proposed Bill refers to obligations the State has under public international law, including not least the 2024 advisory opinion of the ICJ. As the previous speaker mentioned, other judgments of the ICJ are due to come. However, it should be added that the European Court of Justice has consistently held that for EU member states, obligations under EU law have primacy over conflicting obligations of EU member states under public international law. By enacting and commencing the proposed Bill, the State could be erroneously placing its obligations under public international law ahead of those it has under EU law. After all, EU law has primacy over conflicting obligations.
Moreover, if the Bill were enacted and commenced, its enforceability could be undermined by the principle of free circulation of goods within the EU because, based on the general scheme, the Bill is only directed at goods that are directly imported into the State from the specific third country. Goods from third states lawfully imported into an EU member state other than Ireland, marketed there and placed into free circulation thereafter within the EU cannot be prohibited on their import into Ireland by Irish authorities, in this case the Revenue Commissioners. Given the EU’s exclusive competence over external trade and the functioning of the EU customs union of which Ireland is part, there is an obvious enforceability problem here that the proposed Bill does not consider - the indirect imports of the goods it seeks to prohibit.
As a previous speaker pointed out, Article 2(1) states that when the treaties confer exclusive competence, member states may only do so if so empowered by the Union. It is my understanding that the State has not sought, and has not received, express authorisation from the EU to adopt the proposed Bill. That is separate from any notification requirements the State may have to inform the Commission. Mere notification to the Commission does not amount to authorisation in itself.
Of course, there are litigation risks as mentioned by the previous speaker in the context of the State not acting by having a more all-encompassing Bill to include services as well as trade. If the State were to enact the proposed Bill on the basis of the general scheme, obvious litigation risks arise for the State. First and foremost, infringement proceedings could be brought against the State by the Commission or other member states under Articles 258 and 259 of the TFEU. As I mention in the opinion, we have prior examples of the State being brought to court in the context of infringement proceedings for trying to regulate the import of goods from third states into the state. More likely is the possibility for litigation to arise before Irish courts in the context of Customs preventing certain goods being imported into the State or other possible challenges to the lawfulness of the Act. It should be pointed out that on the basis of the case arising before the Irish courts, it is highly likely, and should be anticipated, that a reference for a preliminary ruling to the European Court of Justice could be made as regards the measures Ireland could take in this regard given that an Irish court is unable to make an authoritative interpretation in this regard.
As I note further in my opinion, the proposed Bill is prima facieincompatible with EU law. The case law as analysed provides no comfort for the view that the potential public policy exception is as wide as to provide for what the State is trying to do here. Therefore, it is most uncertain that the Bill in question would be lawful.
The substantive issue here is the State trying to pursue a specific policy objective. That does not justify the use of the public policy exception within EU law. In fact here is the level in which measures should be taken. The State is trying to go it alone here, undermining the common commercial policy. If the State wants to achieve a public policy objective by prohibiting the import of goods and or services, that competence must be exercised where the State has allocated that competence which is at the level of the EU.
I thank the Cathaoirleach and committee members for the invitation, and I look forward to the discussion ahead.
John Lahart (Dublin South West, Fianna Fail)
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I thank the four witnesses. Such was the haste in getting started that I forgot to apologise for keeping them. There were votes in the Chamber which were unavoidable. I thank them for their patience.
Patricia Stephenson (Social Democrats)
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I thank the witnesses for coming in. In his 2018 opinion, Professor Tridimas concluded that a ban on trade with the settlements is compliant with EU law. He specifically stated that the concept of public policy must be interpreted as taking into account the objectives of the Geneva Convention and customary international law which allow member states some discretion in deciding the steps they consider appropriate to take in order to fulfil those obligations. Given that the material provided to us is fairly technical for non-lawyers, I ask him to confirm that a ban of this nature would be justified on the grounds of public policy and that there are further justifications under Article 347 of the treaty.
Patricia Stephenson (Social Democrats)
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On services, Professor Tridimas concluded that public policy provides a derogation not only from the free movement of goods but also the freedom to provide services. I ask him to confirm that there is a legal basis under public policy for Ireland to carry out obligations both for goods and services.
Patricia Stephenson (Social Democrats)
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My next question is for Professor Butler regarding the public policy derogation under the EU trade law he spoke about in his opening remarks. He said that there is no case law which clearly supports its use in this instance. I think he also said that existing case law offers no clear precedence supporting its use. I wish to talk about the word "clear" in that context. Is a caveat needed there when there is case law that may support its use and may be relevant, particularly the Rosneft judgment which deals specifically with the use of public policy exceptions?
Professor Graham Butler:
I will answer the second question first. I am not sure that the Rosneft case is the clear basis we should be looking at here. The Rosneft case was about the adoption of a specific EU legal Act, namely a restrictive measure vis-à-vis a legal person in a third state. That was about the lawfulness of the EU using the measure here, whereas what we are talking about in the context of the proposed Bill is an EU member state measure. With respect, I would say the analogy is slightly imperfect.
That said, there are other cases where the potential public policy exception has been invoked. There are not many cases where it has been invoked with regard to the common commercial policy, that is, to external trade.
Patricia Stephenson (Social Democrats)
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Has there any been any cases within that area that Professor Butler has considered?
Professor Graham Butler:
Yes, I mentioned them in an opinion and I believe Professor Koutrakos will have something to say about them as well. Off the top of my head, there is the 2024 judgment in the Confédération paysanne case, we have the Werner judgment from the mid-1990s and we also have the Leifer judgment. The legacy cases from the 1990s, I should add, deal with export restrictions more so than import ones. In one case, the national measures were disproportionate.
Patricia Stephenson (Social Democrats)
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Does Professor Tridimas have any views on that?
Professor Takis Tridimas:
I do. Allow me to comment on the cases that Professor Butler referred to. I have to say that these are difficult issues in law. Once more, allow me to come to this purely as a jurist. Confédération paysanne is a case on which Professor Butler relies but I ask for one minute to illustrate why this case is not relevant in our circumstances. This case had to do with the powers of a member state to prohibit the importation of fruit that originated in western Sahara and was labelled as originating in Morocco. The key question was whether a member state can unilaterally ban the importation of such a product on the basis of specific EU legislation that existed and regulated foodstuffs. Here we do not have specific EU legislation. Our argument is that where the EU has not regulated the provision of services in relation to third states, and where a member state adopts a restriction on the grounds of foreign policy, and subject to the other caveats that we expressed, that is permissible under EU law. Allow me also to say that the two cases really raised completely different interests. In the paysanne case the public interest that was engaged was of much lesser importance. It had to do with the violation of EU harmonised marketing standards.
Regarding Rosneft, I appreciate the difference that Professor Butler referred to but I would say that both the Advocate General and the Commission in that case took the view that the concept of public policy may justify the imposition of restrictions on the importation of services from third countries on the grounds of public policy because of a third country occupying the territory of another country. That is important.
John Lahart (Dublin South West, Fianna Fail)
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I must pause the clock and ask the Leas-Chathaoirleach to take the Chair. My apologies for the interruption but Parliament is live and a vote has been called in the Dáil.
Patricia Stephenson (Social Democrats)
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In his inputs, assessment and analyses, does Professor Butler consider the 2018 and 2024 legal opinions of Professors Tridimas and Koutrakos and all of the extensive case law that they cited within those opinions? They were published online and also cited by the Irish Attorney General.
Patricia Stephenson (Social Democrats)
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I believe they are public documents.
Alice-Mary Higgins (Independent)
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It was very useful to hear about the Rosneft case, which was a really interesting example in terms of the clear precedent it set on the question of public policy involving both goods and services and, indeed, compliance with international law being considered as an appropriate use of the public policy grounds. I want to talk about a related issue, namely, the question of the primacy of international versus EU law. We have heard different opinions on this. Professor Tridimas noted the obligation of member states in relation to international law and the recognition of same. In Article 347 of the TFEU there is reference to the very exceptional public policy grounds and it specifically uses the word "obligations". There is almost a recognition there within the TFEU that member states have obligations. It is interesting that this is the language that is used. The "obligations" phrase is the same phrase that is used in paragraph 278 of the ICJ judgment, which is pertinent in the context of this particular legislation. Professor Tridimas has given an opinion on the primacy of international over EU law but Professor Butler has expressed a different opinion. He has given an opinion on the primacy of EU law over public international law, if I understand him correctly. That is a key point that should be clarified. I have another question but will begin with that one.
Professor Takis Tridimas:
I will make some brief comments before inviting my colleague, Professor Koutrakos, to intervene. The issue of the relationship between EU law and international law and the possible primacy of EU law over international law is not engaged here because there is no contradiction. First, EU law is bound by customary international law. That flows clearly from case law of the European Court of Justice, including a case called Racke. Second, EU law recognises the right to self-determination as a right which binds the European Union. That is in a case called Front Polisario. Third, the European Court of Justice has also held that EU law must be interpreted so as to comply with international law obligations. These are the three points I wished to make. Perhaps the Senator will allow Professor Koutrakos to comment too.
Professor Panos Koutrakos:
I agree entirely with the response of Professor Tridimas. I would like to say, by way of context, that there is settled case law which tells us that even in areas where international law does not directly bind the European Union, the EU should try its best to interpret its law in a manner that is consistent with the international obligations of member states. The European Court of Justice does this because it does not want the supremacy of EU law to put member states in an impossible position where they would have to choose between complying with EU law or complying with international law.
Alice-Mary Higgins (Independent)
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I ask Professor Koutrakos to clarify whether the exceptional ground, as he understands it, mentioned in Article 347 of the TFEU is designed to deal with situations where the public policy exemption has not proved adequate to provide another reaffirmation of that.
Alice-Mary Higgins (Independent)
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Perfect. My time is coming to an end.
I want to go to Professor Butler, but I will add to my question. Will he speak on that, but also on another key question. Perhaps others will have a chance to come back in. The idea of a bad legal precedent has been mentioned. If we were to bring in a poor version, that is, if we bring to the Court of Justice of the European Union, for example, a case that only includes goods and not services - this might go back to Professor Koutrakos and others as well - is there a danger that we would dilute the effectiveness or credibility of our interpretation of public policy if there is a perceived disjoin with how it matches the ICJ judgment? That is my additional question. I will go to Professor Butler first. Perhaps the Leas-Chathaoirleach might allow some leeway.
Professor Graham Butler:
On the question about the primacy of international law, I agree entirely with Professor Koutrakos with regard to the member states wanting to fulfil obligations under both. The question here is how a member state does that when it has conferred competence on an international organisation, albeit a very special one, and that international organisation is potentially not fulfilling its obligations under international law. Rather than specifically answer the question, I will put myself in the shoes of the European Commission and ask what it would think about an individual member state trying to exercise trade competence. Another way of looking at this Bill is the State trying to activate its own unilateral trade policy for a particular purpose. Is it in the interests of the common commercial policy as a whole, notwithstanding the underlying substantive reasons, as good as they might be in this scenario, that member states are going it alone in this on the basis of the EU not acting? That is where I have my doubts and therefore, we are talking about the use of the potential exception as opposed to the existence of it.
Fiona O'Loughlin (Fianna Fail)
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I thank the professors for being here. I appreciate their legal experience, wisdom and understanding of Ireland's constitutional obligations and EU obligations. They have a perspective on the broader geopolitical implications as well and they are important. I will try to just ask three questions of each witness. I will go to Professor Butler first.
We are taking a twin-track approach in that we are trying to bring Europe with us and do anything we can to try to improve the situation in Gaza. We are all hoping for and working towards a ceasefire, but in the meantime we have to look at other sanctions and show Israel what we think of it. Does Professor Butler think if the Bill is passed with goods as it is now, or including services if we find a legal framework to put them in, it would set a precedent for other EU member states?
Second, could the Bill, particularly if it were enacted with services included, expose Ireland to legal or economic retaliation by allies such as the United States? We have a lot of FDI. I come from Kildare and Intel is a big employer there so we have to talk about these things. I am interested in that.
Does Professor Butler believe this legislation could meaningfully influence the situation in the occupied Palestinian territories or is it largely symbolic?
I will put those questions to Professor Butler first and come back to Professor Tridimas then.
Professor Graham Butler:
The Senator's second question was on the legal exposure of Ireland. With respect, that would be political retaliation making use of legal instruments and therefore, given the political considerations, I am not willing to comment further.
On the precedent for other member states, the Senator is onto something. By putting forward the general scheme of the Bill, assuming the Bill will be proposed in either the Dáil or Seanad, at least the State is putting forward a credible position of what it seeks to do. The precedent would not necessarily be followed by other EU member states, but the EU may choose to exercise its competence in external trade and it will depend on whether the Oireachtas decides on the Bill and whether it is commenced. This will all be done in parallel with other ongoing diplomatic initiatives at EU level. In the sense that it serves as a tool in trying to achieve the policy outcome, there could be something there.
Will the Senator remind me of her third question, please?
Fiona O'Loughlin (Fianna Fail)
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Professor Butler answered on the precedent and will not respond on the legal or economic retaliation. Does he think it would have a big impact or would it be symbolic as some people say?
Professor Graham Butler:
In the context of the EU's external trade, when it comes to third countries looking at the European Union in trade, they see the EU as a single unit. The EU has a trade competence and that is what it exercises. However, if there are slow elements of fragmentation, the narrative of the EU as a single actor becomes a little undone and it feeds into the free circulation problem I pointed out with regard to the Bill. The Bill only concerns itself with direct imports. It does not consider the free circulation issue. If goods are lawfully imported to another EU member state and marketed there, they will enter free circulation and can therefore ultimately end up in the jurisdiction and be sold anyway. Therefore, it could be said that if someone wanted goods from the occupied Palestinian territories to enter Ireland, given that Ireland is going it alone, there would still be a way for them to lawfully end up in the jurisdiction. They would just have to go via another EU member state first. It could be argued that is more symbolism than trying to completely block the imports.
I read the report of the proceedings of the committee's public sitting with the political director of the Department of Foreign Affairs and Trade last week. The volume of trade with Ireland that we are talking about is incredibly low, at least from what we know based on established trade patterns.
Fiona O'Loughlin (Fianna Fail)
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I thank Professor Butler. Both are important. Symbolism is important as well.
My next question is for Professor Tridimas. He has criticised the Attorney General's earlier opinion as flawed. What were the most glaring omissions from that advice?
Second, does Professor Tridimas think, if we get this Bill through both Houses and it were to include services, it would survive a legal challenge in the EU?
Third, how does he anticipate that the European Commission would respond if Ireland were to proceed and enact the Bill?
Professor Takis Tridimas:
Allow me to begin by answering the second question. It is not possible to predict how the Commission might react, but this is an area where the Commission, as the guardian of European Union law, would want to be careful and cautious because it is not really a matter of trade policy. It is a matter of foreign policy. From the perspective of EU law, the peculiarity of this is that the objectives the country is pursuing are not regulatory. It is not the case that goods or services are being prohibited to protect consumers or to prevent, for example, addiction to gambling services offered from a third country online. They would be regulatory objectives and would fall squarely within the common commercial policy. Here, what we have is essentially a foreign policy choice, as I understand it. One would expect the Commission to be very cautious about taking Ireland before the Court of Justice.
If it were to do so for the reasons outlined in our opinion, we believe the Commission would not be successful.
In response to the Senator's question about the Attorney General, I would highlight the following points. I am not convinced that if Ireland were to extend the ban to services it would be liable for damages. That is a remedy which only applies if there is a serious breach of European Union law by a member state. A serious breach is understood in case law as meaning manifest and grave disregard of the discretion that a member state possesses. If we have an EU directive or an EU regulation which requires a member state to do something specific, then there is no discretion. However, in an area like this which is embedded through policy choices, even in the hypothetical event that this was found to be incompatible with EU law, it would certainly not be a manifest and grave disregard of discretionary powers.
John Lahart (Dublin South West, Fianna Fail)
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I thank the professor. I need to move on to our next speaker, Deputy Shay Brennan.
Shay Brennan (Dublin Rathdown, Fianna Fail)
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I thank the witnesses for kindly joining us. I apologise for being in and out which meant I did not hear them read their statements into the record but I read them all beforehand. As a non-legal person, I was struck by one thing. Professor Butler can correct me if I am wrong in this. He seems to be saying the Bill is at risk of legal action if we include even trade in goods. He is also saying that we are at risk of legal action if we do not include services. Professors Koutrakos and Tridimas are saying that we are at no real risk of legal action for including trade and services. We are trying to deal with several different opinions. I am not trying to open a debate by any means. Professor Butler's opinion is possibly the most contrarian I have heard to date and therefore I will focus my questioning on him.
Because I have been in and out, if any of my colleagues have asked questions that I have missed, I do not want to waste the witnesses' time. I ask them to indicate that and I will pick up the answer from the recording later.
Does Professor Butler think the Bill is enforceable given his comments on the free circulation of goods in the European Union?
Professor Graham Butler:
I thank the Deputy for the question. That question has not been dealt with by his colleagues on the committee. As we all know and have all read, the general scheme of the Bill is extremely short and so we do not know what the ins and outs of it would be. In the report the committee is to provide to the Government in the context of drafting the full Bill to be introduced later in the year, if it wants to achieve the objective of prohibiting goods from entering into the State, it will need to consider how it does so with respect to direct imports and indirect imports. As I mentioned already, indirect imports are ones that have been lawfully imported into another EU member state first, marketed there and then benefit from free circulation into Ireland. As I understand the Bill, it will only be directed at direct imports and not indirect imports. If the State wants to achieve a blanket ban unilaterally, it will have to consider that further.
Shay Brennan (Dublin Rathdown, Fianna Fail)
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That is an important point and perhaps one the committee should cover in our recommendations. I missed some of Professor Tridimas's comments on this. Professor Butler seems to rely on the Confédération paysanne case in his interpretation and that seems to be at odds with what Professor Tridimas said as I was leaving. Without wanting to open a debate, I ask Professor Butler to elaborate further on why he thinks that is important.
Professor Graham Butler:
I should add that the Confédération paysanne case is extremely technical. Professor Tridimas pointed out some factual elements. It was a case of France implicitly not acting. We do not know why France did not prohibit the import of the goods. It was about alleged incorrect labelling of goods. The French state did not act in that regard either because it did not believe the French agricultural union's claims were valid or we can implicitly assume that the French state took it upon itself to determine that it is an external trade matter in which the EU has exclusive competence and France does not have the competence to legislate. That is why I say we cannot totally exclude the relevance of that case. From memory, I believe that paragraph 53 of that judgment also refers to the relevance of Article 24 of the import regulation which the court said in that case could not be invoked.
Shay Brennan (Dublin Rathdown, Fianna Fail)
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I appreciate that. I ask Professor Butler to expand on the discriminatory aspect to other occupied territories, a point which I found interesting.
Professor Graham Butler:
This is more an issue of international economic law than one of pure EU law. Normally there is an erga omnes obligation in the sense that if a state is going to discriminate on the grounds of public policy exceptions as regards a third state, it might need to apply it to all occupied territories. I understand that is much more complex to do in practice but there could be obligations under EU law that I have not considered fully in the opinion here today and so I will not comment further. However, choosing one occupied territory or one specific international situation while ignoring others could potentially raise problems. However, that is not the main focus of what we are discussing here today. We are mainly discussing the lawfulness of the issue of goods and this specific third state.
Shay Brennan (Dublin Rathdown, Fianna Fail)
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I appreciate that. When he says it could raise a problem, is that something ancillary and not the main point worry about here?
Professor Graham Butler:
This Bill was introduced in the previous Dáil and Seanad and it is now being considered here. The reason there is such extensive pre-legislative scrutiny on this Bill and the sheer number of submissions, as the Cathaoirleach mentioned, is these issues are absolutely not straightforward. There are many different angles and approaches which all of us could come with regarding the Bill. The purpose of today's meeting and the purpose of the report are to feed as many of these different perspectives into the eventual Bill. Of course, the Bill to be initiated by the Tánaiste will not be the end product per se. There will be plenty of opportunities in both Houses to introduce amendments, which I am sure will be brought to the attention of the committee from different perspectives in this regard.
Shay Brennan (Dublin Rathdown, Fianna Fail)
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While I do not expect an answer to this question now, if we get another round of questioning, I would like to ask this of all the witnesses. Professor Butler made a very good point about needing to include indirect importation. If any-----
Shay Brennan (Dublin Rathdown, Fianna Fail)
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If that is the intention, of course-----
Shay Brennan (Dublin Rathdown, Fianna Fail)
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Of course. If another opportunity arises, I will probably ask what other clauses or items should be included if we want to think that way. If we have another round, I can come back to that.
Professor Graham Butler:
I will take five seconds if I may, a Chathaoirligh. The obvious way would be to invite the Revenue Commissioners to appear before the committee to provide input on what they do in practice about handling goods that are indirectly imported into the State and what potential checks might be applied to them.
John Lahart (Dublin South West, Fianna Fail)
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I will now ask some questions. I am Deputy John Lahart, Cathaoirleach of the committee. This question requires a short answer. Perhaps this Bill does not do it, but is it possible for a member state to draft a Bill that would be successful to challenge in terms of banning goods and services from the occupied territories?
Professor Graham Butler:
Professors Tridimas and Koutrakos make a very good argument for why it can be. I am in total agreement with what Professor Koutrakos said about the existence of the exception even if it is not explicit for services in the same way as it is for goods. I am in total agreement there. Ultimately whether the use of the public policy exception proceeds here falls on the proportionality of it and how the EU court will ultimately reconcile whether a member state can do that.
There are good arguments both ways. The answer to the question is "Yes".
John Lahart (Dublin South West, Fianna Fail)
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I will ask two quick questions because there is unfortunately another vote in the Dáil. Professor Butler used the word "could" in his contribution. He did not say "would". He then used the word "would" and changed it to "could". That softened the impact of what he was saying. We might come back to that. I will come back very briefly to the witnesses we had last week. In the context of the Russia-Ukraine conflict, those witnesses said that Ireland has already banned services. If I interpreted them correctly, they said particular sanctions imposed on Russia by the EU essentially amounted to a ban on trade and services from a particular state outside the EU. Is that correct, yes or no?
Professor Graham Butler:
I do not keep on top of every legal act the Council adopts but, as far as I am aware, there has been extensive adoption of legal acts by the Council with respect to natural and legal persons following the 2022 invasion of Ukraine by Russia. These are targeted in what they can do. They are so-called smart sanctions. I do not believe it is a unilateral ban on all persons but I am open to correction on that by my colleagues. I should add that the sanctions that have been applied are adopted EU legal acts not individual member state acts like the one we are talking about here.
John Lahart (Dublin South West, Fianna Fail)
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Not all states comply with these, however. That is one of the issues I have with them. I will come back to the matter in the second round.
John Lahart (Dublin South West, Fianna Fail)
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No. I am sorry but I am going to stop Professor Butler. There are four minutes left in my round. I will ask the Vice-Chair, Senator Ahearn, to assume the Chair again. I will leave my four minutes to the other three witnesses. If there are points they want to add or refute, they have my four minutes to do so. Does Ms Ni Ghrálaigh want to come in?
Ms Blinne Ní Ghrálaigh:
I am very grateful to the Cathaoirleach. I will answer two questions that have been asked already that also relate to international law. The first is effectively about the hierarchy of norms. There can be no doubt that there is a hierarchy of legal norms in international law with pre-emptory norms, jus cogens norms, standing at the very top. These are principles or norms that are so fundamental that they give rise to obligations on the part of all states. They allow for no derogation. They are norms that are squarely an issue here such as the prohibition on genocide, the prohibition on crimes against humanity, the prohibition on racial discrimination and apartheid, and the right to self-determination. A question was asked in that regard. A second question that was asked was about creating bad legal precedent.
Alice-Mary Higgins (Independent)
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It could also be good precedent.
Ms Blinne Ní Ghrálaigh:
It could also be good precedent. I will come back on that question. The good precedent and positive effects of Ireland passing legislation that is squarely in compliance with its obligations under the requirements set out under the ICJ advisory opinion are obviously significant. It would assist in ensuring that the opinions of the International Court of Justice and fundamental obligations in international law are adhered to. The flipside is that, if Ireland were to pass selective or restrictive legislation that did not fully comply with its obligations, that could have a very negative impact. It could be used by other states to say "this much but no more". It is not overstating the case to say that doing so could be extraordinarily harmful not only to the international legal order but to the very people and the very rights Ireland would be purporting to protect through this legislation. I therefore counsel the committee very strongly against that. We are at a stage when the fundamental precepts and structures of international law are under quite severe assault. For the Government to pass legislation that it does not believe to be fully compliant with its obligations would be deeply regrettable. However, the Government now has the opportunity to reinforce the principles of international law and to ensure they are upheld.
Garret Ahearn (Fine Gael)
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There is a minute left if anyone else would like to come in.
Professor Takis Tridimas:
I will raise just one point. I do not believe there would be a breach of the principle of non-discrimination under EU law if the imposition of restrictions on services by a member state was selective and targeted only certain countries. The reason for this is that, back in the 1980s, the Court of Justice took the view that there is no general principle of having to treat equally all third countries. It seems to me that there is discretion. Would the Leas-Chathaoirleach allow Professor Koutrakos to add anything in the event that he wished to?
Professor Panos Koutrakos:
I will back up a point Professor Tridimas made. It is entirely related to this. What we are talking about here is the exercise of discretion by Ireland as to how best to comply with its international legal obligations. In the context of exercising discretion, Ireland has the right to choose to act in a specific way in the case of specific occupied territories and in a different way in another case of occupied territories.
Garret Ahearn (Fine Gael)
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There are only Senators in the room and I am the only one who has not asked questions so I will take my seven minutes now and then, if everyone in the room agrees, we will do a second round of three minutes each. I hope the Deputies who have not spoken will then come back.
I thank all the witnesses for being here and for giving their legal perspectives on the issue and on this very important Bill. Professor Tridimas spoke about the Attorney General's view and said that it is flawed. That is obviously his own perspective. If the Attorney General gives a legal view that services cannot be included in the Bill, how would Professor Tridimas recommend the Government proceed? Is there a way the committee could get around that to allow services to be included?
Professor Takis Tridimas:
I appreciate that the view of the Attorney General carries weight. There is no doubt about that but the Attorney General does not have the ultimate say as regards the interpretation of law. That is for the courts. The arguments given by the Attorney General in support of his conclusion do not accurately represent the position under EU law. I have discussed his arguments regarding potential remedies. In the event the ban were found to be incompatible with EU law, I do not believe any liability would arise. On the substantive issue, the Attorney General does not take into account that the European Union is bound by pre-emptory rules of international law, the jus cogens of customary international law. He has not given sufficient weight to the fact that the authority we have on the interpretation of public security and public policy in respect of intra-EU movement should also guide us in interpreting what member states can do under the concept of public policy in respect of external trade. There would be something odd in allowing member states to restrict the free flow of services within the EU, a core EU freedom, while not allowing them to restrict the movement of services to and from third countries.
If I can put it this way, it is not one of the four fundamental freedoms that the EU guarantees.
Garret Ahearn (Fine Gael)
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Regarding the ICJ ruling and the advisory opinion, some of the lines from it refer to abstaining "from entering into economic or trade dealings". Can this be interpreted as abstaining from entering into new dealings in trade? When it refers to taking "steps to prevent", we often hear it said in this committee that the ruling was to ban trade, but the wording is "to take steps to prevent". We know there are other EU countries that see this ruling differently. What is Professor Tridimas' interpretation of the meaning of "to take steps to prevent" and what is the difference between that phrase and "ban"?
Professor Takis Tridimas:
I understand "to take steps to prevent" to be a wider obligation and it is a positive obligation. As a matter of EU law, there are cases where the European Court of Justice has held that the protection of fundamental rights creates positive obligations on the member states, for example, positive obligations to prohibit or punish torture. That is the situation as far as the case law of the European Court of Justice is concerned. My understanding of the opinion of the International Court of Justice is that positive steps should be taken. Perhaps, though, I can defer to our international law experts here.
Garret Ahearn (Fine Gael)
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In her opening statement, Ms Ní Ghrálaigh talked about whether services are included and stated, "It would transform the Bill from what risks being little more than window dressing into a truly impactful, precedent-setting piece of legislation." Has any country gone any further in terms of legislation to prevent goods and services in the occupied territories?
Garret Ahearn (Fine Gael)
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Would this legislation, therefore, be a precedent already, even if it just included goods? I know it is not what you are calling for, but would it not already be a precedent?
Garret Ahearn (Fine Gael)
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Compliance with international law, however, is subjective. We have heard the representatives from the Department saying the ruling can be seen differently. In my view, the interesting part of what you said was that the Bill would be transformed from being "little more than window dressing". What do you mean by window dressing?
Ms Blinne Ní Ghrálaigh:
I mean window dressing in circumstances where, as far as I understand it, there is limited trade in goods and the primary trade is in services in terms of companies that, for example, deal with bookings of properties in the occupied territories, financial services and IT services. As I understand it, this is where the primary impact of this legislation would be-----
Garret Ahearn (Fine Gael)
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Yes, but you are saying the legislation there now is window dressing. That means the people who are forming the legislation. It would sound like a statement that would not come from a lawyer but one that would come from a Chamber in this building. It seems a political statement as opposed to a judgment from a legal perspective.
Garret Ahearn (Fine Gael)
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Since you quoted it, what do you actually mean by window-dressing?
Garret Ahearn (Fine Gael)
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That would mean an inadequate piece of legislation. The phrase "window dressing" comes across as a political statement.
Ms Blinne Ní Ghrálaigh:
Well, it is not intended to come across as a political statement. It is intended to come across as a statement as to the actual fact of a lack of impact or a lack thereof that the Bill would have. I wonder if I could come back to the question asked about taking steps to prevent trade.
Ms Blinne Ní Ghrálaigh:
There are different obligations under international law. The duty to take steps is a due diligence obligation of conduct, rather than an obligation of result. Typically, it arises in circumstances where the state is concerned with the behaviour of private parties rather than the behaviour of the state itself. The court, therefore, is allowing state discretion in how it is to achieve the obligation, instead of mandating how it should do so. This does not mean that it is not requiring Ireland to prevent trade.
Garret Ahearn (Fine Gael)
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Okay. I am conscious of time. Would Senator O'Reilly like to come in?
Joe O'Reilly (Fine Gael)
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I am okay. I do not have the context.
Garret Ahearn (Fine Gael)
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We will start the second round of questions now. I call Senator Stephenson.
Patricia Stephenson (Social Democrats)
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This question is for Ms Ní Ghrálaigh. Does she believe that compliance with international law is a subjective matter? Is it an objective matter to comply with international law, in that we either do or do not? Or is it the case that there is a subjectiveness to it?
Patricia Stephenson (Social Democrats)
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I thank Ms Ní Ghrálaigh. Last year, the ICJ in paragraph 229 of its advisory opinion also found "that Israel’s legislation and measures impose and serve to maintain a near-complete separation in the West Bank and East Jerusalem between the settler and Palestinian communities... [and this] ... constitute[s] a breach of Article 3 of" the UN Convention on the Elimination of All Forms of Racial Discrimination, CERD. We have also had inputs from the UN special rapporteur on Palestine on this issue of apartheid and racial discrimination. Ms Ní Ghrálaigh has spoken on this issue before. Could she speak a little bit more to it here now and the context and its implications?
Ms Blinne Ní Ghrálaigh:
Indeed. The court concluded that Israel's actions, policies and practices in the occupied territories do breach Article 3 of CERD, which itself prohibits racial segregation and apartheid. While it is the first time the court has concluded this, it is worth underscoring that the committee itself has determined since at least 2012 that Israel's actions in the West Bank amount to apartheid. This is the view that has been long held by not only Palestinian NGOs but also international NGOs, including, most extensively, Amnesty International, which produced a report in 2022. They have all found Israel to be imposing an apartheid system on the Palestinians. This is necessarily something that falls to be considered when Ireland is considering legislation around trade with Israel.
Patricia Stephenson (Social Democrats)
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I thank Ms Ní Ghrálaigh very much. Can she also speak a little about the obligations on states to prevent genocide and that duty to act under the Genocide Convention?
Ms Blinne Ní Ghrálaigh:
I thank Senator Stephenson very much for that question, which is, of course, extremely important. The fact that Ireland – the Taoiseach, the Tánaiste and the Dáil – has repeatedly assessed Israel to be committing genocide is, of course, materially relevant to a Bill that concerns trade with Israel. This is because the commission by Israel of genocide gives rise to very clear obligations on Ireland not to aid and assist in that genocide and to bring it to an end. Those are obligations arising under the law of state responsibility, but obligations also arise under the Genocide Convention itself, which requires states to take all measures reasonably available to them to prevent genocide. The court has previously explained in the case of Bosnia and others that a state would breach its obligation where it manifestly fails to take measures to prevent genocide that are within its power and might have contributed to preventing the genocide.
Patricia Stephenson (Social Democrats)
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I thank Ms Ní Ghrálaigh.
John Lahart (Dublin South West, Fianna Fail)
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I call Deputy Cathy Bennett.
Cathy Bennett (Cavan-Monaghan, Sinn Fein)
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I thank all the witnesses for coming in and for presenting their opinions to us. I congratulate Ms Ní Ghrálaigh on her appointment as an adjunct professor at the National University of Galway's Irish Centre for Human Rights. At a time when the very concepts of human rights and international law are under sustained attacks, I know all members will appreciate all the more the value of the work Ms Ní Ghrálaigh does at the university's Irish Centre for Human Rights. I am certain we will all benefit from the contributions she makes today.
I will pose my questions to Ms Ní Ghrálaigh because I have the other opinions here and I have read them. I would just like to hear the opinions of Ní Ghrálaigh today, if that would be okay. The European Union is currently disregarding its own internal findings that Israel is in breach of its human rights obligations under the EU–Israel association agreement and is committing war crimes.
Does she believe this has an impact with regard to this Bill and the ban on the trade of goods and services?
Ms Blinne Ní Ghrálaigh:
I am grateful for those kind words and for the question. Certainly, there is a real concern that we are witnessing a move away from strict enforcement of international law. It is a time where the fundamental precepts of international law are coming under extreme strain and we have witnessed significant attacks on the institutions of international law. In circumstances where the EU is not acting itself to ensure compliance with fundamental human rights, that does provide a particular impetus for states, where they are able, to act of their own accord to ensure those fundamental international obligations are upheld.
Cathy Bennett (Cavan-Monaghan, Sinn Fein)
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Will Ms Ní Ghrálaigh give an example of any other situation where the Irish Government has introduced legislation that has been acknowledged to be only partly in line with its international obligations? Have there been any consequences where it has taken action?
Ms Blinne Ní Ghrálaigh:
I might have to reflect on that question somewhat but certainly, there have been cases taken to the CJEU where Ireland has acted, and the CJEU has determined that Ireland has or has not complied with international law. That is the point of the courts. The courts are there to be able to determine and assess whether state action is compliant with international law. There is no need to shy away from that, particularly where there is such a significant benefit to be gained from Ireland passing this legislation.
Cathy Bennett (Cavan-Monaghan, Sinn Fein)
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Would there be any potential consequences for Ireland for breaching what has come out of the ICJ and the UN General Assembly resolution under our obligations under international humanitarian law? Are we in breach there?
Ms Blinne Ní Ghrálaigh:
Certainly, the point is that breaches by Israel of the fundamental principles and norms of international law, whether that be the right to self-determination of the Palestinian people, whether it be genocide or whether it be apartheid, the fact of those breaches gives rise to obligations on the part of third states, including Ireland, to bring them to an end and not to aid and assist in the commission or maintenance of that unlawful situation. If Ireland does not abide by its own obligations not to aid and assist in those unlawful situations, it is itself in breach of its obligations and it can itself be challenged and held accountable for those breaches.
Cathy Bennett (Cavan-Monaghan, Sinn Fein)
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I return to Europe, which is breaching at the moment. Are there no consequences for Europe and the Commissioner at the moment? Laws are being breached there.
Ms Blinne Ní Ghrálaigh:
As the ICJ opinion has made absolutely clear, the obligation not to aid and assist Israel in its violations of peremptory international law is an obligation that binds international organisations as it binds states. That not only includes the United Nations, but also the European Union, so there could indeed be consequences in principle for the European Union's breach of its own obligations.
Cathy Bennett (Cavan-Monaghan, Sinn Fein)
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I thank the witnesses again.
Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
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I thank everyone for their forbearance. It is unfortunate that there are so many votes this evening. To clarify and to be fair to the Chair and the committee, in the context of the scheduling of this meeting there are more than would be typical. We would not necessarily anticipate having to depart so often. It is unfortunate and I thank the witnesses for their patience.
My first question is for Professor Butler and the arguments he makes about enforceability. I share his view that it would be preferable from a public policy point of view to address all occupied territories in respect of trade with all of them. That was a strength of the previous Bill. I understand the Government's argument about grounding the potential public policy exception through the ICJ case. In my view, there is an issue across the board regarding trade with all of those areas but I will not go any further into that.
It is fair to say what is anticipated with the heads of this Bill is a law that would be enforced through criminal sanctions for the criminal act of trading with the occupied territories. In such a consequence there are other forms of legislation that would, as we heard in previous hearings, potentially ground a prosecution for similar acts. For example, it could be under the International Criminal Court Act or the Criminal Justice (Money Laundering and Terrorist Financing) Act. Under those Acts, as I understand it, a person or company based in Ireland could currently be prosecuted for trading with the occupied territories. In a situation like that, given that this legislation has been on the Statute Book for several years, is it not the case that it has been established that where the political will exists, the Oireachtas can legislate to sanction trade with occupied territories or illegal forms of trade like that?
Professor Graham Butler:
I thank the Deputy for his point on the question. I turn first to the existing laws in the Statute Book. I admit I have not lived in the jurisdiction for the guts of 12 or 13 years, so I am not up to date and on top of the existing national legislation when it comes to enforcement and criminal sanctions. As I understand it based on the heads of Bill or general scheme with which we have been provided, it references the Customs Act 2015, which to my mind is about the powers given to the applicable national authority, which would be the Revenue Commissioners in this case. It is not itself concerned with criminal sanctions per se, but I am open to correction on that if the Deputy's understanding is different.
Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
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Yes, it is my understanding that the heads anticipate a criminal sanction with regard to persons. That brings me to another point. Under the Customs Act, it is not necessarily the case that you have to confiscate items when they arrive at a port from another EU member state, but that is obviously an option. Members of An Garda Síochána and other officers can seize goods at the point of sale, like a supermarket for example. Again, this potentially circumvents the issues with enforceability.
Professor Graham Butler:
The Deputy is absolutely right. The legal challenges about enforcement of this can come in numerous ways. For example, one could be that a good is directly imported. It arrives at Dublin Airport or Dublin Port, whichever it may be and is prohibited on entry. There could also be the case that goods end up in the jurisdiction and arrive on the counter of a supermarket and then for one reason or other, another authority like the Garda or the Health and Safety Authority, examines the goods and then questions the process by which the goods have entered the State in the first place. Therefore, the goods might be seized. It would obviously open questions about how the goods ended up from the point of view of sale, the distributors that got them onto the shelf, the actual importer, or whether they came from a third state or another EU member state. These are all questions of enforcement that we know now are left open.
To come back to EU law, which is where I entered this debate, I am not sure that these issues have been fully considered. Therefore, if the State wants to be true to its policy objective here, the full range of issues would have to be considered and the nuances for the full enforcement of this public policy aim would have to be considered in how the Bill is precisely structured and to how much it wants to build enforcement powers into the existing authorities and their own mandates. It is not just the issue of the Revenue Commissioners, per se, at the point of entry for direct imports. There is obviously the post-import phase to question whether these indirect imports have even complied with the full requirements that EU law and national law provide.
Donnchadh Ó Laoghaire (Cork South-Central, Sinn Fein)
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We can have a bit of a debate, and we are having a debate and various opinions are being offered, as to the policy exception but ultimately we do not really have a final conclusive position from the courts on this particular matter. Is it fair to say the central issue is that it has never been tested, particularly off the back of the International Court of Justice decision? We had a debate last week about the need to reconcile international customary law and EU law. If I understood the witness's arguments about primacy it would seem to me that the EU court should at least attempt to see if the two can be reconciled. Is it not plausibly the case that an EU court may seek to find that reconciliation and, ultimately, that the final test of this will be if it gets to an ECJ decision and that a government may decide that it wishes to test this and pass such legislation to do so?
Professor Graham Butler:
Of course, we do not have an exact and perfect case to analyse but subsequent developments like the ICJ opinion the Deputy has mentioned, could, one might argue, give more weight to an Irish argument that the public policy exception could be used. At the same time, just because we have had no perfect example in the past does not mean we cannot learn from the lessons along the way in the case law, and all the case law of the court so far gives precedent for all the steps going forward and gives arguments to both sides.
Noel McCarthy (Cork East, Fine Gael)
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I apologise for being late as I had other meetings also. I thank the Cathaoirleach. I thank the witnesses for coming in. Most questions have been answered but I just have some legal ones if that is all right. The Bill may expose Ireland to legal challenges at EU level and at WTO level and potentially weaken our economic sovereignty rather than strengthen it. Is this true? Will the witnesses answer that one?
What assessment has been made of the likelihood of WTO or European Commission legal action if this Bill becomes law?
John Lahart (Dublin South West, Fianna Fail)
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Does that second question pertain to the EU Commission taking action?
John Lahart (Dublin South West, Fianna Fail)
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Which witness will take that? What are the chances of the EU Commission taking action if Ireland enacts this into law?
Professor Graham Butler:
I will be brief. The Commission is a surveillance authority as well as the legislative authority. It can receive complaints from individuals and it can take up of its own discretion the extent to which an infringement of the common commercial policy, CCP, has occurred. As Professor Tridimas noted earlier, for issues like the substantive one here when the State is very clearly trying to fulfil its international legal obligations, the Commission might exercise a significant degree of caution. Just because the Commission may not act does not eliminate the possibility for proceedings to ultimately end up before the EU court anyway, given that issues can arise for the Irish courts which then necessitate sending a case to the EU.
John Lahart (Dublin South West, Fianna Fail)
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The Deputy's first question for the witnesses was on whether enactment would weaken Ireland's economic sovereignty.
Professor Panos Koutrakos:
With regard to economic sovereignty, at the level of international economic law the obligations imposed on states and the European Union are not absolute. Even at that level there are exceptions. For example, since we are talking about services, the General Agreement on Trade in Services, GATS, which is a WTO agreement, imposes specific obligations on parties and of course the European Union is a party. At the same time there is a public policy exception, I believe it is in Article XIV. The obligations are not absolute and it does not necessarily follow that a unilateral restriction under EU law would be illegal under international economic law.
John Lahart (Dublin South West, Fianna Fail)
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We will move on to Senator Joe O'Reilly.
Brian Brennan (Wicklow-Wexford, Fine Gael)
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I apologise for being late. I am just trying to simplify this. We are all on the one page. We can speak about the kids and what is happening over there. We know the numbers of deaths. I believe we are very united in this room on where we are going with this but can we try to explain for the ordinary person? We are waiting on a judgment from the Attorney General. He will either go pro on this Bill or against this Bill, especially in relation to services. I would love the advice of the learned people in this room on the answer to both of those questions if we get an answer back from the Attorney General. What are our options? The key words that are coming up all along are the obligation on Ireland not to aid and assist. What are our options if the Attorney General comes back with a negative? How do the witnesses encourage us to drive on if we get a positive response? Could I just throw this to all the witnesses?
Ms Blinne Ní Ghrálaigh:
I believe it has been answered in part already by Professor Tridimas. It is a very important question to be asked. Professor Tridimas said, quite rightly, that whereas the opinion of the Attorney General is of course very significant and important, it is the courts that ultimately determine what the law is. Regardless of what the Attorney General says, that is not the final answer on these matters.
Brian Brennan (Wicklow-Wexford, Fine Gael)
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Could I have a response from the professors also?
Professor Takis Tridimas:
Yes. I would say the same. I appreciate that the issue is difficult. I appreciate that the opinion of the Attorney General carries enormous weight. In our opinions, and I join with Professor Koutrakos on this, we try to show that the arguments brought in the opinion are not correct and in our view a restriction can be imposed on trade in services, as well as on trade in goods. We believe that this is a very arguable case.
Brian Brennan (Wicklow-Wexford, Fine Gael)
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Let us keep it there for a moment. A lot of people are asking me, literally on the doorsteps, what is going on. They do not actually understand it. We are all aware of the ICJ ruling. I will not pre-empt him but if the Attorney General did come back with a negative, the people on the street feel that this would be a total contradiction of the rule that is already there, and that we should be employing the rules that are there and which were agreed at the highest level in Europe. How do we explain that? Perhaps the witnesses could tease that out little bit.
Ms Blinne Ní Ghrálaigh:
The point is that the ICJ opinion is very clear and unequivocal in terms of the obligations that it describes apply to third states. The terms are that third states, including Ireland, must not render aid or assistance to Israel or any other party in maintaining the unlawful situation created by its unlawful presence in the occupied territory. They must distinguish in their dealings with Israel between the territory of Israel and the territory of the occupied territory, and they are obliged to co-operate to try to bring an end to the violations of international law. The obligations set out in the advisory opinion are absolutely clear. There is some discretion to states as to how they go about implementing those obligations domestically but there is no discretion to states as to whether they implement them. They are obligations that are binding on the states and for which states can be held accountable.
Brian Brennan (Wicklow-Wexford, Fine Gael)
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Can Ms Ní Ghrálaigh understand the confusion that is out there with the lay people? Everybody in the country wants this to stop but the question is how to legally get around it. What advice would the witnesses give us on both answers? If it is a negative answer are we to proceed? Is that what the witnesses are saying?
Ms Blinne Ní Ghrálaigh:
Respectfully, as has been said, the Attorney General's opinion carries a significant amount of weight. We do not know yet what that opinion will be but it is not finally determinative of the law. If the committee does want to proceed, and I very much hope that it would wish to proceed, to comply with its obligations under international law, it may do so.
John Lahart (Dublin South West, Fianna Fail)
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As we had anticipated finishing around about now, there is no obligation on our witnesses to stay but we would like them to for another 15 or 20 minutes. If they cannot do so, we will understand it.
The chairman of the United States Senate Committee on Foreign Relations described Ireland's occupied territories Bill as blatantly antisemitic. We all know the answer to that question here. This is quite a profound charge against the Legislature and against the country. If the witnesses are comfortable, I would like each of them in turn to address that very briefly as they see fit.
Ms Blinne Ní Ghrálaigh:
The proposed legislation is doing no more - in fact it is doing less - than the International Court of Justice has made clear Ireland is obliged to do in order to comply with its international obligations in the face of what the International Court of Justice has determined to be egregious violations by Israel of its obligations in the occupied Palestinian territories - its illegal presence in the occupied territories; its continuing deprivation of the right of Palestinians to self-determination; and its seizure of territory by force. It cannot be said that a determination that Israel is in violation of its international obligations is antisemitic. That determination not being antisemitic, it cannot conceivably be antisemitic on the part of Ireland to seek to implement and comply with those obligations.
Professor Takis Tridimas:
As far as I can tell, the Bill makes it clear in its very Title that it is proposed to comply with a set of obligations that are both wide in scope and also quite specific in their implications, as set out in the advisory opinion of the International Court of Justice. There does not seem to be anything to suggest otherwise.
John Lahart (Dublin South West, Fianna Fail)
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Unless either of the other two witnesses demur, I will move on.
John Lahart (Dublin South West, Fianna Fail)
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Some EU states have issued guidelines warning companies against engaging in economic activities, including services in settlements due to legal risks. Our Department of Foreign Affairs and Trade has similarly advised companies to avoid complicity but there is no legislation. Is this a precedent?
Ms Blinne Ní Ghrálaigh:
That is a very good question. I am not aware of any other state that has implemented this legislation. That is not to say there is not such legislation, just that I am not aware of it. I would be willing to look into it. I had been intending to produce a short opinion that might assist with some of the questions that have been asked today including about any negative impact of the Bill. I could certainly look into that in more detail for that opinion if that would assist.
John Lahart (Dublin South West, Fianna Fail)
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With the permission of the committee, I will ask the Vice Chair to take the Chair again.
Another vote has been called in the Dáil. There has been an unusual amount of voting tonight. I, as Chair, and other Deputies may not get back but the Senators may remain. If we do not get back, I thank the witnesses. The Vice Chair will assume the Chair. There will be a short second round of questioning. I believe we have asked most of the questions we wanted to ask and we are very grateful for the papers the witnesses submitted, the opinions they provided,-----
John Lahart (Dublin South West, Fianna Fail)
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-----the time they have given and the courtesy they have shown the committee. I will hand over the Chair to the Vice Chair.
Garret Ahearn (Fine Gael)
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We will do three minutes each between the five of us and conclude.
Alice-Mary Higgins (Independent)
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I think we had said we would go to-----
Garret Ahearn (Fine Gael)
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We said 15 minutes or so. By the time we have done one round we will be there. I call Senator Higgins who has three minutes.
Alice-Mary Higgins (Independent)
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I want to follow up on some of the questions I put earlier to Ms Ní Ghrálaigh, Professor Tridimas and Professor Koutrakos. We have heard that there is a clear arguable case and nobody disagrees that there is an arguable case. We then come to the question of testing it. Ireland has with, I think, nine other countries written publicly that its understanding of the ICJ advisory opinion is that there is an obligation in relation to both goods and services. Ireland has stated that publicly and made that clear alongside many other EU countries. Would it then weaken our public policy case if we were then to say that we are only looking for an exemption in public policy on the goods side or would it strengthen our case if we were consistent with what has been the stated Irish public opinion that both goods and services constitute trade and should be prevented, based on the ICJ advisory opinion? Would it be a stronger case if it included both goods and services? Professor Tridimas mentioned that he thought the Commission would be likely to lose and that we would have a strong case, but would it be stronger if we also include services? That is one key question.
If there is an opportunity, I would like Professor Koutrakos to come back on Article 347, the particular argument that is additional to public policy. That was a key point.
Ms Ní Ghrálaigh mentioned that the EU is also bound by that ICJ judgment when we talked about a precedent in a general sense. The others might also like to answer on this. Would it be useful to have a ruling of the European Court of Justice-----
Garret Ahearn (Fine Gael)
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We need to give the witnesses an opportunity to respond because there are only 40 seconds left.
Alice-Mary Higgins (Independent)
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I also asked about the strength of the case.
Professor Panos Koutrakos:
Article 347 is a rather obscure provision. By that I mean it is a provision that has only been litigated once specifically in the case of a trade embargo that Greece imposed in the early nineties. We do not have case law interpreting that provision specifically because the case was withdrawn and the European Court of Justice did not hand down a judgment. However, we have an opinion of Mr. Advocate General Jacobs in that case who explained the discretion that member states enjoy when they determine their security interests. That is the first point to bear in mind.
The second point to bear in mind is that the wording of that provision of Article 347 is almost identical to the wording of Article 99, I think, of the EU-Russia partnership agreement. It was in relation to that identical wording that the European Court of Justice in the Rosneft case said that it was legal, and would be justified, for the European Union in order to maintain peace in Ukraine to-----
Alice-Mary Higgins (Independent)
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Can Professor Koutrakos finish that sentence just to make it clear?
Garret Ahearn (Fine Gael)
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We are over a minute past the time.
Alice-Mary Higgins (Independent)
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Could I ask to get the answer in writing?
Garret Ahearn (Fine Gael)
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Yes, Professor Koutrakos can respond in writing to the question.
Alice-Mary Higgins (Independent)
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I will come in again when the other Senators have finished.
Garret Ahearn (Fine Gael)
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Unfortunately, there will not be time. I call Senator Fiona O'Loughlin.
Fiona O'Loughlin (Fianna Fail)
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I have a simple, basic question that I put to all the witnesses. When services in the occupied territories are spoken about, what exactly is their interpretation of that? Is there confusion between services that come from Israel and those that come from the occupied territories?
Garret Ahearn (Fine Gael)
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Who would the Senator like to answer the question?
Fiona O'Loughlin (Fianna Fail)
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I am putting it to all the witnesses.
Ms Blinne Ní Ghrálaigh:
I am happy to go first. Services could be anything. There are IT services, construction services, etc. Anything not directly a trade in goods is capable of being a trade in services. The Bill, obviously, is concerned with the occupied Palestinian territory and the obligation that it is meeting is the obligation set out in the advisory opinion, which is for states to distinguish in their dealings between the territory of the State of Israel and the occupied Palestinian territory. That is the focus of the Bill as it is drafted.
Fiona O'Loughlin (Fianna Fail)
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Does Ms Ní Ghrálaigh think there is confusion between the two?
Fiona O'Loughlin (Fianna Fail)
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I just feel that in conversations with people, members of the public and colleagues who are not members of this committee, that this is the case in terms of services. I agree with what Ms Ní Ghrálaigh said about it mainly being the tourism and tech industries. Many people, however, feel those services are actually in Israel, as opposed to on the land of the occupied territories and that it is difficult to try to distinguish between the two. I am very clear that the Bill refers to the occupied territories, but I am just interested in Ms Ní Ghrálaigh's views on this point.
Ms Blinne Ní Ghrálaigh:
Arguably, the judgment of the International Court of Justice goes more broadly than that because it is about not rendering aid or assistance to Israel or any other party in maintaining the unlawful situation created by Israel's continued presence in the occupied Palestinian territory. There may be parties outside of the occupied Palestinian territory who are contributing to the maintenance of the unlawful situation created by Israel in the occupied Palestinian territory. Certainly, then, the obligations set out in the advisory opinion do go more broadly. This Bill is not the answer and does not fulfil all the obligations contained in the advisory opinion. As I stated in my introductory statement, to ensure full compliance with the advisory opinion, what Ireland and other states would need to do is a clear, detailed audit of all of its dealings with Israel, whether they be trade, cultural, political, military, etc., to ascertain and be sure what dealings they are and whether they are capable of contributing to the unlawful situation created by Israel, whether that be its unlawful presence in the occupied territory, its genocide, its apartheid or its deprivation of the right of self-determination of the Palestinian people.
Garret Ahearn (Fine Gael)
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I thank Ms Ní Ghrálaigh very much. I call Senator Joe O'Reilly.
Joe O'Reilly (Fine Gael)
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It goes without saying, as my great friend Deputy Brennan said, that we all want to pass the legislation and abhor what is happening. That is all a given. For the benefit of the public watching, insofar as people are, will Ms Ní Ghrálaigh explain again how the International Court of Justice trumps the EU and how it is superior in terms of case law and precedent? I would like her to briefly explain this. I ask her to then explain how member states are restricted by Article 24(2)(a) within the EU. I presume Ms Ní Ghrálaigh has been over this ground multiple times this evening, but I ask her to go through it again just to be very clear and to have it explained in simple terms for people watching. How, why and where does the ICJ take precedence over or overrule EU law? When does this happen and where is there a precedent in terms of cases?
Ms Blinne Ní Ghrálaigh:
I thank the Senator very much for the question. I can answer the query briefly, but it is one for my colleagues who are specialists in European law. The point is that the advisory opinion is also directed at international institutions and not just at states. International institutions also have obligations not to aid and assist Israel in its violations of international law and to distinguish in their dealings between-----
Joe O'Reilly (Fine Gael)
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Are institutions specifically named?
Joe O'Reilly (Fine Gael)
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If we work on that premise, then, where does Article 24 restrict the manoeuvrability of individual member states? How does it restrict us?
Professor Takis Tridimas:
Article 24 operates at a different level. As far as the relationship between EU law and international law is concerned, from the perspective of EU law, the European Union is bound by customary international law. Every provision of EU law should be interpreted so as to comply with obligations arising from international law. These are the two fundamental principles. As far as Article 24 is concerned, it is a concession to the member states. They can restrict the free movement of goods from third countries on grounds of public policy. That is understood narrowly because the European Union has an interest not to allow the member states to invoke liberally the principle of public policy, but for the regions we have put in the successive opinions we believe that here it is possible for a country, a member state, to limit-----
Joe O'Reilly (Fine Gael)
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But there is no clear direction on services. Is that the-----
Garret Ahearn (Fine Gael)
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I ask the Senator to conclude because he is over time. We have gone well beyond the time for the witnesses.
Joe O'Reilly (Fine Gael)
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Is it the case there is no clear direction on services? Does this arise from-----
Garret Ahearn (Fine Gael)
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Conclude, please, Senator. The time is up.
Garret Ahearn (Fine Gael)
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If there is anything further he wishes to say, Professor Tridimas has ten seconds remaining.
Garret Ahearn (Fine Gael)
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I thank Professor Tridimas very much. I have one question to conclude for Ms Ní Ghrálaigh. She said that if the Bill is enacted as it is now we will be open to legal action. Is every country, though, not open to legal action at the moment?
Garret Ahearn (Fine Gael)
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Would we not be the country least open to action? I am not sure how to phrase it. Even though in Ms Ghrálaigh's view and in many people's view we would not be adhering to international law, every other EU country is not even close to adhering to international law, so I presume legal actions would be taken against those countries.
Ms Blinne Ní Ghrálaigh:
Certainly. It is not the fact of the Bill that would open Ireland up to international legal action, but the fact of Ireland's non-compliance with international law. If Ireland were to continue to allow the trade in services with the occupied Palestinian territory, without distinguishing, as it is required to do, it is this that opens Ireland up to legal challenge.
Garret Ahearn (Fine Gael)
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Are countries open to legal challenge at the moment? Is there currently an opportunity to take legal action against any European country?
Garret Ahearn (Fine Gael)
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Of course a legal challenge is possible but why has there been none, at the moment anyway?
Garret Ahearn (Fine Gael)
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Why would there be, if this measure were introduced?
Ms Blinne Ní Ghrálaigh:
It is not the legislation itself that would give rise to a challenge; it would be any continuing failure by Ireland to comply with its obligations that could give rise to a legal challenge. Insofar as Ireland were to say it would legislate only against services and would continue to allow trade in services to occur, notwithstanding its obligations, it would be a clear indication by Ireland that it was not going to comply with its obligations. However, it is the fact of non-compliance that would be a breach of Ireland's international obligations, not-----
Garret Ahearn (Fine Gael)
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We have concluded the second round. Senator Higgins has 20 seconds.
Alice-Mary Higgins (Independent)
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I have a question for Professor Koutrakos because he was literally cut off mid-sentence and I think he was-----
Garret Ahearn (Fine Gael)
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Perfect, but most of the time he was cut off through the asking of questions. That was the problem.
Garret Ahearn (Fine Gael)
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The Senator has 20 seconds to ask a question and then we will conclude.
Alice-Mary Higgins (Independent)
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My question is on Article 347.
Professor Panos Koutrakos:
What I was saying was that, while we have very little case law on this point, we have the Rosneft judgment, which interprets an identically worded provision from another context in a way that we think would support the view that a ban on services would be justified under Article 347.
Garret Ahearn (Fine Gael)
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I thank the professor. I thank the witnesses for appearing before the committee today and for their useful contributions. Again, I apologise for the unexpected number of votes. This happens once in a while and we certainly did not expect it at this time.
We will adjourn until Tuesday, 15 July 2025, when we will continue our pre-legislative scrutiny of the Bill.