Roderic O'Gorman (Dublin West, Green Party)

Yesterday, I took part in the pre-legislative process for the Government's occupied territories Bill, or the OTB-lite. Like others, I focused on the Government's exclusion of services from the current draft. The officials from the Department of foreign affairs were able to give me a clear answer on one point I raised. One of the conclusions in the ICJ opinion, delivered last year, was that states should "abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory". I asked the officials if it was their legal opinion that the term "economic or trade dealings" in the ICJ opinion referred to trade in goods alone or referred to trade in goods and services. They were clear that the legal advice received by the departmental officials was to the effect that the ICJ was referring to trade in goods and services. As such, if Ireland passes a Bill that excludes services, we will not meet the requirements of the ICJ advisory opinion regarding our engagement with the Palestinian territories.

I also asked the officials how we could defend the occupied territories Bill against a possible challenge under EU law. To do so, we would have to use the public policy justification in Article 36 of the Treaty on the Functioning of the European Union. It has been noted that the European Court of Justice scrutinises and is very strict about how that particular treaty article is used. A member state must show that it is advocating a genuine and sufficiently serious threat to a fundamental interest of society. I raised my concern that there was a risk that passing a Bill that only covered trade in goods from the occupied territories and not trade in services, which was a very obvious gap, undermined Ireland's argument before the European Court of Justice that the restriction in the Bill represented a genuine manifestation of Irish public policy. The officials were unable to give me a convincing argument on that point. I believe that by proposing a Bill that omits services, the Government is setting it up to fail a legal challenge. This weakness can be solved by including services in the Government's Bill.

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