Alice-Mary Higgins (Independent) | Oireachtas source

Amendment No. 10 seeks to insert a new section into the Bill which would provide that the assets of a relevant fund shall not be invested in undertakings carrying out business in a territory where there is not a legal basis to do so. Where the agency becomes aware that an undertaking in which the assets of the relevant fund are directly or indirectly invested is, or becomes, an undertaking referred to in paragraph (a), the agency shall divest the assets of the relevant fund from such investment as soon as practicable.

This amendment follows the debate on Committee Stage when I spoke about the importance of ensuring that we did not see investment in illegally occupied territories. The Minister will be aware that Senator Black originally proposed the occupied territories Bill, of which I am happy and proud to be a co-sponsor and that the Oireachtas finance committee, on which I sit, has been considering settlement divestment legislation proposed by Deputy Brady. What has been coming through in the discussions on this legislation is that this is not about sanctions. A discussion on sanctions is being had at a European level but, to be very clear, our discussion on the occupied territories Bill is focused on the fact that there is not a legal basis for trading with an illegally occupied territory. We are still awaiting the publication of any advice to the Government. It has been indicated that the Attorney General's advice will not be published but we have not seen any advice in respect of our legislation. What we have is a huge body of international experts who have spoken again and again about how our legislation is completely legal and is compliant and consistent with EU law and international law. In the discussions on it we still have that question about how to define "occupied territory" and so forth. In our legislation, we suggest using the definitions that are very clearly established by the rulings of the International Court of Justice, for example. There is time for us to reverse the discussion a little bit and that is what this amendment tries to do.

The amendment asks what is the legal basis of our legislation which says "divest from" or "do not trade with" illegally occupied territories. I am 100% solidly confident that it is completely consistent with trade laws and something we should be obliged to do under international law. The actual question should be, what is the basis for trading? What is the basis for trading or investing? If we are investing in an undertaking that is operating in an illegally occupied territory, under what jurisdiction are we doing so? What is the legal basis for that trading? That is where the burden of proof actually lies. Is it simply that the people who live in the illegally occupied territories are too poor or lacking in power to be able to stop it? That seems to be the thinking in most larger companies that are operating in illegally occupied territories. There is no legal basis. They are not trading under the EU-Israel association agreement, which we all hope will not just be reviewed but suspended because the human rights clauses within it are clearly being breached, but that is a separate issue. That agreement does not include the illegally occupied territories because it cannot include them. Explicitly, it cannot because Israel has no legal basis on which to make a trading agreement that includes illegally occupied territories. It is not under the EU association agreement and nor is it under the WTO or GATT rules. Both the WTO and GATT rules are clear that unless there is a jurisdictional basis, we cannot trade with a territory. What is the basis on which we have either trade or investment in illegally occupied territories or in undertakings that are operating in such territories?

This amendment refers to the assets of the relevant funds. These are two important funds and as I said earlier, I am excited about them. There is potential for them to do really important and transformative work but they must be ethically sound. That is what this and all of our amendments seek to do. We want to copperfasten it and ensure that we do not have a situation whereby we have to rely on the discretion of a Minister to partially divest, as was the case a couple of months ago when we saw that Ireland was compromised by its investment in undertakings operating in illegally occupied territories. We do not want to have to rely on that kind of discretion. We should, in fact, be looking to the law.

Our amendment provides that assets of a relevant fund would not be invested in undertakings that are carrying out business in a territory where there is not a legal basis to do so. Where the agency becomes aware that an undertaking in which the assets of a relevant fund are directly or indirectly invested is, or becomes, an undertaking "referred to in paragraph (a)", namely an undertaking operating in a territory without a legal basis for doing so, then the agency should divest of the relevant fund for that investment. For the avoidance of doubt, the amendment makes clear that a territory referred to in paragraph (a) shall be construed to mean an occupied territory. What we are talking about here are companies that are effectively operating outside the law and outside international trading law. It is not that we need a new tool here. We literally should not be investing in them. Of course, it would be simpler if the divestment legislation and the occupied territories Bill were to pass and to be supported by the Government, as they should be. Then we could give the NTMA something quite simple to operate, which is an exclusion list. Perhaps, in the case of Deputy Brady's legislation, that exclusion list might reference the list put forward by the United Nations Human Rights Council, although the decision power still needs to sit within our State. That is an option but if we are not seeing progress in terms of the occupied territories Bill and the divestment legislation and the Government is not giving tools to the NTMA to have clear language within its exclusion list, then we go back to the ESG that the Minister mentioned previously, the ESG which failed us in terms of investment in illegally occupied territories. In terms of that ESG, it is a much greater task for the NTMA to check everything. If we are not going to have an exclusion list for those operating in illegally occupied territories, with the definitions we have suggested, then we have to make sure we have a legal basis for everything. Then we must make sure that all of those entities we invest in are only operating in areas where they are there legally. We do not invest in criminal activities and we should not be investing in actions that are taking place outside the law. As I said, there is no legal basis for undertakings to be operating in illegally occupied territory. If they are operating there, they are effectively operating and profiteering in a way that is outside of proper jurisdiction. There are jurisdictional provisions within GATT and WTO but, to be very clear in the case of Israel, it does not have a jurisdictional mandate in respect of the occupied Palestinian territories.We can go the short or long way around, but this is effectively going the long way around. I would like confirmation from the Minister that no undertaking that is operating in a place where it does not have a legal basis to operate will be considered eligible under his definition of ESG in the Bill. The occupied territories Bill and divestment Bill are better and clearer tools, but for now we need to know what other tool the Government will be applying because it is clear that the Irish public does not want any risk that one penny of Irish money will go to support profits and money-making off the back of breaches of international human rights law and the imposition of cruelty and misery on an occupied population.