Independent Senator Frances Black speaks in the Seanad on the Control of Economic Activities (Occupied Territories) Bill 2018 last January; Lawyers John ReynoldTom Moerenhout
On July 11, The Seanad will vote on Frances Black’s proposed legislation to prohibit trade with settlements in occupied territories.
The Control of Economic Activity (Occupied Territories) Bill 2018 does not mention Israel and the Palestinian territories but will make it an offence “for a person to import or attempt to import settlement goods”.
Ahead of this, a legal opinion – drafted by Tom Moerenhout, of the Geneva Graduate Institute of International and Development Studies, and John Reynolds, of Maynooth University – shows why “it is not just possible but compulsory” for Ireland to do this under international law.
From Tom and John’s summary (full opinion with footnotes at link below):
International law mandates a prohibition on the importation of goods and services coming from settlements in occupied territories, and the exportation of goods and services to settlements in occupied territories.
Ireland would fulfil its obligation under international law by withholding from trade with settlements.
This trade prohibition is not a sanction. It is a rectification of an error in international economic relations between the State of Ireland and the State of Israel.
Trade with settlement enterprises that primarily benefits the economy of the occupying power has never been allowed under international law. The same applies to the Moroccan occupation of Western Sahara
The obligation to withhold from trading with settlements arises from the Duties of Non-recognition and Non-assistance, which are activated because of the violation of peremptory norms of international law (jus cogens) by Israel in its settlement activity.
In particular: the obstruction of the right to self-determination, the acquisition of territory by the use of force, the violation of fundamental norms of international humanitarian law and the application of Apartheid;
This mandate to withhold from trading with settlements applies, at the same time, to the European Union as a whole and all of its Member States individually.
Member states do not only have the right, but the obligation to act on their own account. Ireland can only be in accordance with its obligations under international law if it withholds from trade with settlements
Prohibiting settlement trade does not constitute a trade measure and is not in violation of the exclusive competence for common commercial policy of the European Commission.
This measure is taken in response to obligations laid down in the International Law Commission Articles on State Responsibility. These obligations are customary, self-executing and of an erga omnes status. This means they do not require United Nations Security Council authorisation and they apply immediately to individual states.
EU law invites member states to file a complaint before the Court of Justice of the European Union when the European Commission or other institutions of the Union fail to act in accordance with the EU treaties, which incorporate international law.
The EU in its Regulation on Imports also allows Member States to deviate from the Common Commercial Policy for reasons of public morality.
Prohibiting trade with settlements does not violate World Trade Law. Article XXVI.5.(a) of the General Agreement on Tariffs and Trade (GATT), including its negotiation history, confirms that GATT does not apply to illegal settlements….