ONE OF THE first big tests for the incoming Government will be whether it quickly passes the Occupied Territories Bill (OTB).

This law, which Senator Frances Black first introduced in 2018, was the subject of much debate during the General Election campaign. Having received legal advice in 2018 and 2021 that the Bill was in breach of EU Law, the important opinion of the United Nation’s International Court of Justice in July 2024 created a ‘changed context’ according to Micheál Martin.

However, recent pronouncements from senior Fianna Fáil and Fine Gael politicians have sounded a very different tone. That change is reflected in the commitment contained in the Programme for Government, “Progress legislation prohibiting goods from Occupied Palestinian Territories, following the July 2024 International Court of Justice Advisory Opinion”.

Watered down

The commitment is worrying, for two reasons. Firstly, saying that they will ‘progress’ it, rather than pass it, suggests the incoming Government’s commitment is less than absolute.

Secondly, the fact that they only plan to legislate against ‘goods’ from the Occupied Territories is a very significant narrowing of the scope of the bill, as it leaves out services. When the Attorney General provided new advice to the Government in October of last year, nothing was indicated which would justify not going ahead with including services in the law. There isn’t a clear legal justification for narrowing the OTB like this – it is a policy decision Fianna Fáil, Fine Gael and the independents who support them have come to.

Two previous Attorneys General — Seamus Wolfe and Paul Gallagher – had both provided the then Government with legal advice stating that the OTB was in breach of both EU law and Irish Constitutional Law.

The EU law argument was that international trade is solely an EU competence. This means that it is an area where Ireland and all the other member states have given the EU the sole right to pass laws. If Ireland were to unilaterally introduce the OTB, so the argument goes, we would be in breach of EU law. Article 36 of the Treaty on the Functioning of the EU (TFEU) states that member states can place restrictions on the import of goods if that restriction can be justified for a number of reasons, including on the grounds of public policy.

The decision of the International Court of Justice in July 2024 is legally significant, as it strengthens the argument that a ban on trade with the Occupied Territories reflects the public policy of the EU and Ireland. This creates a much stronger case that Ireland could justify introducing the OTB, even though it affects international trade, as it would be permitted under the ‘public policy’ exception of Article 36 of the TFEU.

The legal question

Since the General Election, much of the commentary from Fianna Fáil and Fine Gael focuses on whether the current OTB is compatible with Irish Constitutional law. One argument put forward is that the current bill applies to all occupied territories, not just the Palestinian territories, and the process set out in the bill for how the Minister for Foreign Affairs would define an occupied territory is unconstitutional. Another says that some of the definitions in the bill are too loose.

However, the drafter of the Bill, Senator Frances Black, has made it clear that she is happy for the scope of the OTB to be narrowed and clearly defined as applying solely to the Palestinian Occupied Territories, not any occupied territories. With this change, many of the arguments that the bill is unconstitutional under Irish law are immediately resolved.

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Another part of the current bill that has been criticised is that it has an ‘extra-territorial effect’. This means that it treats something that happens outside of the State as a crime – for example, the extraction of metals from a mine in the Occupied Territories. Again, it is worth noting that the Irish Constitution does make provision for the extra-territorial effect of some laws. Article 29.8 of the Constitution states that “the State may exercise extra-territorial jurisdiction in accordance with the generally recognised principles of international law.”

The OTB was first introduced in 2018. It has been debated in detail in both the Dáil and Seanad. The ICJ Opinion from last summer goes a long way to addressing the EU law argument that had been used to delay its passing. The drafters have recognised that elements of the current Occupied Territories Bill can be improved or strengthened. This can be done easily by amendments submitted in the Dáil. However, for the incoming Government to argue that the bill needs to be scrapped and completely replaced by a narrow law that only applies to goods can only be seen as another delaying tactic. It would also represent a complete U-turn from the position taken by Fianna Fáil, Fine Gael and many Independents during the recent general election campaign.

Roderic O’Gorman is the Leader of the Green Party and a TD for Dublin West.