L&RS NOTE

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International law: an overview 10 December 2015

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No liability is accepted to any person arising out of any reliance on the contents of this paper. Nothing herein

constitutes professional advice of any kind. For full details of our attribution policy please go to the Library &

Research Service’s intranet pages. Please note as per the L&RS 2012 Statement of Service, the L&RS routinely

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Introduction

The intention of this L&RS Note is to briefly explain the various concepts behind the complex

area of international law. International law normally comprises agreements and should not

be viewed in the same way as national law. Ireland has a dualist approach,1 predicated on

Article 29 of the Constitution. This means that international treaties that are signed and

ratified by Ireland do not automatically become part of the domestic law of the State. In

order to be enforceable and binding at the domestic level, such treaties must be domestically

incorporated, either by an Act of the Oireachtas, or an amendment to the Constitution. EU

law is different and can be seen as supranational (where limited powers have been

delegated to institutions transcending national boundaries) as opposed to fully international.

International law is a topic of importance for politicians as it factors into their work, through

legislation and beyond. There are a number of proposed statutes on the Government

Legislation Programme with direct or indirect links to international law.2 In addition, there is

often confusion surrounding how international law applies to Ireland. Confusion can also

arise when referring to international organisations, often regarding name and remit. There

are 1,257 entries in the Irish Treaty Series, a database of agreements since 1930 that

Ireland is a party to. As of 3rd December 2014, 88 international agreements had been

signed but not ratified by Ireland.3 In the wider world and through the principles of

international law, Ireland maintains diplomatic relations with 178 states,4 through 61

Embassies, 7 multilateral missions and 12 Consulates General and other offices.

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Contents of this L&RS Note

This Note will give a brief overview of international law, covering the following:

International law as a concept;

The EU and international law;

How international law works;

Ireland and international law;

Obligations for Ireland;

Appendix 1: Article 29 of the Constitution of Ireland;

Appendix 2: Select Irish legal cases on international law.

International law as a concept

According to Murdoch’s Dictionary of Irish Law,5 international law is defined as:

Box 1: Definition of “international law” (Murdoch’s Dictionary of Irish Law)

The body of legal rules applying between states. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other states.

For a more precise version of what international law consists of and possible sources, Article

38 of the Statute of the International Court of Justice (ICJ) gives the function and jurisdiction

of the ICJ (emphasis added):6

Box 2: Article 38, Statute of the International Court of Justice

1. The Court [ICJ], whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59 [that decisions of the ICJ are not binding further than the case at hand], judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono [based on equity and good], if the parties agree thereto.

It has been argued that what international law boils down to is international custom, and the

methods outlined above are just different methods of showing agreed international custom.7

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The state as a concept

Though there are many ways that one can view a state, a state can be seen as an

independent legal order, denoting sovereignty.8 In Ireland this manifests itself through the

Constitution, Oireachtas, Government, legislation and courts. In interactions between

independent legal orders (states), international law presupposes a set of standards

applicable to govern their behaviour.

The difference between public international law and private international law

Discussion of international law normally involves public international law.9 As mentioned

above, public international law is the body of legal rules applying between states.

In contrast, “[p]rivate international law or conflict of laws, gives detailed rules on how to

accommodate other countries’ laws in another jurisdiction whenever this becomes

necessary.”10

Thus, in a broad sense, public international law is rules applying between states and private

international law is rules applying between people (of different countries).

This L&RS Note focuses on public international law.

The EU and international law

EU law is not the same as other international law. In a number of aspects, Member States

have ceded authority for international matters to the EU.

Ireland joined the European Economic Community in 1973,11 which by 1993 had become the

European Union. Evolving since the 1950s,12 Member States confer competences to the EU

to attain common objectives.13 The legitimacy for this has primarily been through treaties:

currently the Treaty on European Union (TEU)14 and the Treaty on the Functioning of the

European Union (TFEU).15 Under Article 5 of the TEU, “Competences not conferred upon

the Union in the Treaties remain with the Member States.”

Article 3 of the TEU contains the objectives of the EU:

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Box 3: Article 3, Treaty on European Union

1. The Union's aim is to promote peace, its values and the well-being of its peoples.

2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among Member States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.

4. The Union shall establish an economic and monetary union whose currency is the euro.

5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

6. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.

Ireland’s membership and functioning in the EU is predicated on Article 29.4 of the

Constitution. Through this, and through referendums changing the Constitution, Ireland has

effectively ceded sovereignty on measures “that are necessitated by the obligations of

membership of the European Union”. What this means is that European regulations

automatically become Irish law. European directives are binding as to the result to be

achieved. It is up to each individual Member State to implement national measures to

enable them to achieve the results stipulated by the directive. This is often done in Ireland

by way of statutory instrument.16

The Government is obligated to make a report each year, to the Dáil and Seanad on

developments in the EU.17 Ministers are required to lay the text of a proposed measure18

before each House together with a statement outlining its contents, purpose and likely

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implications;19 and each Minister has to report at least twice yearly to both Houses in relation

to proposed measures and other EU developments within his/her remit.20 Consideration of

European Union matters is a standing item on the agenda for each sectoral Joint Committee

meeting, where a Committee can consider draft legislative matters/acts, policy issues and

consultation papers from the European Commission, and can contextually invite the relevant

Minister and meet the relevant Secretary General. The Joint Committee on European Affairs

has to report annually to the Dáil and Seanad on the operation of the European Union

(Scrutiny) Act 2002 in the previous year. There have been 12 such reports to date, with the

2014 Report published in May 2015.21

Regarding international law, where the EU has competency, an international agreement

concluded by the EU is primarily an act of international law, with EU law being amended as

necessary and affecting Member States.

How international law works

International laws are not “laws” per se. They are more so agreements between different

countries. The Department of Foreign Affairs website explains this as follows:

“Despite the absence of any superior authority to enforce such rules, international law is considered by states as binding upon them, and it is this fact which gives these rules the status of law. So, for example, where a state wishes to avoid a particular rule, it will not argue that international law does not exist, but merely that states have not agreed that such a rule is to be binding upon them, or that the rule does not apply to the particular circumstances.”22

A 1997 European Parliament report described international law as being made up of “custom

and conviction”.23

The most-used method of introducing new international law is through treaties/conventions.

The rules on making and interpreting international treaties are governed by the Vienna

Convention on the Law of Treaties.24 Treaties can be bilateral (between two countries) or

multilateral, and the largest are sometimes referred to as universal. Treaties can be open to

all or restricted (such as the Treaty on the European Union, which only allows for certain

accession states). Though it can vary between different treaties and conventions, the most

common method of states agreeing and implementing international law is a double-process

of signature and ratification.

Signature

“Signing a treaty is one of the most common steps in the process of becoming party to a

treaty. However, simply signing a treaty does not usually make a state a party, although in

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some cases, called definitive signature, it might.25 A state does not take on any positive legal

obligations under the treaty upon signature.

Signing a treaty does, however, indicate the state’s intention to take steps to express its

consent to be bound by the treaty at a later date. Signature also creates an obligation on a

state, in the period between signature and ratification, acceptance or approval, to refrain in

good faith from acts that would defeat the object and purpose of the treaty.”26

Ratification / Incorporation

Ratification is the formal approval of a treaty or convention after it has been signed.

International laws rarely state how ratification should occur at a national level.27 Therefore it

is up to the state to decide. Indeed, the decision to ratify a treaty is purely a matter for the

discretion of the state.28

Ireland has a dualist approach to international law. Under this system international and

national law are separate, and international law only has effect in the State when it is

incorporated into national law. In Ireland this would be by way of legislation or an

amendment to the Constitution. The monist system is where international and national law

are viewed as the same, so that international law forms part of national law. Countries that

follow a monist system include France and the Netherlands.

International law in Ireland is not superior to national law. Though it could attract

international criticism, it is within the power of the Oireachtas to pass legislation that directly

conflicts or contradicts international law, even if Ireland is bound at an international level.

Where a treaty has not been domestically incorporated, rights under the treaty will not be

enforceable in domestic courts.29

It is important to note however that international law has persuasive effect and may provide

assistance to a court in interpreting rights under domestic law. Domestic law may be

interpreted by the Courts in light of Ireland’s international obligations.30

International law organisations

States are the primary subjects of international law. While international organisations, such

as the UN, may have limited rights and duties, “international organisations are a means

through which states seek to achieve cooperation.”31 Historically only states were subjects

of international law, but the list of subjects now includes non-state actors, such as

individuals, non-governmental organizations, and multinational corporations.32

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This Note focuses on the UN, as many international law organisations come under its remit

(including the Intergovernmental Panel on Climate Change (IPCC); International Labour

Organization (ILO), International Maritime Organization (IMO), United Nations Children's

Fund (UNICEF), United Nations Educational, Scientific and Cultural Organization

(UNESCO), the Office of the United Nations High Commissioner for Refugees (UNHCR) and

the World Health Organization (WHO)). Other international law organisations include:

Council of Europe;

European Court of Human Rights;

International Atomic Energy Agency (IAEA);33

International Centre for Migration Policy Development (ICMPD);

International Criminal Court (ICC);

International Monetary Fund (IMF);34

International Organization for Migration (IOM);

Interpol;

North Atlantic Treaty Organization (NATO);

Organization for Security and Co-operation in Europe (OSCE);

World Bank Group (WBG);

World Trade Organization (WTO).

The Yearbook of International Organizations lists over 38,000 active international

organisations, with approximately 1,200 new organisations being added every year.

The United Nations (UN)

The United Nations is an international organisation established in 1945 by the Charter of the

United Nations: Ireland signed up as a member in 1955. According to Article 1 of the

Charter, the UN’s purposes are as follows:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

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4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Its main constituent parts are set out in Box 4 below:

Box 4: Main organs of the UN

The General Assembly

All member States are represented.

The main deliberative, policymaking and representative organ of the UN.

Its primary work is through debates and addresses. Decisions on important questions, such as those on peace and security, admission of new members and budgetary matters, require a two-thirds majority of the General Assembly.

The Security Council

15 member States, 5 of which are permanent (China, France, Russian Federation, the United Kingdom, and the United States). The other 10 are elected for 2 year terms by the General Assembly.

Primary responsibility, under the UN Charter, for the maintenance of international peace and security: all Member States are obligated to comply with Council decisions. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security.

The Economic and Social Council

54 member States, elected for 3 year terms by the General Assembly.

Coordination, policy review, policy dialogue and recommendations on economic, social and environmental issues, as well as implementation of internationally agreed development goals.

The International Court of Justice

Sits in the Hague.

The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

The Secretariat

Comprises the Secretary-General and international UN staff members who carry out the day-to-day work of the UN as mandated by the General Assembly and the Organization's other principal organs.

Source: UN website (2015)

The UN also maintains a treaty collection: member States have to register any international

treaties and agreements with the UN. As of 1st June 2014, over 560 major multilateral

instruments had been deposited with the Secretary-General of the United Nations. The UN

Treaty Collection groups these under chapters by subject matter:

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Table 1: UN classification of treaties, by subject matter

I. Charter of the United Nations and Statute of the International Court of Justice

II. Pacific Settlement of International Disputes

III. Privileges and Immunities, Diplomatic and Consular Relations, etc

IV. Human Rights

V. Refugees and Stateless Persons

VI. Narcotic Drugs and Psychotropic Substances

VII. Traffic in Persons

VIII. Obscene Publications

XI. Health X. International Trade and Development

XI. Transport and Communications

XII. Navigation

XIII. Economic Statistics

XIV. Educational and Cultural Matters

XV. Declaration of Death of Missing Persons

XVI. Status of Women

XVII. Freedom of Information

XVIII. Penal Matters

XIX. Commodities

XX. Maintenance Obligations

XXI. Law of the Sea

XXII. Commercial Arbitration

XXIII. Law of Treaties

XXIV. Outer Space

XXV. Telecommunications

XXVI. Disarmament

XXVII. Environment

XXVIII. Fiscal Matters

XXIX. Miscellaneous

Source: United Nations Treaty Collection website (2015)

The Council of Europe and the European Court of Human Rights (ECtHR)

The Council of Europe is not an institution of the EU, and is not to be confused with the

European Council or the Council of the EU.

Box 5: The Council of Europe and avoiding confusion

European Council - quarterly summits, where EU leaders meet to set the broad direction of EU policy making

Council of the EU - government ministers from each EU country meet to discuss, amend and adopt laws, and coordinate policies. Together with the European Parliament , the Council is the main decision-making body of the EU.

Council of Europe - not an EU body at all.

Source: Europa.eu (2015)

The Council of Europe (CoE) is an international body established in 1949, now comprising

47 European parliamentary democracies including Ireland, and 6 Observer States.35 The

CoE promotes European co-operation in a number of fields, except defence, with particular

emphasis on the safeguarding of human rights, improving the quality of life and

strengthening democratic institutions. One of its early achievements was the drawing up of

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the European Convention on Human Rights (ECHR), 36 along with the establishment of the

European Court of Human Rights (ECtHR). The ECHR primarily protects civil liberties such

as the right to a fair trial and freedom of expression.37 The ECtHR It rules on individual or

state applications alleging violations of the civil and political rights set out in the ECHR.

In Ireland, the European Convention on Human Rights has been indirectly incorporated into

Irish law through the European Convention on Human Rights Act 2003. Under the 2003 Act:

The Courts have to interpret Irish law in a manner which is compatible with the ECHR, and have to take account of judgments, decisions and opinions of the ECtHR as well as ensuring these are considered when interpreting ECHR provisions;

The organs of the State (including the Oireachtas but excluding the Courts) have to perform their functions in a manner which is compatible with the ECHR.

Individuals who have suffered “injury, loss or damage” can recover damages.

A declaration of incompatibility can be issued by a court, where Irish legislation is deemed to be inconsistent with the ECHR. Such a declaration (and decision) have to be laid before the Oireachtas, though there are no further obligations under the legislation for the Oireachtas to debate or act on such a declaration.

Where all possible domestic remedies in Ireland have been exhausted before the Irish

Courts, applicants may litigate alleged human rights violations before the European Court of

Human Rights (ECtHR), which is based in Strasbourg. The ECtHR can issues judgments

calling for a payment of compensation to the applicant, the adoption of general measures

(such as an amendment to existing legislation) or the adoption of individual measures (such

as the re-opening of a case, or restitution). According to rightsinfo.org, Ireland has the

fourth-lowest violation rate of Member States. Between 1949 and 2014 only 32 judgments

were handed down with respect to Ireland and in six of those cases no violation was found.38

For further information on this topic, see the Oireachtas Library &

Research Spotlight: International human rights law: Operation and

impact (due for publication in December 2015).

In addition to the ECHR, the CoE also has a number of thematic instruments and has also

created the European Social Charter (and corresponding European Committee of Social

Rights as its implementation mechanism).39

The International Criminal Court (ICC)

The ICC was established under the Statute of the International Criminal Court (Rome, 17th

July 1998: it entered force on 1st July 2002) and sits in the Hague.40 It is an independent

organisation and is not part of the United Nations system. The ICC has powers to try

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persons accused of genocide, crimes against humanity and war crimes, where national

courts are unwilling or unable to do so. The court is divided into four branches:41

Presidency;

o Comprising of 3 ICC judges and responsible for the overall administration of the ICC;

Judicial;

o 18 judges, presiding over cases before the ICC, and organized into a Pre-Trial Division, Trial Division and Appeals Division;

Investigatory and prosecutor (Office of the Prosecutor);

o Responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court.

Registry;

o Responsible for non-judicial aspects of the administration and servicing of the ICC.

The ICC can impose sentences of imprisonment.42 In addition, the ICC is empowered to

determine the scope and extent of any damage, loss or injury to victims and to order a

convicted person to make specific reparation.43

The Court can only exercise jurisdiction over:

Crimes committed in the territories of states that are party to the ICC;

Crimes committed by nationals of such State Parties; and

In situations where a state that is not party to the ICC agrees to accept its jurisdiction over a crime committed in its territory or by one of its nationals.

Nevertheless, the ICC can also hear cases referred to it by the UN Security Council whether

or not the state concerned is a party to the Statute. Examples of states that are not party to

the ICC include the US, China, Israel, India, and Russia.

23 cases in 9 situations (countries/areas) have been brought before the International

Criminal Court. The countries involved are: Uganda; the Democratic Republic of the Congo;

Darfur, Sudan; the Central African Republic (two situations); Kenya; Libya; Côte d’Ivoire and

Mali.44 The Office of the Prosecutor is currently examining situations in Afghanistan,

Georgia, Guinea, Colombia, Honduras, Korea and Nigeria.

In Ireland, constitutional change to Article 29 was needed, to enable the State to ratify the

ICC Statute. This was done via referendum (June 2001) and the twenty-third amendment of

the Constitution (March 2002),45 adding Article 29.9.46 The ICC and the corresponding

Statute were given effect in Ireland under the International Criminal Court Act 2006.47

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Difficulties in enforcement of international law

Unless there is agreement and consensus between states, enforcement of international law

can be very difficult.48 In particular, where there are independent international structures to

investigate and impose judgments on states “they are rarely given any significance by States

and their practices if they do not support their political interests”.49

An example of this can be seen in the work of the International Criminal Court.50 In June

2015, the ICC issued an arrest warrant against Sudan's President Omar al-Bashir for alleged

war crimes in Darfur.51 Bashir was in South Africa at the time, and South Africa is a party to

the ICC. Despite the arrest warrant, Bashir was allowed to leave South Africa, effectively

evading arrest. In October 2015, the African National Congress (ANC) proposed that South

Africa leave the ICC:52 it would be the first country to do so.53

So how does international law work and have an effect? Biehler explains in the following

terms:

“Against this background the commonly held contention that international law exists and has some determining power, however limited, is remarkable….

Agreed international standards will almost unavoidably lure States into formulating their political aims in a language compatible with these standards. It is this fact which is the prime method of enforcing international law…. These “procedures” make international law relevant and powerful, as they relate it directly to a State’s international standing and reputation. Even the most powerful States are no less concerned than others about how their actions are judged by the standards of international law and by its leading proponents….

International law forms a standard, which may not always be enforced but will nevertheless have far reaching effects.”54

Article 2 of the UN Charter states that the UN is based on the principle of sovereign equality:

regardless of power, under international law all states have equal status.

Ireland and international law

International relations are dealt with by Article 29 of the Constitution. It contains statements

of principles or guidelines rather than binding rules on the Government towards Irish citizens.

The Government cannot be told either externally or internally how to conduct its relations

with other states, or which international laws to sign and be bound to.55 The text of Article 29

is given in Appendix 1 of this Note.

The Government (via the relevant Minister, in liaison with the Minister for Foreign Affairs and

Trade) negotiates international agreements/treaties. The authority to conclude international

agreements is exercised on behalf of the Irish Government by the Minister for Foreign Affairs

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and Trade.56 All international agreements concluded must be laid before the Houses of the

Oireachtas in accordance with Article 29.5.1° of the Constitution.57

The Constitution has established a distinction between domestic and international law (under

Article 29.6).58 If the Government wishes the terms of an international agreement to have

effect in domestic law, it can ask the Oireachtas to pass the necessary legislation.59

Established principles of customary international law may become part of Irish law through

established usage, provided they are not contrary to the provisions of the Constitution,

legislation or common (judge-made) law.60 Similarly, principles of international law enter

domestic law only to the extent that no constitutional, statutory or other judge-made law is

inconsistent with the principle in question.61

Conversely though, principles or laws set forth in individual state legislation (for example

Irish law) cannot be regarded as establishing public international law; legislation is evidence

of the domestic law in individual states and not evidence of international law generally.62

Under Article 29.8 of the Constitution, Ireland may exercise extra-territorial jurisdiction in

accordance with the generally recognised principles of international law. This provision

enabled the State to be bound by the Good Friday Agreement.

There are a large amount of proposed statutes on the Government Legislation Programme

with direct or indirect links to international law.63 Likewise, the Programme for Government

(2011) contained reference to international law (under Foreign Affairs, ODA and Defence),

specifically regarding the use of Irish airspace.

A database of treaties since 1930 that Ireland is a party to is maintained by the Department,

as the Irish Treaty Series. There are 1,257 entries in the Irish Treaty Series. As of 3rd

December 2014, 88 international agreements had been signed but not ratified by Ireland.64

The Department of Foreign Affairs

The Department of Foreign Affairs (DFA or the Department) is the main Department tasked

with managing Ireland’s international affairs and representing Ireland internationally and

diplomatically. Nevertheless, discussions/agreements on international law will involve the

Minister appropriate to the relevant topic (for instance, copyright would involve the Minister

for Jobs, Enterprise and Innovation).

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Ireland’s diplomatic network currently comprises of 61 Embassies, 7 multilateral missions

and 12 Consulates General and other offices. Through them, Ireland maintains diplomatic

relations with 178 states.65

The work of the Department and embassies, in support of Ireland’s foreign policy interests,

includes:

Providing frontline consular and passport services to Irish citizens;

Promoting investment in Ireland and supporting Irish businesses to expand overseas;

Promoting Ireland as a tourism destination and promoting Ireland’s culture abroad;

Representing and advancing Ireland’s policies and interests with other states and in international organisations, including the EU and the UN;

Engaging with and supporting Irish communities abroad;

Managing Ireland’s overseas development programmes in Ireland’s key partner countries.66

Diplomatic immunity and sovereign immunity

Sovereign states are generally immune from the jurisdiction of the courts of other states.67

Sovereign immunity is one of the recognised principles of international law which, under the

Constitution (Article 29.3), Ireland accepted as its rules of conduct in relations with other

states. Immunity will be accorded to an activity which touches the actual business of the

foreign government.68 However, sovereign immunity does not apply in respect of

commercial or trading activities in which a foreign government participates.69

In Ireland, caselaw on sovereign immunity has tended to focus on instances where persons

employed by embassies have felt they were unfairly dismissed.70

Diplomatic immunity is an exemption from jurisdiction given to foreign diplomats. Professor

Robert Clark has stated that the two primary texts in international diplomatic law are the

Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular

Relations 1963. He went on to state that:

“The 1961 Diplomatic Relations Treaty is widely regarded as the most successful example of codification of any area of international customary law, maintaining the delicate balance between allowing States to pursue legitimate economic, cultural and scientific obligations objectives while ensuing that these immunities and privileges are not abused.”71

Some of the immunities include the premises of a diplomatic mission (e.g. embassy) and

private residence of a diplomatic agent72 being inviolable (State authorities may only enter

with permission); archives and documents of a mission are inviolable; free movement, travel

and communication/correspondence (including diplomatic couriers/bags); immunity from

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arrest or detention for a diplomatic agent; immunity for a diplomatic agent from the criminal

jurisdiction and most civil and administrative jurisdiction; and exemptions from taxes.

In Ireland, this area of law is governed by the Diplomatic Relations and Immunities Acts

1967 to 2006.73 These Acts (amongst other things) give force of law to various relevant

international conventions in Ireland, including the 1961 and 1963 Conventions above.74

Diplomatic immunity has not featured in court cases in Ireland, beyond mention in cases of

sovereign immunity;75 immigration cases;76 a case on discovery of documents related to a

UN inquiry;77 or where the person who may have claimed diplomatic immunity did not appear

before the court to defend themselves.78

It should be noted that despite having diplomatic immunity from the criminal law, a diplomat

is not exempt from the jurisdiction of his/her own state, and action may be taken by that state

for such offences (or conduct).79

Extradition80

Extradition is the formal surrender of an individual, accused or convicted of an offence by a

requesting country, which is competent to try and punish that person.81 Extradition is based

upon reciprocating arrangements by Ireland with another state.82 The formal arrangements

by which this may be secured are either by way of treaties/agreements or by reciprocal

legislation. The Extradition Act, 1965 (Application of Part II) Order, 2000 (SI 474/2000)

consolidated all the extradition arrangements that Ireland had made pursuant to international

agreements.83

The main national legislation in Ireland for handling non-EU extraditions is the Extradition Act

1965 (as amended).84 Extradition cases are heard in the High Court.85

Extradition cannot be granted for a political or connected offence. Nor can it be granted

where there are substantial grounds for believing that the person is being

prosecuted/punished because of their race, religion, nationality or political opinion; or that

the person may be subjected to torture.86 Extradition also cannot be granted for offences

under military law which are not offences under criminal law,87 though this does not apply to

armed conflicts and offences under the Geneva Conventions.88

Extradition must be refused where the court is satisfied that there is a real danger that the

person will suffer ill-treatment in breach of his/her constitutional rights if delivered out of the

jurisdiction,89 or if the extradition would give effect to an unconstitutional act.90 Extradition

should be refused where there is a reasonable doubt as to the intention of the authorities to

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prosecute the accused (on the specified offences).91 Nevertheless, these are issues which

go to the extradition itself and possible treatment of a person: the court cannot investigate or

question the validity of a conviction recorded in a requesting state.92

European Arrest Warrants (EAW) were established under EU Council Framework Decision

2002/584/JHA, and brought into Irish legislation through the European Arrest Warrant Act

2003 (the 2003 Act). The mechanism of the EAW is based on a high level of confidence

between EU Member States, which allows for a system of free movement of judicial

decisions in criminal matters. It abolishes traditional extradition procedures between Member

States and replaces it with a system of surrender between judicial authorities.

The Framework Decision states that its provisions will not prevent a Member State from

applying its constitutional rules relating to (among other things) due process and freedom of

association. It further provides that the execution of the EAW must be subject to sufficient

controls, which means that a judicial authority of the Member State where the requested

person has been arrested will have to take the decision on his/her surrender.

Under section 6(6) of the 2003 Act, the Minister for Justice and Equality has to lay an annual

report on the operation of the 2003 Act before the Houses of the Oireachtas.93

Rendition is similar to extradition. It is the backing of warrants from another country.

Murdoch’s Dictionary of Irish Law explains that:

“[Rendition] is similar to extradition except that the handing over of fugitives is not based on a formal agreement between States but on the enactment by these States of virtually identical legislation which provides for the handing over of fugitives to each other State.”

Before the EAW, this method (through Part III of the 1965 Act, now repealed) was used as

between Ireland and the UK (with the corresponding UK legislation being the Backing of

Warrants (Ireland) Act 1965).

Rendition is not to be confused with extraordinary rendition. Extraordinary rendition is the

practice of transferring prisoners (suspects or convicts) from one state to another for the

purposes of interrogation. This has been a source of controversy, in particular surrounding

the US’ use of this practice in response to terrorism, and the use of Shannon Airport as a re-

fuelling point for non-civilian US aircraft.94

What about recognition of states?

Where states change externally, or internally but unconstitutionally (for instance, a coup),

other countries have to make decisions regarding diplomatic relations and recognition (or

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not) of said states. Regarding Ireland, the practice is generally to assume an EU common

position on such matters.95 Beyond this, Ireland does not have an explicit system for

recognition.96 This recognition is a somewhat grey area particularly where Ireland does not

have diplomatic representation in a state97 and where there has been no official

pronouncement from either the Government or the Oireachtas. One major case on

recognition in Irish law of note is the 1942 Zarine case.98 In this case, the Government of

Ireland did not recognise the U.S.S.R. as a sovereign independent state in Estonia or Latvia.

A summary of this case is included in Appendix 2 to this document.

Obligations for Ireland: can a person rely on international law?

Does international law apply to and for individuals as well as states?99 The answer is yes at

times, though as to how this manifests is not particularly clear. Many treaties do not give

rights to individuals. Where this does occur, it is normally in the realm of human rights.

Perhaps the most developed of these is the European Convention on Human Rights (and

corresponding European Court of Human Rights established under the Convention). As

stated above, it should be noted that the European Court of Human Rights is not an EU

institution.

For further information on this topic, see the Oireachtas Library & Research Spotlight: International human rights law: Operation and impact (due for publication in December 2015).

The Irish Courts have explicitly ruled in previous cases that portions of the Constitution’s

provisions on international law confer no rights on individuals, such as Article 29.1 (Ireland

affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded

on international justice and morality);100 Article 29.2101 (pacific settlement of international

disputes by international arbitration or judicial determination) and Article 29.3102 (Ireland

accepts the generally recognised principles of international law as its rule of conduct in its

relations with other states). Indeed, Justice Kearns in Horgan v Ireland stated that “The

overwhelming line of judicial authority… is to the effect that no individual rights arise under

Article 29 of the Constitution.”103

The topic is too detailed to fully explore in this L&RS Note, but the case law would tend to

indicate that international law and particularly the ability of individuals to rely on international

law is predicated on the Oireachtas incorporating international agreements into national law,

as per Article 29.6 of the Constitution.104 Select Irish cases on international law are briefly

summarised in Appendix 2 to this Note.

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Appendix 1: Article 29 of the Constitution of Ireland

INTERNATIONAL RELATIONS

1 Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations

founded on international justice and morality.

2 Ireland affirms its adherence to the principle of the pacific settlement of international

disputes by international arbitration or judicial determination.

3 Ireland accepts the generally recognised principles of international law as its rule of

conduct in its relations with other States.

4 1° The executive power of the State in or in connection with its external relations

shall in accordance with Article 28 of this Constitution be exercised by or on the

authority of the Government.

2° For the purpose of the exercise of any executive function of the State in or in

connection with its external relations, the Government may to such extent and

subject to such conditions, if any, as may be determined by law, avail of or adopt any

organ, instrument, or method of procedure used or adopted for the like purpose by

the members of any group or league of nations with which the State is or becomes

associated for the purpose of international co-operation in matters of common

concern.

3° The State may become a member of the European Atomic Energy Community

(established by Treaty signed at Rome on the 25th day of March, 1957).

4° Ireland affirms its commitment to the European Union within which the member

states of that Union work together to promote peace, shared values and the well-

being of their peoples.

5° The State may ratify the Treaty of Lisbon amending the Treaty on European Union

and the Treaty establishing the European Community, signed at Lisbon on the 13th

day of December 2007 ("Treaty of Lisbon"), and may be a member of the European

Union established by virtue of that Treaty.

6° No provision of this Constitution invalidates laws enacted, acts done or measures

adopted by the State, before, on or after the entry into force of the Treaty of Lisbon,

that are necessitated by the obligations of membership of the European Union

referred to in subsection 5° of this section or of the European Atomic Energy

Community, or prevents laws enacted, acts done or measures adopted by—

i the said European Union or the European Atomic Energy Community, or

institutions thereof,

ii the European Communities or European Union existing immediately before

the entry into force of the Treaty of Lisbon, or institutions thereof, or

iii bodies competent under the treaties referred to in this section,

from having the force of law in the State.

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7° The State may exercise the options or discretions—

i to which Article 20 of the Treaty on European Union relating to enhanced

cooperation applies,

ii under Protocol No. 19 on the Schengen acquis integrated into the

framework of the European Union annexed to that treaty and to the Treaty on

the Functioning of the European Union (formerly known as the Treaty

establishing the European Community), and

iii under Protocol No. 21 on the position of the United Kingdom and Ireland in

respect of the area of freedom, security and justice, so annexed, including the

option that the said Protocol No. 21 shall, in whole or in part, cease to apply

to the State,

but any such exercise shall be subject to the prior approval of both Houses of the

Oireachtas.

8° The State may agree to the decisions, regulations or other acts—

i under the Treaty on European Union and the Treaty on the Functioning of

the European Union authorising the Council of the European Union to act

other than by unanimity,

ii under those treaties authorising the adoption of the ordinary legislative

procedure, and

iii under subparagraph (d) of Article 82.2, the third subparagraph of Article

83.1 and paragraphs 1 and 4 of Article 86 of the Treaty on the Functioning of

the European Union, relating to the area of freedom, security and justice,

but the agreement to any such decision, regulation or act shall be subject to the prior

approval of both Houses of the Oireachtas.

9° The State shall not adopt a decision taken by the European Council to establish a

common defence pursuant to Article 42 of the Treaty on European Union where that

common defence would include the State.

10° The State may ratify the Treaty on Stability, Coordination and Governance in the

Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No

provision of this Constitution invalidates laws enacted, acts done or measures

adopted by the State that are necessitated by the obligations of the State under that

Treaty or prevents laws enacted, acts done or measures adopted by bodies

competent under that Treaty from having the force of law in the State.

5 1° Every international agreement to which the State becomes a party shall be laid

before Dáil Éireann.

2° The State shall not be bound by any international agreement involving a charge

upon public funds unless the terms of the agreement shall have been approved by

Dáil Éireann.

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3° This section shall not apply to agreements or conventions of a technical and

administrative character.

6 No international agreement shall be part of the domestic law of the State save as may be

determined by the Oireachtas.

7 1° The State may consent to be bound by the British-Irish Agreement done at Belfast

on the 10th day of April, 1998, hereinafter called the Agreement.

2° Any institution established by or under the Agreement may exercise the powers

and functions thereby conferred on it in respect of all or any part of the island of

Ireland notwithstanding any other provision of this Constitution conferring a like

power or function on any person or any organ of State appointed under or created or

established by or under this Constitution. Any power or function conferred on such an

institution in relation to the settlement or resolution of disputes or controversies may

be in addition to or in substitution for any like power or function conferred by this

Constitution on any such person or organ of State as aforesaid.

8 The State may exercise extra-territorial jurisdiction in accordance with the generally

recognised principles of international law.

9 The State may ratify the Rome Statute of the International Criminal Court done at Rome on

the 17th day of July, 1998.

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Appendix 2: Select Irish legal cases on international law

It should be noted that below are short summaries and not detailed analyses of the cases.

The full text of such cases is available for Members through the Oireachtas Library &

Research Service, via our subscriptions to Westlaw and Justis.

Zarine v Owners of the SS Ramava [1942] Irish Reports 148

Ships registered at ports in Esthonia105 and Latvia were all in ports in Ireland when those

countries were incorporated into the U.S.S.R. The U.S.S.R. argued that due to pre-existing

decrees, all Esthonian and Latvian ships became nationalised property of the U.S.S.R.

It was held that as the Government of Ireland did not recognise the U.S.S.R. as sovereign

independent Government of Esthonia or Latvia, the Court must treat any related decrees,

documents or transactions as nullities.

Saorstát v De las Morenas [1945] 1 Irish Reports 291

The defendant, a colonel in the Spanish Army, came to Ireland as head of a commission

appointed by the Spanish Government to purchase horses for the use of the Spanish Army.

He entered into a contract with the Saorstat and Continental Steamship Co. Ltd., whereby it

was agreed that the plaintiffs should reserve, on his behalf, accommodation aboard one of

their vessels for carriage of horses from Dublin to Lisbon. The contract, which was

addressed to the commission "per" the defendant, provided that the defendant should

become liable for dead freight if he failed to tender the horses for shipment when the vessel

was ready to load.

In an action for damages for breach of the contract (he failed to load the horses), he claimed

immunity from the process of the Court on the ground that, as he had entered into the

contract as an act of sovereignty on behalf of the Spanish Government, a sovereign state,

the proceedings should be set aside. This was dismissed by the Court, stating that state

immunity is not extended to the agent of a sovereign state, and it was immaterial whether he

may eventually be indemnified by Spain. This was different to Ambassadors and diplomatic

representative, who “are in a class apart”.

In re Ó Laighléis [1960] Irish Reports 93

The applicant was arrested under the Offences Against the State Act 1939. He argued

(amongst other things) that his detention was unlawful as it contravened the provisions of the

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European Convention on Human Rights, to which the State was a party, and by which the

State, it was claimed, was bound.

The Supreme Court rejected this argument, holding that the Convention was not part of

domestic law of the State and, under Article 29 of the Constitution, it could not be so. The

primacy of domestic legislation was not displaced by the State becoming a party to the

Convention, nor was the Government in any way prevented from relying on domestic law.

State (Sumers Jennings) v Furlong [1966] Irish Reports 183

Jennings had been arrested and remanded in custody on foot of an English warrant. He

argued that that the rule of speciality (the principle that a person will not be punished for

anything other than that stated in the warrant) was a generally recognised principle of

international law. As such, the rule was accepted in Ireland under Article 29.3 of the

Constitution as a rule of conduct in Ireland's relations with other states. Accordingly, the

failure of Part III of the Extradition Act 1965 to implement that rule would render it repugnant

to Article 29.3 of the Constitution.

The High Court dismissed this argument, stating that even assuming that the rule of

speciality (as stated in Article 14 of the European Convention on Extradition) is a generally

recognised principle of international law, the omission from the Extradition Act 1965 did not

make the Act repugnant as the rule of speciality does not form part of the domestic law of

Ireland and Article 29.3 does not confer any rights upon individuals.

Crotty v An Taoiseach [1987] Irish Reports 713

The Single European Act (SEA) was to amend and expand the treaties governing the

European Communities and the Government planned to ratify this through legislation and

without a referendum. Crotty issued a summons seeking declarations that any purported

ratification of the SEA would be void having regard to the provisions of the Constitution and

injunctions restraining such ratification. Justice Barrington on Christmas Eve 1986 granted a

temporary injunction on the basis Crotty had raised a fair question of law.

The Supreme Court ruled that where, in its conduct of foreign policy the Government

purported to alienate any powers of government or fetter the sovereignty of the State, then

the Government acted beyond the powers entrusted by the Constitution to it. Such

alienation is impermissible in the absence of authorisation by / amendment to the

Constitution by a referendum of the people.

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McGimpsey v Ireland [1990] 1 Irish Reports 110

The McGimpseys, who were born in and resident in Northern Ireland, sought a declaration

that the Anglo-Irish Agreement was contrary to the Constitution. In particular, they argued

that, in recognising the legitimacy of the present status of Northern Ireland, the Agreement

violated Articles 2 and 3 of the Constitution and that the intergovernmental conference and

secretariat established by the Agreement restricted the Government of Ireland in the

exercise of the external relations power of the State.

The Supreme Court rejected this, stating (amongst other things) that recognition through the

Agreement of the de facto situation in Northern Ireland while refusing to abandon the claim

to it was inconsistent with the Constitution nor barred under international law. In putting

views on devolution, major legislation and policy the Government was consistent with Article

29.1 of the Constitution. In carrying out its functions within the framework of the Agreement,

the Government was free to do so in the manner which it thought appropriate and,

accordingly, the Government's power to conduct external relations on behalf of the State

was not fettered in breach of Article 29 of the Constitution. The Agreement was exactly that

and not a “law” under the Constitution.

Government of Canada v Employment Appeals Tribunal and Burke [1992] 2 Irish

Reports 484

A person had been a driver for the Canadian embassy and claimed under the Unfair

Dismissals Act 1977. The Canadian Government claimed the Employment Appeals Tribunal

(EAT) had no jurisdiction to hear the claim since the Government was a sovereign authority

and immune from suit in a foreign court or tribunal.

The Supreme Court, finding that the EAT had no jurisdiction, held that where the activity

called into question truly touches the actual business or policy of the foreign government or

state, then immunity should still be accorded to such activity. The driver had been employed

under a contract of service but not a trading or commercial contract of his employers and

thus the doctrine of state immunity applied.

McElhinney v Williams [1995] 3 Irish Reports 382

McElhinney drove through a border roadblock, carrying a British corporal on the outside of

his vehicle with him. McElhinney accused the corporal of assaulting him in Ireland, by

pointing a gun and trying to shoot him. McElhinney sued the Secretary of State, as being

responsible for the activities of soldiers in Northern Ireland.

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The Supreme Court rejected his argument, holding that the corporal had been acting within

the sphere of governmental activity and that sovereign immunity applied.

It was subsequently held by the European Court of Human Rights that the Irish Courts’

approach had not led to a violation of Article 6(1) of the European Convention on Human

Rights (right to a fair hearing).

ACT Shipping (PTE) Ltd v Minister for the Marine [1995] 3 Irish Reports 406

ACT Shipping owned a cargo vessel, which developed a hole in the hull 270 miles south-

west of Bantry, was abandoned by the crew, and salvage was attempted via towing. On the

advice of the chief surveyor in the Department of the Marine, the Minister for the Marine

decided to refuse the vessel entrance to Irish territorial waters and the benefit of a port or

anchorage of refuge in Ireland. The salvage firm then towed the vessel to Falmouth,

England, where it was also refused refuge, and eventually the vessel was declared a

constructive total loss by the insurers and scuttled in deep water. ACT Shipping launched a

claim for damages, for negligence and damages and/or compensation under the Oil

Pollution of the Sea (Amendment) Act 1977. They argued that the decision of the Minister

was in contravention of the vessel's right of refuge according to customary international law.

The claim was dismissed in the High Court. It was held that while established principles of

customary international law could enter Irish law and there was a right for foreign ships in

serious distress to the benefit of a port or anchorage of refuge in the nearest maritime state

with facilities, this right was not absolute. The distress in this case was economic, not

humanitarian and thus the State had a right under customary international law to refuse the

ship refuge if there were reasonable grounds for believing that there was a significant risk of

substantial harm to the State/citizens if refuge was given and that such harm was potentially

greater than that which would result if the ship and/or cargo were lost through refusal.

MFM v MC (Proceeds of crime) [2001] Irish Reports 385

An application was made under the Proceeds of Crime Act 1996 to freeze assets that were

thought to have been obtained through the proceeds of crime.

The High Court, in granting the order, struck down an argument that in accepting the

European Convention on Human Rights, the Government had “constitutionalised” Article 6

(on criminal trials): this was not how Article 29 worked.

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Kavanagh v Governor of Mountjoy Prison [2002] 3 Irish Reports 97

Kavanagh was convicted in the Special Criminal Court of various crimes under the Offences

Against the State Act 1939. His case had been the subject of a communication from the

Human Rights Committee (established under the International Covenant on Civil and

Political Rights) which stated that Ireland had failed to demonstrate that the decision to try

the applicant in the Special Criminal Court was based on reasonable and objective grounds.

Kavanagh argued that Ireland was bound by the adjudication of the Human Rights

Committee, and that section 47(2) of the Offences Against the State Act 1939 was

incompatible with the UN Covenant On Civil And Political Rights and was unconstitutional.

The Supreme Court dismissed his case. It stated that the obligation of Ireland to respect the

invoked principles did not confer rights on individuals. The views of an international

committee could not supersede a decision of an Irish court. To accept that Kavanagh had

an arguable case would imply that the Court might be able to disregard the clear and

unambiguous provisions of the Constitution in their relations with international agreements.

Horgan v Ireland [2003] 2 Irish Reports 468

Horgan, sought declaratory relief and restrictions against the Government concerning the

use of Shannon Airport as a stop over for United States aircraft engaged in a military attack

against Iraq. He argued that the decision to permit the use of Shannon Airport by these

aircraft was unconstitutional and in breach of generally recognised principles of international

law as it constituted participation in war and contravened long standing arrangements

concerning the use of Irish airspace by foreign military aircraft.

The High Court refused the reliefs and restraints sought. Amongst other judgments, it was

found that Ireland’s neutrality is policy and not constitutionally/legally based; Article 29 did

not confer individual rights; that where there was conflict national law would prevail against

international law; that the wide constitutional powers given to the Government regarding

foreign policy could only be changed through constitutional amendment.

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Select Bibliography

Article 29, Constitution of Ireland 1937

Legislation

Bretton Woods Agreements (Amendment) Act 2011

European Arrest Warrant Act 2003

European Convention on Human Rights Act 2003

European Union (Scrutiny) Act 2002

European Communities Act 1972

Diplomatic Relations and Immunities Acts 1967 to 2006

Extradition Acts 1965 to 2012

International Development Association Acts 1960 to 2000

Court cases

Horgan v Ireland [2003] 2 Irish Reports 468

Kavanagh v Governor of Mountjoy Prison [2002] 3 Irish Reports 97

MFM v MC (Proceeds of crime) [2001] Irish Reports 385

ACT Shipping (PTE) Ltd v Minister for the Marine [1995] 3 Irish Reports 406

McElhinney v Williams [1995] 3 Irish Reports 382

Hutchinson v Minister for Justice [1993 HC] Irish Law Reports Monthly 602

W v W [1993 SC] Irish Law Reports Monthly 294

Government of Canada v Employment Appeals Tribunal and Burke [1992] 2 Irish Reports 484

McGimpsey v Ireland [1990] 1 Irish Reports 110

Crotty v An Taoiseach [1987] Irish Reports 713

State (Sumers Jennings) v Furlong [1966] Irish Reports 183

In re Ó Laighléis [1960] Irish Reports 93

Saorstát v De las Morenas [1945] 1 Irish Reports 291

Zarine v Owners of the SS Ramava [1942] Irish Reports 148

European Union

Treaty on the Functioning of the European Union

Treaty on European Union

Council Framework Decision 2002/584/JHA

Resolution and Report on the relationships between international law, community law and the constitutional law of the Member states (1997), European Parliament

EU Commission history website

International treaties/conventions

United Nations Treaty Collection

Irish Treaty Series

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Vienna Convention on the law of treaties. Concluded at Vienna on 23 May 1969. Registered ex officio on 27 January 1980.

Vienna Convention on Consular Relations 1963

Vienna Convention on Diplomatic Relations 1961 and the

Statute of the International Court Of Justice

European Convention on Human Rights

Charter of the United Nations

Official documents and reports

Irish Embassies and Consulates Abroad, Department of Foreign Affairs

“How International Law Works”, Department of Foreign Affairs

“Representing Ireland – Conference”, Department of Foreign Affairs

International Agreements signed but not ratified by Ireland, Department of Foreign Affairs, 3rd December 2014

“Understanding International Law”, UN 2011 Treaty Event: Towards Universal Participation and Implementation

Academic commentary

Gernot Biehler, International Law in Practice: An Irish Perspective, Thomson Round Hall (2005)

Rosalyn Higgins, Problems and Process: International Law and How We Use It, Clarendon, Oxford (1994)

William Binchy, Irish conflicts of law, Butterworths (1988)

David P Fidler, International Law, WHO website.

Media

“Two years after cuts led to closure, 'scaled-down' Vatican embassy opens”, Irish Independent, 22nd January 2014;

“‘Iranians look upon the closure of the Irish embassy as a slight’”, TheJournal.ie, 22nd January 2014

1 As opposed to a monist approach, where international law is given direct effect in national law.

2 The following are currently (as of 10

th December 2015) before the Houses of the Oireachtas:

Criminal Law (Sexual Offences) Bill 2015 [Seanad]

International Protection Bill 2015 [Seanad] The following are on the Government Legislation Programme:

Aarhus Convention Bill

Amendment of the Constitution Bill

Criminal Justice (Offences relating to Information Systems) Bill

Diplomatic Relations and Immunities (Amendment) Bill

Inspection of Places of Detention Bill

International Recovery of Child Support (Hague Convention) Bill

International Travel by Rail Bill

Maritime (International Conventions and Safety) Bill

Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) Bill

Taxation and Certain Other Matters (International Mutual Assistance) Bill In addition, the Choice of Court (Hague Convention) Act 2015 was enacted on 25

th November 2015.

3 International Agreements signed but not ratified by Ireland, Department of Foreign Affairs, 3

rd December 2014

4 “Representing Ireland – Conference”, Department of Foreign Affairs

5 See Murdoch’s Irish Legal Companion

6 Statute of the International Court Of Justice

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7 Gernot Biehler, International Law in Practice: An Irish Perspective, Thomson Round Hall (2005), at 4-03

8 Gernot Biehler, International Law in Practice: An Irish Perspective, Thomson Round Hall (2005), at 1-02

9 Hederman J in W v W [1993 SC] Irish Law Reports Monthly 294

10 Gernot Biehler, International Law in Practice: An Irish Perspective, Thomson Round Hall (2005), at 3-04. See

also William Binchy, Irish conflicts of law, Butterworths (1988). A new edition is expected in 2016. 11

European Communities Act 1972 12

On 18th

Aril 1951, Germany, France, Italy, the Netherlands, Belgium and Luxembourg signed the European Coal and Steel Community (ECSC). The primary goal was common management treaty of heavy industries to prevent the manufacture of weapons of war to turn against the other. For further history on the European Union, see this dedicated EU Commission history website 13

Article 1, Treaty on European Union 14

Treaty on European Union 15

Treaty on the Functioning of the European Union 16

Also note that there may be instances where primary legislation in Ireland already exists, that partially or fully covers the results to be achieved in a directive. 17

Section 5 of the European Communities Act 1972 (as substituted by section 4 of the European Union (Scrutiny) Act 2002) 18

Under section 1 of the European Union (Scrutiny) Act 2002 (as amended): “ ‘ measure ’ means— (a) a regulation or directive adopted under the Treaty on the Functioning of the European Union, (b) a decision adopted under Article 28 or 29 of the Treaty on European Union, or (c) an act (other than a regulation, directive or decision referred to in paragraph (a) or (b)) requiring the prior approval of both Houses of the Oireachtas pursuant to subsection 7° or 8° of Article 29.4 of the Constitution;” 19

Subject to sections 2(3), 2(4) and 3 of the European Union (Scrutiny) Act 2002, where there is insufficient time or measures deemed confidential. 20

Section 2(5) of the European Union (Scrutiny) Act 2002 21

For further information on Oireachtas scrutiny of EU legislation, see Dr. Brian Hunt, The Role of the Houses of the Oireachtas in the Scrutiny of Legislation (2010), Chapter 7 22

“How International Law Works”, Department of Foreign Affairs 23

Resolution and Report on the relationships between international law, community law and the constitutional law of the Member states (1997), European Parliament 24

Vienna Convention on the law of treaties. Concluded at Vienna on 23 May 1969. Registered ex officio on 27 January 1980. 25

An example would be the Agreement on Technical Barriers to Trade, done at Geneva on 12 April 1979 and definitively signed by Ireland. See the World Trade Organisation website for subsequent updating of the Agreement. 26

“Understanding International Law”, UN 2011 Treaty Event: Towards Universal Participation and Implementation 27

Though an exception is human rights laws and in particular access to remedies guaranteed in human rights treaties. 28

Hutchinson v Minister for Justice [1993 HC] Irish Law Reports Monthly 602 29

See, for example, the decision of Judge Clarke in Olaniran & ors -v- Minister for Justice Equality & Law Reform & ors [2010] IEHC 83. The High Court held that while Ireland is a signatory to the UN Convention on the Rights of the Child, as the Convention has not been incorporated into domestic law, it confers no rights on individuals to rely on its provisions before the domestic courts. 30

O'Domhnaill Plaintiff v. Merrick [1984] Irish Reports 151 31

Gernot Biehler, International Law in Practice: An Irish Perspective, Thomson Round Hall (2005), at 2-07 32

David P Fidler, International Law, WHO website. 33

Though the IEAE is independent, it reports to the UN General Assembly and Security Council. 34

Though the IMF was conceived at a UN conference in Bretton Woods, New Hampshire, United States, in July 1944. Hence on the Irish Statute Book you have the Bretton Woods Agreements Acts 1957 to 2012. 35

The Observer States of the Council of Europe are: Canada; the Holy See; Japan; Mexico and the United States. These States can co-operate with the CoE, accept its guiding principles of democracy, the rule of law, human rights and fundamental freedoms, and send observers to its expert committees and conferences of specialised ministers. Since September 2006, Observer States have also been entitled to send representatives to observe the regular meetings of the CoE's Ministers' Deputies, and to appoint permanent observers to the Council of Europe. Israel is an Observer to the Parliamentary Assembly. Members of observer delegations may sit in the Assembly but without the right to vote. They have the right to speak with the authorisation of the President of the Assembly. 36

Paragraph based on a definition given in Murdoch’s Dictionary of Irish Law. 37

The ECHR differentiates between absolute (Article 3 prohibits torture and inhuman and degrading treatment) and non-absolute rights. It is not possible for state parties to justify a violation of an absolute right. For discussion see Saadi v Italy, Application no. 37201/06. 38

See “Violations by Article and by State - 1959 – 2014”, available via the European Court of Human Rights statistics website. 39

For discussion of the position regarding Ireland, see Holly Cullen, “Is The European Social Charter a Charter for Children?” [2005] 40(1) The Irish Jurist 60-85

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40

For information on the background of the ICC and its setting up, see Siobhán Ní Chulacháin BL, Ercus Stewart SC, “The International Criminal Court” [2001] 6(7) Bar Review, 425-427 41

Summary taken from the ICC website. 42

According to the ICC’s FAQ website: “Convicted persons serve their prison sentences in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept convicted persons. The conditions of imprisonment are governed by the laws of the State of enforcement and must be consistent with widely accepted international treaty standards governing the treatment of prisoners. Such conditions may not be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.” 43

Siobhán Ní Chulacháin BL, Ercus Stewart SC, “The International Criminal Court” [2001] 6(7) Bar Review, 425-

427 44

Other notable international criminal trials were carried out under other, specific international criminal tribunals, such as Rwanda and the former Yugoslavian States. 45

Note that some amendments to the Constitution did not occur. Thus, there is no twelfth, twenty-second, twenty-fourth, twenty-fifth, thirty-second or thirty-fourth amendment to the Constitution. This occurs where multiple referenda are held on one day and while one of a lower sequential order is rejected, others are passed. So, for example, the People rejected the Twelfth amendment but on the same day approved the Thirteenth and Fourteenth (all dealt with aspects of the right to life of the unborn). 46

“The State may ratify the Rome Statute of the International Criminal Court done at Rome on the 17th day of July, 1998.” 47

See also “Ireland accepts compulsory jurisdiction of the International Criminal Court” MerrionStreet.ie, 15th

December 2011 48

This can occur even in opposite, where States have previously agreed in writing a particular approach but decide not to be bound in a particular circumstance. An example was NATO military action in Yugoslavia in 1999, despite it not being authorised under the NATO treaty. 49

Gernot Biehler, International Law in Practice: An Irish Perspective, Thomson Round Hall (2005), at 1-02 50

See “Reflections On Us Opposition To The International Criminal Court” [2006] 6(1) Hibernian Law Journal

2006, 33-64 51

“Registry Report on the consultations undertaken under Article 97 of the Rome Statute by the Republic of South Africa and the departure of Omar Al Bashir from South Africa on 15 June 2015” International Criminal Court, 17

th June 2015

52 “ANC NGC 2015 Resolutions on International Relations” African National Congress

“South Africa plans to leave International Criminal Court” Reuters, 11th

October 2015 “What South Africa leaving the International Criminal Court would mean” BBC News, 14

th October 2015

53 In 2013, the Kenyan parliament voted for Kenya to withdraw from the ICC. Nevertheless President Uhuru

Kenyatta did not endorse the withdrawal and thus Kenya remains a party to the ICC. Coalition for the International Criminal Court – Cases & Situations - Kenya “What Kenya's withdrawal means for the international criminal court”, The Guardian, 6

th September 2013

54 Biehler, at 1-15 to 1-18

55 Horgan v An Taoiseach [2003 HC] 2 Irish Law Reports Monthly 357; [2003 HC] 2 Irish Reports 468. See

Appendix 2. 56

Except for International Labour Organisation (ILO) Conventions which are the responsibility of the Minister for Jobs, Enterprise and Innovation. 57

In addition, the terms of all international agreements which impose a charge on public funds and are not of a technical and administrative character must be approved by Dáil Éireann prior to the Government agreeing to the State being bound by it. 58

“No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.” 59

Kavanagh v Governor of Mountjoy Prison [2002 SC] 2 Irish Law Reports Monthly 81; [2002 SC] 3 Irish Reports 97. See Appendix 2. 60

ACT Shipping Ltd v Minister for the Marine [1995 HC] 2 Irish Law Reports Monthly 30; [1995 HC] 3 Irish

Reports 406. See Appendix 2. 61

Horgan v An Taoiseach [2003 HC] 2 Irish Law Reports Monthly 357; [2003 HC] 2 Irish Reports 468. See Appendix 2. 62

McElhinney v Williams [1996 SC] 1 Irish Law Reports Monthly 276; [1995 SC] 3 Irish Reports 382. See Appendix 2. 63

See endnote 2 above. 64

International Agreements signed but not ratified by Ireland, Department of Foreign Affairs, 3rd

December 2014 65

“Representing Ireland – Conference”, Department of Foreign Affairs 66

As above. 67

Hilary Delany and Declan McGrath, Civil Procedure in the Superior Courts (3rd

ed.), Round Hall (2012); Chapter 1, Section B: Jurisdiction under Irish Private International Law 68

Government of Canada v Employment Appeals Tribunal and Burke [1992] 2 Irish Reports 484. See Appendix 2.

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69

As above. See also McElhinney v Williams [1995] 3 Irish Reports 382. This case is covered in Appendix 2, though commercial activities were not the primary focus of the case. 70

See:

“US Embassy claims diplomatic immunity in unfair dismissal case” Irish Times, 18th

May 2015. Greene v Government of the United States of America. This case is not (as of the end of October 2015) listed as a decision or determination on the Workplace Relations website.

Calderon v Lootah [UD1219/2013, UD1220/2013, UD1221/2013], Employment Appeals Tribunal, 25th

November 2014

Adan (Asha Abdullahi) v Embassy of the Republic of Kenya (a 2013 Unreported Employment Appeals Tribunal decision)

Geraghty v Embassy of Mexico [1998 Employment Appeals Tribunal] Employment Law Reports 310

Government of Canada v Employment Appeals Tribunal and Burke [1992] 2 Irish Reports 484. See Appendix 2.

See also Patrick O'Shea (claimant) v The Italian Embassy (respondent) [2002] 13 Employment Law Reports

276, which dealt with alleged discrimination regarding equal treatment and equal pay on grounds of race. 71

Westlaw.ie Annotated Statutes: Diplomatic Relations and Immunities (Amendment) Act 2006 (Annotated) 72

Under Article 1 of the Vienna Convention on Diplomatic Relations, a “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission. 73

The Diplomatic Relations and Immunities Acts 1967 to 2006 consist of:

Diplomatic Relations and Immunities Act 1967

Diplomatic Relations and Immunities (Amendment) Act 1976

Section 4, Council of Europe Development Bank Act 2004

Diplomatic Relations and Immunities (Amendment) Act 2006 74

Including the Vienna Convention on Diplomatic Relations; Vienna Convention on Consular Relations; Convention on the Privileges and Immunities of the United Nations; and General Agreement on Privileges and Immunities of the Council of Europe. The text of these is given in the Schedules to the Diplomatic Relations and Immunities Act 1967

75 Patrick O'Shea (claimant) v The Italian Embassy (respondent) [2002] 13 Employment Law Reports 276

Geraghty v Embassy of Mexico [1998 Employment Appeals Tribunal] Employment Law Reports 310 76

A. & Anor -v- MJELR & Ors [2007] IEHC 393 Laurentiu v Minister for Justice [1999] 4 Irish Reports 26 77

Mary O'Brien v Minister for Defence, Ireland and the Attorney General [1998] 2 Irish Law Reports Monthly 156 78

National Bank, Ltd. v. Hunter [1948] 1 Irish Jurist Reports 33 79

“Immunity from the law” [1984] 2 Irish Law Times 85 Norton v. General Accident, Fire and Life Assurance Company (H.C.), [1940] 74 Irish Law Times Reports 123 80

For further detail on extradition, the following books are available for Members via the Oireachtas Library: Michael Forde, Extradition law in Ireland (3

rd ed.), Round Hall (2005) (Call No. 345.052)

Remy Farrell, Anthony Hanrahan, The European arrest warrant in Ireland, Clarus Press (2011)

(Call No. 345.415052) 81

Based on a definition given in Murdoch’s Dictionary of Irish Law. 82

Section 8, Extradition Act 1965 (as amended) 83

The Extradition Act, 1965 (Application of Part II) Order, 2000 (SI 474/2000) has since been amended by:

Extradition Act 1965 (Application of Part II) (Amendment) Order 2002 (SI 173/2002) [updates, in particular reflecting the Convention against Torture and Convention on the Safety of UN Personnel]

Extradition Act 1965 (Application of Part II) (Amendment) Order 2003 (SI 479/2003) [updates, in particular reflecting the Convention on Combating Bribery and Convention on Corruption]

Extradition Act 1965 (Application of Part II) (Amendment) (No.2) Order 2003 (SI 649/2003) [relates to Spain]

Extradition Act 1965 (Application of Part II) (Amendment) Order 2004 (SI 587/2004) [updates, in particular reflecting the Maritime Safety Convention and Fixed Platforms Protocol]

Extradition Act 1965 (Application of Part II) (Amendment) (No. 2) Order 2004 (SI 725/2004) [update regarding the European Convention on Extradition]

Extradition Act 1965 (Application of Part II) (Amendment) Order 2005 (SI 374/2005) [a general update to reflect new Conventions which had been ratified]

Extradition Act 1965 (Application of Part II) (Amendment) Order 2009 (SI 9/2009) [relates to Hong Kong]

Extradition Act 1965 (Application of Part II) (Amendment) Order 2010 (SI 45/2010) [relates to the US] 84

See in particular:

Extradition (Amendment) Act 1987

Extradition (European Convention on the Suppression of Terrorism) Act 1987

Extradition (Amendment) Act 1994

Extradition (European Union Conventions) Act 2001

European Arrest Warrant Act 2003

European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012

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85

Through changes under the Extradition (European Union Conventions) Act 2001. Originally the Extradition Act 1965 provided that the District Court would be the court of first instance in extradition cases. 86

Section 11, Extradition Act 1965 (as amended) 87

Section 12, Extradition Act 1965 (as amended) 88

Section 15, Geneva Conventions (Amendment) Act 1998. See also section 7, International War Crimes Tribunals Act 1998 89

Finucane v McMahon [1990 SC] Irish Law Reports Monthly 505 90

Larkin v O’Dea [1995 SC] 2 Irish Reports 485. In this instance the accused was suspected of a murder in Northern Ireland but the High Court and Supreme Court directed his release as “the Court would be in breach of its constitutional obligation to defend and vindicate the applicant's constitutional rights if it were to permit him to be extradited to a jurisdiction where evidence obtained in violation of these constitutional rights were to be given, even though in every other aspect the procedures were fair.” 91

Brien v King [1997 HC] 1 Irish Law Reports Monthly 338 92

Clarke v Mc Mahon [1990 SC] Irish Law Reports Monthly 648 93

The most recent is for 2014: REPORT On the operation of the European Arrest Warrant Act 2003 (as amended) in the year 2014 made to the Houses of the Oireachtas by the Central Authority in the person of the Minister for Justice and Equality pursuant to section 6(6) of the European Arrest Warrant Act 2003. 94

For further commentary on extraordinary rendition, see: Remy Farrell, “Fly me to the moon” [2011] 105(5) (June) Law Society Gazette 26

Brian Ó Beirne, “An Eye for that Blind Eye: Retributive Justice As a Means to Re-Legitimating Ireland's International Law Obligations Post-Rendition” [2010] 9(1) Hibernian Law Journal 193-218 Christopher Campbell, Diop sa Ghaeilge, “Has Ireland Done Enough to Prevent Extraordinary Rendition?” [2009] 27 Irish Law Times 122-128 95

Examples include considerations upon the break-up of the former Yugoslavian States. 96

It has in the past been done via express statement of intent from the Government (Eritrea), or via resolution of the Oireachtas (the USSR). 97

Ireland does not have representation in every country, given the size of Ireland, along with financial and logistical reasons (see Biehler at 6-06). See, as examples: “Two years after cuts led to closure, 'scaled-down' Vatican embassy opens”, Irish Independent, 22

nd January 2014; “‘Iranians look upon the closure of the Irish embassy as a slight’”,

TheJournal.ie, 22nd

January 2014 For a list of embassies or extra-national points of contact, see the Department’s website 98

Zarine v Owners of the SS Ramava [1942] Irish Reports 148. See Appendix 2. 99

Rosalyn Higgins has suggested a reduced view of states and individuals both being “participants” in international law. Problems and Process: International Law and How We Use It, Clarendon, Oxford (1994) 100

In re Ó Laighléis [1960] Irish Reports 93, at 124. See Appendix 2. 101

Kavanagh v Governor of Mountjoy Prison [2002] 3 Irish Reports 97, at 108 and 127. See Appendix 2. 102

In re Ó Laighléis [1960] Irish Reports 93, at124. See Appendix 2. 103

Horgan v Ireland [2003] 2 Irish Reports 468 at 508. See Appendix 2. 104

Article 29.6: “No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.” 105

Esthonia is the spelling of Estonia used in the original case report.