The Government did not seek formal written advice from the European Commission on whether a draft law to ban trade with illegal Israeli settlements would fall foul of European Union rules, records show.
The Occupied Territories Bill was put forward by the opposition in 2018 but has remained stuck in the Oireachtas lawmaking pipeline since then. The argument against the draft legislation from Government was previously that trade policy is a competency of the commission, the executive arm of the EU led by EC president Ursula von der Leyen.
The draft law was introduced by Independent Senator Frances Black, during the previous Fine Gael-led government that was supported by Fianna Fáil as part of a confidence and supply deal. Records released by the EC following an access-to-information request indicate that neither the outgoing government nor the previous one sought any written advice from the EU body on the Occupied Territories Bill.
A Department of Foreign Affairs spokesman said successive Irish governments had raised the situation in Israel and the occupied Palestinian territories during “regular and substantive engagement” with EU counterparts. “The Occupied Territories Bill was introduced as a Private Members’ Bill in 2018 and as such was not the focus of the Government’s engagement within the EU on policy on illegal Israeli settlements,” he said.
Documents released to The Irish Times show the head of the commission’s trade department did previously advise some TDs and Senators that “in principle” individual member states could not prohibit trade unilaterally.
The Oireachtas committee on foreign affairs had sought the views of the commission on the plan to ban trade between Ireland and Israeli settlements in the West Bank and other Israeli-occupied Palestinian territories.
In a letter to the committee dated June 5th, 2019, Sabine Weyand, the EC’s director general for trade, said the EU had “exclusive competence” when it came to trade policy. “As a customs union, the EU applies common arrangements for imports of goods from third countries uniformly across the union. In principle, only the EU can decide to prohibit the importation of goods and services and not the member states individually,” she wrote.
Ms Weyand told the committee that member states could not adopt their own rules “in the absence of an express authorisation by the EU”.
Political focus has returned to the Occupied Territories Bill following Israel’s invasion of Gaza, which has killed more than 44,000 people, according to Hamas-run health authorities in the enclave.
Fine Gael leader Simon Harris and Fianna Fáil’s Micheál Martin have both said the circumstances that blocked the draft legislation previously had now changed, particularly on foot of an opinion from the International Court of Justice. The United Nations’ highest court in July issued an advisory opinion stating that Israeli settlements in the West Bank and East Jerusalem were in breach of international law.
In the weeks before calling the general election, the Government committed to supporting the Bill, following substantial amendments and changes.
Passing the revised legislation will be a matter for the incoming government.
It is understood Ireland would have to justify breaking with the rest of the EU to ban trade with Israeli settlements on exceptional public policy grounds. As such, the legislation – if passed into law – could set up a potential clash with the next government and the European Commission.
Ireland and Spain have consistently pushed for the EU to review its overall trade agreement with Israel, in response to human rights abuses during its military campaign in Gaza. However, such a decision would need to be backed by all 27 member states, which is unlikely to happen.
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