A Universal Duty or Bespoke Legislation? Re-evaluating Ireland’s Revised Occupied Territories Bill

Ireland isn't even pretending to apply universal international law principles to any state besides Israel

The Irish government has published its latest version of the “Occupied Territories Bill”. Sinn Féin and other opposition groups claim that the watered-down bill is a far cry from the originally proposed criminal sanctions on trade in goods and services with Israeli settlements in Judea and Samaria. The Bill is currently marked as “an act to provide for compliance by the State with its international legal obligation”. However, the continual narrowing of the Bill’s scope as well as its singular focus on Israel and Judea and Samaria undermine claims that the Bill is mandated by international law. Its advancement is an opportunity to revisit international law regarding economic dealings with occupied territories.

A Universal Obligation?

The Occupied Territories Bill was originally proposed by independent senator Frances Black in January 2018. While the political debate surrounding the bill focused explicitly on Israeli settlements in Judea and Samaria, the Bill sought to establish a general offense for the importation or selling of goods and services “originating in an occupied territory”. Violators would be subject to a fine of up to 250,000 Euros or five years’ imprisonment. At the same time, Article 3(1) defined occupied territories as those confirmed by a decision or advisory opinion of the International Court of Justice, the International Criminal Court, another international tribunal, or designated as such by the Minister for Foreign Affairs and Trade. This limited the Bill’s application to Judea and Samaria.

In a Seanad Éireann debate on 28 November 2018, Senator Black explained the focus on the Israeli-Palestinian conflict: “Ireland cannot, nor would we want to, adjudicate on the status of every occupation or conflict in the world. Instead, we set a neutral objective standard that relies on international law and the decisions of the international courts listed. Here we set a high bar based firmly on international law. The reason the Israel-Palestine situation is covered from the outset is the overwhelming international legal consensus that the settlements violate international law.”

In another debate on 5 December 2018, Sinn Féin Senator Niall Ó Donnghaile argued that there was a strong case for applying the Bill to Morocco’s occupation of Western Sahara. In 1975, the International Court of Justice held in an advisory opinion that no “ legal ties of such a nature as might affect the application of … the Declaration on the Granting of Independence to Colonial Countries and Peoples — in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the territory” (par. 162). Following the 1975 advisory opinion, Morocco invaded and occupied Western Sahara and began a massive settlement campaign in the territory. Moroccan settlers account for nearly two-thirds of Western Sahara’s 600,000 residents.

In 1979 and 1980, the UNGA condemned the “continued occupation” of Western Sahara by Morocco (UNGA Res 34/37 and 35/19). UN Secretary-General Ban Ki-Moon referred to the Moroccan occupation in 2016. In 2012, the European Union General Court held that the Euro-Mediterranean Agreement, signed between the European Communities and Morocco, could not apply to Western Sahara, as it had a “separate and distinct” status from that of the Kingdom of Morocco (par. 26). In 2016, the British High Court found that Western Sahara was under Moroccan “belligerent occupation”, and the Moroccan rights of occupation and claims to sovereignty are unrecognized by the UN, the African Union, the European Union, or member states (par. 18 and 40). Reviewing Morocco’s claims to the territory, Justice Blake wrote: “A colonial power cannot gift an occupied territory to a neighbouring state … Equally, unauthorised military occupation cannot found the basis for legitimate territorial claims’. (par. 47).

In 2018, the Global Legal Action Network submitted a formal complaint before Ireland’s National Contact Point (NCP) for the Organisation for Economic Cooperation and Development (OECD) against San Leon Energy PLC for its oil and gas extraction in Western Sahara. In 2021, the Irish authorities decided to proceed with the complaint against San Leon Energy.

The latest version of the Bill abandons any pretense of neutral application of international law. The Bill limits its application to “the Occupied Palestinian Territory (including East Jerusalem) that was brought under Israeli administration since June 1967” (Art. 6(3)(a)). According to the Bill’s introduction, the ban is a necessary measure for Ireland to comply with its international legal obligations, particularly as identified in the ICJ Occupation Advisory Opinion. However, the Bill creates significant exceptions to the ban, which seem to have no basis in the ICJ’s opinion. In contrast to earlier versions, the Bill bars the importation of goods alone, while ignoring services. It also excludes non-commercial goods that “form part of a person’s personal baggage and are intended for his or her personal consumption or use. (Art. 5(2)(a)).

It remains unclear why personal-use goods imported from Israeli settlements should be permitted, according to the Bill’s proponents. According to Ireland’s Central Statistics Office, trade between Ireland and Israeli settlements totals about $230,000 annually and consists largely of fruit. However, tourism and pilgrimage to holy sites are among the main sources of income in the Israeli-controlled Old City of Jerusalem. Christian and Jewish visitors contribute to the local economy by purchasing souvenirs and religious items. The ICJ makes no distinction between commercial and personal-use trade – either trade is prohibited or it is not.

The Duty of Non-Recognition and State Practice

Proponents of a strict international law mandate rely heavily on the principle of non-recognition to argue that economic dealings with occupied territories are inherently prohibited. Under this framework, encapsulated by Article 41(2) of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), states are ostensibly obligated to prevent trade and business relations that assist an occupying power.

According to a recent article by Philipp Kehl discussing allegations of Israeli imports of grain from Russian-occupied Ukraine, the principle of non-recognition prohibits economic dealings with occupied territories. For Kehl, states are obligated to prevent trade, investment, and other economic relations that would assist an occupying power in maintaining its illegal control. Furthermore, because the extraction and export of resources (such as agricultural goods) from occupied lands frequently violates international humanitarian law, specifically The Hague Regulations’ prohibitions on the confiscation of private property and pillage, purchasing these goods amounts to accepting stolen property. As such, importing goods from occupied territories benefits the aggressor’s war economy and undermines the sovereign integrity of the occupied state, rendering the trade an internationally wrongful act.

Inexplicably, Kehl declines to engage with the well-documented and practically universal practice of economic dealings with occupied territories (Kontorovich, 2015). Ireland itself, despite taking the lead on opposing Israeli settlements, has never universally opposed trade with occupied territories. The Irish Department of Foreign Affairs and Trade offers the following advice for Irish citizens interested in purchasing property in northern Cyprus:

If considering buying property in the northern part of Cyprus, which is not under the effective control of the Government of the Republic of Cyprus, we strongly advise to exercise caution and to get qualified, independent legal advice. This is due to potential claims related to title and ownership from Greek Cypriots displaced from that area in 1974, which may lead to serious financial and legal repercussions.

The Foreign Affairs Department itself notes that in line with relevant UN Security Council Resolutions, Ireland does not recognize the “Turkish Republic of Northern Cyprus”(TRNC). However, it makes no claim to prohibit importing goods or doing business there, point-blank. Notably, UN Security Council Resolution 550 (1984) labels northern Cyprus “occupied”, while Resolution 541 (1983) mandates the non-recognition of the TRNC. The non-recognition of Turkey’s occupation and annexation of northern Cyprus was also recognized by the European Court of Human Rights in the Loizidou case as well as Cyprus v. Turkey.

Despite the principle of non-recognition, Ireland and the broader European Union continue to import goods from occupied northern Cyprus. Under the EU’s Green Line Regulation (Regulation 866/2004), certified goods produced entirely in northern Cyprus—predominantly agricultural products such as citrus fruits, wood furniture, and plastics, as well as recently certified Protected Designation of Origin (PDO) Hellim/Halloumi cheese—are permitted to cross the UN-monitored buffer zone into the south. Once these goods enter the government-controlled Republic of Cyprus and pass EU sanitary and safety checks, they are treated as legal EU goods and can be shipped freely to other member states, including Ireland.

Conclusion

The continual narrowing of the scope of Ireland’s Occupied Territories Bill belies the claim that its provisions are mandated by international law. While originally hailed in 2018 as applying universally to occupied territories, the Bill’s latest version doesn’t even pretend to apply outside the Israeli-Palestinian conflict. The Bill’s significant exceptions are similarly unfounded in the international law principles its proponents promote and seem designed to prevent enforcement challenges rather than to meet supposed international law obligations. As a general rule, trade with occupied territories is widespread state practice, in which Ireland itself participates. It has never been suggested that a blanket rule prevents Ireland or any other state from trading with Western Sahara, northern Cyprus or other occupied territories.