Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

This post is authored by Dr Darren O’Donovan, Senior Lecturer in International Law, Administrative Law and Human Rights, in  LaTrobe Law School, Melbourne. 

A lot of Irish media discussion in the preclearance debate has begun to feature rhetoric such as Ireland can’t “let the United States operate preclearance given the new executive order”, or that “Ireland should make a statement and close preclearance”. Opponents (they would call themselves realists) would argue that as a small country with a small economy this is far too dramatic a foreign policy step. To debate the legality of preclearance fully however, we need to emphasise that United States obliged, under international law, to operate its preclearance in line with the bilateral agreement between Ireland and the United States signed in 2008.

In this post I want to therefore frame questions for the United States government, and for use by United State citizens. The big one is of course simply: Is the United States in breach of its international legal agreements with Ireland by applying the executive order in Irish airports? The key provision of the 2008 Agreement Article II (1) which states that:

“Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland and, where applicable, the United States.”

As we have discussed in an earlier blogpost there are a range of potential, to be explored, arguments as to why the application of the executive order within Ireland’s jurisdiction may be unlawful under Irish law. What is significant however, is that we in Ireland cannot simply say that US law is a matter for US authorities. US law in fact sets the scope of their international legal obligations towards us, and it may even require us to give redress to some individuals (see question 4 below). We need to fold the United States’ bilateral obligations into the debates about preclearance.

Questions for the US Embassy/State Department:

  • As under the Article II of the 2008 Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under Irish law, what steps have you taken to ensure that the application of the executive order does not exceed the terms of the 2008 Agreement?
  • As under Article II of the Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under United States law, can you confirms what steps you have taken to confirm that the provisions of the executive order are compliant with United States law?
  • In the event you determine the executive order is not compliant with Irish law, are you willing to commit to not applying the executive order in preclearance areas at Dublin and Shannon Airport?
  • Given the close and abiding bilateral ties between the United States and Ireland, is it appropriate for the executive order to be applied in Irish airports while it is currently before the United States courts? We refer you in particular to Article IV(2) which appears to require Ireland to provide a system of redress in event of the “unlawful exercise of powers associated with the administration of preclearance“. This Article is not limited in its express terms to the unlawful administration of Irish law . Can you provide your view of the extent to which the Government of Ireland may be liable to provide redress for the actions of US government officials under this Article?

Ireland: The Supporters of the Preclearance System

What this post attempts to show is that being a supporter of preclearance means actually enforcing the agreement we made in 2008, and exploring potential United States’ breaches of it. It is difficult to imagine Irish parliamentarians not supporting the principle that preclearance only extends to the scope of the 2008 Agreement. Any Irish legislation which implements this principle does not ground any United States entitlement to immediately modify or withdraw from the 2008 Agreement. It would enjoy only its usual right to withdraw after one year. It should, however, be noted that in the event the United States is in material breach of the treaty, Ireland enjoys the right to suspend or withdraw from the 2008 Agreement after a brief period of consultation (as per Article 60 of the Vienna Convention on the Law of Treaties).

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

Future Worries for ECHR litigation in Ireland? O’Donnell v South Dublin County Council

ECHR at 60

The European Convention on Human Rights Act 2003 offers only a narrow window for the pleading of the Convention in the Irish courts. Indeed, Fiona Donson and I recently compared taking an ECHR action before the Irish courts to arriving on floor seven and a half in the movie Being John Malkovich. A re-reading of one of the main Supreme Court judgments of this term, O’Donnell v South Dublin County Councilseems again to underline the prevailing trend in Irish judicial decisions under the Act. Continue reading “Future Worries for ECHR litigation in Ireland? O’Donnell v South Dublin County Council”

Future Worries for ECHR litigation in Ireland? O’Donnell v South Dublin County Council

Executive Power and Fundamental Rights: Underexplored Constitutional Terrain?

fourcourtsIt is somewhat surprising that after 78 years, one could claim that Bunreacht na hEireann has some underexplored corners, but recent judgments underline that executive power is an area in need of renewed examination. The extent and depth of executive power has troubled multiple common law jurisdictions in recent years, often as an ever expanding administrative state creates “soft law” or policy structures to govern entire areas. The most recent example of this was the High Court judgment in C.A. regarding the direct provision system and the RIA house rules. Continue reading “Executive Power and Fundamental Rights: Underexplored Constitutional Terrain?”

Executive Power and Fundamental Rights: Underexplored Constitutional Terrain?

Public Lawyers, Public Values: Debating Government Lawyering in Ireland

Houses of OireachtasRecent debates regarding the availability of the Attorney General’s advice underline the need for Ireland to engage in a first principles discussion of the Government’s approach to lawyering and dispute resolution. The disastrous symphysiotomy redress scheme, the Garda taping scandal and our ongoing struggle to fix the basic content of the Constitution in our legislative debates show that we must open up space for a culture of positive legality within departments often driven by the forceful undertow of defensive organisational cultures. Continue reading “Public Lawyers, Public Values: Debating Government Lawyering in Ireland”

Public Lawyers, Public Values: Debating Government Lawyering in Ireland

Winterstein v France: Fighting for Travellers’ Rights under the ECHR

ECtHRThe European Court of Human Rights recently found France in violation of Article 8 (the right to home, family and private life), by threatening to evict through court order a group of 95 Travellers from their long established caravan sites in the municipality of Herblay. This decision is very significant for those engaged in litigation or advocacy on Traveller/Roma housing in Europe. Continue reading “Winterstein v France: Fighting for Travellers’ Rights under the ECHR”

Winterstein v France: Fighting for Travellers’ Rights under the ECHR

A Macroeconomics of Human Rights? Contesting Austerity Budgeting

EU CommissionThis years’ budget is perhaps the first which received full ex ante and post ante supervision from the European Commission. Lobbying for rights compliant budgeting now involves growing complexity, across multiple stages and fora.  What were previously direct acts of lobbying and public debate, now possess a different character, and human rights actors must seek an equal footing and pick the correct battles in the correct places.

Continue reading “A Macroeconomics of Human Rights? Contesting Austerity Budgeting”

A Macroeconomics of Human Rights? Contesting Austerity Budgeting

Justice in Many Rooms? The hypocrisy behind Ireland’s Court of Appeal Reform

Four CourtsMinister Alan Shatter today published a reasoned defence of the proposed Court of Appeal constitutional amendment, arguing that it represents “a positive step towards fashioning an efficient and effective courts system that ensures better access to justice.” The Minister’s account continually returns to the touchstone concepts of ‘access to justice’ and ‘consistency’ in the law. Yet this referendum is not Continue reading “Justice in Many Rooms? The hypocrisy behind Ireland’s Court of Appeal Reform”

Justice in Many Rooms? The hypocrisy behind Ireland’s Court of Appeal Reform

Engines of Change? Irish Rights Advocacy and the United Nations Human Rights System

UNAmongst the most challenging questions for human rights advocates in drafting litigation and advocacy strategies is assessing the potential of the United Nations human rights treaty bodies. Continue reading “Engines of Change? Irish Rights Advocacy and the United Nations Human Rights System”

Engines of Change? Irish Rights Advocacy and the United Nations Human Rights System