The courts cannot direct the Government in its conduct of foreign policy and cannot and should not make a decision on whether the war in Iraq is lawful or not, the Government has argued before the High Court.
If the courts uphold a challenge by a former Army officer to the Government's allowing the US military to use Shannon Airport en route to the war in Iraq, this would confine the Government's freedom of action in foreign policy in a way that would have very serious implications for the conduct of relations with other states, Mr Paul Gallagher SC, for the Taoiseach and Government, contended.
Given the uncertainty regarding the status of the Iraq War in international law and differences over whether UN Resolution 1441 sanctioned the war, the court should not pronounce on those issues because that could embarrass the executive in the conduct of its foreign affairs, he added. These were "not black and white issues".
He added that, over a period of time, Ireland has asserted a form of neutrality that "is more nuanced". That form of neutrality had been implicitly, and in some cases, explicitly, accepted by other states over the years.
Counsel was opening the State's defence of the action taken against it by retired Army officer Mr Edward Horgan over the facilitating by the Government of US military activities at Shannon Airport.
Mr Gallagher said the Government's facilitation of the US military was both lawful and constitutional and, in light of the constitutional separation of powers between the legislature, executive and judiciary, was not a proper subject for inquiry by the courts. He said the courts could intervene with the executive powers of the Government only where there was a clear disregard by the Government of its constitutional obligations. The Dáil resolution and Government decision permitting the use of Shannon both enjoyed the presumption of constitutionality as they related to the exercise of the foreign policy functions of the executive. He also argued that the permission for landing, overflight and refuelling activities at Shannon did not constitute participation in the war on Iraq.
In his speech to the Dáil on the matter last month, the Taoiseach had outlined the considerations of international policy that influenced the Government's position regarding the war in Iraq, counsel said. The Government had made a decision that it should proceed in a certain way and should not take a position on the issue of the legality of that war. This reflected a recognition that, where there were disputes between nations with whom Ireland had relations, taking a position on the war could inhibit those relations.
In deciding the activities at Shannon did not constitute Ireland's participation in the war in Iraq, the Dáil made a political judgment based on factors which did not easily lend themselves to judicial scrutiny, counsel said. The Dáil had all the relevant facts and the court should not upset that political judgment.
Mr Gallagher said Article 28 (which prohibits Ireland's participation in war without Dáil assent) and Article 29 ( which outlines the principles governing international relations) did not confer private rights on Mr Horgan.
Mr Horgan was effectively seeking to constrain the State's sovereignty in international relations through a judicial determination of international law principles at this time, as determined by other states. This would mean Ireland had only two choices in any international conflict, to declare war or to confine itself to a Hague Convention-type neutrality. It would also mean Ireland would have to pronounce on the legality of a war.
Earlier, Mr Justice Kearns was told that between January 1st and March 31st, there were some 762 US military overflights of Shannon and some 41 landings there of US military aircraft.
The case continues.