ANALYSIS: The High Court has upheld the right of the Government to conduct international affairs as it sees fit, writes Carol Coulter, Legal Affairs Correspondent.
The challenge by a retired Army officer, Mr Edward Horgan, to the use of Shannon Airport by US troops en route to Iraq has brought Article 29 of the Constitution to public attention in an unprecedented way.
This Article outlines the basic principles of Ireland's conduct of its international affairs. Article 29.2 states: "Ireland affirms its devotion to the ideal of peaceful and friendly co-operation amongst nations founded on international justice and morality" and "Ireland affirms its adherence to the principle of pacific settlement of international disputes by international arbitration or judicial determination."
Section 3 of the same Article states: "Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other states."
The case centred on whether allowing the use of Shannon by US troops, in the absence of a new UN resolution, and without the Government making a decision on whether or not this accorded with the "generally recognised principles of international law", breached this Article.
Mr Horgan also argued that the decision to allow the use of Shannon constituted "participation" in the war and therefore breached Article 28, which provides that such a decision requires assent from the Dáil.
He lost his argument on both counts, but the issues raised are unlikely to go away.
Neither side sought a decision on whether or not the war on Iraq breached international law, so this was not decided by the court.
However, Mr Justice Kearns stressed the "strictly circumspect role" which the courts should adopt when called upon to exercise jurisdiction in relation to international affairs generally, underlining the authority of the legislature and the executive in this regard.
The judge did agree with one point raised by Mr Horgan, that the granting of passage over its territory of troops and munitions from a belligerent state to a theatre of war does not accord with neutrality as defined in international law.
However, he went on to state that such international law was subordinate to domestic law and was only incorporated into domestic law insofar as it was not contrary to the Constitution, statute or common law. Where a conflict arises, domestic law is pre-eminent, he stated.
In any event, he said, sections 1-3 of Article 29 were "statements of principle or guidelines rather than binding rules on the Executive". They fell into the category of constitutional provisions which were "aspirational or declaratory", rather than prescriptive. This interpretation of the weight of Article 29 is likely to be challenged if the case is appealed to the Supreme Court.
Mr Justice Kearns's ruling is that Article 29 is not justiciable by an individual, that is, a citizen cannot take a case based on it to the courts. He pointed out that no individual rights arise under Article 29, which govern the conduct of the State's relations with other states. They could invoke the Article in the Irish courts, but an individual cannot.
While Article 29 does not refer to any individual right, Mr Horgan argued that he was asserting his rights as a citizen that the Constitution be adhered to. His right to do so is likely to be argued again in the Supreme Court in any eventual appeal.
He will not decide until Friday whether to appeal his case to the Supreme Court. On that day he will hear whether or not costs are awarded against him, given that he lost his action. However, his legal team will argue that the case was of exceptional public importance, and that therefore he should not be penalised for taking it.