There is "no version of neutrality" accepted internationally which allows the armed forces of the US to pass through Irish space en route to the war in Iraq but this Government has permitted such activity, it was argued in the the High Court yesterday.
While the State is entitled to decide it will not make a decision whether the war in Iraq is legal or not, the consequences of taking no position means Ireland is neutral and that involves adhering to the obligations and duties of neutral States, Mr John Finlay SC, for retired Army officer Edward Horgan, argued.
The reality was that there had been "a massive invasion" of Iraq by US and UK forces involving an enormous loss of life, counsel said.
Mr Horgan's complaint was that the State had provided aid and assistance, through the activities at Shannon, to one party to that invasion, the US, without first determining whether the invasion was lawful and in accordance with the principes of international law. While there had been lots of "erudite excursions into all sorts of territory", the State had not addressed that complaint in the case. Mr Finlay was making the closing reply in Mr Horgan's challenge to the Government's permitting the use of Shannon Airport by US aircraft involved in the war in Iraq.
Counsel argued the Government is not immune from judicial control if it acts in a manner inconsistent with the Constitution. That was at the heart of the majority Supreme Court decision in the successful challenge by Mr Raymond Crotty to the Single European Act. Mr Horgan was not seeking to enforce any personal right but was seeking the court's aid in compelling the Government and Dáil to abide by the Constitution in their conduct of foreign affairs.
Article 29 of the Constitution created a mandatory obligation on the Government to apply the generally accepted principles of international law as its rule of conduct in its relations with other states.
