The courts cannot direct the Government in foreign policy matters and cannot make a decision on whether the war in Iraq is lawful, the High Court heard today.
Opening the State's defence of an action taken by retired army officer Mr Edward Horgan over US military activities at Shannon Airport, Mr Paul Gallagher SC, for the Taoiseach and government said Ireland has developed a "nuanced" form of neutrality.
If the courts uphold Mr Horgan's challenge, this would confine Ireland's freedom of action in foreign policy in a manner that would have serious implications for the conduct of relations with other states, Mr Gallagher 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 embrass the executive in the conduct of its foreign affairs, he added. These were "not black and white issues".
Mr Gallagher said the government's facilitation of the US military is both lawful and constitutional and, in light of the Constitutional separation of powers between the legislature, executive and judiciary, is not a proper subject for inquiry by the courts
He said the courts could only intervene with the executive powers of the Government 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 constitutinality 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 does not constitute participation in the war on Iraq.
In his speech to the Dáil on the matter last month, the Taoiseach outlined the considerations of international policy that influenced the government's position regarding the war in Iraq, counsel said. 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, he added.
Mr Gallagher said Article 28 (which prohibits Ireland's participation in war without Dail assent) and Article 29 ( which outlines the principles governing our international relations) don't confer private rights on Mr Horgan. He was not entitled to invoke those Articles as a matter of public law against the State.
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 the war in question.
Earlier, Mr Justice Kearns was told that, between January 1st and March 31st last, there were 762 US military overflights of Shannon and 41 landings of US military aircraft. It was estimated some 37,000 US troops had overflown Shannon in civilian aircraft en route to the war in Iraq.