Court dismisses challenge to US use of Shannon


The High Court yesterday dismissed a legal challenge by a retired Irish Army officer to the Government's decision allowing Shannon Airport to be used by US aircraft involved in the Iraq war.

The challenge was taken by Limerick-based Mr Edward Horgan who served with UN peacekeeping missions in Cyprus and the Middle East in the 1960s and 1970s and who left the Army in 1986.

He sued the Taoiseach, the Minister for Foreign Affairs, the Minister for Transport, the Government, Ireland and the Attorney General and sought a number of declarations claiming there were breaches of Articles 28 and 29 of the Constitution.

In his 71-page reserved judgment yesterday, Mr Justice Kearns said Mr Horgan was effectively asking that the Dáil be told by the court to resolve afresh on a matter on which it had already resolved on the presumed basis that the court was better suited than the Dáil for deciding what constitutes "participation" in a war.

He said the court could not, without proof of quite exceptional circumstances, accept that contention and accordingly the plaintiff's claim under Article 28 of the Constitution failed. The judge, who had heard the case over four days at the start of the month and reserved judgment, said the court did accept, for a number of reasons, that some quite egregious disregard of constitutional duties and obligations must take place before it could intervene under Article 28.

The judicial organ did not decide an issue of "participation" in this context as a primary decision-maker. Under the Constitution, those decisions were vested in the Government and Dáil Éireann respectively.

Mr Justice Kearns said the issue of "participation" was not a black and white one. It may well be, ultimately, as stated by the Taoiseach, a matter of "substance and degree". However, this was quintessentially a matter for the Government and the elected public representatives in Dáil Éireann to determine and resolve.

Earlier, when dealing with neutrality, the judge said that despite the great historic value attached by Ireland to the concept of neutrality, that status was nowhere reflected in Bunreacht na hÉireann or elsewhere in any domestic legislation. It was effectively a matter of Government policy only, albeit a policy to which, traditionally at least, considerable importance was attached.

Ireland was thus in a different position than certain other states, which had incorporated a permanent status of neutrality in their domestic laws.

Mr Justice Kearns said the 1907 Hague Convention V was asserted to be a declaration of customary international law. Various texts relied on by Mr Horgan certainly tended to support such an interpretation. The defendants had argued that a more qualified or nuanced form of neutrality also existed, being one which has been practised by this State for many years and indeed through the second World War.

However, the judge said it did not appear to him that even that form of neutrality was to be seen as including the notion that the granting of passage over its territory by a neutral state, for large numbers of troops and munitions from one belligerent state only en route to a theatre of war, was compatible with the status of neutrality in international law.

The court was prepared to hold, therefore, that there was an identifiable rule of customary law in relation to the status of neutrality, whereunder a neutral state may not permit the movement of large numbers of troops or munitions of one belligerent state through its territory en route to a theatre of war with another.

Mr Justice Kearns said it was necessary to consider how international law interacted with Irish domestic law. Having done so, he said, one could only conclude that principles of international law entered domestic law only to the extent that no constitutional, statutory or other judge-made law was inconsistent with the principle in question.

Where a conflict arose, the rule of international law must, in every case, yield to domestic law.

He said he found in favour of the defendants on all aspects of the case under Article 29. It followed from that conclusion that he did not accept Mr Horgan's view that the court should hold that the Government was legally obliged under Article 29 to form any particular view in relation to a war. Its only reviewable aspect lay in compliance with the requirements of Article 28.

The question of costs is to come before the High Court on Friday. Yesterday's judgment may be appealed to the Supreme Court.