The traditional concept of neutrality has been overtaken by "a more modified neutrality", counsel for the State and Attorney General argued before the High Court yesterday.
On the closing day of the challenge by retired Army officer, Mr Edward Horgan, to the Government's allowing of Shannon Airport to be used by Iraq-bound US aircraft, Mr Donal O'Donnell SC said the view of neutrality advanced to the court by Mr Horgan was inconsistent with the conduct of the Irish State since the adoption of the Constitution.
Mr Justice Kearns will give his judgment by May 2nd.
With Mr Gerard Hogan SC, for Ireland and the Attorney General, Mr O'Donnell argued that there was no customary position in international law regarding neutrality. Traditional concepts of neutrality had been overtaken by a more modified neutrality in accordance with the United Nations Charter.
Under customary principles of international law, there was no automatic obligation of absolute neutrality and consequent denial of air space to belligerents engaged in a war. Neither was there an obligation on this State to determine the legality of a war by reference to the UN Charter or resolutions.
If Mr Horgan, of Newtown, Castletroy, Limerick, were to win his action, almost all issues of foreign relations conducted by the State through its elected governments would be open to challenge by individuals in the courts, Mr O'Donnell said.
This would alter the balance of the separation of powers and, against a "tidal wave" of legal authorities, would give individual litigants extraordinary powers over the conduct of foreign policy.
Mr Horgan has claimed that the activities at Shannon breach the constitutional provisions governing Ireland's participation in war and conduct of foreign relations, and also breached our obligations and duties as a neutral State under international law.
Dealing with arguments that the Government had breached Article 28.3 of the Constitution - which provides that war shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann - Mr O'Donnell said the court can and should only interfere with decisions of the executive in the field of foreign relations if such decisions were in clear disregard of a specific constitutional provision.
This was even more so if the challenged decision had received the express approval of the Dáil, as it had in this case. In any event, he argued, the activities at Shannon did not constitute or amount to participation by this State in the war in Iraq. The Government and Dáil had decided that the activities did not amount to participation, and the court should not seek to supplant their view with its own.
Mr O'Donnell also rejected Mr Horgan's claim that the activities at Shannon breached Article 29 of the Constitution, which affirms Ireland's "devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality", and Ireland's "adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination".
He said Article 29 was aspirational in character and did not create any individual rights or give any person a right to require the international relations of the State to be conducted in a particular way. Nor did it require the executive power of the State to be exercised in any particular way.
As the generally recognised principles of international law were a guide to the State in the conduct of its foreign policy, and not a binding rule, departure from such principles could not be unlawful as a matter of domestic law as that would not exceed the constitutional discretion of the executive in the exercise of international affairs. He urged the court not to undertake an inquiry into the legality of the war in Iraq, as that would involve the court making judgments on the conduct of foreign sovereign states.
