Ed Horgan loses High Court action against the use of Shannon

Sparks

From RTE:

The former Army commandant, Edward Horgan, has lost his constitutional challenge to the legality of the Government allowing American troop carriers to land at Shannon Airport.
He had claimed it amounted to a participation in war and was contrary to Ireland's constitutional commitment to seeking peaceful settlements to conflicts.
The court ruled it could not interfere in the decisions made by the Oireachtas and could not second guess the Government on such issues.
A decision on costs will be made on Friday.

bug

That's very dissapointing.

bonkey

So the court is saying that its not its job to interpret whether or not an act is carried out in accordance with the law or not?

New one on me - I thought that this was exactly what the court is there for?

jc

PHB

I couldnt be sure but I dont think our neutrality is set in stone in the constitute, I thought it was fairly vague, giving DeValera some leeway.

Couldn't be sure, anyone a law student

Sparks

PHB,
Totally correct, our neutrality is a matter of policy, and the recent proposal to put it into the constitution was laughed out of the Dail (though the fact that it was Sinn Fein that proposed it was probably the reason for the derision, if not the dismissal).

However, Horgan's case wasn't founded on our supposed neutrality, but on different articles in the constitution, which specifically stated that we cannot take part in a military action unless the Dail votes to do so. Horgan's argument (as I understand it, and I am afraid I couldn't find the court transcripts), was that since we'd given logistical support prior to a Dail vote, it was unlawful. And according to a poster on indymedia (I know, I know... like I said, I've not seen the transcripts and I want to wait till then before I give a final opinion), the judge stated that such articles were "aspirational". If true, something's fishy in the state of denmark...

Thing is, it's not that disappointing - had Horgan won, the Government would have this in the Supreme court before close of business today. So we always knew this would end up there - hopefully Horgan will take it there.

Sparks

From today's Irish Times:

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.
© The Irish Times

HFXOC

Fatso Harney must be delighted with herself now. She'll claim she is now vindicated in her decision to position this country on all fours in order to take it up the jackise from her right wing buddies in the US- in an economic kind of a way that is !?!.

Originally posted by HFXOC
Fatso Harney must be delighted with herself now. She'll claim she is now vindicated in her decision to position this country on all fours in order to take it up the jackise from her right wing buddies in the US- in an economic kind of a way that is !?!.

unparliamentary language:D
Well it is in our economic interest to be friendly, in the way that we have been.
While I'd not be expecting U.S companies to pull their 90,000 jobs out of this country, a simple change in the tax laws in the states by the Bush administration might make that a possibility.
Also, it makes it easier,to go to the states and ask for more investment,similar to when in the 80's we used go to the states to ask for an increase in the tens of thousands of green cards issued to Irish people during our worst economic times.
Money made in that time, often came home to Ireland from the U.s,as it has for generations and obviously from the U.K also.

This decision was always going to go this way in my view as I pointed out in your last thread on this subject HFXOC.
The governments decision was circumspect, thats all.
mm

HFXOC

It is regrettfully the case that Ireland has surrendered its integrity and independence for US blood money.

When the cretin in the White House moves from target to target - spoofing us all on WMD, the Axis of Evil, Al Qaeda, Terrorist states, opponents of free loving nations (upchuck violently), fundamentalists ( thats Mulsim not Christian), communists, pinkoliberals, environmentalists, individuals( not big business), organic farming, broccolloi farmers, pretzel makers, dictionaries/thesaurus' publishers and every other country/person who is not signed up to the tomcat morals of the GOP - will we, Ireland, say " You de boss Massa George - Anything you say Massa George"?

Will we, CAN we, ever say " No we won't be doing that?"

If the answer is never then we should just apply now, as the newest member of the Union, for all the federal packages available.

Corben Dallas

with that kind of reaction generated by 'Fatso Harney' i reckon i'll be voting for the PD's in the next election HFXOC

See its like this ( to paraphrase the text heavy stuff above) the government is elected to make policy decesions, like wheter they continue to allow the US to use Shannon etc, Not army commandants (individuals) who want to dictate what the govn. do for ever policy decision using our 'overused by peaceheads/tree huggers/'moral' fundalmentalists >Divorce, Abortion,Contraception issues' Consititution.

We elect them to make policy not wait for every consititution reading crackpot to approve policy.

and considering we have always allowed the US to use Shannon i dont see why this would change

Also France& Germany while actively against the war both have allowed the US refueling rights etc. indeed the US/ UK have always had massive military bases in Germany and just because Germany's policy is not to support the war i dont see them even considering to block refueling for askin the US to close their bases and leave.

Sparks

CD,
First off, Horgan's retired from the army. And if US and Irish politicians can claim to have served in the army as a mark of honourable civic service, why can't he?
Secondly, the government is elected to represent the people, and there are limits on the policy decisions they can make. That was a central point in Horgan's case - that they had exceeded those limits.
Thirdly, one of the things that emerged from Horgans case is that the actual history of US use of Shannon is wildly different from the government's statements on the matter - the US have not in fact enjoyed the freedom to use Shannon and Irish airspace prior to this government's granting of those freedoms. They were required to comply with all the relevant legislation - inspected aircraft, no weapons, etc.
Fourthly, France and Germany are not neutral, they are members of NATO and thus legally obliged to allow for overflights and refuelling. In fact, as there are US bases in Germany, for Germany to deny access to those bases would be casus belli for the US. However, every other neutral country in the EU denied overflight and refuelling rights to the US. We were the only neutral country to allow them access, and it was done over the largest civil protests in the history of the state.

Sparks

From RTE:

(16:18) The former Army commandant who took a High Court action to stop Iraq-bound US aircraft using Shannon Airport will have half his legal costs paid by the State.
Despite losing his case, the Court awarded Edward Horgan, from Castletroy in Limerick, half his costs, estimated at more than €100,000.

Mr Justice Nicholas Kearns decided that even though Mr Horgan did not succeed in his action, he had raised public law issues of general importance. He also commented on Mr Horgan's sincerity and impressive bone fides.

Mr Horgan did establish that a principle exists in international law that a neutral country cannot allow the movement of substantial troops and ammunition through its territory.
After the costs decision Mr Horgan said he believed it was fair. On the question of an appeal to the Supreme Court, he said he and his legal team would make a decision after careful study of the 71-page judgement delivered last Monday.

Sparks

http://www.gluaiseacht.org/legal/HorganvIreland/

Cork

Originally posted by HFXOC
It is regrettfully the case that Ireland has surrendered its integrity and independence for US blood money.

There was no change ingovernment policy with regards the use of Shannon airport.

Do international companies like Intel, Dell, IBM, Pepsi & Microsoft have "blood money"?

While I'd not be expecting U.S companies to pull their 90,000 jobs out of this country, a simple change in the tax laws in the states by the Bush administration might make that a possibility.

I think the country cannot risk Bush doing this. The Germans or the French did not close their airports to the US.

bonkey

Originally posted by Sparks

Thirdly, one of the things that emerged from Horgans case is that the actual history of US use of Shannon is wildly different from the government's statements on the matter - the US have not in fact enjoyed the freedom to use Shannon and Irish airspace prior to this government's granting of those freedoms. They were required to comply with all the relevant legislation - inspected aircraft, no weapons, etc.

Originally posted by Cork

There was no change ingovernment policy with regards the use of Shannon airport.

Cork - do you somehow thinnk that if you just ignore what others have posted before you that everyone else reading the topic will do the same and not see how hollow your statement is?

Do international companies like Intel, Dell, IBM, Pepsi & Microsoft have "blood money"?

Was it not you who was previously arguing that Ireland could not afford to offend the US lest we lost the investment of large companies like Intel, Dell etc.

Are you now trying to say that this is not the case? That the money we got from them was not dependant on supporting an armed invasion in another nation?

The Germans or the French did not close their airports to the US.

Again, see Sparks informative post which explains the true situation, as opposed to a wafer-thin slice of the picture you selected to support your argument.

Again, I would ask, do you think that if you ignore the previous posts' informational content that everyone else will as well?

jc

The Corinthian

Originally posted by Cork
Do international companies like Intel, Dell, IBM, Pepsi & Microsoft have "blood money"?

If the support, be it passive or active, for another state’s military policy is directly linked to economic benefits, both direct and indirect, that one may receive from that state, then there is a case for calling it blood money, although the term may admittedly be a little melodramatic.

I think the country cannot risk Bush doing this. The Germans or the French did not close their airports to the US.

The Germans or the French do not have a history of (albeit imperfect) neutrality, Ireland does. The Swiss didn’t let them use their airports either (although the Swiss are admittedly an extreme example of neutrality).

bonkey

Originally posted by The Corinthian
The Swiss didn’t let them use their airports either (although the Swiss are admittedly an extreme example of neutrality).

The Swiss went as far as not permitting the use of their entire airspace, and I think they even had their own F18s and Tornados sitting and ready to enforce this if necessary. I know I saw a hell of a lot more military aviation activity while the airspace was technically "closed" to war-related flights than normal.

Having said that, I would definitely agree that they are an "extreme example" of neutrality.

jc

Cork

Originally posted by The Corinthian
If the support, be it passive or active, for another state’s military policy is directly linked to economic benefits, both direct and indirect, that one may receive from that state, then there is a case for calling it blood money, although the term may admittedly be a little melodramatic.

Well I just not agree with the term "blood money" - I think it is emotive and a little OTT. I totally agree with Corinthian on this point.

De valara did not allow the British to use the treaty ports during WW2 - but we aided the British during WW2.

Devalera probably did not put neutrality into the 1937 constitution - because not doing so gives flexability. There were also political reasons for Irish neutrality.

I agree with Ireland remaining nuetral - but as the EU begins to see itself as a military power. We need to figure out - what our neutrality means.

I personally do not favour military alliences either within or outside the EU. But I am undecided about putting neutrality into the constitution.

The Corinthian

Originally posted by Cork
Well I just not agree with the term "blood money" - I think it is emotive and a little OTT. I totally agree with Corinthian on this point.

I said that the term was a little melodramatic, but I did not say it did not have just cause for being used.

I agree with Ireland remaining nuetral - but as the EU begins to see itself as a military power. We need to figure out - what our neutrality means.

The EU does not see itself as a military power as yet and, whatever about getting her house in order militarily, may not go down that route either. To be honest, that depends upon the perceived belligerent intentions of other states.

I personally do not favour military alliences either within or outside the EU. But I am undecided about putting neutrality into the constitution.

It’s probably foolish for any state to hard-code neutrality into their constitution, for the reasons of flexibility you yourself mentioned. Even the Swiss are presently rethinking the issue to a great extent, and have begun to compromise.

bonkey

Originally posted by Cork
I agree with Ireland remaining nuetral

So you believe that acting as a "way point" for an invasion is a neutral act then?

Would you say that Kuwait was equally neutral in the recent war as well then?

jc

Cork

We allowed the US to transport soldiers through Shannon.

We were not active participarts in the war. We did not supply weapons, medical units or any personnel during this war.

I know by allowing US personnel thru our airports - we were not 100% neutral. But, everything is not either black or white.

The government had to factor in economics. The opposition on the other hand do not have the responsibilities of government.

If Bush had changed overseas regulation regarding US foriegn direct investment - the buck would have stopped with the Irish government.

It is easy to say our neutrality was compromised. But it was compromised also during WW2. I think during the Falklands war -we remained neutral. And the government back then were criticised for not backing the UK.

I think the government in hindsight took the correct action. The mass graves that were in the news were a testament to the horror of Saddam.



I

dathi1

The mass graves that were in the news were a testament to the horror of Saddam.

or wepons of mass distruction? He had a long way to go to catch up on Rumsfelds body count quota in Laos / cambodia. Now...what was the quota of dead Iraqis so far to get to these WMDs...i mean ahem! mass graves.

The Corinthian

Originally posted by Cork
I know by allowing US personnel thru our airports - we were not 100% neutral. But, everything is not either black or white.

First time I’ve noticed a moral pragmatism from you Cork

If Bush had changed overseas regulation regarding US foriegn direct investment - the buck would have stopped with the Irish government.

Hence the understandable, if a little melodramatic, accusation of blood money.

The mass graves that were in the news were a testament to the horror of Saddam.

With respects, that’s sounds like the argument of an apologist.

Sparks

We allowed the US to transport soldiers through Shannon.
We were not active participarts in the war. We did not supply weapons, medical units or any personnel during this war.

We granted them permission. That's an active act. We provided logistical support, over the objections shown by the largest civil protests in the state's history, but we provided it nonetheless.
That was an immoral act. And frankly it cannot be fudged.

The government had to factor in economics.

How much for a human life? How much for our neutrality? How much for our morality?

If Bush had changed overseas regulation regarding US foriegn direct investment - the buck would have stopped with the Irish government.

That would be about the first time that that has ever happened...

I think the government in hindsight took the correct action. The mass graves that were in the news were a testament to the horror of Saddam.

Actually, those graves have a measure of responsibility with George Bush, Senior's name on it.