Horgan v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 28 April 2003
• Neutral Citation: [2003] IEHC 64
• Court: High Court
• Docket Number: [2003 No. 3739P]
• Date: 28 April 2003

HORGAN v. AN TAOISEACH & ORS

BETWEEN

EDWARD HORGAN

PLAINTIFF

AND

AN TAOISEACH, THE MINISTER FOR FOREIGN AFFAIRS, THE MINISTER FOR TRANSPORT, THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2003] IEHC 64

No. 3739P/2003

THE HIGH COURT

Synopsis:

CONSTITUTIONAL LAW

Neutrality

International law - Separation of powers - Refuelling of aircraft at Shannon airport - Whether actions of Government in breach of principle of neutrality - Whether issues raised justiciable by courts - Air Navigation and Transport Act, 1946 - Air Navigation (Foreign Military Aircraft) Order, 1952 - Bunreacht na hÉireann, 1937 Articles 28, 29.3 (2003/3739P - Kearns J - 28/04/2003)

Horgan v An Taoiseach - [2003] 2 IR 468 - [2003] 2 ILRM 357

The plaintiff, a former officer of the Irish Defence forces, initiated proceedings seeking declarations that the decision of the Government to permit United States military aircraft and civilian aircraft carrying American troops to either overfly Shannon airport or to land and re-fuel at Shannon airport was in breach of the neutrality of the Irish State and in breach of the Constitution. It was contended that this facilitation by the State constituted participation in the war been waged by the United States and Britain against Iraq which further infringed the principle of neutrality. In addition it was submitted that there could no question of the State adopting some form of qualified neutrality: a country either participated in a war or adopted neutrality as set out in the 1907 Hague Convention V. A neutral country could not allow belligerents to move troops or munitions across its territory in time of war. As part of the agreed facts submitted to the Court it was stated that between 1st of January, 2003 and the 20th of March 2003 there had been 762 overflights by military aircraft and 41 military aircraft had landed at Shannon. On behalf of the defendants it was contended that the decision of the Executive and the resolution passed by Dáil Éireann (relating to the longstanding use of Shannon by US military aircraft) both enjoyed the presumption of constitutionality. It was submitted that the continued operation of an arrangement with another friendly power whereby that power was permitted the use of airspace or facilities for its aircraft did not convert the Irish State into the status of a participant in a war.

Held by Kearns J in refusing the relief sought. It was clear from judicial authority that no individual rights arose under Article 29 of the Constitution and as such Article 29 only referred to relations between States. Articles 15, 28 and 29 of the Constitution demonstrated that the Government alone exercised executive power and its freedom and discretion were only subject to the exceptions set out in the Constitution. The Executive could not be told either externally or internally how to conduct its relations with other States. The wide discretion afforded to the Executive in relation to international relations could not be curtailed by the operation of general principles of customary law. Some quite egregious disregard of constitutional duties and obligations would have to be placed before the Court before it would intervene under Article 28 and the Court was not persuaded that any such untoward conduct had occurred. The plaintiff's claim under Article 28 of the Constitution also failed.

Citations:

CONSTITUTION ART 29.3

CONSTITUTION ART 28.3

AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER 1952 SI 74/1952 ART 3

AIR NAVIGATION (CARRIAGE OF MUNITIONS OF WAR WEAPONS & DANGEROUS GOODS) ORDER 1973 SI 224/1973 ART 5

AIR NAVIGATION (CARRIAGE OF MUNITIONS OF WAR WEAPONS & DANGEROUS GOODS) (AMDT) ORDER 1989 SI 130/1989

CONSTITUTION ART 28.2

CONSTITUTION ART 28.3.1

CONSTITUTION ART 29.1

CONSTITUTION ART 29.2

CONSTITUTION ART 29.4.1

AIR NAVIGATION & TRANSPORT ACT 1946 S5

AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER 1952 ART 5

AIR NAVIGATION (CARRIAGE OF MUNITIONS OF WAR WEAPONS & DANGEROUS GOODS) ORDER 1973 ART 6(1)

CROTTY V AN TAOISEACH 1987 IR 713

MCKENNA V AN TAOISEACH (NO 2) 1995 IR 10

MCGIMPSEY V IRELAND 1988 IR 567

CONSTITUTION ART 28

CONSTITUTION ART 29

GOVT OF CANADA V EMPLOYMENT APPEALS TRIBUNAL (EAT) & BURKE 1992 2 IR 484

ACT SHIPPING (PTE) LTD V MIN MARINE 1995 3 IR 406

MCELHINNEY V WILLIAMS & SECRETARY OF STATE FOR NORTHERN IRELAND 1995 3 IR 382

HAGUE CONVENTION V (RESPECTING THE RIGHTS & DUTIES OF NEUTRAL POWERS & PERSONS IN CASE OF WAR ON LAND) 1907 ART 1

HAGUE CONVENTION V (RESPECTING THE RIGHTS & DUTIES OF NEUTRAL POWERS & PERSONS IN CASE OF WAR ON LAND) 1907 ART 2

HAGUE CONVENTION V (RESPECTING THE RIGHTS & DUTIES OF NEUTRAL POWERS & PERSONS IN CASE OF WAR ON LAND) 1907 ART 5

SCHWARZENBERGER INTERNATIONAL LAW 1968 549

SAN REMO MANUAL ON INTERNATIONAL LAW APPLICABLE TO ARMED CONFLICTS AT SEA 1994 ART 18

HAGUE CONVENTION DRAFT RULES OF AERIAL WARFARE 1923 ART 42

LAUTERPACHT INTERNATIONAL LAW 1952 685

BROWNLIE PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5ED 1998 515

UN CHARTER ART 2(4)

UN CHARTER ART 2(3)

UN CHARTER ART 51

CONSTITUTION SAORSTAT EIREANN ART 49

INTERNATIONAL LAW COMMISSION ARTICLES ON STATE RESPONSIBILITY ART 16 ILC 2001

LOWE RESPONSIBILITY FOR THE CONDUCT OF OTHER STATES JAPANESE JOURNAL OF INTERNATIONAL LAW 1–15 2002

O'LAIGHLEIS, RE 1960 IR 93

SUMERS JENNINGS, STATE V FURLONG 1966 IR 183

KAVANAGH V GOVERNOR MOUNTJOY PRISON 2002 2 ILRM 81

CONSTITUTION ART 28.4

MFM V MC 2001 2 IR 385

BYRNE V IRELAND 1972 IR 241

ROBERTS & GUELFF DOCUMENTS ON THE LAW OF WAR 3ED 86

GOODMAN INTERNATIONAL V HAMILTON 1922 2 IR 542

MCGLINCHEY V IRELAND 1988 IR 567

HARISIADES V SHAUGHNESSY 342 US 580

MAGUIRE V ARDAGH 2002 1 IR 385

O'MALLEY V AN CEANN COMHAIRLE 1997 1 IR 427

BAKER V CARR 369 US 182

CONSTITUTION ART 28.4.1

CONSTITUTION ART 28.10

CONSTITUTION ART 13.2.2

CONSTITUTION ART 17

BOLAND V AN TAOISEACH 1974 IR 338

T(D) V MIN EDUCATION 2001 4 IR 259

CONSTITUTION SAORSTAT EIREANN ART 51

UN CHARTER ART 42

CND V PRIME MIN OF UK 17.12.2002

BUCK V AG 1965 CH 745

UN CHARTER ART 2(5)

CONSTITUTION ART 15.2.1

OFFENCES AGAINST THE STATE ACT 1930 S30

WESTRAND CENTRAL GOLD MINIG CO V REX 1905 2 KB 391

CHUNG CHI CHEUNG V THE KING 1939 AC 160

MORTENSEN V PETERS 1906 8 F 93

CONSTITUTION ART 5

CONSTITUTION ART 6.1

CONSTITUTION ART 15

CONSTIUTION ART 4.1

CONSTITUTION ART 29.5.1

CONSTITUTION ART 29.5.1.6

ANGE V BUSH 752 F SUPP509

RIEGLE V FEDERAL OPEN MARKET COMMITTEE 656 F 2D 880

1 JUDGMENT of Mr. Justice Kearns delivered the 28th day of April, 2003.

2 The plaintiff is an Irish citizen and a retired officer of the Irish Defence Forces. He has a distinguished history of service to the State, including service on United Nations Peacekeeping Missions in Cyprus in 1966, 1971 and 1973, and in the Middle East in 1973/74. He left the army in 1986, since which time he has held positions in Trinity College, Dublin and Aughinish Alumina Limited in Co. Limerick. He has been engaged in full time education and research as a mature student at the University of Limerick where he completed a B.A. in History, Politics and social Studies in 2001. He was awarded an M. Phil. (Peace Studies) degree by Trinity College in 2000. Over the past 10 years he has also worked as a civilian United Nations volunteer on election and democratisation missions with the United Nations and the European Union in the following countries: Bosnia, Croatia, Nigeria, Indonesia, Zimbabwe and East Timor.

3 In these proceedings, the plaintiff claims:

4 1. A declaration that the decision by the Government made on the 19 ^th of March 2003 to maintain arrangements whereby military and civilian aircraft of the United States of America engaged in the prosecution of the military attack of the United States of America and the United Kingdom of Great Britain and Northern Ireland against the State of Iraq will continue to be permitted to overfly the State and to land and be refuelled at Shannon Airport, Co. Clare and the transit through the State with the permission of the fourth named defendant of troops of the United States en route to the said war is in breach of Ireland's neutral State duty not to permit the movement of troops or convoys of either munitions of war or supplies across its territory as a neutral Power and that the said decision of the Government is thereby in breach of Article 29.3 of the Constitution

5 2. A declaration that the decision of the Government of the 19 ^th of March 2003 and the permissions of the second and third defendants to facilitate the over flight and landing and refuelling in Ireland and in particular at Shannon Airport, Co. Clare of United States military and civilian aircraft whereby troops of the armed forces of the United States of America or convoys of either munitions of war or supplies across the territory of the State in transit to the theatre of war being prosecuted by the United States of America against the State of Iraq constitutes participation by the State in the said war and is thereby in breach of Article 28.3 of the Constitution in that a valid and constitutional assent of Dáil Éireann under Article 28.3 to such prosecution of war has not been given

6 3. A declaration that the decisions of the second and third defendants pursuant to the Air Navigation (Foreign Military Aircraft) Order 1952 and Article 5 of the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order 1973 as amended by the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Amendment Order 1989 and consequent permissions granted whereby military and civil aircraft of the United States of America are and will be permitted to fly over and through the airspace of the State and to land at airports, and in particular, Shannon Airport, Co. Clare within the State and refuel there and to move troops or convoys...