24 November 2016

Speech by Willie Penrose TD in  Dáil Éireann on proposed Thirty-Fifth Amendment of the Constitution (Neutrality) Bill 2016

Labour supports Irish military neutrality. More importantly, we also believe that the principle is supported by the bulk of the Irish people, and that it should therefore be incorporated into the text of the Constitution.

We will be supporting this Bill. It is bizarre that the Government should oppose a Bill to amend the Constitution on the grounds that it is unconstitutional. Yet that, effectively, is what the Government amendment argues.

In the hope that the Bill reaches committee stage, I want to briefly outline the reasoning for some of the amendments to the Sinn Féin text we will propose, which I believe will improve its effectiveness.

First, we need to distinguish between neutrality in time of peace and neutrality in time of war. Neutrality in time of peace means that the State is not a member of a mutual defence alliance – that it does not commit itself in advance to the defence of its allies, even if it is not itself attacked.

That is the rule which the Sinn Féin Bill seeks to enshrine in the Constitution. Ireland is not a member of any mutual defence alliance. I think it would probably be unconstitutional for us ever to join such an alliance.

Some members will recall Raymond Crotty’s case against the State. His case arose from the proposal to sign up to the Single European Act, with its very tentative arrangements for European Political Co-Operation, without a referendum.

In the event, the Supreme Court held that European Political Co-Operation interfered with the unfettered discretion of the Government to conduct foreign affairs and would be unconstitutional without a referendum.

In the same way, it seems to me that a binding advance commitment on the part of the State to go to war in future but unknown circumstances would have to be an unconstitutional overriding of the Dáil’s sovereign discretion and choice.

Article 28.3.1 provides that: “[w]ar shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann”.

For that reason, it seems to me highly likely that the courts would hold that, under the Constitution as it reads at present, it would not be possible to sign up to a military mutual defence alliance.

The second aspect of neutrality relates to our obligations in time of war. This has directly arisen in the context of the two Gulf Wars and the assistance provided to the US military by Governments here.

Neutrality in time of war relates to the rules of international law that impose requirements on non-belligerents. Neutrals are entitled to have their territory respected and unaffected by the consequences of an armed conflict, but only so long as their activities do not benefit one belligerent at the expense of the other.

A state that supports either of the parties to the conflict loses its neutral status.

So, in time of war, states that proclaim themselves to be neutral in a war cannot aid or hinder either side of the conflict and must keep the conflict from entering their neutral territory.

But this is subject to one overriding consideration. Ireland is a member of the United Nations. Chapter VII of the UN Charter confers on the Security Council a capacity to instruct member states as to how to react when there is a threat to international peace and security.

Those instructions could include, for example, the taking of sides in a time of war and the loss of neutrality. Compliance with Security Council resolutions may entail loss of neutrality in time of a war in which the State is not a participant. The First Gulf War is a case in point.

In the event of any threat to the peace, breach of the peace, or act of aggression, the Security Council is authorised to make recommendations, to call for the employment of measures short of force, or to take forcible measures to maintain or restore international peace and security.

If a state is called upon to take military action against an aggressor, or to assist those who are taking such action, that state loses its right to remain neutral and actually loses its neutrality to the extent that it complies with the direction of the Security Council.

There is one important issue that arises here. Because of the reasoning of the Supreme Court in the Crotty Case, Irish membership of the UN may in fact be unconstitutional. This proposition is realistically discussed in learned legal circles but it has not been given much political prominence.

The reasoning in the Crotty Case is that the State is not entitled to fetter its sovereign discretion in the conduct of its foreign relations, by entering into prior and binding commitments as to how it will act in the future.

Yet a central purpose of the UN Charter is to bind and commit each member state to comply with future resolutions of the Security Council.

So, for the same reasons that signing up to EPC required a referendum, so also, probably, would membership of the UN if it were to happen tomorrow.

Any proposal to amend the Constitution to deal with neutrality should deal with this issue. I believe the text should specifically reference and approve our membership of the United Nations.

The other issue the text should deal with is the enforceability of these rules in our courts. Can the courts intervene if the State breaches neutrality?

It is instructive, I think, to look at the different ways in which the Dáil responded to the two Gulf Wars. The difference between the two is that there was a UN mandate for military action after the invasion of Kuwait, but there was no mandate for the second, disastrous episode.

In the first case the Dáil noted that under the United Nations Charter all member states were bound to accept and carry out the decisions of the Security Council, in accordance with the Charter. The Dáil declared its full support for the decisions of the Security Council and it specifically noted Resolution 678, which requested all states to provide appropriate support for the actions taken in pursuance of the Resolution.

It was under the terms of Security Council Resolution 678 that the State was bound to provide support, including overflight and Shannon stopover facilities for the US military.

On the other hand, in 2003 the Dáil regretted that the US-UK coalition was launching a campaign against Iraq in the absence of agreement on a further Security Council resolution. The Dáil, however, went on to recall what the resolution referred to as “the long-standing arrangements for the overflight and landing in Ireland of US military and civilian aircraft” and it supported the decision of the Government to maintain those arrangements.

In other words, the Dáil supported the Government in abandoning our neutral status, without any UN mandate or justification.

Just for the record, however, it is important to remember that the US-UK coalition returned to the Security Council at a later stage and they sought and secured a mandate for their efforts to return some peace and stability to the region. The overflight and Shannon stopover arrangements that were in place as and from that date did therefore have a UN mandate.

I would argue that our Constitution, as is now proposed to be amended, should provide us with some assistance in differentiating between these two scenarios. In both cases US aircraft were permitted landing and overflight facilities at Shannon. In the first case there was a Security Council resolution requesting all states to provide appropriate support, while in the second case there was no UN mandate.

Edward Horgan sought court declarations that the Government decision to permit US military aircraft engaged in the Second Gulf War to overfly the State and to land and be refuelled at Shannon was in breach of Ireland’s neutral state duty and constituted participation by the State in a war without Dáil assent, in breach of Article 28.3 of the Constitution.

The High Court held that our State’s compliance with generally recognised principles of international law was not enforceable by the courts. In fact the court went further and held that the discretion of the Government in international relations could not be fettered by reference to rules of international law.

The High Court also held that what constituted “participation” in a war, within the meaning of Article 28.3.1 of the Constitution, was a matter to be decided by the Dáil itself.

I think it is noteworthy that, for the purpose of these arguments, the High Court did accept that international law imposed duties on non-belligerents. The question was whether the court could enforce them.

However, although this rule does exist in the international plane, the High Court’s position was that, under the Constitution as it stands, the rule is not enforceable.

Again, this Bill presents an opportunity to remedy this defect.

In summary, a constitutional amendment should do five things. First, it should secure Ireland’s membership of the United Nations.

Second, it should explicitly prohibit the State from membership of a military alliance for mutual defence.

Third, it should prohibit the State, unless authorised by the United Nations and with Dáil assent, from declaring war, participating in war, sending the Defence Forces to participate in any form of armed conflict or providing any assistance to belligerents in time of war.

Fourth, it should be made clear that the Defence Forces could continue to take part in training, joint exercises, rapid reaction forces and the like, in preparation for UN-mandated international missions.

And finally, but most importantly, the amendment should provide that its terms were “justiciable”, i.e., that the text was cognisable and enforceable by the courts.

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