The Constitution of Ireland declares Ireland to be a sovereign independent democratic state.
This declaration of sovereignty means that the State is not subject to any power or government.
But sovereignty to be recognised in International Law brings with it rights and duties.
International law is based upon the concept of the state and the exercise by that state of effective control over it’s own territory. Territorial sovereignty is the key concept in International Law in particular in regard to territorial defence.
Ireland is not fulfilling its key obligations in International law. The Russians have already hacked our health system, and acted in a hostile manner in positioning warships over our crucial underseas cables (our south-western approaches) yet because of our reckless disregard for our own security we had insufficient number of naval personnel to deploy our ships or put an adequate number of aircraft in the sky. Yet the government are engaged in a massive PR exercise on celebrating a centenary of independence.
Rules of international law come from two main sources, treaties and customary international law, both of which are created by States. States are bound by the rules to which they have chosen to bind themselves.
Every State has jurisdiction over its territory. That is obvious given the concept of Statehood with which international law operates.
Article 5 of the Constitution Proclaims: “Ireland is a sovereign, independent democratic state.”
The territory of the State is the whole of the area within its borders and also the adjacent territorial seas up to 12 miles from the coast. It includes the airspace above and the subsoil below. The 1982 UN Convention on the Law of the Sea provides a comprehensive legal framework for the use of the seas along coastal States to exercise jurisdiction over the living, fish, whales etc. and non-living resources, oil, gas etc. of the sea and seabed and over certain other matters including pollution, scientific research and other installations such as oilrigs in a 200-mile exclusive economic zone adjacent to its coast.
What does this mean?
Therefore, it is not open to Ireland to abandon its responsibilities for its territory, airspace and exclusive economic zone.
It is the sovereign duty of the State to deploy its ships into our exclusive economic zones off our coasts.
It is our sovereign duty to police our airspace.
It is questionable whether it is a permissible delegation in international law to have another sovereign State police our airspace to interrogate aircraft.
It would appear that the Government have authorised British military aircraft to interrogate unidentified civil aircraft that fails to identify itself by radio or radar as it approaches Ireland from the Atlantic. It begs the question after interrogation if it is unsatisfactory and the aircraft is perceived as being hostile either by being hijacked or otherwise is there a power of interdiction also delegated?
It would appear that the Government have authorised British military aircraft to interrogate unidentified civil aircraft that fails to identify itself by radio or radar as it approaches Ireland from the Atlantic. It begs the question after interrogation if it is unsatisfactory and the aircraft is perceived as being hostile either by being hijacked or otherwise is there a power of interdiction also delegated?
It would appear that the British Prime Minister can authorise the interdiction of a civilian aircraft that is being weaponised.
We do have a National Security Committee and the risk of an aircraft being weaponised is real but there is no effective democratic oversight of national security in Ireland. The Oireachtas and members of the Dáil and Seanad do not have access to classified information at any level. Ireland is one of the most secretive democracies when it comes to democratic oversight of national security issues.
The Oireachtas and members of the Dáil and Seanad do not have access to classified information at any level. Ireland is one of the most secretive democracies when it comes to democratic oversight of national security issues.
But this is a questionable delegation or power; it has all the hallmarks of an abdication of responsibility by our Government. Our duty of impartiality in International Law may not be viewed as neutral delegating to a NATO Country a power of interruption and possible interdiction. Of course we can request assistance, but the duty falls primarily on us under the self help principle.
These are the real questions that our democratic representatives should be raising in the Dail and Seanad. The right to raise and maintain armed forces is vested in the Oireachtas. Why is our navy not capable of deploying naval vessels in our seas and exclusive economic zone? Why has our air corps not capable of policing our airspace a task that could be executed by the Air Corps in the 1960’s with Vampire jets then replaced by Fouga magisters but not now equipped with aircraft fit for purpose and the discharge of their primary task.
Are we to spend the next 50 years pointing an accusing finger at the British for the destruction of an aircraft interdicted by them in our airspace when we have already spent 50 years pointing an accusatory finger at Britain in the media for the possibility that the Aer Lingus Viscount St. Phelim was accidentally shot down by a British missile off the coast of Wales? On that occasion the recovery of the Aer Lingus wreckage was carried out by the Royal Navy. The failure of a State to carry out its assigned duties as a State undermines the very existence of that State. It was the sovereign duty of the State to deploy its Navy off the south-west coast when there was suspicious activity being carried out by Russian vessels. That is the task of our naval vessels.
..we have already spent 50 years pointing an accusatory finger at Britain in the media for the possibility that the Aer Lingus Viscount St. Phelim was accidentally shot down by a British missile off the coast of Wales? On that occasion the recovery of the Aer Lingus wreckage was carried out by the Royal Navy. The failure of a State to carry out its assigned duties as a State undermines the very existence of that State.
It is the task of our Air Corps to defend our airspace.
It is the task of our Defence Forces to defend our citizens, our territory our air space and our seas.
It is the task of the Army Communications branch to guard and defend the institutions and organs of state from cyber attack. It is the duty to provide the resources and not be causing permitting or allowing money to be paid to Russian criminal organisations operating from within Russia. That is the primary task of the Defence Forces and not to be deployed carrying baggage at Dublin airport so that people can go on their holidays while war is waging in Europe.
That is not to suggest that we have the power to take on the Russian Navy. That is absurd but we do have a sovereign duty nonetheless to police our airspace and economic zones. Our first duty is to defend ourselves. We can of course summon aid from our allies and friends, but it is our duty in the first instance.
In modern societies self-help has become the exception rather than the rule, whereas in international law it has remained the rule.
There is a current debate over the propriety of the use of force in contexts such as Iraq 2003 and Libya 2011 and the Middle East more generally 2014 onwards.
The British and American invasion of Iraq in 2003 was illegal and in breach of international law. It altered the international environment that led to Russian interference in Syria, culminating in the illegal Russian invasion of Ukraine in 2022.
The invasion of Iraq by Britain and the United States in 2003 was illegal and in breach of international law. Rules of international law come from two main sources, treaties and customary international law, both of which are created by States. States are bound by the rules to which they have chosen to bind themselves.
The current Human Rights Act in England requires the courts to interpret legislation compatibly with the European Convention of Human Rights so far as possible but the new British bill of rights scraps the obligation.
The British Government has failed to ensure equal language rights for Irish nearly a quarter of a century after the Good Friday Agreement and is currently seeking to override the Brexit agreement on Northern Ireland.
These acts make the abdication of responsibility for our airspace incomprehensible. By all means we should make a contribution by an input of Air Corps personnel with suitable aircraft to joint Combat Air Patrols. The current Pilatus PC9 pilots could be upgraded as they are trained on jet aircraft. This will cost money as will the provision of cyber security but Ireland is an EU and global technology and communications hub and we owe it to ourselves as a sovereign people – it is what independence means. National security cannot be privatised or delegated and should be subject at all stages to the implementation and transparent oversight of all political parties in Dáil and Seanad Eireann. It is what we the people proclaimed.
Countermeasures
Countermeasures must be proportionate to the wrong suffered and must not violate the rules of international law or the protection of human rights or the use of force.
Ireland has adopted the correct position in condemning and denouncing the illegal Russian invasion of Ukraine. Protests by Governments are significant because disapproval and a cooling of relations between States is significant. But politicians calling for the closure of the Russian Embassy in Dublin are not helpful; they further contribute to the undermining of international law. There are many countermeasures open to states such as the full sanctions regimes currently being implemented by the EU including Ireland.
Other measures include the grant or withholding of overflight rights for aircraft, the range of possible measures that a State may adopt is enormous and the cost to the target State of the imposition of such measures can be very high.
But these measures do not absolve the state from the self help obligation to make real efforts to protect our sovereignty. It should not be left to the fishermen although they too like all our citizens have a role to play.
State responsibility
It is an elementary principle of international law that a State is entitled to protect its citizens. But there is a symmetry here in that an action of an individual or corporation may amount to an action of a State. The attribution of acts to States is the concern of the doctrine of State responsibility. Acts of individuals or corporations are attributable to a State when those acts are exercises of the legislative, executive, judicial or other governmental functions of that State. This is in the context of attacks on the HSE.
Actions of NATO
NATO contributed to creating instability in the Ukraine by sending out mixed messages in terms of it’s support for Ukrainian membership of NATO.
It has also contributed to the mass refugee crisis by promoting the NATO backed uprising in Libya that topped and killed Gaddaffi in 2011. Since, then Libya has wallowed in chaos and lawlessness with the collapse of any centralised authority and the criminal treatment of refugees. This has contributed to instability in Europe.
The central concept of NATO that an attack on one is an attack on all is absurd. Britain violates international law in engaging in an illegal invasion of Iraq and NATO and EU countries including Ireland have to foot the security bill because the natives they bombed and killed follow them back home across the refugee trail from Calais to England and attack the British on their home territory.
Britain and the United States
A sovereign country can be occupied but still be sovereign. Sovereignty is something that can be surrendered by a state but cannot be forcibly removed. What can be forcibly removed is independence.
The choice is not between neutrality and NATO membership. This is not an argument for NATO membership but an argument for a proper defence capability to vindicate our independence and to assert our neutrality. Neutrality should not be confused with pacifism. Pacifists would be neutralists but neutralists would not necessarily be pacifists.
Ireland exercises what is a flexible concept of “qualified neutrality”. Ireland is not the only state to seek to exercise qualified neutrality but it is one of the few states that has done it for such a long period of time, effectively since the foundation of the state.
The leading case in Ireland is Horgan v. An Taoiseach 2003 2 ILRM 357
In the High Court’s decision on Horgan Kearns J, acknowledged that: “There does still exist in international law a legal concept of neutrality whereunder corelative rights and duties arise for both belligerents and neutrals alike in times of war”. Which particularly demand of neutral states to abstain “from any active or passive cooperation with belligerents” including the duty to render assistance to any of the belligerents as well as the duty to prevent “the belligerents from making use of neutral territories and neutral resources for their military-enabled purposes.”
This concept of “the duty to prevent the belligerents from making use of neutral territories” and neutral resources for their military-enabled purposes adds another layer of duties in respect of neutral states and this is where Ireland falls down badly with its current lack of defence capability.
Austria defends its non-alignment with investment in a strong defence capability.
Our Government needs to fulfil its primary duty to it’s people from whom is derived the sovereignty of the State.
