Is Neutrality Enshrined in Bunreacht Na hÉireann?

Bunreacht Na hÉireann wrote:

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution.

The above is taken from the preamble of Bunreacht Na hÉireann. The preamble is aspirational in nature and cannot be put before a court in itself to be examined.

It’s my contention though, that despite being aspirational, that the preamble is the spirit of the constitution and being such, any article or law that violates it can be examined as being an unlawful violation of Bunreacht. This of course is a supposition on my part and if I’m wrong, my whole argument fails, in a legal sense, at its very foundation. However, regardless as to the legal nature of the preamble, it cannot be said that it does not exist. I say this to contrast with Ireland's alleged neutrality policy, which does not exist on paper. Which one is the real neutrality policy?

The preamble obviously calls for some type of neutrality. I reckon that whatever type of neutrality it calls for, it would fall well within the definitions of neutrality enshrined in both the Hague Convention and the Geneva Conventions. To actively attempt to establish peace and agreement with other nations, via prudence, justice and charity cannot entail warlike actions or the support of belligerents in their warlike actions. Also, please note that the preamble does not refer to “Irish individuals.” It refers to “individuals.” This is a massive generalisation and it covers everyone on the planet.

I’ll not go into any further detail at this point as I’d like to see whether this idea can be developed by argument.

Before I go, allow me to add three more ingredients from Bunreacht into the mix for consideration.

Bunreacht Na hÉireann wrote:

15.4. 1° The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

15.6. 1° The right to raise and maintain military or armed forces is vested exclusively in the Oireachtas.

15.6. 2° No military or armed force, other than a military or armed force raised and maintained by the Oireachtas, shall be raised or maintained for any purpose whatsoever.

Also presumably relevant:

Article 29

1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international justice and morality.

2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination.

I think that certainly calls for neutralism and non-belligerence.

I started a thread on the 'sacred' nature of the constitution, in which I argued that it goes beyond legal matters and becomes almost spiritual, for better or for worse. This seems to be spirit in which Hermes reads the constitution.

I do not accpt the preamble has any major importance. To me, it is a rhetorical flourish,calling for motherhood issues like peace and prosperity. I don't see how it 'obviously' calls for neutrality either, apart from the prudence piece. Justice and charity can be achieved outside of military conflict, but not always. Were we just to the Poles when we stayed out of the second world war? Were we being charitable to the Somalis when we watched their state fall apart?

There are clear legal calls for neutrality, mentioned by Hermes and Ibis. These should be enough, without having to go into 'spiritual' rhetoric that can cause harm as well as good.

Maybe "spirit" was a bad choice of words. How about "template?"

With regard to Poland and Somalia, our non action didn't contribute to the atrocities to begin with. Neither did we act with prudence, justice and charity. But that's the argument I'm making to begin with. It seems that any spirituality exercised here has nothing whatsoever to do with the constitution and is both spiritually and morally bankrupt.

The Horgan judgement seemed to say the Constitution was all well and good, but the Dail had to get on with running the country and could pretty well ignore any difficult bits.

cactus flower wrote:

The Horgan judgement seemed to say the Constitution was all well and good, but the Dail had to get on with running the country and could pretty well ignore any difficult bits.

That has to be one of the best summaries I've heard to date. It's the crux of it.

The Constitution seems to say that Ireland should not be neutral if it comes down to a battle between international law and those who would ignore it, or between those who would seek a peaceful resolution of problems and those who would seek to unilateral enforce a solution.

I think I know what you're arguing ZE, would you mind expanding it so that I don't drag us off on a tangent?

My point is simply that a commitment to international law and peaceful and just resolution of conflict isn't the same as neutrality, e.g. Swiss banks accepting Nazi spoils of genoicide becuase Switzerland does not take sides.

Zhou_Enlai wrote:

The Constitution seems to say that Ireland should not be neutral if it comes down to a battle between international law and those who would ignore it, or between those who would seek a peaceful resolution of problems and those who would seek to unilateral enforce a solution.

Where does it say that, Zhou?

It seems that I would have dragged us off on a tangent.

I agree with you. And I thoroughly concur with the idea that neutrality should not have as its goal, a reprehensible act like the swiss example you cited. Allow me to cite one of my own. Ireland's neutrality should not be a pandering and fawning act to facilitate foreign investment.

I thought that was more to do with joining the Partnership for Peace NATO group, Hermes ?
Although I honestly, on reflection, I think the balance sheet brought in the FDI, not our presumed neutrality.

CF wrote:

I thought that was more to do with joining the Partnership for Peace NATO group, Hermes ?
Although I honestly, on reflection, I think the balance sheet brought in the FDI, not our presumed neutrality.

You're quite right imo. It couldn't and wouldn't have happened though without our fabled neutrality policy to grease the wheels of public acquiescence. Our neutrality policy is the backdrop and acts as a major comfort blanket. As long as folks believe that they are safe they'll put up with practically anything they are told will facilitate it.

cactus flower wrote:

Zhou_Enlai wrote:

The Constitution seems to say that Ireland should not be neutral if it comes down to a battle between international law and those who would ignore it, or between those who would seek a peaceful resolution of problems and those who would seek to unilateral enforce a solution.

Where does it say that, Zhou?

Article 29 as quoted by ibis, viz

29.1 - Ireland affirms its devotion to the ideal of peace
and friendly co-operation amongst nations founded
on international justice and morality.

29.2 - Ireland affirms its adherence to the principle of the
pacific settlement of international disputes by
international arbitration or judicial determination.

29.3 - Ireland accepts the generally recognised principles
of international law as its rule of conduct in its
relations with other States.

I am a bit tender after the match last night so my paraphrasing might not be up to scratch.

well we have the answer this already?

De Valera wrote:

29.3 - Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.

Has anyone tried to use article 29.3 to challenge the practice of letting US troops pass through Shannon? Assuming that the invasion of Iraq was against the generally recognised principles of international law, then perhaps a case could have been made (at least up until the UN resolutions passed after the war).

DeGaulle wrote:

Has anyone tried to use article 29.3 to challenge the practice of
letting US troops pass through Shannon? Assuming that the invasion of
Iraq was against the generally recognised principles of international
law, then perhaps a case could have been made (at least up until the UN
resolutions passed after the war).

Yep. Ed Horgan did: Link

Judge Kearns effectively ruled that Ireland need only aspire to upholding the law, as opposed to actually upholding it.