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A FORMER ATTORNEY General has said constitutional questions could arise in certain scenarios if Ireland were to avail of support from foreign militaries to plug a gap in security during the state’s presidency of the European Union.
Ireland takes on the rotating presidency of the EU from July to December next year, and is set to host a range of high-profile meetings and events during that period. Ireland last held the role in 2013.
By far the biggest event will be the summit of the European Political Community – a meeting of presidents and prime ministers from across the EU and further afield. The leaders of Ukraine and the UK are expected to attend, alongside their counterparts from France, Germany and the other EU powers.
Last week The Journal revealed that concerns were mounting across Europe regarding Ireland’s ability to secure such events.
It follows drone incursions in recent weeks at airports in Germany and Brussels – as well as in Denmark, which is the current holder of the EU presidency. Ukrainian president Volodymr Zelenskyy has said that illicit Russian vessels which form what’s known as the Shadow Fleet are being used to launch the drone swarms.
Concerns have been raised within militaries elsewhere in the 27-nation bloc around Ireland’s abilities to police its skies.
There’s a particularly grim assessment, sources have said, around the ability to detect and engage malicious drone flights – either single unmanned aircraft or the kind of swarms that have caused chaos elsewhere in Europe.
Sources said there had been discussions behind the scenes in Government policy sections about whether or not Ireland can avail of help from abroad.
The Irish navy does not operate any ship which has radar to track targets or suspicious aircraft. One possibility discussed as part of preparations was whether a navy ship from abroad could be brought in to provide cover.
The Journal understands that no specific country has been identified in these discussions and that there has been no agreement, with well placed sources saying discussions were at the “informal” level.
However, Senator Michael McDowell – who served as Attorney General between 1999 and 2002 and later as justice minister – said that the provisions of the Irish constitution in regard to the Oireachtas’ control over military matters were clear.
Any agreement to station troops here under the command of another EU nation or operate a ship off the coast would be unconstitutional under Articles 15.6.1 and 15.6.2., McDowell said.
These articles establish that only the Oireachtas has the right to “maintain military or armed forces” and that no military force, other than one “raised and maintained by the Oireachtas” can be used for any purpose.
“It doesn’t stop foreign ships coming on courtesy calls, and never has done but if a presence of a foreign military force for military purposes, including security, is in contemplation, it’s arguably unconstitutional,” he said.
McDowell said this would not be an issue if they were, for example, military trainees from Ukraine coming to Ireland to train with the Defence Forces but that the presence of foreign troops acting as a foreign force would be unlawful.
In the case of the hypothetical trainees, “they would not be a military force, they would be individual trainees and they wouldn’t be subject to anybody’s command”.
“But if it’s a French destroyer or ship or aircraft carrier, wherever it is in Irish waters, providing security, as long as it’s in Ireland it’s unlawful.”
He added that if forces were “seconded to Irish military command” then it may be different.
Sources we spoke to said that there had been informal discussions on the use of a ship from another navy and where it might be placed. Any ship patrolling more than twelve miles off the coast would be outside the limit which denotes Irish sovereign waters and skies.
It is understood that analysts have determined that the most likely airborne threat to any summit would be a drone swarm, which could be launched from a ship off-shore – as suspected in the recent incursions into Denmark’s airspace.
Sources said that such a launch could be facilitated by a so-called ‘coaster’ – a small cargo ship.
A scenario being examined in the informal background discussions is that the naval vessel tasked with assisting the Irish security operation would sit outside the twelve mile limit, acting as an early warning system.
McDowell explained that if the vessel was outside that limit then it would be difficult to object – but added that if it was to engage targets within Irish sovereign waters then there would be significant legal problems.
Looking at the security situation more broadly, one consideration – as identified in our previous article – is that even if the Government does expedite the purchase of radar and counter-drone equipment, there may not be enough time to train Irish personnel to use it.
McDowell believes that there would be no legal impediment to bringing in experts from abroad to assist Irish forces in its operation, in that scenario.
Barry Andrews MEP has been vocal about Ireland’s need to upskill and increase its capacity to defend itself.
Speaking by phone to The Journal while on a trip to Ukraine, Andrews said that there are growing concerns across Europe, even before the EU Presidency security fiasco emerged.
The Fianna Fáil MEP said that there is a growing awareness of Ireland’s “security shortcomings” across European institutions and said that this is embarrassing for Irish interests.
“I think Ireland’s deficits are beginning to become a problem.
He said the presence of the Russian fleet in Irish waters and the vulnerability of sub-sea cables had become a concern within Europe “and the massive under investment in Irish defence has also begun to come to their attention as well”.
We contacted the Department of Defence and the Department of Foreign Affairs and Trade for comment.
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