Oireachtas Joint and Select Committees
Wednesday, 3 December 2014
Joint Oireachtas Committee on Public Service Oversight and Petitions
Use of Irish Airspace and Landing Facilities: Department of Foreign Affairs and Trade
We will now proceed to deal with the role of the Department of Foreign Affairs and Trade in issuing diplomatic notes which allow foreign aircraft to enter Irish airspace and avail of landing facilities. I remind all present, including members, media and people in the Visitors Gallery that mobile telephones and blackberries must be turned off completely or switched to flight or safe mode as they interfere with the sound system even when on silent.
We are pleased to welcome Mr. Niall Burgess, Secretary General of the Department of Foreign Affairs and Trade, who will make a presentation on the role of his Department in the issuing of diplomatic notes to allow foreign aircraft enter Irish airspace and avail of landing facilities. The invitation to address the committee arose as a result of ongoing investigations by the committee in relation to petition No. 72/12, regarding the US military and CIA use of Shannon Airport and Irish airspace. Dr. Edward Horgan is the lead petitioner. Mr. Burgess is accompanied by Mr. Barry Robinson, political director; Mr. John McCullagh, political division; and Ms. Caroline Phelan, political division. I welcome them all and thank them for coming.
Before we proceed, I offer condolences on my behalf and on behalf of the other members of the committee to Mr. Burgess on the recent passing of his father. Ar dheis Dé go raibh a anam. I thank him for agreeing to proceed with the meeting at this time. Our members are keen to hear his views on the issue of diplomatic notes and the role played by the Department of Foreign Affairs and Trade.
By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give this committee. If they are directed by the committee to cease giving evidence in relation to a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
I now invite Mr. Burgess to make his presentation.
Mr. Niall Burgess:
I thank the Chair for the invitation to appear before the committee today to discuss the role of the Department of Foreign Affairs and Trade in the provision of diplomatic notes which allow foreign military aircraft landing facilities and-or permission to pass through Irish airspace.
The Chairman has already introduced my colleagues so I will not do so again.
The Department's role concerning these issues has already been set out in some detail in two letters to the committee dated, respectively, 18 December last year and 15 May this year. I will set out a short factual overview of Government policy in this respect. I am keen to maximise the time for questions and clarifications and therefore I shall keep my initial comments brief.
The Air Navigation (Foreign Military Aircraft) Order 1952, made under the Air Navigation and Transport Act 1946, gives the Minister for Foreign Affairs and Trade primary responsibility for the regulation of activity by foreign military aircraft in Ireland. The order provides that no foreign military aircraft shall fly over or land in the State without the express invitation or permission of the Minister. It further provides that aircraft shall comply with such stipulations as the Minister may make.
Arrangements under which permission is granted for the landing and overflight of all military aircraft are governed by strict conditions. These include stipulations that the aircraft must be unarmed, carry no arms, ammunition or explosives and must not engage in intelligence gathering as well as that the flights in question must not form part of military exercises or operations. Ireland's long-standing policy of neutrality, characterised by non-participation in military alliances, provides a context within which requests for overflights and landings are considered by the Department of Foreign Affairs and Trade.
Requests for permission are submitted to the Department of Foreign Affairs and Trade by the embassy of the country in question. As part of the decision-making process, the Department circulates these requests to relevant Departments and agencies. I know the committee is particularly focused on the question of landing facilities for US flights at Shannon Airport. Landing facilities have been made available at Shannon since 1959, a practice which has remained in place continuously under successive Governments. The vast majority of troops who transit through Shannon Airport do so on commercial charter aircraft. Primary responsibility for the regulation of civilian aircraft, including chartered flights, lies with the Minister for Transport, Tourism and Sport.
Under the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order 1973, the carriage of weapons through Shannon Airport on commercial aircraft is prohibited unless an exemption has been obtained in advance from the Minister for Transport, Tourism and Sport. The carriage of the personal weapons of US military personnel on board chartered aircraft in transit through Shannon Airport is subject to the issuance of an exemption in respect of each flight. Such requests are considered in the first instance by the Department of Transport, Tourism and Sport. The Department of Foreign Affairs and Trade has an opportunity to provide input on any foreign policy issues that may arise.
Questions have been raised about allowing military aircraft to land at Shannon without being subject to routine searches or inspection. Embassies of the countries requesting permission are required to confirm that aircraft are unarmed, carry no arms, ammunition or explosives and must not engage in intelligence gathering and, furthermore, that the flights in question must not form part of military exercises or operations.
It has been the practice of successive Governments to accept in good faith that details provided by diplomatic missions to all Departments are accurate. This approach is in accordance with international practice and reflects the principle of sovereign immunity. Information provided to other states by Irish diplomatic missions seeking diplomatic clearance for flights undertaken by the Air Corps is similarly accepted by those countries to be accurate. I am happy to take any questions concerning the Department's role in implementing Government policy on overflights and landings.
I thank and welcome Mr. Burgess and the other officials from the Department. I was on the delegation that went to Shannon. We talked to the airport authorities and spoke to the gardaí there. Basically, they painted a picture for us to the effect that they had no role whatsoever in the issue outlined. The way they described it these aircraft have diplomatic immunity, they were effectively airborne embassies and could not be encroached upon in any way. The statement to the committee today seems to concur, given the reference to successive Governments taking that stance.
I note the stipulation that aircraft must be unarmed, carry no arms, ammunition or explosives and must not engage in intelligence gathering as well as that the flights in question must not form part of military exercises or operations, and that this is our policy. This is based on good faith and the word of the visitors coming to us, albeit with diplomatic immunity, when they land at Shannon. The view is that under no circumstances would they be searched.
Is it possible the representatives of Shannonwatch are correct? They see certain aeroplanes landing at Shannon which, they believe, could well be involved in rendition flights, for example. They could well be carrying troops or arms on some of the flights but we would never know because those flights would never be checked. The aircraft are not entered because of sovereign immunity and a system based on the word of one government to another. Technically, we are saying that Shannonwatch could be correct, but the Government is using the diplomatic card as the reasoning for this position. Is the premise I am putting to Mr. Burgess correct?
Mr. Niall Burgess:
I would distinguish between essentially civilian flights and military flights in terms of the powers of search. Civilian aircraft come under a different legal framework. This is the framework of the Chicago convention which was incorporated into Irish law by the Air Navigation and Transport Act 1946.
Military aircraft and military landings are regulated in a different way. They do not come under the Chicago convention. They are subject to the Air Navigation (Foreign Military Aircraft) Order 1952. Sovereign immunity applies to military aircraft. I will say a word about sovereign immunity. Under Article 29 of the Constitution, Ireland accepts the generally recognised principles of international law as our rule of conduct in relations with other states. Sovereign immunity is a long-standing principle of international law. We do not grant sovereign immunity, it applies automatically. In line with this principle a state may not exercise its jurisdiction in respect of another state or its property, including state or military aircraft. It is a reciprocal principle. The principle applies to Irish state and Air Corps craft when they are out of the State.
Civilian aircraft include chartered aircraft carrying troops, for example, through Shannon. There are powers of search. The Air Navigation and Transport Act provides statutory powers of entry and arrest for a Garda officer who knows or reasonably suspects that a person has committed a crime. However, there is no basis under that legislation for random or routine entry or search of aircraft.
The question of sovereign immunity and the wider issue of rendition was raised. When the issue of rendition first emerged it was raised by the then Taoiseach with President Bush and with the US Secretary of State by the Minister for Foreign Affairs. Categoric assurances were given, subsequently confirmed at official level, that no transfers of prisoners subject to extraordinary rendition had taken place through Ireland. Bilateral relations between friendly nations are founded on the principle of mutual trust. Both parties have an interest in maintaining that trust and not undermining it. Therefore, the details supplied to the Department of Foreign Affairs and Trade by diplomatic missions are accepted in good faith as being accurate.
I wish to follow up a little. I appreciate the answer. Similar answers have been given to many parliamentary questions, etc. What is the position of sovereign immunity vis-à-visinternational human rights law? What if there were someone on an airplane coming from another country who had been tortured or was being brought to a place to be tortured? Where do the rights of these individuals sit under international law vis-à-visa state's right to sovereign immunity? Where is our role as a state in policing the international human rights of an individual?
Mr. Niall Burgess:
While there are obligations that are imposed by international human rights law, they are subject to reasonableness and proportionality. As for the operational measures, the Venice Commission of the Council of Europe, for example, in its report of 2006 referred to serious risks and substantiated claims. In its report of 2007, the Irish Human Rights Commission did not recommend a requirement that aircraft be searched. However, with regard to sovereign immunity, there is no means for overriding the principle of sovereign immunity. It is a principle of international law.
For example, a cleaner in Shannon Airport could be sent in to clean an aeroplane for some reason, only to see somebody shackled aboard the aeroplane. If, out of a fear or worry that this person's rights were being impugned, the cleaner then reported this to the authorities on the ground in Shannon Airport, Mr. Burgess essentially is telling me that even if the Government wished to intervene, it could not do so because of the sovereign immunity on that aeroplane. I ask this question to be clear.
Under the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order, the carriage of weapons through Shannon Airport on commercial aircraft is prohibited unless an exemption has been obtained in advance from the Minister for Transport, Tourism and Sport. My information is no exemptions have been sought or obtained at any stage by the American Government. Like many other people, I do not believe for one second that the 600 military aeroplanes or other aeroplanes that have passed through Shannon Airport have not been carrying some form of weapons, apart from the personal weapons the troops themselves may carry. Were that the case, why would the American Government have a problem with having examined some of the aeroplanes either by independent examiners or members of the Irish Government? Mr. Burgess referred to good faith and so on. Given the very nature of the Central Intelligence Agency, CIA, would he believe what it would tell him to the effect there are no arms or munitions on any of the aeroplanes? The problem that troubles me is the possibility that if by some chance there were arms or munitions on those aeroplanes, they could be sent on missions of destruction to destroy human beings or property in places such as Iraq, Afghanistan or wherever. That would be very troubling. Like many people, I simply do not believe that of all the aeroplanes that have passed through Shannon Airport, none has been carrying some form of munitions or arms. Were that the case, I believe that all American military personnel would travel on normal flights. Why would they travel on a military flight and why would they not allow the aeroplane to be boarded and checked?
Does Ireland not have an obligation to check that a military flight coming into our country is not carrying munitions to bring devastation upon people's lives, regardless of whether we agree with the armed intervention? What sums this up for me is that, quite simply, even within the United States itself, some former military personnel have admitted that aeroplanes flying from all countries are carrying arms and munitions and have been involved in rendition. There is an onus and a responsibility on Ireland as a neutral country to be able to check any military flight coming into this country from wherever - this is not anti-American - to ensure it is not carrying munitions or arms with which to engage in a conflict, wherever that conflict might be. I repeat that it simply does not wash with me and it would be naive to think that simply because the CIA would say there are no munitions or arms on an aeroplane, it is to be believed. I must state that I find it shameful that Ireland allows this to happen. If they are carrying munitions or arms, indirectly the Government could be responsible for the deaths of innocent people in other countries without even being in a position to intervene, on our own territory, to ascertain whether munitions or arms are being carried on any of the aeroplanes. I consider that to be quite astonishing.
Mr. Niall Burgess:
Yes. Again, if I could distinguish between civilian aircraft and military aircraft, most military personnel who transit through Shannon Airport do so in chartered civilian aircraft. The Garda has powers to search civilian aircraft where it has strong reason to believe that a crime has been committed. To land at Shannon Airport, under the regulation, the carriage of all weapons is prohibited unless an exemption is sought. That exemption is only granted for the carriage of weapons if personal weapons are stored in the hold and are not accessible by the military personnel who are coming through. We received something like 700 requests for exemption at Shannon Airport last year, 85% of which related to the carriage of personal weapons. However, the US authorities were required to confirm beforehand that those personal weapons were out of access and were in the hold of the flight.
Ms Caroline Phelan:
In respect of the 15%, the category of dangerous goods is very broad. The procedure for dealing with those goods that are being carried on civilian aircraft is that an application is made to the Minister for Transport, Tourism and Support for an exemption to carry the items. The Minister for Transport, Tourism and Sport consults a number of Departments, including the Department of Foreign Affairs and Trade, with regard to those goods. The category of goods covers a broad range of items from explosives to nitrogen to gas canisters. In other words, it covers anything that the International Civil Aviation Organisation, ICAO, classifies as being dangerous.
I am a little unsure on this. My understanding is that exemptions were agreed upon for 15% of the total. However, as a public representative I need to know what was the 15% on which the Government agreed? Does Ms Phelan know or does the Minister know?
Mr. Niall Burgess:
I was talking about the passage of civilian aircraft through Shannon Airport. In the case of military aircraft, the US embassy submits a third-party note to us before military aircraft are given landing authorisation. We require the US authorities to confirm that the aircraft are not carrying weapons and are not armed. Authorisation for landing is given on that basis.
I am talking about a commercial plane that has been chartered by the US Government for the purposes of transporting US marines. Mr. Burgess is saying that if they were carrying rifles and pistols on the chartered plane, he would not give them an exemption or prior authorisation.
Mr. Niall Burgess:
Can I clarify this point? I was referring to the passage of civilian aircraft through Shannon Airport. Authorisation is granted by the Department of Transport, Tourism and Sport. The Department consults us in a number of cases and we were consulted in regard to 700 requests last year. Some 85% of the requests related to personal weapons. I do not have a figure to hand------
The Department of Foreign Affairs and Trade makes a recommendation to the Department of Transport, Tourism and Sport about those matters because it is an exemption of prior approval that the Department of Foreign Affairs and Trade must recommend.
Can we be clear that on chartered flights, and we are not talking about military flights, the Government is happy that certain guns and personal weapons are okay to be carried but it is not okay to carry other things? Have I understood correctly?
I have said that and made it clear. It is all right if they are secured and held in the hold. It is okay to have a hold full of guns but not a hold full of other miscellaneous things, like explosives, that we are not sure about.
In the mix, one of the dilemmas about human rights is that things that are used for random killing, such as explosives, are more dangerous than allowing the passage of armed forces or military personnel through Shannon Airport compete with their weapons. The latter is okay while the former is not. That is what it boils down to and that is what we allow. The chartered flights that the Department approves are the ones with guns in the hold with soldiers on board. Presumably they are going to a place where they may engage their weapons.
That is okay and that is what the Government allows. The Government then takes further advice if other matters arise, such as explosives or gas canisters. Are these the ones that are considered more dangerous? The final authorisation rests with the Minister for Transport, Tourism and Sport.
Last year, Mr. Burgess received 700 of those requests. Is that in line with previous years? Perhaps there are spikes or peaks over the years. Sometimes, that tells us something. I would be grateful for that information.
I will not go back and argue the case about the military coming under Article 29 through the international law and the immunity that applies automatically. I understand it is a constitutional matter although other members and members of the public may have a problem with it.
We have some capacity to offer some change on the charter flights. Mr. Burgess specifies, as did the Garda Síochána when we were in Shannon, that the Garda Síochána must have cause to search and cannot undertake random searches. That is something we could change. The proposition exists for a change to the law where, on chartered flights, which do not fall under the agreement on world immunity in Article 29, we could say random searches could be agreed. We know the purpose of some of the aircraft. What else are they apart from carrying military? What is the view of Mr. Burgess on whether this possible?
Mr. Niall Burgess:
Two other Departments and Ministers are involved. The first is the Minister for Transport, Tourism and Sport.
The regulation of civilian aircraft, both overflights and landings, is a matter for him. It is also determined under international legislation, under the Chicago convention. Any regulation would need to be consistent with the terms of the Chicago convention.
The issue of search powers for the Garda is a matter for the Department of Justice and Equality and an operational matter for the Garda. It is not something on which I would wish to speculate.
In fairness, I am not asking Mr. Burgess to speculate because that is an unreasonable request. Am I correct in saying that is the point at which there could be a conversation, that, were it to be thought reasonable by the Minister for Justice and Equality or the Minister for Transport, Tourism and Sport, there could be a discussion around that aspect?
That is fine. The order provides that no foreign military aircraft shall fly over or land in the State without the express invitation or permission of the Minister. Is that something that is done on a roll-over basis? Does any country state in advance it will have seven flights next year, there will be one in January, March, April and May, etc., and do they receive a blanket agreement, or is it done case by case basis? Mr. Burgess might flesh out how that works. I very much appreciate that he has been kind enough not to fill out the whole presentation and to give us the opportunity to question.
Mr. Niall Burgess:
Senator O'Keeffe's first question relates to the numbers of requests received from the Department of Transport, Tourism and Sport by the Department of Foreign Affairs and Trade. The number we received last year was slightly in excess of 700. That was less than in 2012, and less again than in 2011. The number has been going down steadily since 2011. The figures we have so far for this year indicate that the number will probably be lower again this year.
On the arrangements for both overflights and landings for military flights, the arrangements vary according to the state of origin. Approximately 30 countries have blanket clearance. That is given usually on a reciprocal basis. Generally, those countries send in their notification in advance of the flight overflying or landing, and they would be notified in return only where permission to land is refused, and generally that would be in circumstances where the flight is carrying dangerous goods. They are required to give specific information. Even military flights are regulated. They are required to supply specific information before landing or overflying.
There are specific arrangements in place with the United States. US overflights and landings are handled under arrangements which were set out under an exchange of letters between the then Minister for Foreign Affairs and the US ambassador in 1959. That arrangement permits overflights without prior notification on the basis that the aircraft are unarmed, they carry only cargo and passengers, and they comply with any relevant navigational requirements.
I will focus for a moment on the issue of sovereign immunity and being in accordance with the international practice. Has the practice evolved, has it been set down in an international agreement at some point, and have there been any changes to the agreement with the passage of time?
Mr. Niall Burgess:
That would not affect the exercise of sovereign immunity. In each of the cases we have been discussing here, the Government is required to give its assent to the overflight or landing under specific circumstances, and that assent could be declined. Permission could be refused but I am not aware of any cases in the recent past that I can draw on.
If an applicant sovereign applies for landing rights here to the Department of Foreign Affairs and Trade or of Transport, Tourism and Sport and a refusal is issued, I take it, by ministerial order, and the applicant sovereign is unhappy with the decision, how is that dealt with?
I have some questions. In the correspondence sent to the committee - there was correspondence from the Minister but also from the Department - the Department specified that, in terms of the military aircraft, it has assurances that no weaponry would be carried on board when they land. That is the assurance. It is a matter of trust between states and on that basis, the Department would grant it.
What the Department did not outline to the committee in that correspondence is that almost all of the estimated 2.3 million marines who have come through Shannon during the various wars that have taken place over the past decade would have been carrying at least a side arm, not on their person but in the storage. They probably would have had an issued rifle and other weaponry on board on the way to the theatre of war. That was not made clear to the committee in that correspondence. The Department did point to the assurances it has around military aircraft but it did not point to the fact that, in terms of the charter flights, it would have access to data on the numbers of flights of marines per year. I want to know why that was not made clear to the committee and we had to discover that in Shannon.
It is correspondence dated 15 May 2014. Mr. Robert O'Driscoll, private secretary to the Minister for Foreign Affairs and Trade, signed off on it. In that, the Department specifies the criteria around military aircraft, but I do not see any reference to the fact that the Department of Transport, Tourism and Sport gives permission to considerable numbers of personnel who have weapons on board.
Mr. Niall Burgess:
If I could refer the Chairman to the previous letter, which we sent to the committee Chairman on 18 December, in which we refer to the fact that 50,000 troops transited through Shannon Airport in the period January to September 2013, and the vast majority were carried on commercial aircraft subject to civil aviation regulations.
Under those regulations, the carriage of weapons through Shannon Airport is prohibited unless an exemption has been obtained by the commercial carrier from the Minister for Transport, Tourism and Sport. Before issuing such an exemption the Department of Transport, Tourism and Sport seeks the advice of the Department of Foreign Affairs and Trade.
We can dance around on this but the bottom line is we are advised that either the Department of Transport, Tourism and Sport, the Department of Foreign Affairs and Trade or some Department of Government has given permission to 2.3 million US marines to come through Shannon Airport with their weapons stored away. Is that a fair point?
You do not want to commit to the number but is it fair to say a huge number of US marines and members of the US army have come through Shannon Airport with the permission of the Government, with a side arm and rifle on board a plane?
That is a fair point. It is just that in the correspondence to this committee it is not acknowledged. You speak about 50,000 in one year, 2013, but in terms of the scale over the period of time that would be a concern. Do you think the fact that two Departments and Government permit such a huge number of members of the US army, marines or whatever, to come through Shannon Airport on the way to the theatre of war, as they were doing in the vast majority of cases, is commensurate with a policy of neutrality?
Mr. Niall Burgess:
I do not want to express an opinion. I am talking about the implementation of Government policy and a long-standing Government policy. We are talking about US flights but the great majority of landings at Shannon Airport and overflights in Irish airspace are by states with which Ireland has very close and constructive relations. We set out in one of the letters to the committee, I am not sure whether it was last year or this year, the fact that Ireland's military neutrality has to be also seen in a context where we have friendly relations with many states as well.
Would you regard the fact that we permit huge numbers of members of the US army on the way to the theatre of war to stop over and avail of our facilities as commensurate with what you would understand to be military alliances?
Mr. Niall Burgess:
Successive Governments have made overflight and landing facilities available at Shannon Airport to the United States. That is a practice that goes back over 50 years and those arrangements do not amount to a military alliance. They are governed by very strict conditions in the bilateral relations between our two states. As I have said, those conditions include specific stipulations.
I have a final question. You said the process is that the Department of Foreign Affairs and Trade would be consulted on potential exemptions and prior approval and would make a recommendation to the Department of Transport, Tourism and Sport. Does the Department of Transport, Tourism and Sport advise you as to whether it accepted the recommendation?
In terms of chartered flights going through the Department of Transport, Tourism and Sport, is it the responsibility of the company or the US State Department to make the Department of Foreign Affairs and Trade aware of what is on board the plane? If an aeroplane is full of US service men and women, which it is acknowledged would be permitted to have side arms or rifles stored away, there is potential for other light arms. Would the witnesses have an itemised list of what is on board the aeroplane and is there a list of boxes you tick where one indicates what is acceptable and what is not acceptable?
Mr. John McCullagh:
We would be given information. The requests generally come from the carriers as opposed to from the Government. The requests are made to the Department of Transport, Tourism and Sport not to the Department of Foreign Affairs and Trade. A list would be provided of what it is proposed to carry. We would look through that list and give our views to the Department of Transport, Tourism and Sport bearing in mind how we have dealt with these cases in the past. Precedent for us would be a guide as to what-----
Would you be in a position to outline examples? You talked about gases and explosives. Can you provide the committee with examples? Is there a log? Has a record been kept of these? Obviously we will have to communicate with the Department of Transport, Tourism and Sport following this meeting. Would the Department of Foreign Affairs and Trade have within its files a record of the itemised list that was provided to the Department and the recommendation made? Does the Department keep records of that?
What we seek to do, the witnesses can take this as a request, is to look at the records of the requests made by the Department of Transport, Tourism and Sport to the Department of Foreign Affairs and Trade showing the itemised lists of what was on board the aeroplane and what the Department of Foreign Affairs and Trade recommended or did not recommend. We would like to have access to that information going back over the last decade anyway. Is that okay?
A number of issues have been raised in the questioning. If I am travelling as a civilian on a civilian aircraft I come with my bags and I could tell the airport staff that I do not have aerosols or anything in my bag but they check it. Do we take for granted that the only items in the hold are the hand guns and the rifles that have been stipulated or is there a checking procedure to ensure that only the items for which permission has been given are on the list? The witnesses may not wish to comment on this but it is uncanny that this week we passed a law allowing for random blood tests and drug tests where a Garda stops a car. It is strange that we do not have the power to allow the Garda go on an aeroplane to check that everything is above board on that aeroplane. That we do not allow those types of random searches is strange. If we were sending the Irish military abroad, as we do from time to time, are there more checks in other countries? Does the Department of Foreign Affairs and Trade have to jump through more hoops if we are sending our troops abroad? If they are travelling on a civilian aircraft to, say, Lebanon and stop off somewhere in between, are there more checks and balances of our military in other jurisdictions and sovereign states than here in Ireland?
Mr. Niall Burgess:
The first point I would make is that we are talking about flights which are in transit and, therefore, are not unloading material.
Under certain specific circumstances the Garda has search powers. I do not believe the flights would otherwise be searched on a routine basis. As I have stated, regulation of these issues is a matter for the Minister for Transport, Tourism and Sport under the Air Navigation and Transport Act. Under these regulations civilian aircraft are specifically prohibited from carrying weapons or munitions over Ireland or into Irish airports unless the Minister for Transport, Tourism and Sport gives them an exemption under specific named conditions.
Mr. Burgess stated he makes recommendations. Are there cases where the Minister for Transport, Tourism and Sport has overruled these? Mr. Burgess may have recommended that a flight not be allowed to pass over. Is he aware of any time when the Department of Transport, Tourism and Sport has overruled this suggestion?
The other big issue raised with us by people from Shannon Watch and others concerned is that Shannon is ostensibly seen as a civilian airport but military flights land there. People who would not be happy with US foreign policy would certainly see a plane with 200 military personnel and handguns as a military flight for all intents and purposes. From our perspective, a neutrality point of view and our defence perspective, certain organisations on the planet might view Shannon Airport and the flight as a legitimate target, to put it in such terms, and there are concerns about the security of Shannon Airport and the fact that it might be attacked. Has this issue been discussed in the Department of Foreign Affairs and Trade? Are there concerns that allowing flights such as these, even civilian flights with guns and ammunition in the hold, to travel through creates a danger for us as a country and makes Shannon Airport a legitimate target? Is it an issue of concern?
Mr. Niall Burgess:
If the Senator is speaking about safety issues, he is speaking about issues which should properly be put to the Department of Justice and Equality and the Minister for Justice and Equality. The practice of passage through Shannon Airport is part of the normal conduct of international relations between states which enjoy friendly relations, and many such states use the overflight and landing facility at Shannon Airport.
No one would see military personnel carrying weapons because they are not authorised to carry weapons outside the plane and uniformed personnel are allowed into the transit areas but require specific authorisation to leave them.
With all due respect, Mr. Burgess is an expert at the Department of Foreign Affairs and Trade and liaises with other states on these issues. Certain countries would not be happy with some of the actions of the US military and Mr. Burgess is aware of many of them. The Department's diplomats throughout the world have contact with them. They could take issue with the fact that we call ourselves a neutral country but allow these flights to come through. I find it strange that it would never have come upvis-à-visour neutrality. Has Mr. Burgess ever had any contact with other states which have complained about Irish neutrality and the fact that we allow these civilian flights to come through? Has there been any correspondence at diplomatic or state level on these issues?
Is the Department of Foreign Affairs and Trade not concerned that a civilian airport such as Shannon would possibly be a target for foreign groupings which might not look favourably on the movement of troops through an airport such as this?
The Chairman spoke about how we would define neutrality. My definition is that if two countries are at war, we decide we will not participate in the war and have no part in it. Would Mr. Burgess agree this is a definition of neutrality? If Ireland decided not to participate in a particular conflict or support any country involved, one would have to define this as being neutral. In the broad sense does Mr. Burgess agree with this definition?
Mr. Niall Burgess:
In the very broad sense we characterise the Government's policy of neutrality as one of non-participation in military alliances. To elaborate a little on this, it is set in a very clear context and this needs to be borne in mind. It is set against Ireland's belief that primary responsibility for international peace and security rests with the UN Security Council. We support actions of the UN Security Council in accordance with the UN charter. We believe in a much broader active international engagement, which involves participation in peacekeeping, peace building activities, conflict resolution, support for disarmament, human rights and development. This broader context within which the policy of neutrality is implemented and developed is important.
While I accept this, I again state that in cases of two countries being in conflict or at war other countries have clearly stated, without writing a script on it, they will not participate in the conflict but will stay neutral. If two families in my housing estate were at war or in conflict with one another and members of one of the families came into my house, which was in the middle, and told me they were going over to attack the other family, and asked for a cup of tea and whether I would mind if they stayed for a couple of minutes - although they were carrying weapons - and then went to attack the house, I would not be neutral.
How can we be defined as neutral if we allow a flight with personal weapons? The Chairman is correct that it would mean hundreds of thousands of personal weapons have gone through, and there is an inevitability that some have been used in conflicts in Iraq or Afghanistan. Essentially we are not neutral, in my opinion, and based on a broad definition many people would say the same, if we allow flights carrying weapons to stop on their way to a conflict and to attack another country.
I do not agree with al-Qaeda, but we do not allow it to fly a plane into Ireland, tell us it has nothing on it, and then fly on to the United States. However, we allow the United States to attack who they perceive to be their enemies. Essentially we are not neutral if we allow the military craft of one country on their way to attack another country to land in our jurisdiction with arms. We now admit some of them do carry arms and we are not sure about 15%. Under the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order 1973, the carriage of weapons through Shannon Airport on commercial aircraft is prohibited unless an exemption has been obtained. Mr. Burgess has told us how many requests have been made and were granted, but we need to know what requests were made.
Am I correct in assuming that it is at the discretion of the Garda, if it felt there was something untoward going on in a plane or it was carrying something it should not carry, to search the plane, or would the Garda need a request from the Department of Foreign Affairs and Trade to do that? If the gardaí in Shannon Airport suspected that a plane was not carrying personal arms, could they search it?
Deputy Halligan does not have the advantage that Senators O’Keeffe and Ó Clochartaigh and I have because we have been to Shannon Airport and met the management there and the management of An Garda Síochána. Our sense of it is that the management of the airport operates within the law and allows flights, subject to the licence from the Department of Transport, Tourism and Sport or the diplomatic note from the Department of Foreign Affairs and Trade. That is very clear and straightforward. If the Garda suspect an offence, if somebody has reported a crime is taking place aboard a plane, it would have to seek a warrant. It operates within the law.
I am just clarifying the points the Deputy has made. The Garda confirmed that it has on several occasions searched planes following reports of wrongdoing. It also pointed out the constraints on a military aircraft that had received a diplomatic note. It would regard that as a foreign embassy.
Deputy Halligan was getting at the idea that a fight might break out between two soldiers on board. What we are talking about here is whether something might be construed as being of interest from the military point of view, not as a crime on that day. I think he was asking – if I may make so bold – whether permission would need to be sought for something other than a fracas or something of that nature. Mr. Burgess says he cannot answer that question because it involves the Department of Justice and Equality. Is that correct? If it pertains to the Garda and its powers-----
Being civilian they fall under the remit of the Minister for Transport, Tourism and Sport. We seem to be allowing the 1959 agreement encompass those other ones, whereas in fact they are separate. It seems that in practice we are giving a bit of leeway or latitude to those commercial, civilian, chartered flights because of this other agreement.
Mr. Niall Burgess:
There is a strong co-operative relationship between the Irish and US Governments on many fronts. The US Administration has given steadfast support to the peace process in Northern Ireland. Senator Harte is in Belfast today with the Minister for Foreign Affairs and Trade. We have a very constructive engagement with the US Administration on taking interim measures to address the needs of the undocumented in the US. We do a lot of close work with the US State Department on childhood nutrition in the developing world. Members of the Oireachtas have very close personal relations with many members of Congress, as the Taoiseach has with the US President. There are very strong economic relations between the two countries, in investment and trade. I would probably refer to different characteristics in other cases.
These matters are really important. Mr. Burgess has defined “friendly relations” as best he can, given that they are not a legal matter. Does that allow all of this to be in place, or just one bit of it? Is that the overarching reason for the commercial and military arrangements?
Mr. Niall Burgess:
The commercial arrangements are handled in the same manner, regardless of where the commercial flight originated. It is the same procedure for all commercial flights. In regard to military aircraft, I distinguished between those countries that have blanket clearance arrangements, and I think we have 30 such bilateral arrangements-----
I have some final questions, and Senator Ó Clochartaigh wants to put a final question also. In the third paragraph of the correspondence from December of 2013 the Private Secretary, writing on behalf of the Minister, states:
That is clear and gives the impression that we have a rock solid approach. He went on to refer to 50,000 troops in 2013, the fact that there is the exemption and the prior approval but the presentation of the Government's approach in these sets of correspondence is not frank in terms of the scale of this. One could come to the conclusion reading the correspondence that we do not allow any arms or ammunition to pass through. A layperson reading it could reach the conclusion that we have a policy that these flights coming through must not carry arms or explosives. However, we have established from our visit to Shannon and from Mr. Burgess's evidence today that huge numbers, and that is accepted, of men and women of the United States forces, marines and so on, came through the airport with weapons on board planes with the permission of the Irish Government over an extended period while en routeto a theatre of war. In terms of one of those theatres of war, the war in Iraq, it was not endorsed by the United Nations Security Council. The war in Afghanistan was endorsed by the UN Security Council but the war in Iraq was not. If Mr. Burgess was looking at the objective of the 1952 order to which he referred, it must be undermined by the fact that the actual practice, certainly in the past decade, has been to allow huge amounts of weaponry to come through. Mr. Burgess might deal with that question first.
The Air Navigation (Foreign Military Aircraft) Order 1952 gives the Minister for Foreign Affairs primary responsibility for the regulation of activity by foreign military aircraft in Ireland. Permission to land at Irish airports is subject to the condition that the aircraft are unarmed, carry no arms, ammunition or explosives, do not engage in intelligence gathering, and that the flights in question do not form any part of military exercises or operations.
Mr. Niall Burgess:
We are talking first about matters of Government policy. If I could speak about the military aircraft, the compliance with regulations, with the Government's requirements, when military aircraft land at Shannon Airport is affirmed by the US authorities when they notify in advance that the plane is going to land. Government policy in regard to this was set out in a number of different periods, and the Private Secretary's letter mentions it. In advance of the US military action in Iraq in 2003, the Government decided to maintain the arrangements for overflight and landing in Ireland of US military and civilian aircraft, and that decision was endorsed by Dáil Éireann in 2003. There have been a number of specific statements of Government policy, and the interpretation of the regulations in light of Government policy, over a number of years.
Regarding the landings of civilian aircraft, as the Chairman said, one could interpret what is being said here in a certain way. That certainly was not the intention. That letter does set out separately from the military flights the fact that the carriage of weapons on commercial aircraft is dealt with in a different way. If figures were not given it is probably because we do not carry the final authority relating to the-----
I appreciate that and, in fairness, Mr. Burgess clarified in the original correspondence in December that he did, so I accept that my query was not entirely justified.
In terms of my next question, Mr. Burgess rightly pointed out the reasons we have friendly relations with the United States. I would go further and say we have an umbilical relationship with the United States. Some 70 million citizens there claim Irish heritage. I must declare that I would regard myself as an Americanophile. I am fascinated by United States history and its people. It is a friendly state for all the reasons Mr. Burgess pointed out but the difficulty is that we declare ourselves to be a neutral state, and that puts us in a position to advocate for conflict resolution and human rights in terms of the UN Human Rights Council. The difficulty for us is that the petitioner has asserted that what is happening in Shannon over a period of time has undermined our neutrality. We need to establish if it is commensurate. We have more work to do as a committee, and there will be more hearings in the new year.
I appreciate the Secretary General is not here to account for Government policy and that he can only talk about the implementation of Government policy as it happens. We acknowledge the points he made about our close, symbiotic relationship with the United States but our dilemma is that we declare ourselves to be a neutral state and we have facilitated large amounts of weaponry to come through Shannon on the way to a theatre of war. In one instance that was not given carte blancheby a UN Security Council Resolution. Where does that leave us? Mr. Burgess may not want to comment any further than he has already. If he does not that is fine because, in fairness, he is not here to account for Government policy and at some point we may have to bring in the Minister who is accountable for Government policy. I will leave it at that.
We have made a presumption also that when civilian aircraft carry personnel, the guns in the hold belong to the personnel. Is that always the case or are there cases of weaponry being carried without the personnel they relate to being on the flight also? We presumed that if there are 200 marines on a flight that there are 200 hand guns, rifles or whatever that belong to the marines on that flight. Are there cases where that is not the case in that military weaponry has been carried and the correlating foot soldiers, to put it mildly, are not on the flight? We are also assuming it is always military personnel who are on the flight. Is it the case that former military who might be hired by a private company could possibly be travelling through Shannon with weaponry? Is it possible that other individuals coming from the US and travelling to other countries might want to pass through Shannon with weaponry? Would the permissions be similar? How would that work?
Mr. Niall Burgess:
The category we have referred to is a category of personal weapons kept in the hold of the flight and out of reach. I do not have specific figures that would correlate those with the personnel on the aircraft but it is categorised as personal weapons and as my colleague stated, where dangerous goods are listed which have an indiscriminate character we would invariably recommend to our colleagues in the Department of Transport that the exemption not be granted.