The State appears to be making the case that because other states which are either neutral or opposed to the US-led war on Iraq are allowing overflights and landings of US military aircraft bound for Iraq, then Ireland may do the same, it was claimed at the High Court.
The State also asserts that Ireland has not refused over the past five decades to allow US military overflights and landings during a range of other wars involving the US, including wars in Korea, Vietnam, Grenada, Panama and Lebanon, according to Mr John Rogers SC.
However, the State had failed to say whether applications for overflights and landings were actually made in regard to those wars and further failed to indicate that several of those wars, unlike the war in Iraq, involved the United Nations.
In relation to the Vietnam war of 1961-1975, Mr Rogers believed it would have been unusual for the US to seek to overfly or land at Shannon because they would have been "going the wrong way".
Mr Rogers, for a retired Army officer, Mr Edward Horgan, was reacting to averments in an affidavit by the political director of the Department of Foreign Affairs, Mr David Cooney, filed in opposition to Mr Horgan's challenge to the Government's permitting Iraq-bound US aircraft to overfly and land at Shannon Airport.
In his affidavit, Mr Cooney disputed the admissibility of an affidavit from a Scottish international law expert, Dr Iain Scobie, which asserted that the Iraq war was illegal and in breach of international law.
He said the State did not accept Dr Scobie's description of customary international law or his claim that there was an international legal consensus that the war was illegal.
Mr Cooney said US military aircraft had used Shannon Airport at least since the end of the second World War. Files also revealed that civilian aircraft carrying US military personnel had been landing in Shannon since at least 1948.
A review of historical literature relating to neutrality as practised by the State during the second World War showed several recorded incidents of Irish authorities refuelling Allied aircraft and British surface vessels being permitted to pursue and destroy hostile submarines in Irish territorial waters.
He was not aware that the State had ever sought to revoke or restrict permission to the US to avail of landing and overflight facilities on the basis of US participation in a military conflict.
He believed the Taoiseach was entirely correct when he told the Dáil on March 20th last that the withdrawal of such facilities at this time "could not but be seen, by any objective observer, as a radical and far-reaching change in our foreign policy".
There was no basis for Mr Horgan's contention that the facilitation of the US military at Shannon constituted a change in the policy and practice of the State during military conflicts, he said.
Mr Cooney said it would be prejudicial to the national interest if the Government had to decide whether the war in Iraq was just or not prior to allowing US military overflights and landings at Shannon.
There was a credible legal dispute as to the legality of the war.