A peace activist has applied to the High Court to overturn a decision by the Government to allow aircraft involved in military action in Afghanistan to overfly Irish airspace and land at Shannon Airport.
The judicial review proceedings by Eoin Dubsky, Whitewalls, Ballymoney, Co Wexford, are against the Government, Minister for Foreign Affairs, Minister for Transport, and the State, and were instituted in late 2002. The defendants are opposing the application.
Mr Dubsky is also seeking a declaration that allowing military aircraft to overfly or land in the State, or the giving of other assistance to states involved in military action in Afghanistan, is in breach of the Constitution.
An injunction is being sought retraining the respondents from giving permission for aircraft whose flights "are relevant" to military action in Afghanistan to overfly or land in the State.
The State contends that allowing foreign military aircraft or commercial aircraft carrying munitions or weapons to pass through Irish airspace, or allowing such planes to land, does not constitute participating in any war.
It argues there is not, and has not been, any war between the United States and its allies and Afghanistan as the term "war" is employed in Article 28.3.1 of the Constitution.
Without prejudice to that claim, the State argues that, insofar as the US is involved in military action in Afghanistan, it is acting with the consent of the government of Afghanistan and has not declared war against that state. The assent of the Dáil is not required, whether under the Constitution or otherwise, for allowing the facilities.
The State also contends the court does not have jurisdiction or power to adjudicate whether actions occurring outside the jurisdiction of other sovereign states or persons outside this State are compatible with the provisions of the Constitution.
Mr Dubsky, in an affidavit, said he believed the actions being facilitated by the State respondents caused significant death and injury to the civilian population in Afghanistan. The actions went well beyond the mandate, if any, purportedly afforded by UN Resolution 1368. That resolution was passed by the UN Security Council following the September 11th, 2001, attacks in New York.
It was of the utmost public interest and importance that any proposed significant participation in armed conflict be subjected to the democratic approval or otherwise of Dáil Éireann, which had not occurred in this case.
Mr Dubsky said that when seeking leave to bring the proceedings, the judge had at the time asked if it would be appropriate to direct that notice of them should be given to the US government. The judge later ruled that it would not be appropriate to do so and that the matter was one between Mr Dubsky and the State authorities here.
In an affidavit, Mr David Cooney, political director, Department of Foreign Affairs, said that insofar as it was contended that the Government had acted in breach of Article 28.3.1 of the Constitution, he was advised that provision was only operative where the State "participates in a war".
There was no "war", as that phrase was used in the Constitution, between the US and Afghanistan, he believed. He was advised and believed that the Irish State was not participating in any war in the manner contended by affording the facility of passing through Irish airspace or allowing aircraft to avail of Irish landing or refuelling facilities.
Mr Cooney said he was advised and believed that the grounds upon which Mr Dubsky sought to impugn the decisions referred to in the statement of grounds were misplaced.
The hearing, before Ms Justice Macken, continues today.