The Government has been instructed to reveal documentation relating to the use of Irish airspace and landing facilities by foreign military aircraft.
The departments of Foreign Affairs, Transport and/or Public Enterprise have been instructed to allow partial discovery of documentation requested by peace activist Mr Eoin Dubsky.
The application for discovery was granted at the High Court in Dublin today by Mr Justice McKechnie to Mr Dubsky who claims the Government is acting unconstitutionally by allowing military aircraft, mainly from the US, to use Irish airspace and landing facilities. Mr Dubsky's action also includes a claim that Ireland is participating in war by facilitating the aircraft.
However, the order, which applies from September 2001 to date and relates to all foreign military aircraft involved in the conflict in Afghanistan, is for partial discovery only.
The Government opposed the application saying some decisions did not entail having written documentation. They also say their actions are in compliance with UN Resolution 1368 which requires governments to increase security co-operation in the wake of the September 11th attacks on the US. The resolution was passed on September 12th 2001.
Mr Dubsky took the proceedings while on bail on charges relating to the damaging of a US military aircraft at Shannon Airport.
Mr Justice McKechnie directed discovery "the government decision to open the airports and airspace of the State to aircraft participating in the armed conflict in Afghanistan".
He also ordered discovery of all decisions made by the Minister for Foreign Affairs, made under the Air Navigation (Foreign Military Aircraft) Order 1952 relating to aircraft participating in Afghanistan or flights relevant to the conflict.
Discovery of all decisions of the Minister for Transport and/or the Minister for Public Enterprise, from September 11th to date, exempting foreign military aircraft from the normal ban on the carrying of weapons, munitions and dangerous goods in Irish airspace.
The judge said issues of privilege relating to the documentation sought would be decided by the court at a later stage.
He also refused to order discovery of other documents sought by including all requests received by the government from foreign states or their armed forces asking for permission to overfly Ireland or use its landing facilities.
Discovery of documents relating to the cargo of such aircraft and the number of overflights, landings and refuellings in the State, was also refused. As were documents relating to any steps taken by Government to verify the purposes and objects of foreign military aircraft using Irish airspace.
During the hearing, Mr John Rogers SC, for Mr Dubsky said it was "extraordinary" the State had not shown any instrument signed by a Minister relating to the use of landing facilities and airspace by foreign military aircraft.
The State today argued there was no "war" in Afghanistan within the meaning of the Irish Constitution or public international law.