State told it must produce orders on use of airspace

The Government has been ordered by the High Court to discover within four weeks documents related to its permitting the overflying by foreign military aircraft of Irish airspace and the landing and refuelling of foreign military aircraft in Irish airports.

The order applies from September 2001 to date and relates to all foreign aircraft involved in the military conflict in Afghanistan.

Student peace activist Mr Eoin Dubsky, who has taken legal action claiming that permitting such activity is unconstitutional and amounts to participation in war, had applied to Mr Justice McKechnie for discovery of the documents.

The Government opposed the application, arguing some decisions were "not written" and the documents sought were neither relevant to nor necessary for the action.

The essential order sought by Mr Dubsky is one quashing the Government's decision to allow overflying, landings and refuellings by foreign aircraft in pursuit of UN Resolution 1368, passed after the September 11th attacks on the US, which called on all states to work together to prevent such attacks.

Mr Dubsky took the proceedings while on bail on charges relating to damage to a US military aircraft at Shannon airport.

Yesterday, Mr Justice McKechnie directed the Government to discover "a copy of the government decision to open the airports and airspace of the State to aircraft participating in the armed conflict in Afghanistan". Counsel for the Government had earlier stated there was no "written" decision to that effect.

The judge also ordered discovery of all decisions of the Minister for Foreign Affairs, made under the Air Navigation (Foreign Military Aircraft) Order 1952, relating to aircraft participating in said war and armed conflict or whose flights were relevant to that conflict, from September 11th , 2001, to date.

He also ordered 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 carrying weapons, munitions and dangerous goods in Irish airspace.

The judge refused to order discovery of other categories of documents sought by Mr Dubsky including all requests received by the Government from foreign states or their armed forces for the making of orders permitting overflights, landing, refuelling or exemptions from carrying weapons.

Documents relating to the cargo of such aircraft and specifying the number of overflights and landings in the State and the number of refuellings, had also been sought but the judge did not direct their discovery. Documents related to what if any steps were taken by the Government to verify the purposes and objects of foreign military aircraft passing through Irish airspace were similarly not made the subject of the discovery order.

In directing partial discovery, the judge did so on the basis of the rules of the superior courts, which provide that where a litigant is seeking to quash specific orders or decisions, copies of those orders should be lodged in court.

He noted the Government had acknowledged, in an affidavit by Mr David Cooney of the Department of Foreign Affairs which referred to statements made by the Taoiseach and Minister for Foreign Affairs in the wake of September 11th, that the State would and had permitted the overflying, landing and refuelling of foreign military aircraft and did so in pursuit of the UN resolution.

The State had acknowledged it was making facilities available to such aircraft and this was an acknowledgement of the factual basis of Mr Dubsky's claim, the judge said. At issue was whether the activity amounted to the State's participation in a war.