A university student has been given the go-ahead by the High Court to legally challenge the Government's opening of Irish airports and airspace to US war planes involved in military action in Afghanistan.
The High Court President, Mr Justice Joseph Finnegan, told Mr Eoin Dubsky, of Whitewalls, Ballymoney, Co Wexford, that he could apply for an interlocutory injunction restraining the State from permitting US military aircraft the use of Irish airspace or to land at Shannon airport.
Mr Richard Humphries, counsel for Mr Dubsky, a 22-year-old student at Dublin City University, told the court he would also be applying for a declaration that Irish ministerial orders and permissions for overflights and landings of aircraft "involved in or relevant to military action in Afghanistan" were unconstitutional.
Mr Dubsky grounded his application for a judicial review of the Government's decisions on the basis that by assisting the military action in Afghanistan the State was declaring or participating in a war without the assent of Dáil Éireann.
He is also claiming that decisions permitting the overflights and landings were void in that they went beyond the authority bestowed on the Government by the Constitution.
Mr Dubsky, an Irish citizen, told the court he was currently on bail on charges relating to damage to a United States military aircraft in Shannon, Co Clare.
He said he was a member of the University's Green Society, which was dedicated to social justice and had campaigned for more than two years for the resolution of international disputes by peaceful means.
"For many months I have objected to the refuelling of US military flights in Ireland and other military activities involving US forces and I've been involved in peaceful demonstrations in this regard," he told the court.
He said that on September 11th last year terrorist attacks in the US had taken place, resulting in many casualties in New York, Washington DC and Pennsylvania.
The following day the Security Council of the United Nations had passed a resolution which called on states to work together to bring to justice the perpetrators, organisers and sponsors of the attack.
In purported pursuance of this resolution the US and other countries had launched a military attack on Afghanistan, which had led to the deaths of about 4,000 people and the injury of many thousands.
Mr Dubsky said that following the collapse of the Taliban regime the attack had continued and involved repeated bombings within Afghanistan. Only on June 1st last a wedding party had been bombed by US military aircraft, resulting in the deaths of about 130 civilians.
He said that in purported pursuance of UN Resolution 1368 (2001) the Government had decided to open the airspace and airports of the State to US military aircraft and waive prohibitions on their carrying munitions and explosives in military exercises or operations.
Mr Dubsky said he had obtained information on foreign overflights and landings between September 2001 and June 2002 from the Department of Foreign Affairs under the Freedom of Information Act.
He believed the acts of the Government amounted to participation in war within the meaning of Article 28 of the Constitution at a time when the Dáil had not passed a resolution permitting the State to participate in the Afghan military action.
Mr Dubsky said the extent to which the Dáil had been ignored in the matter had been demonstrated by the fact that while the Dáil, on September 18th, 2001, debated the terrorist attacks, Government Ministers had not raised the matter of their assistance to the US because "the Government was still considering this option at the time of the Dáil debate."
"I believe the military attacks on Afghanistan which are being supported and facilitated by the Irish Government are ongoing and involve significant death and injury to the civilian population," Mr Dubsky said.
He said the Government had adopted the stance that it was bound by the UN Security Council resolution and were acting in accordance with it in facilitating the military attacks in Afghanistan.
He had been advised that Resolution 1368 (2001) did not authorise the military attacks in Afghanistan and claimed this had been partly acknowledged by the Government in information provided to him.
Mr Dubsky said he believed the war planes and civilian planes which had been facilitated in landing and overflight were in no way limited in their activity to bringing to justice those involved in the events of September 11th.
He claimed that in regarding itself bound by the resolution the Government had misconstrued its powers and duties pursuant to the Constitution and had erred in law.
Mr Dubsky gave his evidence to the court by way of sworn affidavit.
Following the court hearing Mr Dubsky said he hoped his judicial review proceedings would result in an end to all US military overflights and stopovers.