A High Court application by a student peace activist for discovery of documents relating to the Government permitting military flight activity in Irish airspace, including the landing and refuelling of US military aircraft at Shannon Airport, is being opposed by the Government.
Mr John Rogers SC, for the student Mr Eoin Dubsky, yesterday said that the "most extraordinary" thing was that the State has so far failed to exhibit a single instrument signed by a Minister in relation to the use of airports and airspace to facilitate what his side contends is a war and armed conflict in Afghanistan.
The hearing of the discovery application concluded yesterday and Mr Justice McKechnie will give his decision this afternoon.
Last September, while on bail on charges relating to damage of a US military aircraft at Shannon, Mr Dubsky, of Whitewalls, Ballymoney, Co Wexford, secured leave to take judicial review proceedings aimed at quashing the decision of the Government to open Irish airspace and airports to aircraft involved in military action in Afghanistan in purported pursuit of United Nations Security Council Resolution 1368.
He is also seeking to quash ministerial decisions to allow foreign military aircraft overfly or land in the State and exempting such aircraft from the prohibition on carriage of weapons and other munitions of war.
Mr Dubsky claims such decisions are in breach of Article 28 of the Constitution, which prohibits the State participating in a war without the assent of Dail Éireann, and are in breach of human rights provisions.
He wants an injunction restraining overflights or other military activity relevant to military action in Afghanistan.
In an affidavit, he said the US and other states were involved in military conflict in Afghanistan in which, up to September last year, some 4,000 persons had been killed.
The Dáil had not passed any resolution permitting the State to participate in military action, he said.
The State has argued there is no "war", within the meaning of the Constitution or public international law, in Afghanistan; that the military action there is not an infringement of the human rights of any person; and that the proceedings by Mr Dubsky are "misplaced" and "utterly misconceived".
In an affidavit, Mr David Cooney of the Department of Foreign Affairs said there is clear and adequate authority for the orders and regulations made relating to military aircraft.
He said UN Security Council Resolution 1368 called on all states "to take all necessary steps to respond to the terrorist attacks of September 11th, 2001".
The Government "did not accept" that resolution "did not envisage, approve and authorise the taking of military action if necessary to achieve the objectives referred to in the resolution".
The case was before the court yesterday via an application for discovery of documents; the application was opposed by Mr Gerard Hogan SC, for the State.
Among the documents sought are a copy of the Government decision "to open airports and airspace of the State to aircraft participating in the war and armed conflict in Afghanistan".
The State said there was no written decision in that regard.
