Government ordered to reveal US airspace use

dahamsta

TCM Breaking News

The High Court in Dublin tonight directed that the Government should reveal documents relating to the use of Irish airspace and airport landing facilities available to foreign military aircraft.

Three Government departments; Foreign Affairs, Transport and Public Enterprise were instructed to allow the partial discovery of documentation requested by student peace activist Eoin Dubsky.

Mr Dubsky, whose application for discovery was granted by Mr Justice Liam McKechnie, claimed the Government was acting unconstitutionally by allowing American military aircraft to use Irish airspace and landing facilities.

Mr Dubsky also claimed that Ireland was participating in war by facilitating the aircraft.

But the order secured by Mr Dubsky, which applied from September 2001, and relates to all foreign military aircraft involved in the conflict in Afghanistan, related to partial discovery only.

Opposing the application, government lawyers maintained that some decisions did not entail having written documentation, and that their actions were in compliance with United Nations Resolution number 1368, requiring governments to increase security co-operation in the wake of the September 11 attacks on the United States.

Mr Dubsky initiated the proceedings while on bail on charges relating to the damaging of a United States military aircraft at Shannon Airport, Co Clare.

The judge said issues of privilege relating to the documentation sought would be decided by the court at a later stage.

Discovery of documents relating to the cargo of aircraft and the number of overflights, landings and refuellings in the State, was refused.

During the hearing, John Rogers, counsel for Mr Dubsky, said it was “extraordinary” that 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 Government argued there was no “war” in Afghanistan within the meaning of the Irish Constitution or public international law.

Mountjoy Mugger

This, if it's not appealed to the Supreme Court and won, might open a right can of worms.

Victor

Further story below:

"The Government opposed the application saying some decisions did not entail having written documentation." - I read this as either a "nod-and-wink" approach applied or that prior approval wasn't sought (required by law). I hope the government isn't telling the judge where to go because they have something to hide.

"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." - so does the UN Security Council supersedes Irish law then?

Government told to reveal files on military flights
From:ireland.com
Tuesday, 21st January, 2003

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.

Victor

Originally posted by Mountjoy Mugger
This, if it's not appealed to the Supreme Court and won, might open a right can of worms.

For who?

bonkey

Originally posted by Victor
"The Government opposed the application saying some decisions did not entail having written documentation." - I read this as either a "nod-and-wink" approach applied or that prior approval wasn't sought (required by law). I hope the government isn't telling the judge where to go because they have something to hide.

Well, one would have to wonder why they are opposing it.

If a decision did not legally require any paperwork, then the government would be quite entitled to comply with this law by stating that no paperwork did, in fact, exist.

Opposing it, on the other hand, implies that there should be paperwork which the government cannot or does not want to produce.

This, of course, would be more than just embarrassing.

"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." - so does the UN Security Council supersedes Irish law then?

There's nothing in that mandate which requires governments to do anything which acts in contravention to their own laws. At best, it could be construed as an instruction to effect legal change in order to allow co-operation, but it in no shape or form suggests that laws be ignored.