The High Court has rejected Eoin Dubsky’s judicial review challenge to Irish decisions permitting aircraft linked to military action in Afghanistan to overfly Ireland, land or refuel without Dáil assent.
In a judgment delivered on 13 December 2005, Macken J. found that Dubsky had not established that the events in Afghanistan amounted to a war within Article 28.3.1 of the Constitution. The judge also concluded that, even assuming a war, the applicant had not shown that the State’s decision or the permissions granted amounted to participation in it. Article 28.3.1 requires Dáil assent for a declaration of war or State participation in a war; the court said it does not require the Dáil to formally determine that the State is not participating.
The proceedings challenged a Government decision announced in September 2001 to facilitate overflight, landing and refuelling for aircraft engaged in pursuit of UN Security Council Resolution 1368. The applicant argued that this assistance supported a war and breached the Constitution. He also challenged the statutory basis for permissions concerning foreign military aircraft and aircraft carrying munitions, and disputed the recording and scope of permissions and waivers.
The judge said the court lacked sufficient material to determine whether the events in Afghanistan could not constitute a war, but that this did not establish that they did. The applicant had not shown a recognised legal definition that resolved the question. The court also rejected the argument that alleged breaches of neutrality principles automatically amounted to participation in war, and adopted a highly restrained approach to reviewing executive decisions on such matters.
On the statutory challenge, the court held that the 1973 Order applied to civil aircraft, not military aircraft, and that the 1952 Order governing foreign military aircraft was lawfully made. It rejected claims that the 1952 Order impermissibly delegated power to the Minister for Foreign Affairs or that the absence of aircraft-by-aircraft written permissions or recorded stipulations made the arrangements unlawful. The judge said recording stipulations and waivers was good administrative practice, but found no legal rule requiring it. The court did not decide a separate argument that section 5 of the Air Navigation and Transport Act 1946 was unconstitutional for lack of policy guidance, because that ground had not been permitted in the judicial review.
The court also found that Dubsky had not moved promptly. The Government decision was known in September or October 2001, but he did not seek information from the respondents until late June 2002 and gave no explanation for that delay. The application was rejected in full. The judgment did not grant any of the relief sought.