Dubsky v Ireland

JurisdictionIreland
CourtHigh Court
JudgeMacken J.
Judgment Date13 December 2005
Neutral Citation[2005] IEHC 442
Date13 December 2005
Docket Number[2002 No. 571 JR]

[2005] IEHC 442

THE HIGH COURT

NO. 571 JR/2002
DUBSKY v GOVERNMENT OF IRELAND & ORS
JUDICIAL REVIEW

BETWEEN:

EOIN DUBSKY
APPLICANT

AND

THE GOVERNMENT OF IRELAND, THE MINISTER FOR FOREIGN AFFAIRS, THE MINISTER FOR TRANSPORT, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

UN SECURITY COUNCIL RESOLUTION 1368/2001 (THREATS TO INTERNATIONAL PEACE & SECURITY CAUSED BY TERRORIST ACTS)

UN SECURITY COUNCIL RESOLUTION 1373/2001 (THREATS TO INTERNATIONAL PEACE & SECURITY CAUSED BY TERRORIST ACTS)

CONSTITUTION ART 28

AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER 1952 SI 74/1952

AIR NAVIGATION (CARRIAGE OF MUNITIONS OF WAR, WEAPONS & DANGEROUS GOODS) ORDER 1973 SI 224/1973

AIR NAVIGATION (CARRIAGE OF MUNITIONS OF WAR, WEAPONS & DANGEROUS GOODS) (AMDT) ORDER 1989 SI 130/1989

CONSTITUTION ART 28.3.1

CONSTITUTION ART 29.1

CONSTITUTION ART 29.2

CONSTITUTION ART 29.3

CONSTITUTION ART 29.4

CONSTITUTION ART 15

CONSTITUTION ART 28.3

CONSTITUTION ART 18.3

CONSTITUTION ART 28.4.1

UN CHARTER ART 25

UN CHARTER ART 49

AIR NAVIGATION & TRANSPORT ACT 1946 S9

AIR NAVIGATION & TRANSPORT ACT 1946 S11

CONSTITUTION ART 15.2

CONSTITUTION ART 15.6

AIR NAVIGATION & TRANSPORT ACT 1946 S2

AIR NAVIGATION & TRANSPORT ACT 1946 S3(1)

AIR NAVIGATION & TRANSPORT ACT 1946 S3(2)

AIR NAVIGATION & TRANSPORT ACT 1946 S5(1)

AIR NAVIGATION & TRANSPORT ACT 1946 S5(2)

AIR NAVIGATION & TRANSPORT ACT 1946 S5(3)

AIR NAVIGATION & TRANSPORT ACT 1946 S5(4)

AIR NAVIGATION & TRANSPORT ACT 1946 S5(5)(a)

AIR NAVIGATION & TRANSPORT ACT 1946 S5(5)(b)

AIR NAVIGATION & TRANSPORT ACT 1946 S6

AIR NAVIGATION & TRANSPORT ACT 1946 PART II

AIR NAVIGATION & TRANSPORT ACT 1950 S5

CONSTITUTION ART 28.3.3

HAGUE CONVENTION v (RESPECTING THE RIGHTS & DUTIES OF NEUTRAL POWERS & PERSONS IN CASE OF WAR ON LAND) 1907 ART 5

HAGUE CONVENTION v (RESPECTING THE RIGHTS & DUTIES OF NEUTRAL POWERS & PERSONS IN CASE OF WAR ON LAND) 1907 ART 7

SCHWARZENBERGER INTERNATIONAL LAW 1968 417

OPPENHEIM INTERNATIONAL LAW 1926 511

SPANISH CIVIL WAR (NON-INTERVENTION) ACT 1937

HORGAN v AN TAOISEACH & ORS 2003 2 IR 468 2003 2 ILRM 357

AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER 1952 SI 74/1952 ART 3

AIR NAVIGATION (FOREIGN MILITARY AIRCRAFT) ORDER 1952 SI 74/1952 ART 4

AIR NAVIGATION (CARRIAGE OF MUNITIONS OF WAR, WEAPONS & DANGEROUS GOODS) ORDER 1973 SI 224/1973 PARA 4

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419

CONSTITUTION ART 15.2.1

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26

CITYVIEW PRESS v COMHAIRLE OILIUNA 1980 IR 381

CLARKE, STATE v ROCHE 1986 IR 619 1986 ILRM 565

MCDAID v SHEEHY & ORS 1991 1 IR 1 1989 ILRM 342

BRADY v DONEGAL CO COUNCIL 1989 ILRM 282

CND v PRIME MIN OF UK UNREP QB 17.12.2002

UN SECURITY COUNCIL RESOLUTION 1267/1999 (ON THE SITUATION OF AFGHANISTAN)

CROTTY v AN TAOISEACH 1987 IR 713 1987 ILRM 400

BOLAND v AN TAOISEACH 1974 IR 338 109 ILTR 13

ANGE v BUSH 752 F SUPP 509

BAKER v CARR 369 US 182

GREENHAM WOMEN AGAINST CRUISE MISSILES v REAGAN 591 F SUPP 1332 755 F 2D 34 (2ND CIR 1985)

CONSTITUTION ART 37

EAST DONEGAL CO-OP v AG 1970 IR 317

CHICAGO CONVENTION (CONVENTION ON INTERNATIONAL CIVIL AVIATION) 1944

AIR NAVIGATION & TRANSPORT ACT 1946 S8

AIR NAVIGATION & TRANSPORT ACT 1946 ART 3

AIR NAVIGATION & TRANSPORT ACT 1946 ART 3(c)

AIR NAVIGATION & TRANSPORT ACT 1946 ART 6

AIR NAVIGATION (CARRIAGE OF MUNITIONS OF WAR, WEAPONS & DANGEROUS GOODS) ORDER 1973 SI 224/1973 ART 6

AIR NAVIGATION & TRANSPORT ACT 1946 S11(f)

AIR NAVIGATION & TRANSPORT ACT 1946 S12(b)

CONSTITUTION SAORSTAT EIREANN 1922

CONSTITUTION ART 18.3.1

O LAIGHLEIS, IN RE 1960 IR 93

O'MALLEY v CEANN COMHAIRLE 1997 1 IR 427

KAVANAGH v IRELAND & SPECIAL CRIMINAL COURT & ORS 1996 1 IR 321 1996 1 ILRM 133

CASSIDY v MIN FOR INDUSTRY & COMMERCE 1978 IR 297

RSC O.84

Abstract:

Constitutional law – Judicial Review – Ultra Vires – Delay – Whether legal to permit US aircraft overfly the State & refuel without assent Dáil – Air Navigation Act 1996 – Air Navigation (Foreign Military Aircraft) Order 1952 – Article 28 Bunreacht na hEireann

The applicant sought to challenge by way of judicial review the decision of the respondents to permit aircraft involved in military action in Afghanistan to overfly the State and to land and refuel within the State without the asset of the Dáil in reach of Article 28. The applicant further sought to strike down the permissions granted pursuant to inter alia the Air Navigation (Foreign Military Aircraft) Order 1952 and the Air Navigation (Carriage of Munitions of War Weapons and Dangerous Goods) Order 1973, as amended, as being ultra vires the Air Navigation Act 1946.

Held by Macken J., in refusing the reliefs sought, that the applicant had not established the existence of a war within the meaning of Article 28.3.1 of the Constitution in Afghanistan. The court had to adopt a restrained approach as to the circumstances in which the Executive should take decisions relating to war. The Orders made were valid pursuant to the Air Navigation Act 1946. The applicant had failed to move promptly in seeking relief and the delay was unexplained.

Reporter: E.F.

1

Judgment delivered by Macken J.on the 13th day of December 2005

2

These judicial review proceedings arise in the wake of the terrorist attacks of 11th September 2001 in the United States and the subsequent U. S. led military action in Afghanistan. On 12th September, 2001, Resolution 1368 (2001) was passed by the Security Council of the United Nations in which it unequivocally condemned the terrorist attacks and expressed "its readiness to take all necessary steps to respond to the terrorist attacks...and to combat all forms of terrorism". The Resolution called on "all states to work together urgently to bring justice to the perpetrators, organisers and sponsors of these terrorist attacks". These sentiments were repeated in Resolution 1373 of the Security Council of the 28th September, 2001.

3

The affidavit of Mr. David Cooney, Political Director of the Department of Foreign Affairs sworn on the 19th September 2002, outlines the respondents" view of the response to the events which surrounded the military action commenced in Afghanistan by a coalition of states led by the United States. According to that affidavit, the United States, having established links between Al Qaeda and the Taliban regime in Afghanistan, the coalition launched a military campaign against the Al Qaeda network and the Taliban in that country. The Al Qaeda camps were destroyed and the Taliban overthrown. The international community thereafter established an Interim Authority in December 2001, which was subsequently replaced by a transitional authority in June 2002.

4

According to the affidavit evidence filed before the court, the response of the Irish Government as to the terrorist attacks in September 2001, and as to Resolution 1368 (2001) was outlined in a speech made by the Taoiseach in which it was articulated that the State would, in so far as it was necessary, facilitate the overflight, landing and refuelling of aircraft engaged in pursuit of Resolution 1368(2001), and this position was duly communicated to Mr. Powell, then Secretary of State for the United States.

5

The applicant in these proceedings is seeking to challenge, by way of judicial review, the first named respondent's decision to permit aircraft involved in the military action in Afghanistan to overfly the State and/or to land and refuel within the State, without the assent of the Dáil. It is the applicant's contention that this assent is required by Article 28 of the Constitution. He also seeks to have struck down the permissions actually granted by the second or third named respondents allowing aircraft to overfly the State or to land or refuel within the State.

Relief
6

The applicant obtained leave to apply for judicial review on the 13th September 2002 by order of this Court (Finnegan P.) The reliefs sought by the applicant were originally more extensive, but, pursuant to order of this Court, are now the following:

7

1. An order of certiorari removing for the purpose of being quashed the decision of the First Named Respondent to open the airports and airspace of the State to aircraft involved in or relevant to military action in Afghanistan in purported pursuance of United Nationals Security Council resolution 1368, and/or removing for the purpose of being quashed the decisions of the second named respondent pursuant to the Air Navigation (Foreign Military Aircraft) Order 1952 allowing such aircraft to overfly or land in the State and/or removing for the purpose of being quashed the decision of the third named Respondent pursuant to Article 5 of the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order, 1973, as amended by the Air Navigation (Carriage of Munitions of War, Weapons and Dangerous Goods) Order, 1989, exempting such aircraft from the prohibition on carriage of munitions of war including weapons and dangerous goods.

8

2. If necessary, a declaration that the said Orders of 1952, 1973, and 1989 are ultra vires, unconstitutional and void and/or the Air Navigation Act, 1946and in particular s.5 thereof, is unconstitutional and void insofar as it authorises the said orders.

9

3. A declaration that the giving of permission allowing the said aircraft to fly and/or land in the State and/or from the giving of any other assistance to states involved in military action in Afghanistan is in breach of Article 28.3.1.of the Constitution.

Grounds for seeking relief:
10

The permitted grounds on which the relief is sought are as follows:

11

1. The State by assisting the military action in Afghanistan is declaring and/or participating in a war without the assent of the Dáil Éireann contrary to Article 28.3.1.

12

2. The military action in Afghanistan is contrary to the Constitution in particular, Articles 29.1 to 4 thereof.

...

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