Memorandum from John J. Hearne to Joseph P. Walshe (Dublin), on the powers of plenipotentiaries, for Eamon de Valera (Dublin)

Minister for External Affairs

I think you will find in these two notes a summary of the information you asked for last night.

Secretary,

I send you herewith a note upon the above matters as requested by you this morning.

Authority to bind the State.

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Plenipotentiaries: Their Powers and Instructions

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The Financial Agreement of the 12th February, 1923

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Secretary,

Plenipotentiaries sent by the Head or Government of a State on a mission such as representation at an international conference or to negotiate a special treaty or agreement, receive full powers but not letters of credence. As well as these full powers such plenipotentiaries receive Instructions for the guidance of their conduct as regards the objects of their mission. 'But such instructions', says Oppenheim, 'are a matter between the envoy and his home State exclusively, and, therefore, although they may otherwise be very important they have no importance for international law.'

(International Law, Vol. I, p. 551).

The same author lays it down, however, that if plenipotentiaries ?conclude a treaty by exceeding their powers, or acting contrary to their instructions, the treaty is not a real treaty, and not binding on the State they represent.' (p. 657).

There is a vast amount of writing on this whole matter of the powers of plenipotentiaries and the check upon their actions by the State which they represent. Every international jurist of importance has discussed the subject. The modern practice of making every treaty subject to ratification has rendered the discussion somewhat academic but there is great authority for the view that where a treaty is signed by a plenipotentiary who in so doing acted contrary to his instructions there is no legal obligation to ratify the instrument. When a plenipotentiary enters into an engagement without authority or in excess of authority such an engagement must be confirmed by express or tacit ratification. The former is given in positive terms, and with the usual forms; the latter is implied from the fact of acting under the agreement as if bound by its stipulations. Good faith requires that the State refusing the engagement entered into by its plenipotentiary should notify its intention to the other State which is party to the engagement in order to prevent that other State from carrying its own part of the agreement into effect.

As regards the legal position of the Financial Agreement signed by President Cosgrave on the 12th February, 1923,² I cannot offer any final opinion until all the relevant facts and documents are before me. All I can do in this note is endeavour to apply the principles in a general way to the Agreement itself. It purports to be signed by the President of the Executive Council of the Irish Free State. An external Government could have no reason to believe that the Head of the Government of the Irish Free State was not entitled to bind at least the Government of the Irish Free State by his signature. In 1923 the resolution of Dáil Éireann resolving that the State would not be bound by any Agreement with an external Government without the prior sanction and consent of Dáil Éireann had not been passed. (It was passed on the 26th February, 1926.) Furthermore the signature of President Cosgrave was not repudiated by the Government of the Irish Free State. Lastly the Agreement was acted upon by the Government of the Irish Free State and, therefore, the obligations of the Agreement were impliedly accepted by them. It will be observed that the words of the Agreement commit the Government of the Irish Free State not the Irish Free State itself. I am not instructed on the point as to whether the Government in fact approved the Agreement when signed. There is no difference in principle between the binding force of an agreement concluded in the inter-Governmental form and an agreement concluded in the Heads of States form.

The entire question of the binding force of the Financial Agreement of 1923 will require much more detailed examination than it is possible for me to give to it in the absence of an accurate and complete statement of all the facts and documents relating thereto.