Memorandum from Michael Rynne to Joseph P. Walshe (Dublin)

The Change of Constitution and International Treaties concluded prior thereto

1. The coming into operation of the Constitution over two years ago meant the disappearance from international, as well as constitutional (or 'internal'), existence of Saorstát Éireann and the coming into being of Ireland (Éire). Whether that is to say that a new State was created by the new Constitution or whether it simply meant that a new name was conferred on an existing State, is not of vital significance in regard to the binding-force of those international agreements to which Saorstát Éireann formerly was and Ireland now is a party.

2. But if it be assumed that no new State was created in 1937 or, at least, that no new international entity came to be recognised then, the matter of the pre-1937 treaties raises no issue whatever. The treaties originally made by the State, Saorstát Éireann, naturally continue to bind that State under any other name. There is no modern precedent to a contrary effect. Where States have changed their names in recent time the most they have done in the international sphere has been to notify other States of the change without, however, referring in any way to their continuing respect for obligations undertaken in the past. For example, Persia on changing its name to Iran some few years ago notified the Secretary General of the League of Nations of that fact, without adverting in any way to its intention to continue to adhere to the League Covenant. We followed a similar procedure during 1938 in regard to the League and to those States where we were directly represented.

3. It seems fairly clear that, from the point of view of other States, no new international person was created by the new Constitution. That impression may have been conveyed by the procedure, already referred to, whereby we merely announced a change of name. It was, no doubt, strongly reinforced by the fact that we did not recall and reaccredit our representatives abroad. Moreover, those Governments which studied the Constitution must have concluded from the very absence of any reference therein to the transfer of international obligations to a new State, that there was no intention to create a new State, at least for international purposes.

4. Thus, arguing that no new State has been established, we may rest assured that no valid objection can be taken (or is likely to be taken) to Ireland's participation in any particular treaty concluded by representatives of Saorstát Éireann, simply on account of the new name of the Irish State.

5. Arguing, on the other hand, that a new State has in fact and in international law been created, we may still assert the indubitable right of Ireland to operate treaties made on behalf of Saorstát Éireann. The rules governing the succession of States enable us to claim that Ireland, as the lawful successor of Saorstát Éireann, is entitled to inherit the latter's contracts, rights and liabilities vis-à-vis foreign States. Properly speaking, if it were generally accepted that 'Ireland' is an entirely new State, the Government, through the Minister for External Affairs, should undertake the gigantic task of informing all the other Governments of the world of the precise treaties now regarded as binding on the new State, although concluded or brought in by the old predecessor-State. In 1922, a similar situation confronted the Government of Saorstát Éireann. It was then more or less reluctantly decided to ignore strict international rules and to work all useful or appropriate old United Kingdom treaties while neglecting the unsuitable ones. Other States gradually began to recognise what treaties were being honoured in practice by Saorstát Éireann and what treaties of a purely 'British' character were not being applied.

6. Plenty of examples can be found of States (Italy, Spain, etc.) which in recent years have entirely altered their Constitutions, and yet adhere to all their former treaties. Only States which have increased their territories in fact (e.g., Italy, Germany, etc.) appear to have had to notify foreign States regarding the application of certain old treaties, affected by the territorial changes, but never regarding all old treaties.

7. In the particular case that we have to deal with (the Transatlantic Air Agreement)¹ there would seem to be no reason at all why it should receive exceptional treatment from any other State. We may moreover advise the Minister of the important fact that, since the Constitution came into force, we have notified no country of a change in our mutual treaty relations due to the new condition of affairs, and that no foreign country has at any time since 1937 challenged Ireland's right to participate in any agreement concluded for Saorstát Éireann prior to that date.