No. 155 NAI DT S13750A
Memorandum by the Attorney General, Cearbhall Ó Dálaigh1, on Membership of the United Nations
Dublin, 18 July 1946
- By becoming a member of the United Nations the State would in effect become a party to an international agreement, i.e., the Charter of the United Nations which binds the members of the United Nations.
- By Article 29(5)(1°) of our Constitution such agreement would require to be laid before Dáil Éireann.
- By Article 17(2) of the Charter the expenses of the United Nations Organisation are to be borne by the members as apportioned by the General Assembly.
- As membership of the United Nations would therefore involve a charge upon public funds, the State, having regard to the provisions of Article 29(5)(2°) of our Constitution, would not be bound by the terms of the Charter unless the terms of the Charter had first been approved by Dáil Éireann.
- By Article 4 of the Charter membership is open to States which accept the obligations contained in the Charter and which in the judgment of the United Nations Organisations are able and willing to carry out these obligations.
- By Article 25 of the Charter members agree to accept and carry out the decisions of the Security Council in accordance with the Charter.
- By Article 42 of the Charter the Security Council is empowered, should pacific methods be inadequate, to take armed action to maintain or restore international peace or security, and such action may include armed action by the forces of members of the United Nations.
- By Article 43 of the Charter all members of the United Nations undertake to make available to the Security Council on its call and in accordance with a special agreement or agreements armed forces, assistance and facilities including rights of passage necessary for the purpose of maintaining international peace and security.
- The clear intendment [sic] of this last Article is that agreements shall be made, and the only matters for negotiation would be the nature and extent of the forces, assistance and facilities to be made available to the Security Council. The nature and extent of such forces, assistance and facilities being settled by agreement a member, on the call of the Security Council, would be obliged to make them available to the Security Council.
- Further by Article 45 of the Charter members, to enable urgent military measures to be taken, are required to hold available national air-force contingents for combined international enforcement action, the strength, degree of readiness etc. of each unit to be a matter of special agreement.
- By paragraph 1 of Article 48 of the Charter the action required to carry out the decisions of the Security Council for the maintenance of peace and security shall be taken by the members or such of them as the Security Council may determine; and by paragraph 2 such decisions are required to be carried out by the members directly.
- The Articles of the Charter cited make it clear that members of the United Nations undertake for the purpose of maintaining international peace and security, inter alia, to engage in war on the call of the Security Council.
- Article 28(3)(1°) of our Constitution declares that war shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann. (The 'and' in the sub-section, having regard to the Irish text, is in meaning clearly a negative disjunctive: 'ní dleathach cogadh d'fhógairt ná páirt do bheith ag an Stát etc.').
- Our Constitution therefore does not allow of the State participating in any war save with the assent of Dáil Éireann. It seems to me that such assent would require to be an ad hoc assent in each case, and that it would not be within the competence of Dáil Éireann to give such general assent as presumably would be required if the State were to undertake the obligations of membership of the United Nations.
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