Memorandum from Michael Rynne to Frederick H. Boland (Dublin)(Secret)

Secretary,
The subject matter of Colonel Maher's report of the 7th January to Mr. Herlihy¹ certainly arouses fears, but I do not know if it will be possible to dispose of it by legal arguments, however sound, if and when the American Legation bring it to our official notice.

2. There is, at the moment, no recognised state of war, involving America in hostilities in Europe or the Middle East, and in which we claim to be neutral and so there is no international obligation resting upon us (as, for instance, would emerge from Article 46 of the Hague Air Rules of 22-23) to prevent planes of the A.[ir] T.[ransport] C.[ommand] operating from Shannon. The fact that the present operations may develop into a war, certainly renders it necessary to view this matter from a broader point of view than that of mere obligation. Expediency would seem to warn us against the prospect of allowing the A.T.C. to avail of our national airport 'in ever-increasing numbers' as foreseen in Colonel Maher's report.
3. Viewing the matter as a genuine peacetime phenomenon, we have to observe that the A.T.C. is not a United States' airline which is 'authorised' under the Agreement concluded with the U.S. Government on the 3rd February 1945. No rights can be claimed for the A.T.C. under that Agreement for this and other reasons.

   But the 'Two-Star' General who, doubtless, was aware of this, has selected a better line of approach in trying to assimilate the A.T.C. to an 'unscheduled operator'. This is a way of bringing the A.T.C. right into the provisions of Article 5 of the Chicago Convention, 1944. As an unscheduled operator, A.T.C. could avail of rights to overfly or land in Ireland without prior permission.

4. The flaw in the General's case is, of course, to be found in Article 3 of the Chicago Convention which limits the application of that instrument to civil aircraft. 'State aircraft', defined to include aircraft used for military purposes, are excluded from the Convention and it is distinctly laid down that 'No State aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise and in accordance with the terms thereof.'
5. We may assume, from the General's statement that the A.T.C. has 'to a great extent lost its military complexion', that an approach will be made to us on the basis of Article 5 of the Chicago Convention for an unscheduled service of civil aircraft.

   If that occurs there are two courses open to us. Either we admit the contention that the A.T.C. is now a civil airline on the basis of the arguments advanced, or we rely upon the State ownership and non-commercial character of that organisation to assert that the Chicago Convention cannot apply to it.

   There may - if we propose to concede the American demand - be a political argument in favour of accepting the suggestion that the A.T.C. planes are at present civil aircraft within the meaning of the Convention. By accepting this suggestion we do not forego the possibility of claiming later (say, on the outbreak of a war) that A.T.C. planes have acquired a military character. We would, at least, have preserved our right to protest as party to the Chicago Convention and/or a neutral State.

   On the other hand, if we insist that the A.T.C. aircraft are State aircraft we may find ourselves prevailed upon to make a special agreement about them which for reasons too clear to need emphasis, I will not trouble to set out here. Such an agreement might prove disastrous.

6. In strict international law no State may challenge Ireland's 'complete and exclusive sovereignty over the airspace above its territory' (Article 1 of the Chicago Convention) but, if we propose to insist on this fundamental principle to keep out the A.T.C. we shall have to oppose absolutely any arguments advanced to show that it is a civil undertaking within the meaning of a Convention whereby we have surrendered some of our sovereign rights in particular contexts.

   For example, we shall have to deny that the fact (if it is a fact) that the A.T.C. planes are now unarmed gives them the character of civil aircraft. Of course, it does not affect the matter one way or the other. A civil plane may carry arms (but permission to overfly or land must be obtained - Convention Article 35 and our Exchange of Notes with U.S. of 1937, Article 11).

   Doubtless, it is better for us, from a practical point of view, if the A.T.C. now availing of Shannon are unarmed! So long as the A.T.C. can carry on without seeking permission from us, the better. We can close our eyes to anything until a point is reached where the public safety and preservation of the State requires a change of policy.

7. Although the foregoing remarks may disclose a certain amount of pessimism as to our ability to resist an American démarche on this subject, I have no doubt at all but that it would be most unfortunate to allow this State to be used, even in peacetime, as the military air base of a foreign State and I am, moreover, convinced that we are entitled under international law to forbid entry altogether to the A.T.C.

   Morally, the United States have no claim whatever on us. Their own air policy - despite much ado about the 'freedoms of the air' - is never to give more than they receive. As we know from our own negotiations with them (resulting in the amending Agreement of 1947) they do not always give as much as they receive. There are a number of cases on record to show that the United States have not even given the rights they were obliged to give other States, fellow-parties to the Paris Air Navigation Convention of 1919, when compliance with obligations would have meant financial loss.