Extracts from a memorandum for Government by the Department of External Affairs¹ 'Possible alternative courses to adopt in regard to the new Czechoslovak Government'²

1. The possibility that the Czechoslovak coalition (but Communist-controlled) Government may appoint a successor to take the place of the Czechoslovak Minister to Ireland³ raises a number of political, legal and practical questions for the Government.

   Prior consideration will, doubtless, be given to the policy issues, but the Government's final decision cannot ignore certain legal rules and may even have to take account of certain practical consequences.

2. Assuming that the Government are disposed to take the broad political line of rejecting further friendly relations with the Czechoslovak Republic, the various alternative courses open to them may be examined under two general heads viz (i) withdrawal of recognition of the Czechoslovak Government and (ii) severance of diplomatic relations with Czechoslovakia.
3. Taking these in their order, we may observe that no aspect of international law has been the object of so much writing, so many judicial decisions and, nevertheless, so much controversy, as that of 'International Recognition'.

   The authorities distinguish between the recognition of States, Governments, Belligerency and Insurgency, express and implied recognition, de jure and de facto recognition etc., etc., but these are no more than a few of the main headings, known to most general legal practitioners, and it would be futile to attempt to cover such a vast and specialised branch of law in a brief memorandum. Accordingly, the following observations on the subject of the withdrawal of recognition, (which does not go all-fours with the subject of the granting of recognition), do not purport to do more than indicate the limits to which the Government might go in withdrawing their international recognition from the Czechoslovak Government should that be their general intention.

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6. Obviously, where two administrations are competing for international recognition as the lawful government of a foreign State, (concerning whose existence, territory and population no question arises), the task of deciding in favour of one or the other is not so delicate as that with which the Government is now confronted in the case of the new government of Czechoslovakia.

   The presence of two rivals in the field, usually provides at least a choice between diametrically opposed policies, as, for example, in the case of the two Polish Governments, one of which is Communist and the other quite the opposite. By recognising the Polish Government in London, our Government may for a time claim to be acting in accord not only with indubitable facts but even with rules of law.

   Another great advantage of having a rival 'government' - no matter how futile - on which to confer recognition, is the very practical one of being able thereby to continue to do business in some degree with the State and nationals which the recognised government pretends to represent. So long as any Polish Government is recognised, the State called 'Poland' is a fortiori recognised.

   Of course, according as a recognised government loses touch with the State it purports to 'govern', the more remote the relations between that state and the recognising government are bound to grow, so that, in the end the recognising State - if it wants to have normal relations with the other State and to be able to justify its own international conduct - will be compelled to withdraw recognition from an obsolete or obsolescent government and transfer it to the politically objectionable, but legally and practically supreme, government.

   These are considerations which may one day have to be faced by the Government in the context of Poland, but they do not arise here for the simple reason that there is at the moment only one Government of Czechoslovakia which enjoys our Government's recognition (through M. Ruzicka's³ continued presence on mission) so long as that recognition is not withdrawn. Lauterpacht at page 353 of his recent work⁴ says:

   'Instances of withdrawal of recognition of a government, unaccompanied by a recognition of a new authority, are, and ought to remain, rare'.

7. Withdrawal of recognition from the Czechoslovak Government, there being no other rival government on which to confer recognition, would virtually mean that, so far as Ireland was concerned, the Republic of Czechoslovakia and its people had ceased to exist. This unique position, might not, owing to the paucity of international transactions between the two States, cause much embarrassment on our side and scarcely any more to the Czechoslovak people.

   Trade with Czechoslovakia (to which State the ordinary 'most-favoured-nation' tariffs and treatment are now accorded) might be expected to suffer but, from our point of view, the loss would probably be negligible. Our exports to Czechoslovakia fell from £9,083 in 1946 to £2,036 in 1947. In the same years Czechoslovakian exports to Ireland rose from £267,202 to the considerable sum of £1,426,780.

   The Agreement between the Government of Ireland and the Government of the Czechoslovak Republic relating to Air Services between their Territories, made in Dublin on the 29th January, 1947 (T.S.No.1 of 1947) would not raise any practical difficulty, since no air services are actually in operation between the two countries. That Agreement appears to be the only bilateral treaty we have made with Czechoslovakia.

   Where the position created by a withdrawal of recognition would produce most inconvenience and, incidentally, disclose the fact that it was unique, would be in relation to judicial proceedings. If the Government were to cease to recognise the Government of Czechoslovakia, the latter would not be permitted to plead in Irish Courts. It may be assumed that our Courts would follow the most usual practice (and the invariable British judicial practice) and refuse to attribute a juridical existence to a foreign government which had been denied recognition by our Government. Needless to remark, such an attitude would not be adopted at present by the Courts even in regard to the Government of the U.S.S.R. itself (unless, of course, that Government was purporting to be the Government of territories recognised by us as constituting a separate State or States and, therefore, the position which would follow on a withdrawal of recognition in the Czechoslovak case would stand out as unique).

   Presumably, also, the Courts here would decline to facilitate as heretofore the Courts of Czechoslovakia in civil procedural matters (and vice-versa). In practice this might result in some hardship on individuals as there have already been a fair number of Commissions Rogatoires from Czechoslovakia before our Courts. The fact that quite a number of Czech citizens (engaged in the beet sugar industry, etc.) have settled here, renders it not unlikely that further 'Letters of Request' may reach our Courts from Czechoslovakian Courts.

   As an alternative, however, to withdrawing their recognition from the Czechoslovak Government, the Government might consider the desirability of severing diplomatic relations with the Czechoslovak Republic. This is the second course referred to at paragraph 2 of this memorandum. It is discussed in subsequent paragraphs.

   In the present paragraph we shall advert to still another method of dealing with the Czechoslovak situation which would combine elements both of withdrawal of recognition and severance of diplomatic relations.

   This is the method whereby de facto recognition is accorded to a Government by accepting from it a representative without full diplomatic or consular (de jure) status. This method, it will be observed, combines features of both the main courses indicated above as open to the Government.

   By recognising the fact (because it is a fact) that the Communist-controlled coalition is really the only government administering Czechoslovakia, we are not thereby necessarily recognising that that government is legally (or constitutionally) entitled to be regarded as a normal Government. In other words, we have actually withdrawn part of our former recognition - the de jure part - while, in allowing an appointee of the Czechoslovak government to reside here without diplomatic or consular status, privileges or immunities, we have severed diplomatic relations but not all relations.

   This kind of compromise arrangement is worth, at least, considering in all its aspects before proceeding to more drastic measures. Quite clearly it would not be easy to establish, especially if no second Czechoslovak 'government' is set up anywhere to which the Government might accord de jure recognition.

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Probably the greatest drawback to the adoption of an arrangement similar to this in respect of the Government of Czechoslovakia would lie in (i) the political undesirability of admitting an 'agent' here who would not fall into the normal diplomatic or consular categories and who might therefore be suspected of being a mere communist agent and (ii) the difficulty of making a case to the Czechoslovak government for withholding de jure recognition while according de facto recognition.

The first objection is not, of course, so vital. Our police force could be relied upon to control a few more aliens who enjoy no particular immunity from the ordinary law of this land. Moreover, the likelihood that the Czechoslovak agent would want to set up a Communist 'cell' in Dublin is not perhaps, to be seriously reckoned with as his position would be so well under public observation. The importance of this objection rests chiefly in the danger that anti-Government propaganda might be made of it or that an ill-informed public might resent the presence here of any kind of representative of a State 'behind the Iron Curtain'.

The second objection undoubtedly gives rise to a bigger problem. It would certainly be difficult to satisfy the Czechs that the withdrawal of de jure recognition was intelligibly based.

We should probably have to take refuge in excuses such as the 'illegitimacy of a government founded on force', a reason which might sound rather strange coming from a country which had to regain its freedom by force. Or, we might endeavour to show that the Czechoslovak Government had, in our eyes, failed to pass the test of popular consent. This 'test' is, however, not generally accepted nowadays as providing a sufficient ground for the grant or denial of international recognition.

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9. If nothing can be worked out on the basis of a compromise such as is indicated in paragraph 8 above - and the obstacles are only too clear - then the simplest course for the Government to adopt might be that of severing diplomatic relations immediately upon the retirement of Mr. Ruzicka.

   Severance of diplomatic relations is, of course, a very serious step for any State to take vis-à-vis another.

   It is, indeed, usually the step which immediately precedes a classic declaration of war. But, it is, quite clearly, a step which the Government may freely take without fear of being accused of 'international delinquency' and it definitely does not entail the practical disadvantages which inevitably follow upon the withdrawal of recognition. Severance of diplomatic relations does not affect the recognition position at all (although the withdrawal of recognition does affect diplomatic relations).

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The Government would have to decline to accept a new appointee to continue the Czech mission here on some strong ground such as could be summed up in Oppenheim's expression 'acute disagreement between the two States'. That is to say the breach ought to be well founded in principle and, it is submitted, there ought not to be an attempt to sidestep the main issues by simply refusing agréation or approval, to any particular individual nominated to succeed Mr. Ruzicka. Still less dignified would be a resort to the tactic of refusing a visa to any nominee of the new Czech Government. Such a refusal is, of course, within our sovereign rights in respect of aliens abroad, but, apart from seeming rather a feeble solution to adopt, it might also appear unnecessarily aggressive and discourteous.

The appropriate mode of disposing of the problem may, perhaps, best be sought in a careful examination by the Government of their real objections to continuing to welcome a diplomatic representative of the Czechoslovak Republic to Ireland. When these objections have been fully noted, analysed and placed on record, they should provide the basis of an unanswerable diplomatic Note. That is to say that once our Government have convinced themselves on paper that they are, in the exercise of their sovereign right and in the vital interest of the people they govern, taking the proper course with Czechoslovakia, a reasoned statement of their attitude will be convincing - no matter how unpalatable - to the Czechs and to the world at large.

If, for example, the Government were to declare their inability for vital domestic, ideological reasons to continue in close friendly relations (as distinct from strict legal relations) with a Communist-controlled State, their position would be virtually unassailable. Moreover, such a declaration would certainly disclose the necessary 'acute disagreement' - a disagreement which ought, of itself, render the Czechs on their side adverse to continuing in diplomatic relations with Ireland.

The Government could, if they wished, insist that their attitude towards the Czechoslovak Government represented no particular animus against that administration, being entirely consistent with the well-known fact that no Irish government, hitherto, has maintained diplomatic relations with any predominantly Communist country.

10. If the Government should eventually decide on the course of severing diplomatic relations, certain steps will have to be taken to wind up the affairs of the Czechoslovak Legation at Dublin.

    It is, however, scarcely necessary to consider these steps before the Government have come to a definite conclusion.