Edward J. Phelan to Hugh Kennedy (Dublin)
(Personal)

My Dear Attorney General

The question of the power of the Free State to ratify Treaties has now come to a head.

You will remember the history of the signature and ratification of the amendment to Art. 393 of the Treaty of Versailles. I wrote you that the British had sent to the League a ratification entirely general in form and that the question had been raised with the British Delegation as to its application. The British Delegation (to the Labour Conference) asked us to suspend publication and to ask the League to do likewise until they could enquire from London.

The Ministry of Labour has now written to us as follows:-

'I have made enquiries as to the scope of His Majesty's ratification and find that, as I anticipated, the ratification applies to the whole Empire and extends to the Irish Free State as well as to Canada, the Commonwealth of Australia, New Zealand, the Union of South Africa, and India. We would suggest, therefore, that in describing the ratification in official publications the most suitable formula would be to say that it is on behalf of the British Empire, Canada, the Commonwealth of Australia, New Zealand, the Union of South Africa, the Irish Free State, and India.'

As soon as we communicate this statement to the League they will publish and we will be obliged to do the same as it concerns an amendment to the Labour part of the Treaty and therefore will be reproduced in the Official Bulletin of the I.L.O.

I had already been very distressed and discouraged by the resolution of the Imperial Conference which to my mind is contrary to the Treaty. Its drafting however is not rigid and in any case it is only a 'voeu' submitted to the various Governments. I had hoped therefore that under it our position could still be maintained. But this last goes much beyond even the most rigid application of the I.[mperial] C.[onference] resolution. The Free State has never been consulted on the amendment in question. She has not received the text and has not signed the protocol. Her position in fact becomes that of a colony and the President's declarations in his speech at the Assembly are stultified before all international opinion.

However, you will realise better than anyone how grave are the results and implications. I can see no means of stopping publication. Ten days perhaps remain which will be consumed in the communication of the above reply to the League, in printing etc. But the above information is conveyed to you confidentially and cannot be used officially. The only thing I can see is that the Free State should at once create a precedent of independent ratification, say of the Court Treaty, and contest the above ratification after she is officially informed of it.

I have already suggested for your consideration a method of ratification which I think squares with the Constitution and which can also be defended by Empire practice. There is a South African precedent, an instrument of ratification signed by Smuts and the Governor General (see Official Bulletin of the I.L.O. Vol. 4 page 400).

I should very much like to be able to have a chat with you about the situation and about the I.C. resolution. I am at a loss to understand it and I should very much like to have your views so as to know the line to take here. I shall be in London on 16th.17th.18th. and 19th. I suppose there is no chance that yourself or O'Shiel or anyone familiar with the legal view might be in London at that time. If you should wish to write to me in London, International Labour Office 26 Buckingham Gate will find me, on the abovementioned dates. I shall be leaving Geneva on the 11th.

I enclose a copy of what may be called the 'enacting' clause of the Court Treaty in case you should want to consider it.

I have been following with interest the Courts of Justice Bill in the Dáil. I imagine it must be giving you an immense amount of work but you should draw considerable satisfaction from its progress.

I see that an interpretation bill has also been presented. I should be very glad if you could have a copy sent to me.

If I can give you any information with regard to ratification precedents I shall of course be only too glad and if I can do anything to help in any other way I hope you will not hesitate to ask me.

With kindest regards and best wishes