Michael MacWhite to Desmond FitzGerald (Dublin)
(N.S. 169/23)

A Chara,

I enclosed you with my letter No.144¹ a copy of an Instrument of Ratification by the British Government and, at the same time, called your attention to the fact that the said Instrument was meant to cover not only the British Empire, but also the Dominions. A question was raised from Geneva as to the validity of this assumption but the latest information is that the British Government insists on adhering to it.

A letter from a British Parliamentary Secretary to a League official dealing with this matter has come to my knowledge. The following is an extract:- 'I have made inquiries as to the scope of H.M. ratification of the Amendment to Art.393 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.'

Now, if this interpretation is accepted by the Government it means that Saorstát Éireann would be bound by decisions of the British Government although such decisions may not have the sanction of the Oireachtas. As a result, the Executive Council and the Dáil would be placed in a very invidious position and the prestige of the Saorstát would be considerably diminished both at home and abroad.

If Treaties and Conventions can be ratified on our behalf, without even asking by your leave, it would be a matter of indifference for all practical purposes whether we agree to those Conventions or not. If this Instrument of Ratification is registered, it will be published immediately afterwards. It will then be too late for us to take any steps in the matter. In order to delay the registration, I am writing to the International Labour Office asking for a certified copy of the Amendment to Article 393, on the pretence that the Irish Government wants to consider it, along with other Amendments to the Covenant with a view to future ratification. This demand commits us to nothing but it will oblige the League to consider the situation that would be created and will make them doubt if the British Instrument, already submitted, holds good for Ireland.

The Government should profit by the delay thus created and take steps to ratify the Statute of the Permanent Court of International Justice. This will commit them to nothing more than Membership of the League has already committed them. It will, however, prove to the League authorities that the British Imperial Ratification is not binding on the Irish Free State and that the Irish Free State cannot be committed to anything without the approval of the Executive Council or of the Oireachtas.

I shall be obliged if you let me know as soon as possible the decision of the Government on this matter for, whatever steps they take must be taken immediately if they are to be effective.