Memorandum from Desmond FitzGerald to all members of the Executive Council on the registration of the Anglo-Irish Treaty at the League of Nations

A chara,

With reference to Mr. Alfred O'Rahilly's letter¹ and the President's covering note re Registration of Treaty,² we endeavoured to ascertain through our Representative in Geneva if the Treaty would be accepted without question by the Secretariat. He was unable to get us the information on this subject, but last year, following on a statement of mine in the Dáil, the American Government asked a representative of theirs in Geneva named McCrew (?) to ascertain what the position was. I am informed that his report was that a High Authority in the League informed him that it would probably be regarded as 'a British Domestic matter.'

The procedure for registration of a Treaty is that it be handed in to the Secretariat for registration. If any question is raised about the matter there it is referred to the Legal Adviser to the Secretariat, Van Hamil, who is expecting a British decoration. If he decided that it was not a registrable treaty we would be informed so by the Secretary General. On our protesting against this it is presumable that we would be told that this matter must be settled between ourselves and England. If England disagreed with us in the matter we could claim to submit it to the Council. The Council must agree unanimously except where one member of the Council is a disputant. In such a case England would be a disputant and therefore English agreement would not be required, but at the same time if England objected strongly it is considered unlikely that the other members would agree unanimously against her.

The Members of the Council are: England, France, Japan and Italy, permanent members; Uruguay, Brazil, Belgium, Sweden, Czecho-Slovakia and Spain - non-permanent members.

If the Council decided in our favour England would have the right to appeal to, and if the Council decided against[,] we should have the right to appeal to:-

(1) The Assembly. Here it is decided by majority, but the majority must include all the Members of the Council other than the disputants, so that, if the Council had decided in our favour the chances are that the Assembly would confirm their finding. If the Council had decided against us, the Assembly would decide against us; and,

(2) The Court of International Justice. Whatever the decision of the Court may be[,] it must be confirmed by the Council unanimously with the exception of the disputants.

It is therefore pretty apparent that if England decided to resist the registration of the Treaty she could succeed in preventing it. The question therefore arises, should we proceed to register the Treaty without sounding England. In the event of its being returned to us by the Secretariat we should then be able to decide whether we should or should not appeal to the Council. It is to be remembered that the League is the greatest centre of gossip in Europe, and that the return of the Treaty to us by the Secretariat would almost inevitably be public property. On the other hand we might sound England before taking steps for registration. I am agreeable to either course.

It seems possible that although England might object in their hearts to the registration of the Treaty, they might consider it impolitic to take any action against its registration in view of the fact that she has claimed for the Dominions the right to Membership of the League and the right to separate signature of Treaties etc., which she has had to maintain against the opposition of other Powers.

It should also be remembered that she might explain this away on the grounds that at the time the Treaty was signed Ireland was not a Dominion.

Another possibility is that on presentation of the Treaty, the Secretariat, without deciding that it was non-registrable, might inform us that there was a doubt as to whether or not it was registrable and say that it would be preferable that it should be presented jointly by us and Great Britain.

I think that in view of the explanation given above it would be well for each Minister to say if he thinks:-

(1) that the Treaty should be presented for registration without preliminaries; and

(2) if he thinks we should approach the British beforehand.