Michael MacWhite to Joseph P. Walshe (Dublin)

A Chara,

The despatch from the British Government declaring that they did not recognise the Registration of the Treaty does not modify in the least the fact that the Treaty has already been registered as an International engagement in accordance with Article 18 of the Covenant. This Article reads:-

In this matter what applies to one Member equally applies to all and the Saorstát in the League is on the same footing as any other Member State.

In a memorandum approved by the Council of the League on the 19th. of May, 1920, it is laid down that the material to be registered, in accordance with the forementioned Article, 'comprises not only every formal Treaty of whatever character and every international Convention, but also every other international agreement or Act by which Nations or their Governments intend to establish legal obligations between themselves and another State, Nation or Government.' In view of this definition it would be idle to contend before an International Tribunal that the Anglo-Irish Treaty was not an Act intended to establish legal obligations between Great Britain and the Saorstát or between the British Government and the Irish Government. The League Secretariat who are acknowledged authorities on this subject have, after due consideration, given their decision and that decision must stand if the fundamental principles on which the League is founded are to be observed.

As the high officials of the League whom I could discreetly approach have gone to Rome for the meeting of the Council I have not yet been able to find out if the British note on this subject has arrived. Assuming, however, that such is the case it must have somewhat embarrassed the Secretary-General but it can take nothing from the validity of the Registration. Besides, if this note was anything else than an attempt to bluff the Saorstát Government it should be communicated to all the Members of the League. This is the usual procedure and it was adhered to in the case of the British declaration concerning Egypt which was forwarded to you a few days ago. Moreover, in our case, it is very improbable that the British would ask for publicity as that would be derogatory to the position of all the Dominions and raise the question of their Status as Members of the League.

In replying to the British note it may be well to emphasise the fact that, by her admission to Membership of the League, the Saorstát in accordance with Article 1 of the Covenant incurred certain international obligations which she did not intend to evade but at the same time she obtained certain international rights which she did not intend to forego. Firmness on this point would seem to be absolutely necessary at the present juncture as it is the evident intention of the present British Cabinet to endeavour to get back from the Dominions the control of Foreign Affairs which many of the latter have been exercising more or less independently for some time back.

So much for the Registration. But as regards the other phase of the question I have no doubt that the right of appeal to the League or to the Permanent Court of International Justice by the Saorstát remains intact, though it would to some extent be prejudiced by the publication of the British note. Article 34.Ch.ii. of the Statute of the Court reads:- 'Only States or Members of the League of Nations can be parties in cases before the Court'; Art. 35 says 'The Court shall be open to Members of the League and also to States mentioned in the annex to the Covenant'. And Art. 36 'The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in Treaties and Conventions in force'. Besides, in framing the Barcelona Convention and later on that on Customs Formalities the British admitted the right of the Dominions to appeal to the League as against Great Britain or against one another in certain eventualities. In order to deprive them of this right in those two specific instances an Article was included which reads as follows:- 'It is understood that this Statute must not be interpreted as regulating in any way the rights and obligations inter se of territories forming part, or placed under the protection, of the same sovereign State, whether or not these territories are individually Members of the League of Nations'. If this right of appeal did not exist this Article would be superfluous.

In order that the hands of the Saorstát Government may be strengthened in League matters it is necessary that the Protocol of the Permanent Court and the Protocol for the Pacific Settlement of International Disputes should be signed as soon as conveniently possible. This step would be a pretty effective answer to the British declaration though personally I think the best answer, if circumstances permitted it, would be to hand it back to the Governor General, inviting him at the same time to take a holiday in London and informing him that his return would only be anticipated when the note was withdrawn.

Owing to his absence I have not been able to discuss the matter with Ph.[elan]. Since he came back I saw him for a few minutes when he promised to write a short memorandum which I hope to be able to forward you in the course of a day or two. I have no doubt but his opinions will coincide with mine on the subject. As soon as the sitting of the Council is over I expect to be able to get the views of the Legal Section of the Secretariat but as you may well understand a certain amount of discretion must be employed in the matter. To sum up, I don't think that the notification to the Secretariat changes anything. Had it been sent before the Treaty was registered then another situation would have been created to our detriment.