Letter from Michael MacWhite to Joseph P. Walshe (Dublin)
(M.L. 04/084) (Copy)

A Chara,

The soi-disant legal opinion to which you refer in your letter L.N.34/193¹ as having been used against us at the Imperial Conference was not inspired by the Secretariat of the League of Nations, in fact, no such legal opinion existed, but it appears that the British who presumed their Dominion colleagues had only very vague ideas on what happened at the Arms Traffic Conference deceived them into believing that it did.

It is untrue to state as does the Balfour Report that the Legal Committee of the Arms Traffic Conference laid down the principle which was adopted at the Imperial Conference. Nobody has reason to know the history of proceedings of the Arms Traffic Conference better than I do, as I happened to be a Member of its legal Committee. The inter se question as we understand it was never discussed there.

The Dutch delegation, however, proposed the insertion of an article in the Convention providing that 'the provisions of the present Convention shall not be interpreted as applying to the dispatch of arms, munitions and implements of war from and to territories forming part of, or placed under the protection of one and the same sovereign State'. The opinion of the Legal Committee was against the insertion of this Article, but in order to show its courtesy to the Dutch delegate, it appointed a sub-Committee to go into the matter. The report of this sub-Committee was adopted by the Conference; it was to the effect that while they considered it unnecessary to formulate any exact definition, they were unanimously of the opinion 'that the general principle to which the Dutch amendment is directed underlies international conventions'. This was a polite way for rejecting the article.

The Dutch wanted to clear up a doubtful point and this point was that two parts of the same sovereign State would not be subject to international control. In other words, that the dispatch of arms from the Netherlands to the Dutch Indies would not be governed by the provisions of the Convention.

It is only by a laboured effort of the imagination that this 'general principle', which did not get legal sanction, could be applied to the relations between Great Britain and the Dominions. In fact, this was the first Convention adopted by the League in which the Dominions were not put into parenthesis and in small print immediately after the British Empire. They figure in the preamble in the same way and on the same footing as the other contracting States. In order, however, to maintain the pretence of the subordination of the Dominions, the British delegate, when signing declared in writing that his 'signature does not bind India or any British Dominion which is a separate member of the League of Nations and does not separately sign or adhere to the Convention'. The absurdity of this declaration could be made apparent had we signed on behalf of the Saorstát declaring at the same time that our signature did not bind the British Empire.

A confidential document prepared by a member of the League Secretariat on the proceedings of the Imperial Conference and on the relations of the States of the Commonwealth with the League, fell into my hands a short time ago. A copy of this document, which was circulated for the information of the higher officials of the Secretariat is annexed, as I am sure it will interest you (annex A.).² I also enclose you a rough translation I have made from Van Eysigga's pamphlet which deals with the same subject (annex B.).³ The views expressed in those two documents, making allowance for errors in both of them, do not differ materially from the views I have always held on this question. In addition, I am of opinion that the Imperial Conference agreement on the inter se issue is ultra vires from the League point of view, as it is in contradiction with both the spirit and the letter of the Covenant.

Now, as regards the legal opinion of the League Secretariat, it appears, as you suggest, to be opposed to the Dominions, but does not the responsibility for this rest more with the Dominions than with the League? The British Representative on the Council was authorised to make a request in the name of the Dominions to the effect that in future all treaties and conventions should be drafted in a certain way. In order to do this, the jurists of the League are obliged to conform to certain principles of international law, and when difficulties present themselves, they do not consult the Dominions, naturally enough, but rather the authority whom we delegated to be our spokesman in the matter. The British Foreign Office, consequently, supplied the first draft which is to form the groundwork of the new treaties and conventions and it is only natural in the circumstances that the League should consider the Dominions to be assenting parties. The task of finding a legal formula is not an easy one, as there exists a certain contradiction between the position of the Dominions as members of the League and the decisions they adopted at the Imperial Conference.

In the Convention on Export and Import prohibitions and restrictions, there is no doubt as to the ambiguity of the position of the Dominions. They do not figure there as contracting States, but as territories of a high contracting party and this notwithstanding the fact that they may sign the Convention in their own right. I do not see how it could be otherwise drafted if we are to stand by the Imperial Conference agreement and Chamberlain's declaration at the 44th Session of the Council. At the time the latter declaration was made, I pointed out that, if generally accepted, the status of the Saorstát as a Member of the League of Nations would be considerably affected, and so it seems to be.

If we want League Conventions to be differently drafted in the future, it is for us to present a formula which will reconcile our position as an independent contracting State with the declaration made by Sir Austen Chamberlain on our behalf. Even though we might encounter some difficulty in finding such a formula, I do not despair of a satisfactory solution, although we may have to approach it from another direction.