Kevin O'Higgins to William T. Cosgrave (Dublin)
(C. 1492) (Confidential)

President,

I incline to the view that we cannot allow ourselves to be manoeuvred into a position in which an alleged ambiguity in Article 12 of the Treaty is to be left to the decision of the Boundary Commission, which, in effect, means to the decision of a Chairman appointed by the British Government.

Our position, of course, is that we deny absolutely the existence of any such ambiguity, that the whole antecedents of the situation, together with the precise words of the Treaty, absolutely exclude the suggestion that such an ambiguity exists.

A British signatory and an ex-Lord Chancellor¹ has, however, come into the ring in favour of the assertion not merely that an ambiguity exists but that, in his view, the narrower construction, which is attempted to be placed on the provisos of Article 12, is the correct one. Such influential British newspapersas the 'Times', the 'Observer' and the 'Daily Chronicle' are in full cry on this note.

I believe that Lord Birkenhead's statement, as distinct from Press utterances, gives us an opportunity, which we ought to avail of, of taking up this matter with the British Government and asking them to declare plainly whether it is their opinion that any ambiguity of the kind exists in this particular Article of what is, after all, an international document.

Should they declare that it is their view that the Article is ambiguous then obviously we must have the ambiguity cleared up before the Boundary Commission sits, and the alleged ambiguity cannot be left to the tender mercies of the British nominee on the Commission.

If the British Government's interpretation of a particular Article of the Anglo-Irish Treaty conflicts with the view of the Irish Government - and we are entitled to know whether it does or does not - then some form of arbitration must be agreed upon, and such arbitration must take place before the Commission is set up. There must be no ambiguity or alleged ambiguity in the term of reference of the Commission.

As I am writing to you on this subject, I would like to add another suggestion. It is just possible that the North East, finding itself in a tight corner, would have resort to anarchy, in which event it would like very much to place the responsibility of precipitating such a state of affairs on us.

It might be well worth considering if not now, then at some later stage, whether we ought not to withdraw all our armed men a considerable distance from the border and announce publicly to the world that we had done so. A fool or an agent provocateur on either side of the existing Boundary might very easily cause an 'incident', and the British and North East Press might be relied upon to put their own interpretation on such incident' and to place the responsibility on us.