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No. 357 UCDA P150/2370

Letter from John J. Hearne to Joseph P. Walshe (Dublin) enclosing a
preliminary draft of the Foreign Relations Bill

Dublin, 6 September 1936

Secretary,

I submit herewith a preliminary draft of the Foreign Relations Bill. The scheme of the draft Bill follows the lines discussed with the President on the 4th instant.

The references in the draft Bill to 'the Constitution' are references to the new Constitution, not to the Constitution of 1922. The new Constitution will contain the following fundamental declarations

1. A Declaration that Éire is an independent sovereign (democratic) State,

2. A Declaration that all the internal and external prerogatives of the State vest in the people of Éire,

3. A Declaration of the right of the people of Éire to determine and control the manner and form in which the said prerogatives (or any of them) shall be exercised or exercisable.

The Constitution will also contain an enactment to the effect that the manner and form in which all or any of the prerogatives referred to shall be exercised or exercisable may be determined by law.

These provisions are all recited in the Preamble to the draft Bill. The Bill itself when enacted will be the determination by law of the manner and form in which certain of the external (or foreign) prerogatives are to be exercised.

Legislation in the terms of the draft Bill would throw the whole question of the use of the Kingship for purposes of external relations only into its proper context, namely, the context of the sovereignty of the State. It would demonstrate the minor place which the forms of the only instruments now issued through the agency of the several Monarchy occupy in the constitutional system now to be established. And it places a ringing emphasis upon the authority and control of the people in every aspect of the external relations of the State.

[signed] John J. Hearne

ÉIRE

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FOREIGN RELATIONS BILL, 1936

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DRAFT OF A BILL

Entitled

AN ACT TO MAKE PROVISION IN ACCORDANCE

WITH THE CONSTITUTION FOR THE EXERCISE

AND PERFORMANCE OF CERTAIN OF THE CONSTITUTIONAL

RIGHTS AND FUNCTIONS OF ÉIRE IN THE DOMAIN

OF FOREIGN RELATIONS.

WHEREAS by Article 2 of the Constitution Éire is declared to be an independent sovereign State:

AND WHEREAS by Article 3 of the Constitution the prerogative of peace and war, the treaty-making power, the right of legation and all the other foreign prerogatives of the State are declared to belong to the people of Éire:

AND WHEREAS by the said Article 3 of the Constitution the right of the people of Éire to determine and control the manner and form in which the said prerogatives (or any of them) shall be exercised or exercisable is declared to be absolute and indefeasible:

AND WHEREAS it is enacted by Article 4 of the Constitution that the manner and form in which all or any of the said prerogatives shall be exercised or exercisable may be determined by law:

BE IT, THEREFORE, enacted by the Oireachtas as follows:-

Consent of Dáil Éireann before state of war declared

    1. A state of war between Éire and any other State shall not be declared save with the consent of Dáil Éireann.
    2. In the event of any invasion or threatened invasion of the territory of Éire the Council of Ministers shall forthwith take all such measures as they may consider necessary for the protection of the State.
  1. Exercise of treaty-making power

    1. The treaty-making power of Éire shall not be exercised or capable of being exercised save only by or on the authority or advice of the Council of Ministers.
    2. Save in the case of treaties or conventions of a technical or administrative character, the text of every international engagement undertaken on behalf of the State shall be laid before Dáil Éireann.
    3. The State shall not be bound by any treaty or convention or agree- ment which imposes a charge upon the Exchequer unless the terms there- of shall have been approved by Dáil Éireann prior to the ratification of such treaty or convention.

    Appointment of diplomatic and consular representatives

    1. The diplomatic and consular agents of Éire in other countries shall be appointed by or on the advice of the Council of Ministers.
  2. Forms of certain instruments

    1. So long as Éire is associated with the Association1 of States commonly called and known as the British Commonwealth of Nations, the following international instruments, that is to say:-

      Treaties and conventions in the Heads of2 States form, Full powers and instruments of ratification relating to such treaties and conventions, Letters of credence or recall of envoys extraordinary and ministers plenipotentiary, Consular commissions and exequaturs

      may be made and issued respectively in such form or forms as are now or may hereafter be recognised from time to time by the Governments of the several States of the said Association for the purpose of the exercise by each of those States of its treaty-making power or its right of legation.3

    2. Every such full power, instrument of ratification, letter of credence or recall, consular commission or exequatur as aforesaid shall be passed under the Great Seal of Éire and shall be countersigned by the Minister for Foreign Affairs.4

    Citation

    This Act may be cited as the Foreign Relations Act, 1936 – Special Act.

    POBLACHT na h-ÉIREANN5

    ___________________

    ORGANIC LAW ON FOREIGN RELATIONS.

    __________________

    DRAFT OF AN ORGANIC LAW

    Entitled

    A LAW TO MAKE PROVISION IN ACCORDANCE WITH

    THE CONSTITUTION FOR THE EXERCISE OF CERTAIN

    OF THE EXECUTIVE POWERS OF POBLACHT na h-ÉIREANN

    IN THE DOMAIN OF FOREIGN RELATIONS.

    WHEREAS by Article 2 of the Constitution Poblacht na h-Éireann is declared to be an independent sovereign State:

    AND WHEREAS by Article 3 of the Constitution all powers of government, legislative, executive and judicial in Poblacht na h-Éireann are declared to belong to the People of Poblacht na h-Éireann and the said powers are by the said Article 3 declared to be exercisable only through the organs established or authorised in that behalf by the People of Poblacht na h-Éireann:

    AND WHEREAS it is enacted by Article 4 of the Constitution that the manner and form in which all or any of the said powers shall be exercised or exercisable may be regulated by Organic Laws:

    AND WHEREAS it is expedient to make provision for the exercise of the executive powers of Poblacht na h-Éireann relating to the making of international agreements and the appointment of diplomatic and consular agents:

    BE IT, THEREFORE, enacted by the Oireachtas as follows:-

    Exercise of treaty-making power

    1. The treaty-making power of Poblacht na h-Éireann shall not be exercised or capable of being exercised save only by or on the authority or advice of the Council of Ministers.
    2. Save in the case of treaties or conventions of a technical or administrative character, the text of every international agreement to which Poblacht na h-Éireann becomes a party shall be laid before Dáil Éireann.
    3. Poblacht na h-Éireann shall not be bound by any international agreement which imposes a charge upon the Exchequer unless the terms there-of shall have been approved by Dáil Éireann prior to the ratification of such agreement.

    Appointment of diplomatic and consular agents

    1. The diplomatic and consular agents of Poblacht na h-Éireann in other countries shall be appointed by or on the advice of the Council of Ministers.
    2. Authority to Council of Ministers to adopt certain usages

      1. So long as Poblacht na h-Éireann is associated with the States of the British Commonwealth of Nations, the Council of Ministers may, for the purpose of the exercise of the executive powers of Poblacht na h-Éireann to which this Organic Law relates, adopt all or any, as they think fit, of the practices or usages from time to time adopted by the said States (or any of them) in relation to the exercise of the like executive powers.

      Short title

      This Organic Law may be cited as the Foreign Relations Organic Law, 1937.

1 The word 'Group' is handwritten above the word 'Association'.

2 In the margin at this point the words 'any synonym have been written, referring to the words 'Head of'.

3 Handwritten marginal note referring to this paragraph: 'on advice of the Executive Council'.

4 Handwritten marginal note: 'authenticated by counter-signature of M.FA, Prime Minister, Presdt.'.

5 This document is dated 31 August 1936.