No. 167 NAI DT S5685

Edward J. Phelan to Gearoid McGann (Dublin)
(Copy)

GENEVA, 8 December 1923

Dear McGann,

I have written a personal letter to the President,1 concerning a ratification which has been put in by London to an amendment to Art. 393 of the Treaty of Versailles, which you will doubtless see. I have also written to the Attorney General2 and to O'Shiel.3

Would you draw the President's attention to the extreme gravity of the question which I have no doubt you will readily realise. I foresaw that something of this kind would arise and that is why during the Assembly and since, in a series of letters to A.G. and to O'Shiel, I have been urging that we should take the first step and affirm our rights under the Treaty by ratifying a convention on our own before a precedent of joint ratification from London had been created.

But this is much worse. The Free State has not been consulted on this amendment. She is to be internationally bound by London without having had the opportunity to express an opinion. The text of the amendment has never even been officially communicated to her from Geneva. If London can bind us internationally in this way, all sovereignty resides in London. If London can bind us in this way legally, still more so can she alter by the exercise of this sovereign power any arrangement between us and her such as the Treaty. Our whole position goes by the board and the Treaty becomes Home Rule and no more. I cannot believe that we will accept such a position which makes the President's speech to the Assembly just so much vain bombast and reduces the Collins-Griffith Treaty to a fraud.

I have been studying the legal side of the question and have written suggesting to the A.G. a method by which we can ratify independently. O'Shiel knows the procedure I propose. It consists simply in the Oireachtas empowering the President by an Act. Since the Oireachtas includes the King, and an Act gets the G.[overnor] G[eneral]'s. assent, it would not be against British Constitutional procedure which requires the King for ratification. The British could not object because to the British constitutional lawyer the King would have made the President his Agent. (There is also a South African precedent.) It is to me incredible that we should accept any other procedure. In view of Articles 1 and 12 of our own Constitution I do not think any other procedure is constitutional.

That is why I am very disturbed by the resolution of the Imperial Conference on the negotiation and ratification of Treaties. I wish I knew what you think of it in Dublin so as to know what line to take here.

I have thought out my system very fully. I know there are difficulties and objections which may be urged but I think they will all be met. I am leaving Geneva on the 11th. and will be in London the 15th., 16th., 17th., 18th., and 19th. for a meeting of one of our Commissions. I have suggested to O'Shiel that if there are any questions that are obscure it might be possible for him to come to London on one of these days. The points are difficult to explain by letter and I can't use my office secretary. By the way will you apologise to the President for my amateur efforts with the typewriter but I wanted to spare him a struggle with my handwriting. If O'Shiel should not be in London, I believe Dermot4 is over fairly often. Would it be possible for him to make a visit coincide with the days while I am there.

Anyway do ask the President to give the matter his most careful consideration. It seems to me that the Foreign Office is betting on our ignorance and general desire to be pleasant, hoping that the precedent will be created and that we shall be trapped. It is a tragedy that we should have let precious months go by and not have established our own legitimate precedent as we so easily might have done any time since our admission to the League.

Now all we can do is to get a precedent to put up against theirs but we must do it at once or when the British ratification with the description of it given in my letter to the President goes out to the Governments our whole international status will seem to them to have been a bluff.

So I trust you to do what you can. Any assistance I can give or any help in any way is of course at any time at the President's disposal.

Yours,
E.J. PHELAN

1See above No. 166.

2See below No. 168.

3Not located.

4Diarmuid O'Hegarty.


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