No. 290 NAI DFA 417/105

Memorandum by Joseph P. Walshe to Desmond FitzGerald (Dublin) on the registration of the Anglo-Irish Treaty at the League of Nations

Dublin, 1 December 1924


To: The Minister of External Affairs

Events leading to the Despatch of 4th November

The Treaty was registered on the 11th July. On the 13th August Whiskard of the Colonial Office wrote to the President referring to a conversation of the previous week on the subject of the registration. The gist of Whiskard's letter is as follows:-

In the opinion of the Colonial Secretary the action of the Irish Free State Government raised questions of very great constitutional importance as to the relations between the component parts of the Empire. In order to make their own position clear the British Government would feel bound to inform the Secretariat that the Treaty was not, in their view, an instrument proper to be registered under Article 18 of the Covenant.

The President, Whiskard states, had taken the view that the matter was one for the Imperial Conference and should be left in abeyance for the present.

The President replied on the 14th August.1 He had understood Whiskard's statement to mean that the British while acquiescing in the registration could not formally approve. If he had known there was any likelihood of real objection he would have refused to move the first reading of the Bill for supplementing the Treaty. For him the Treaty was a matter between two Nations and as such was regarded by those who supported it.

The Despatch of 4th November.

After acknowledging receipt of our Despatch of the 5th July notifying that our Representative had been instructed to register, continues:

'Since the Covenant of the League of Nations came into force, His Majesty's Government have consistently taken the view that neither it, nor any Convention concluded under the auspices of the League, are intended to govern the relations inter se of the various parts of the British Commonwealth. His Majesty's Government consider, therefore, that the terms of Article 18 of the Covenant are not applicable to the Articles of Agreement of 6th December, 1921, and are informing the Secretary-General of the League accordingly.'

The Despatch adds that copies of our Despatch of the 5th July and their reply are being sent to all the Dominions.

The British had obtained implicit recognition for their view about intra-Commonwealth relations at the Barcelona Transit Conference in March 1921, when the following article was inserted into each of the Conventions at their instance:

'It is understood that nothing in this Convention shall be interpreted as regulating rights and obligations inter se of territories forming part of, or placed under the protection of a single sovereign state whether these territories considered individually are, or are not, members of the League of Nations.'

The British obviously do not want to sacrifice their pet principle of the oneness of the sovereignty of the Commonwealth. They cannot allow two portions of the Commonwealth to bring a dispute before the League, the International Court or any other external body. If a single member of the Commonwealth brings a dispute with an outside state before the League, the fiction of the whole acting for the part will save the situation. The effort to maintain this fiction at all costs is at the bottom of the present ridiculous position of the Dominions in the League. They are actually members twice over and they have less power than the smallest State in the League. The Member of the League represented by the British Delegate is not the late United Kingdom, nor the United Kingdom plus Crown Colonies and Protectorates, but the British Empire in the most comprehensive sense of the term with the result that the signature of the British Delegate necessarily binds everyone of the Dominions unless there is an express reservation in each case excluding them.

The possibility of the Dominions being regarded as High Contracting Parties and independent Sovereign States was also faced at the Barcelona Conference and a remedy was sought in the division of the Conventions into two parts: a) A covering convention between High Contracting Parties, and b) An agreement between Contracting States. Sir Hubert Llewellyn Smith explained to the Conference that this was necessary because 'the League of Nations included a certain number of Members which are Dominions and not Sovereign States. In diplomatic language, they cannot properly be described, therefore, as High Contracting Parties.'

There was no Dominion represented at the Barcelona Conference to defend the individual sovereignty of the Commonwealth States, hence it seems to be taken for granted by League Members that the British Empire Delegation, as the British now call the combined delegations, is one for all effective international purposes. The League Members have not so far objected to the anomaly of plural representation by the British Empire. No really big issue involving jealousy between the big powers has been pushed to such a point at the League that a few votes one way or the other have made any matter. But at the Dawes Report Conference in London in July of this year France objected to the separate representation of the Dominions. The sop given to the Dominions was representation on the panel system which simply meant that the Dominion Representatives in turn acted as substitutes for one of the British Delegates.

There is no logic in the British position. In the League they follow the unity policy by manoeuvring the Dominions into agreeing to common ratification, into allowing themselves to be regarded as territories under the protection of a single Sovereign State, into letting themselves be called 'The British Empire Delegation'.

They refuse to recognise our passports unless we call ourselves British Subjects or describe ourselves as born within his Majesty's Dominions. On the other hand, Canada was allowed to make a Treaty with the U.S.A. (Halibut Treaty, March 23) in complete independence of the British Representative. Ireland is allowed to have an independent representative who shall be her sole channel of communication with the American Government. The fact that he was deliberately made a Minister Plenipotentiary only in order that he should never take precedent of the British Chargé d'Affaires (who, henceforth, is to be a Minister Plenipotentiary and Envoy Extraordinary) does not take from the more important fact that his actual relations with the American Government are to be those of a Representative of a completely independent State.

The British refusal to recognise the registration of the Treaty simply because Great Britain has always held the view that the Covenant does not apply to intra-Commonwealth relations is the most barefaced explicit denial of equality of which we have an instance. Up to this they had confined themselves to little manoeuvres more or less subtle and difficult to combat.

At the moment I can only suggest that we should emphatically declare that we joined the League of Nations believing the Covenant to be of universal application to all members without exception. We accepted the obligations of the Covenant fully believing that we were getting all the rights of Member States.

If at the mere wish of Great Britain the League decides that the Covenant does not apply to our relations with that Member State, we can give notice that we intend withdrawing at an early date.

[signed] S.P. Breathnach
Ministry of External Affairs

1See No.265 above.

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