No. 211 NAI DFA Legal Adviser 's Papers
Memorandum from Michael Rynne to Joseph P. Walshe (Dublin)
'The Legal Basis of Ireland's Neutrality'
DUBLIN, 14 July 1942
- Unlike some other States which have made or acceded to neutrality rule-making treaties, Ireland does not base her neutrality on any particular document or documents.
- For example, Sweden, as was recently emphasised in a parliamentary statement by the Swedish Prime Minister, can found her protests against belligerent violation of Swedish territory in an appeal to the well-known Declaration of May 27th, 1938, whereby Denmark, Finland, Iceland, Norway and Sweden agreed to enact similar Rules of Neutrality. The Scandinavian rules so provided for were brought to the notice of all the other States (through the League of Nations and diplomatic channels) well before the present war began.
- But, in our case, neutrality was declared quite informally (notably in speeches of the Taoiseach) to be the policy of Ireland during the present war. No laws were passed and no proclamations issued for the purpose of declaring neutrality. The only positive quasi-legal pronouncement made was that of the Permanent Delegate to the League of Nations who, on the 4th October, 1939, informed the Secretary-General of the League in writing that 'Ireland intends to maintain neutrality in the present war '.1 Similar expressions of intention to remain neutral were conveyed by Irish diplomatic representatives abroad to the foreign Governments to which they were accredited in 1939. These were verbal statements as a rule.
- From the practical standpoint, Ireland's position is no less clear than that of Sweden or any other neutral state. While the Swedes have their own published neutrality rules, they still abide by the general rules of international law on which those rules (so far as they go) are based. We, for our part, also endeavour to conform our practice to the more widely-accepted rules which have grown up out of a number of recognised international Conventions (to which we are not a party) or which have evolved out of a series of precedents created during the last war and this.
- It may be safely stated that the Irish Government acknowledges a virtual obligation to give effect to the principal Conventions, such as those of the Hague of 1907, the Red Cross and Prisoners of War Conventions of 1929, etc., etc., although this country never ratified or acceded to them. For, unless the Government was determined to observe the various 'Neutrality Conventions' – or the rules emerging therefrom – in Ireland's relations with the belligerents, Irish neutrality would not survive one week. Hence, the Government, so long as it desires to maintain neutrality, must admit the binding force of the universally recognised rules of international law upon Ireland. No one denies that it has done so up to now.
- Coming down to points of detail, which do not always seem to be covered by the general rules, one method has been to ascertain whenever possible the practice of other neutral States in similar circumstances. In that way we are able to justify the stand we take in any particular case on an actual precedent. To some extent at least, we are thereby helping to create international law ourselves by confirming new precedents or by modifying them when occasion requires.
- In conclusion, it should be mentioned that the lack of a special treaty and/or a statutory basis for Ireland's neutrality has not given rise to any real administrative difficulties at home nor raised any criticism abroad.
Occasionally, it has been found helpful to make an Emergency Powers Order to implement the operative rules of international law (e.g., we have made Orders about such matters as the sojourn of belligerent warships in Irish ports and the internment of belligerent armed forces entering Irish territory) but, on the whole, we have carried on without special measures of any kind. Our main guides have been (1) the practice of other neutral States, (2) the pre-eminent rule of strict impartiality, and (3) simple commonsense which is, perhaps, the surest guide of all in the more or less trackless desert of the 'neutrality law' of modern wartime.