No. 26 NAI DFA Legal Adviser's Papers
Dublin, 16 September 1939
The maintenance of Neutrality
It is becoming increasingly obvious that the maintenance of our neutrality is going to involve us, practically every day, in difficult decisions of policy. I have been considering one such 'daily problem' (re messages received from 'Cabot')1 since yesterday. The legal answer to that problem is, as usual, quite easy to find. But, if we want to stay out of war, we must not tie ourselves to the strict law, and yet we cannot embark with safety on a policy of applying the law to one belligerent and waiving it in favour of another.
2. What are the essential facts of our position?
Although the question-mark is only too evident, one may hazard the following reply:-
i) The Germans want us neutral. They know that, if we were not so, we would be on England's side at this early stage of the war. Towards the end of the war, after a German victory was practically certain, Germany might prefer to have us on her side. The essential is that, at present, Germany prefers us neutral, because
a) we represent at least one State of the Commonwealth which does not believe in the righteousness of Britain, of which British propaganda is trying to convince the world;
b) our neutrality may inconvenience Britain's blockade policy;
c) our neutrality, preventing the stampeding of the population into the British block, may be hoped to serve as a slight distraction to a belligerent Britain.
Of these three reasons, I think that 'reason a)' is self-sufficient. The moral effect of our declared neutrality is worth so much to Germany that she will not want to disturb our status quo.
ii) The British are resigned to our neutrality on certain terms. They know that, if we were not neutral to a fairly considerable extent,
a) encouragement would be given to the pro-German element here which might eventually carry the day. To prevent such a possibility, Britain would have to 'lend' us troops that she could ill afford. How much better to let the country be held 'benevolently neutral' by an Irish Government plus a small Irish Army and Police. Should those means fail, the matter can always be reconsidered;
b) a neutral island (whose neutrality has been promised respect by Germany) just next door has its advantages for Britain as an evacuation area, base hospital and centre of espionage, or, perhaps, counter-espionage;
c) if we went 'loyal' to all appearances, we might be expected to insist on our pound of flesh in Ulster at a very awkward time. That might mean 1914 and 1916 all over again. 'The Irish cannot be trusted' – 'The Irish will always have a grievance'.
3. To conclude, given that the above premises are all fairly well-founded, we may take the view that our neutrality suits both belligerents at the moment. The Germans are so pleased that they have promised to recognise the status we have assumed, but the British are holding back for terms. In parenthesis, it may be remarked that neither belligerent is in the least likely to respect our 'neutral rights' in practice – but there we will be no worse off than any other small neutral country.
4. The main problem, therefore, that appears to confront us now is not a day-to-day problem (such as the 'Cabot' messages), but the question of what terms we will concede to Britain for what quid pro quo. This may not be realised as yet (which is the reason for this note) by our Government; it is, however, fully appreciated in Great Britain. By conveying the impression that they are 'disappointed' by our attitude to the present war, the British are succeeding in conveying a menace to our integrity. Yet, it is clear, by hypothesis, that our attitude suits them just now. Why, then, do the British pretend to resent our neutrality, as exemplified by their reception of our recent Aide-Memoire?2 Admitted that Irish neutrality and the Aide-Memoire represent a technical breach in the moral solidarity of the Empire, does not the real reason of Britain's lack of cordiality lie in her determination to extract good 'terms' from us?
5. The suggestion made here is that we stiffen up our give-and-take policy at once vis-à-vis the British. We know they are prepared to recognise our neutrality, therefore, should we not initiate at once a plan to obtain that recognition in formal terms precisely as we were accorded it by the Germans? It would seem not only absurd but distinctly dangerous to concede to a belligerent, whom we regard as a potential invader and who refuses to recognise us as a neutral country in a formal way, special privileges contrary to every ordinary rule of international neutrality law. But, granted a formal recognition such as the Germans gave us, the position might be different. We would be safer from invasion, inasmuch as Britain would find it harder to justify the invasion of a country whose neutrality she had agreed to respect.
The object is worth struggling for. The struggle might begin now with a stiff refusal to permit the 'Cabot' to use the Foynes radio station for un-neutral purposes, and might be followed up by a strong complaint against such incidents as the newspaper interview of the British airmen who landed on our waters. That incident can only be interpreted as an attempt to embroil us with the Germans, thus destroying our neutrality and landing us into the war. It was a complete let-down of the give and take policy – 'perfidious Albion' at her worst. How can the Government possibly be expected to be helpful at the present critical time (when the Treason Act is being availed of) if the British do not take Irish neutrality more seriously than that? The best and, indeed, the only solution from every point of view is that the British recognise and publish their recognition of our complete neutrality forthwith. We will then consider ways and means of co-operating as far as we can within the limits of technical neutrality. Otherwise, it may not be possible to guarantee a peaceful Ireland, so essential to Britain's immediate future.
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