No. 39 NAI DFA Legal Adviser's Papers
Dublin, 26 September 1939
Re Taoiseach's Proposed Statement to Dáil – Mr Moynihan's Minute of 21st September
I have examined the questions set out in Mr. Moynihan's minute of 21st September,1 the replies to which are intended to provide the Taoiseach with the material for a speech in the Dáil when it meets tomorrow.
Only the first four questions would appear to require the attention of this Department in a general way. Primarily they are questions which must depend for detailed answers on those State Departments responsible for administering ordinary laws and emergency orders which, taken together, enable the Government to deal with problems arising out of the present war situation. Insofar as existing legislation (including emergency orders) may affect our position in international law as a neutral State, this Department is, of course, concerned. It is our task to deal directly with the various belligerents and to satisfy them, if necessary, that the State is able and willing to maintain its neutrality.
2. The Minister for External Affairs has not so far made any emergency orders, nor is this Department responsible for administering any statutes or orders relevant to the present situation. Because of the Department's particular function of directly dealing with the belligerents, however, we have a special interest in what the Taoiseach may decide to communicate to the Dáil on Wednesday. If he were to deal to any extent with the many hypothetical problems which seem to flow from the Government's neutrality policy, this Department would almost certainly find itself involved in a series of embarrassing diplomatic explanations and elaborations. Even if the Taoiseach's speech merely resumed in considerable detail the history of how certain neutrality problems were disposed of during the last few weeks, this Department might likewise find itself in the position of having to give supplementary facts to those belligerent Governments which are, at the moment, inclined to take Ireland's neutrality for granted. The comments and criticisms of Deputies regarding the steps already taken to establish and preserve our present status might result in placing this Department, and the Government as a whole, in the highly vulnerable position of having to explain in minute detail the particular brand of neutrality adopted by this country. So far as we know, no other foreign Minister nor head of State of a neutral country has felt bound to render account of the operation of the neutrality policy to Parliament since this war began. Many of the Parliaments of such countries have by now virtually ceased to function. The President of the United States of America provides an apparent exception to this rule, but only an apparent one. In the case of the United States, the neutrality policy has been re-submitted to Parliament with the definite view to having it modified. The circumstances attending President Roosevelt's recent action, and those indicated in regard to the Taoiseach's proposed speech to the Dáil, are, therefore, quite dissimilar.
3. Mr. Moynihan's first question covers almost the whole field of international relations, as well as bearing on a considerable part of the State's internal administration. Fortunately, most of the problems to which the question refers have not yet arisen and, it is to be hoped, may never arise. Compared, for instance, with the neutral status of Holland, Belgium and Denmark, which is being outraged almost daily (and nightly) by the British naval and air forces, our neutrality during the last three weeks has suffered relatively negligible interference.
4. Certain problems of neutrality, such as the Irish merchant shipping problem, which was expected to give trouble, as well as the problem of keeping our newspapers and periodicals more or less 'neutral' in tone, were anticipated by the Government and dealt with summarily in appropriate Emergency Orders. Other problems which have materialised only partially, such as the problem of the use of our waters by belligerent warships and submarines, and the invasion of our air-space by belligerent military aircraft, have been partially dealt with, or are being considered by the interested Departments with a view to dealing with them by further Emergency Orders. No doubt, the Taoiseach will be advised of this latter type of problem by each of the Departments at present engaged in providing a remedy for it. But, from the point of view of this Department, practical difficulties might be avoided if the Dáil were not invited to discuss prospective Emergency Orders which may have to undergo last-minute alterations to meet circumstances as they arise. For example, until the Dáil (and people) can be confronted with the fait accompli of an Emergency Order to compel Irish merchant shipping to light up at night (instead of blacking out as at present), it might be a mistake to dilate on the international law whereby neutral merchant ships are expected to flood light their national colours after dark. At the moment, no final decision has been come to regarding the display of Irish neutral colours on our ships by night. The same applies to a large number of other problems which still await a definitive and, perhaps, an ad hoc ruling. To mention only one such problem, there is the question as to whether Imperial Airways crews should be allowed to use the Foynes radio station for the purpose of transmitting naval information to Great Britain. In that regard, the Dáil could only be informed that the intention was to prevent such un-neutral use of our Foynes transmitter – but such may not ultimately prove to be the case when a decision is taken.
5. It is difficult to enlarge on Mr. Moynihan's second query. Undoubtedly, the Government must be prepared to deal with all demands from belligerents on both sides, whether or not those demands seem to involve the infringement of our neutrality. In the event of belligerent demands involving infringement of our neutrality, the Government cannot lawfully comply with them. If they do so, the Government are going to lay themselves open to a charge of dereliction of their international duty to conduct themselves as the Government of a neutral State. Possibly, this question has been set down in the belief that a neutral State has certain rights per se. That is not, however, the case. Ireland's 'rights' are chiefly represented by the Government's theoretical right to take defensive action (or merely to protest) when Ireland's duty to behave neutrally has been rendered difficult or impossible by an outside Power.
6. If, in the present emergency, the Government decide, in what appears to them to be the best interest of the country, to concede to the demands of any one belligerent, notwithstanding that they thereby deviate somewhat from their international duty to remain strictly neutral, it might be well not to inform the Dáil of what must be regarded as quite exceptional concessions.
7. Up to the present, the necessity contemplated by question (2) has not given very much trouble in practice. The anticipated arrangement with regard to the re-export of American maize from Ireland to Great Britain might come under the matters envisaged by the question, but a case can be made for that in international law, and, in any event, the facts of the matter may not come to light, if not expressly brought to the notice of Dáil Éireann.
8. Short of summarising several hundred pages of international law text-books, it would be impossible to illustrate by reference to all the neutral countries (in two different war-situations) all the problems of neutrality. In general, we will, no doubt, endeavour to keep our policy in line as far as we can with that of such small States as Belgium, Holland and Denmark. It should, however, be remembered that most of the European neutral countries find themselves surrounded by rival belligerents. Ireland's geographical position is almost unique in Europe in that she has as her immediate neighbours two belligerents which are fighting as allies in the present war. Moreover, whereas other neutral countries have been compelled by circumstances and enabled by their previous experience to deal with their particular neutrality problems in a comprehensive manner, this country has taken, so far, scarcely any overt steps to establish in law the status for which the Taoiseach declared himself in favour as far back as February last.
9. Any reference to 'illustrations' in the Dáil drawn from the neutrality laws of other countries would, therefore, be likely to give rise to questions from Opposition Deputies as to how this country was reacting to particular states of fact. It is, accordingly, submitted that as few comparisons as possible should be made between the Government's neutrality programme here and the practice of neutrality in other countries which are in but few respects similar to our own.
10. To take only one example, no neutral country, as far as we know, intends during the present hostilities to take so strict a line with belligerent submarines as we do. In the last war, Spain alone approached our contemplated stringency in that regard. On the other hand, there is no example of a State in this or any other war (except ourselves) intending to repatriate the crews of belligerent military aircraft which may land upon the neutral national territory.
11. The fourth question set out in Mr. Moynihan's minute (the last question with which we have to deal), appears to be a kind of converse to question (2). Unlike that question, however, the duty which is imposed by international law upon the Government to observe strict neutrality seems to be fully recognised here. Nevertheless, it might be well to advise the Taoiseach to consider the desirability of not going into too much detail about the necessity for avoiding unneutral action, unless to warn individuals against the abuse of freedom of speech and to advise newspaper editors that the continued freedom of the Press will depend largely on their own moderation and respect for Ireland's position of neutrality. Beyond that, there would seem to be but little which can be said in the Dáil on this question that would not entail diplomatic 'explanations' by this Department sooner or later.
12. One rather un-neutral situation which, in the words of Mr. Moynihan's question, 'could reasonably be interpreted as a breach of neutrality', might be brought to the Taoiseach's notice, even though he may not wish to encourage any discussion of it in the Dáil. That is the situation in regard to the registration of foreign merchant ships in Irish ports. The law as it now stands enables the ship of any State of the British Commonwealth to be registered here by virtue of the British Commonwealth Merchant Shipping Agreement, 1931. Insofar as such ships may be entirely or mainly owned by persons who are not Irish citizens, the situation (even in peace-time) is completely anomalous, and inasmuch as all the States of the British Commonwealth are at present belligerents, the situation is completely 'un-neutral'. Certainly, the Government have gone some way towards adjusting the position by the provision (Article 5) in the recent Emergency Powers (No. 2) Order, that no ship may be registered in an Irish port without the specific sanction of the Minister for Industry and Commerce. That, however, does not get over the fact that our Registry still comprises a disproportionately large number of ships the ownership of which is entirely, almost entirely or mainly in the hands of persons who are the subjects of a belligerent State. Until this situation is cleared up – if necessary, by causing all belligerently-owned passenger and merchant vessels to leave our shipping register – the Government are open to the charge of acting so equivocally as to be suspect of conduct unbecoming to a neutral.
13. Perhaps, when we are replying to Mr. Moynihan's minute containing all the above mentioned and other questions, we might submit the view that, although we appreciate the motives underlying the questions, we feel that they are so framed as to seem to incline towards an unduly pessimistic view of Irish neutrality. The experience of the last three weeks has not demonstrated to this Department (which is so largely responsible for the maintenance of the neutrality policy) any unforeseen difficulties in the preservation of our present status. On the contrary, such minor difficulties as have so far arisen have been duly overcome, and, owing to a certain measure of good-will displayed by all belligerents in our regard, we may hope to continue to remain a neutral State without undue effort. Public opinion, as far as our Department is in touch with internal affairs, would seem to be taking the Government's policy as sensible and practicable and the doubts so often expressed some weeks ago as to the possibly brief duration of Ireland's neutrality are much less heard.
14. In short, it might be a pity if the Taoiseach were to convey to the Dáil by any statement he might now make on neutrality, the possibility – however remote – of our not being able to remain permanently out of the war. After all, the Government's policy has stood the test of one month of hostilities in which all the British Dominions and our two nearest neighbours are involved. No difficulty has arisen in those four weeks which has not been solved or which cannot be solved. The only factors lacking at present before the Government can express entire satisfaction with the working of their policy are the formal acts of recognition of Irish neutrality on the part of all the belligerent Powers, none of whom (except Germany) have so far expressed themselves in this connection. Irish neutrality is none the less an accepted fact, and a workable policy in the opinion of all realistic people at home and abroad.
15. Having passed the Emergency Powers Act, 1939, Dáil Éireann is not entitled to demand the right to review the policy of neutrality while the emergency still subsists. If that policy requires implementation from time to time, the Government will be carrying out the expressed will of the Oireachtas by simply making the necessary Emergency Powers Orders.
16. With regard to the reference in the final paragraph of Mr. Moynihan's minute to '(b) ministerial and subsidiary orders' rendered necessary in this Department by the present emergency, we need only advert to the Travel Permit regulations which the Department has found it necessary to make in respect of travel between this country and Great Britain. The necessity for the regulations originated with the British Government, which desired, for various reasons (inter alia that of preventing an exodus of British subjects of military age and an influx of undesirable aliens) to control travel in and out of Great Britain. The system as now established is working well, being to some extent assimilated to the usual passport system set up by the Department to meet normal conditions of travel out of Ireland. As both the officers of the Department who are chiefly responsible for the Permit regulations are absent on sick leave, it is not possible to provide full details of the system today. It may, however, be possible to procure further particulars, if required, before the Dáil assembles tomorrow.
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