A Chara,
I enclose you herewith the memorandum which Phelan was good enough to write on the question of the Registration of the Treaty. As you can see he covers all the points that could be raised relating to the subject. The interpretation of Article 18 to which he refers was quoted in my letter.
It may be of interest to you to know that at the meeting of the League Council at Rome yesterday Chamberlain only employed the term 'British Empire' and corrected some one of his colleagues who referred to Great Britain. In dealing with the programme of the Health Commission he also gave his colleagues to understand that he was supporting the attitude of the Indian Delegation at the Opium Conference. By the way, this Conference will scarcely be able to finish before late in January.
Dear MacWhite,
With reference to our conversation on Saturday, I would submit to you the following observations on the registration of the Anglo-Irish Treaty:
I understand the registration may be contested.
Such contestation could only be made on two grounds - either that the Free State had neither the obligation nor the right to register the Treaty with the Secretariat in accordance with Article 18 of the Covenant, or that the Treaty was not a Treaty within the meaning of Article 18.
As regards the first of these possible objections, the Free State is a Member of the League. The terms of Article 18 are explicit. Any Member of the League is obliged to register every treaty or international engagement into which it enters. This obligation is binding as from the beginning of the existence of the League, i.e. from January 1920.
The Irish Free State is a Member of the League. Therefore the Irish Free State is not only entitled but obliged to register any Treaty or international engagement into which it may have entered since January 1920.
It may be argued that the Irish Free State was admitted to the League as a Dominion of the British Empire and that therefore arrangements between it and the Empire or parts of the Empire are not subject to the provisions of the Covenant.
To this it may be replied:-
- There are not different categories of Members of the League.
- All Members of the League have the same rights and are subject to the same obligations.
- A State on entering the League cannot, if it would, contract out of certain obligations - it is either admitted as a Member or not.
- The Assembly has no power to admit a State with rights or obligations differing from those of other Members. To do so would be equivalent to amending the Covenant and for that purpose a special procedure is provided by Article 26.
- It cannot be argued that a treaty or engagement between two parts of the Empire is excluded from the operation of Article 18 by Article 15, par.8, which refers to disputes within the domestic jurisdiction of one Member. Under Article 15 it is the Council which decides whether par.8 of Article 15 applies. To do so the Council would have to consider the relationship of the parties. The relationship cannot be regarded as settled a priori. Hence the rights of a Member (even if a question such as registration of a treaty could be involved) remain unprejudiced until such time as the Council has pronounced. Therefore Article 15 cannot be invoked against Article 18.
- If the relationship of the Free State and Great Britain were such that the Free State could not register the Treaty, it would be in contradiction with Article 20, paragraph 2. As Great Britain supported the application of the Free State for Membership, she admitted that the Free State had undertaken no 'obligation inconsistent with the terms of the Covenant'. If the Free State cannot register the Treaty she should not have applied for Membership of the League and Great Britain should not have supported her application.
- The most conservative theorists in discussing the British Empire admit that within the limited sphere of the League of Nations the Dominions have the same powers and obligations as other Members of the League subject perhaps to Article 21 concerning regional understandings similar to the Monroe Doctrine 'for securing the maintenance of peace'. Whatever may be the effect of Article 21 as regards inter-Dominion relations under Articles X, XII, XIII or XV, it certainly cannot be held to derogate from their rights or obligations under other Articles of the Covenant. Keith1 even goes so far as to state that disputes 'between different parts of the Empire can be brought to the cognisance of the League' and that the International Court of Justice is 'open to the Dominions' (The Constitution, Administration and Laws of the Empire, pages 33 and 51).
It may therefore be concluded that the Free State as a Member of the League has the same rights and obligations under Article 18 as the other Members of the League.
With regard to the second objection, namely that the Anglo-Irish Treaty is not a treaty or international engagement within the terms of Article 18, in addition to the above it may be argued that the official interpretation of Article 18 approved by the Council of the League, makes it clear that that Article applies not only to international treaties stricto sensu but to all international agreements, engagements or arrangements lato sensu. If the Anglo-Irish Treaty is a treaty - President Cosgrave on the admission of the Free State to the League referred to it as an 'international treaty' in the Assembly and the British Delegation did not challenge his description - it should be registered. Alternatively, if it is not a treaty stricto sensu but only an agreement between Governments, Article 18 still applies in accordance with the interpretation formally approved by the Council of the League at its Sixth (?) Session.
Finally, it may be noted that registration is not something which adds anything to the Treaty. Absence of registration might perhaps, very problematically, diminish something of its force but registration as such adds nothing. If the real objection, formulated as an objection to registration, is directed towards the possibility of an appeal to the League by the Free State concerning the non-observance of one or other Article of the Treaty, that is an entirely different question which is not relevant to the strict question of registration.
Article 18 was designed to secure publicity for International Agreements. As such its application was intended to be universal. But, while attempting to provide sanctions for non-registration, it does not provide for the enforcement of such agreements as may be registered. It was clearly the duty of the Free State to register the Treaty. It was equally clearly the duty of the Secretariat to carry out the registration. And it seems to me as impossible to challenge the registration, even supposing every point could be carried against the Treaty itself, as it would be to challenge the registration of a letter conveying prohibited matter through the post.
My personal impression is that if any protest has been made it is either in the nature of political bluff or it is a confused and unintelligent method of protesting against an appeal to the League concerning the application of the Treaty, which is quite another and a hypothetical matter.
The above is a very hurried summary of the arguments which may be used. I have not been able to add an accurate reference to the Council's interpretation of Article 18 as I have not my League documents. But I hope it will serve your purpose.
Yours very sincerely,
E.J. PHELAN
