Dáil Éireann debate -
Wednesday, 12 Jul 1950

Vol. 122 No. 8

Committee on Finance. - Treaty of Friendship, Commerce and Navigation between Ireland and the United States of America—Motion of Approval.

Minister for External Affairs (Mr. MacBride)

I move:—

That Dáil Éireann approves of the terms of the Treaty of Friendship, Commerce and Navigation between Ireland and the United States of America, signed at Dublin on the 21st January, 1950, a copy of which was laid on the Table of the Dáil on the 21st January, 1950.

The text of this Treaty has been in the hands of Deputies for some time now and, therfore, its contents are, no doubt, already familiar to them.

The relations between States in such matters as trade and the reciprocal treatment of citizens are normally conducted within the framework of a basic Treaty which sets out the general conditions governing the position of nationals and companies of one party in the territory of the other, the rights to be enjoyed by them as regards employment, taxation and access to the courts, and the general conditions governing trade, shipping and similar commercial activities between the two countries. Treaties of this kind constitute, in fact, a "bill of rights," as it were, of the nationals of each country in their dealings with the Government, authorities and private concerns in the territory of the other.

This is the first comprehensive treaty of its kind which has been concluded between Ireland and the United States. Hitherto, our mutual dealings as regards the matters covered in the treaty have been regulated by three treaties concluded between Britain and the United States in the last century which, under the general rules of international law, could still be invoked by this country after the establishment of the Irish Free State in 1922. Apart from other considerations, this position was unsatisfactory from our point of view because the treaties concerned were in many respects completely out of date and their provisions did not cover a number of matters such as the enjoyment of social service benefits and the conduct of publishing educational and cultural activities, which were unheard of perhaps 100 years ago but which developments in the meantime have made of considerable importance.

The treaty consists of a preamble, 25 articles and a protocol. Its terms provide for the mutual grant of national treatment in respect of some matters and of most-favoured-nation treatment in respect of others. It is hardly necessary, perhaps, to go through the treaty in detail, but there are one or two points which are worth special mention. For example, under Article 4, Irish nationals in the United States will receive the same treatment as American citizens as regards statutory compensation for disease, injury or death arising out, or in the course, of their employment. Similar treatment is assured as regards compulsory insurance claims providing for old age and unemployment. Article 4 entitles Irish commercial manufacturing and publishing firms who carry on business in the United States to the same conditions as those applicable to American firms engaged in like activities.

The same principle applies to teachers and religious organisations and professional men other than lawyers. This means, for example, that an Irish doctor, although not an American citizen, may practise in the United States once he has satisfied the qualifications required by American law. The national treatment provided for in Article IX in respect of internal taxation is subject to an exception as regards taxes connected with the acquisition of real property. The treaty consular matters. These were left over to be dealt with in a separate treaty which has since been signed and presented to the Dáil.

The present treaty will remain in force for ten years after the exchange of ratifications unless it is terminated in that period under the provisions of sub-paragraph 4 of Article VI.

I am particularly glad to have the opportunity and responsibility of presenting to the House this Treaty of Friendship, Commerce and Navigation with the United States of America. There is no nation in the world with whom we have closer links, and this treaty symbolises these links. To a large extent, our two nations mutually inspired each other in the course of their struggle for independence and in the assertion of human democratic rights. I trust that this treaty will guide the destinies of our two nations ever closer together and enable them to play an ever-increasing influence in the assertion of national, human, political and religious liberty.

I should like to take this opportunity of expressing to the United States our sympathy and appreciation of the sacrifices now being made by them in order to maintain world peace.

I should also like to take this opportunity to express my gratitude to Mr. George Garrett, the Ambassador of the United States, for his untiring and friendly co-operation in bringing to a successful conclusion the negotiations which led to the signature of this treaty. His sympathetic understanding and co-operation were in no small measure responsible for this important milestone in the relationship between our two nations.

Mr. de Valera

We naturally welcome this treaty as a gesture and symbol of the good relations that should naturally exist between our people and the people of the United States. I must confess that when I read the terms of it, I did not find a great deal of substance in it. It seemed to me that there was little in it that was not already a matter of general practice under international law. I was surprised to hear the Minister say that most of these relations are established by way of treaty. At least, I gathered that from his statement. It seemed to me that most of the privileges or rights that are granted under this treaty would in fact be enjoyed under the normal practice by residents in the United States or in any democratic State. I was interested in the question of the conscription of Irish citizens who might be resident in the United States and made amenable to American law. As I understand this treaty, what is provided is that Irish nationals would not be subject to conscription there unless the two States were simultaneously at war and that, therefore, it was to be presumed that there was a common cause.

On the other hand, it is provided that a national of ours will have a choice within a reasonable time. I am always anxious about the phrase, "a reasonable time", as to what exactly would be considered a resonable time. The idea there, of course, would be to see that, suppose you had conscription here in case this State was at war and conscription also in the United States, you would not have somebody, because of residence in the United States, escaping service in both countries. That is precluded, I take it, by the terms of the treaty. We can object to that.

The other matter was whether this treaty would interfere with our Control of Manufactures Act. I find that, although certain privileges are supposed to be given, nevertheless, there are exceptions to provide necessary safeguards, as far as we are concerned. The Minister seemed to be more concerned with telling us the privileges that our residents in the United States would enjoy than with telling us what privileges citizens of the United States would enjoy in this country. We should be very careful to see that we are making a reasonable bargain, because a small country is in far greater need of protecting itself against exploitation by a large State than the reverse. What might appear to be equal terms in law might result in very unequal terms in practice. I hope this Treaty has been carefully examined by the Minister and his officials to see that the things which we have found it necessary to safeguard by positive law are not interfered with by the treaty. A case in point is the Control of Manufactures Act.

With regard to other matters, compulsory insurance, etc., I take it that where a resident of a State is compelled to subscribe to insurance then, in justice, he would be allowed to benefit also. That is secured so far as I can see in the treaty but in case there is any doubt about it, the matter should be carefully examined. The treaty is a fairly long one and I think all international treaties of this character should be examined with great care by members of the House. Treaties have to be presented here for ratification and it is the duty, particularly of lawyer members of the House, to examine these treaties with care and to see that the national interest are safeguarded. It not infrequently happens that those who negotiate an instrument are inclined, when changes are made and a certain phraseology is used to meet a particular aspect they have in mind, not to read its terms as widely as they can be read afterwards. You put down a certain phrase to meet a certain specific situation and some time afterwards when you read that phrase again, it appears to have a far wider meaning than the meaning attributed to it originally. In the case of all these documents there is a great need that members of the House who are detached from the negotiations and the circumstances in which the negotiations took place, should consider them so as to interpret them in the broad terms in which they may afterwards be interpreted by a court. It is in that type of close examination of documents that lawyer members of the House could help and be of great assistance. One of the functions which they should take upon themselves is to read documents of that sort with extreme care, so as to point out any flaws that might occur in them and to see that, when a document is being accepted, it is not capable of a meaning far wider than that which was intended by those who signed the instrument.

I must say for myself that I have read this document with a certain amount of care and I have not been able to discover anything of that nature, but then I am not a legal person. I am suggesting a counsel of perfection, if you like, but I think when a document of this sort is negotiated by a Department, like the Department of External Affairs, the law officers, acting quite separately and apart from it, should get the final instrument when it is presented and examine it carefully. I imagine that that would be done in the normal course on the part of the Government, but in case there should be any possibility of dispute afterwards as to the interpretation of it, there should be that independent examination.

At the time of the negotiations which led up to the Treaty in 1921 one of the precautions we took was to provide that the document before being signed would be brought home so that it might be examined by the people at home quite independently. If that precaution had been observed, I do not think that Article 12 in regard to the Boundary Agreement, which was interpreted afterwards in quite a different way from that in which it was intended it should be interpreted by least one set of signatories, would have been agreed to in the form in which it appeared in the Treaty. There was an interpretation put upon it which shocked not merely those who were parties to the Treaty and supported it, but a number of people who had quite different opinions. Differences in the interpretation of these often due to the fact that those who negotiate them are not aware of the wider interpretation that can be given to phrases that are used to express their ideas.

I do hope therefore, although I do not myself see anything in this particular instrument that could lead to any grave danger except those clauses which might limit our powers with regard to protecting ourselves under the Control of Manufactures Act or matters of that kind, that this treaty has been carefully examined. So far as my reading of it goes, we are protected I think in the matters I have mentioned.

It is important that the Department of External Affairs, who always in these cases have the advice of their own law officers, when they negotiate an instrument should examine it carefully but, quite independently from them, the law officers should also examine it. It would not be well to bring in the general law officers at an early stage; they should get the document in its final form and be asked to consider it quite independently of the Department. To conclude, we are not opposed to this treaty, but welcome it.

Dr. Brennan

Might I ask the Minister if we are to understand from the treaty that Irish doctors would be permitted to practise in the United States under certain conditions; whether these conditions involve an examination; and vice versa whether American doctors coming here would be allowed to practise in this State either with or without an examination? Heretofore, of course, it was necessary to pass an examination. Am I to understand from the Minister's statement that as long as the American authorities were satisfied that an Irish doctor was well qualified he could practise in America and vice versa with regard to American doctors?

Mr. MacBride

If I may deal with Deputy Dr. Brennan's question first, the position in relation to Irish doctors practising in the United State was that, under existing laws in the United States in the different States, only a United States citizen was entitled to practise medicine and a number of the other professions. The effect of this treaty is to exempt Irish citizens from these provisions, in other words, to enable Irish citizens to practise the profession of medicine or teaching; lawyers, however, are excluded.

Mr. de Valera

They must qualify in American law.

Mr. MacBride

They must have the necessary qualifications in accordance with State laws.

Mr. de Valera

Does that mean medical qualification or other qualifications?

Mr. MacBride

Medical qualifications for doctors.

Mr. de Valera

My interpretation of that was that it would not really change the position very much because whatever the American law was remained the law.

Mr. MacBride

I am sorry, Deputy. On the contrary, in America a treaty once adopted and ratified becomes law.

Mr. de Valera

That is true. I had overlooked that.

Mr. MacBride

It becomes part of the fundamental law of the United States and it has been ratified by the Senate the other day.

Mr. de Valera

Agreed.

Mr. MacBride

In our case, a treaty does not become part of the positive law; we have to implement it by legislation subsequently if it entails a change in the law. The effect of this treaty is to enable Irish citizens to practise in the United States of America every profession except law. For some reason lawyers are excluded. Possibly it was felt that there were too many lawyers in the United States; possibly it was felt that there were too many lawyers in Congress or in the State Legislatures and that it would not be a popular exemption. However, we did not press that matter particularly hard.

The treaty is of very considerable importance and it gives Irish citizens in the United States rights which citizens of very few other nations in the world have. In other words an Irish citizen is now in a superior position in the United States in relation to some of the rights enumerated in this treaty than, say, a British citizen.

Mr. de Valera

I would like to have these enumerated.

Mr. MacBride

That is one of them. For instance, an Irish citizen can become a teacher, can by law practise the profession of teaching in State schools. A British subject cannot. I have enumerated a number of them in opening and I think the Deputy will find a list of these enumerated in a statement that was issued at the time the treaty was signed and I can let him have it. It is quite an important treaty and I might mention that the negotiations for a similar treaty between Britain and the United States have been proceeding for some 80 years and have not yet been concluded.