Permanent Court of International Justice.

Minister for External Affairs (Mr. McGilligan)

I move:—

That the Dáil approves of the Declaration accepting as compulsory the jurisdiction of the Permanent Court of International Justice signed at Geneva on the 14th day of September, 1929, a copy of which was laid on the Table of the Dáil on the 20th day of February, 1930, and recommends the Executive Council to take the necessary steps for its ratification.

The Declaration that was signed at Geneva in September, 1929, accepting compulsory jurisdiction was couched in the following language:

"On behalf of the Irish Free State, I declare that I accept as compulsory, ipso facto and without special convention, the jurisdiction of the Court in conformity with Article 36 of the Statute of the Permanent Court of International Justice for a period of twenty years and on the sole condition of reciprocity. This Declaration is subject to ratification."

On the paper on which that Declaration is printed there is also printed Article 36 of the Statute of the Permanent Court, to which I shall refer later.

To get this into its proper setting we must go back a little bit into history and join up the Statute of the Permanent Court with the Treaty of Versailles. I only want to refer briefly to that in order to point out to Deputies that those who drew up the conditions which terminated the 1914 War understood that they had something more to do than merely to put on record the conditions upon which peace was to be established. They realised that after that tremendous outbreak world conditions had to be so supervised and watched as to make war unlikely, or at least to weaken the possibilities of any such upheaval ever taking place again. They set themselves the task not merely of bringing one war to an end but of trying to get nations to agree to terms that would render war almost an unheard of thing in future. The Covenant of the League of Nations was part of the Treaty of Versailles and the Covenant contained numerous sections which deal with the methods that were then before the framers of the Treaty of Versailles, for ensuring peace in the world hereafter. The clauses of the Covenant of the League, to which I refer, were those which run from XI. to XVII. One of the intervening ones has no great relevance in this matter.

I should like briefly to go through those. Article XI. lays down:

Any war or threat of war. whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise the Secretary General shall on the request of any Member of the League forthwith summon a meeting of the Council.

It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.

Article XII. indicated three methods by which disputes might be brought to a solution:—

1. The members of the League agree that if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision or the report by the Council.

2. In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.

Article XIII. refers to two of the methods suggested for the ensuring of peace:

1. The members of the League agree that whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement, and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement.

The next portion has special relevance to the optional clause:

2. Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration or judicial settlement.

The third paragraph of Article XIII. reads:

3. For the consideration of any such dispute, the court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article XIV., or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them.

The concluding section of the Article is:

4. The members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto.

So far there have been pointed out three methods of having disputes, likely to lead to a rupture, determined and in particular certain questions have been segregated out and declared to be suitable for submission to arbitration or judicial settlement and the question of judicial settlement had been brought a step further by the section of Article XIII. which speaks of the Court being the permanent court of international justice established in accordance with Article XIV., or any tribunal agreed upon by the parties. Article XIV. deals with how the Court was to be established:

The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.

Article XV. is a lengthy article, and it refers back again to the submission to the Council, and it has not any special relevance to the Permanent Court, so that I do not propose to read it.

Article XVII. has some relevance, and lays down:

1. In the event of a dispute between a Member of the League and a State which is not a Member of the League, or between States not Members of the League, the State or States not Members of the League shall be invited to accept the obligations of membership in the League for the purposes of such dispute, upon such conditions as the Council may deem just. If such invitation is accepted, the provisions of Articles XII. to XVI. inclusive, shall be applied with such modifications as may be deemed necessary by the Council.

2. Upon such invitation being given the Council shall immediately institute an inquiry into the circumstances of the dispute and recommend such action as may seem best and most effectual in the circumstances.

3. If a State so invited shall refuse to accept the obligations of membership in the League for the purposes of such dispute, and shall resort to war against a Member of the League, the provisions of Article XVI. shall be applicable as against the State taking such action.

4. If both parties to the dispute when so invited refuse to accept the obligations of membership in the League for the purposes of such dispute, the Council may take such measures and make such recommendations as will prevent hostilities and will result in the settlement of the dispute.

That was the opening part; it simply segregated out certain ways of determining disputes likely to lead to war. It referred to the Court which was to be established, and then stated that certain matters singled out as most suitable for submission to the Court for judicial settlement should be referred to that Court.

Some time later proposals for the establishment of a Permanent Court of International Justice were brought up. A committee of jurists had been appointed to go into the whole matter, and when certain arguments and certain decisions had been taken as to whether resort to the Court should be compulsory or not there was finally brought up for adoption by the League, and adopted by the League the Statute of the Permanent Court of International Justice.

I want to refer to the sections which deal with the competence of the Court. Chapter II. is the relevant chapter, and it runs as follows:—

Article XXXIV.—Only States or Members of the League of Nations can be parties in cases before the Court.

Article XXXV.—The Court shall be open to the Members of the League, and also to States mentioned in the Annex to the Covenant.

The conditions under which the Court shall be open to other States shall, subject to the special provisions contained in treaties in force, be laid down by the Council, but in no case shall such provisions place the parties in a position of inequality before the Court.

When a State which is not a Member of the League of Nations is a party to a dispute, the Court will fix the amount which that party is to contribute towards the expenses of the Court.

Article XXXVI. is the specially relevant article here. It is the one quoted in the paper already presented to the House, and I need not read it, but I want to refer to the fact that the jurisdiction of the Court, when recognised as compulsory, was declared to be effective regarding all or any of the classes of legal disputes concerning four categories of matters set out: the interpretation of a treaty; any questions of international law, etc.—those matters which had previously been declared by the Covenant to be suitable for submission to judicial settlement. The other sections of that article state simply the law which the Court is to apply and the procedure for getting before the Court.

There was one dispute before the statute of the Court was passed. The committee of jurists wished to have it that that Court as established should be compulsory; that the States' members of the League would have to bind themselves to resort to the Court in the matters that were defined. This was objected to when the matter came before the League itself and, eventually, it was passed not in a compulsory form. The Court was established under the auspices of the League but Article XXXVI left it that it did not automatically apply but only applied when certain people signified their intention of applying it as between themselves:—

"The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the protocol to which the present Statute is adjoined, or at a later moment, declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation the jurisdiction of the Court in all or any of the classes of legal disputes concering"— then four matters follow—The declaration referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain Members or States, or for a certain time

In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

Therefore, when the statute establishing the Court was passed and adopted by the League it by no means meant that the jurisdiction of the Court came immediately into operation even in the class of dispute referred to between all States members of the League. It was left for a later decision whether or not States-members would recognise the compulsory part. There was also a certain discrimination allowed to the States so signing as to whether or not they would recognise the jurisdiction of the Court in respect to all or any of the classes of legal disputes referred to and there were certain other matters left to the choice of the nations signing. These are matters I shall deal with later.

The statute was passed, the Court was brought into being but the so-called optional clause which nations might opt to sign or not, but which when signed made resort to the Court compulsory, remained without very many people opting for it until this year. The circumstances this year had, of course, changed considerably and changed mainly by reason of the fact that so many nations, members of the League, had signed the Kellogg-Briand Pact for the abolition of war. We had signed that amongst others and when it came to a decision in this matter we felt that having declared that war was no longer any part of national policy in relation to other States we must give further proof of good faith in the matter by indicating that we were prepared to have recourse to this method of judicial settlement in all cases where judicial settlement seemed to be the proper thing.

As between the States members of the British Commonwealth of Nations this point had previously been raised. It had been declared in the 1926 report that although all the countries there represented were agreed that the extension of the principle of judicial settlement was favoured, they felt it would be premature, at that time, to proceed to the signature of the Optional Clause. We did not feel that it would be premature at that time to proceed to the signature but as the matter was simply put that a great number of nations had not signed and as there seemed to be a likelihood that all the nations of the British Commonwealth of Nations would sign later on, the matter was left over for a little. In 1928, the Canadian delegates at the League indicated that they were prepared to pledge their faith to arbitration as a means of settlement of international disputes, and the Premier, Mr. Mackenzie King, who was the Canadian delegate, indicated his Government's readiness to accept the jurisdiction in the permanent court. The Vice-President of this State, who was a delegate on that occasion, also indicated our desire to move forward to the signature of the Optional Clause, and the acceptance as compulsory of the jurisdiction of the court in the matters referred to. When the present British Government came into office last year they wrote to us inquiring as to our position, and notified us that they were considering the acceptance of the compulsory jurisdiction of the permanent court and asked for our views. We responded, at once, that we had always been in favour of signing and were very definitely in accord with their line, so far as that line led to the acceptance in a compulsory way of the jurisdiction of the court.

We proceeded, therefore, to Geneva this year. Before the delegates went to Geneva, on the Appropriation Bill in the Seanad Senator Johnson, after reading certain quotations that appeared in English Sunday newspapers, with regard to the Optional Clause, and alluding to certain reservations that those newspapers considered likely to be imported into a British signature, questioned me as to the policy of the Government of this country with regard to the Optional Clause. On that occasion I replied to him: "There was never any question of a reservation such as the ‘Observer' spoke of, and, to my mind, the quotation which Senator Johnson gave from the Optional Clause shows that that particular reservation could not be made——" I am leaving out certain matter: "Members of the League of Nations are to sign a declaration that they recognise as compulsory ipso facto and without special agreement in relation to any other Member or State accepting the same obligation the jurisdiction of the Court in all or any of the classes of legal disputes concerning: (a) the interpretation of a Treaty; (b) any question of International Law; and the other two points referred to by Senator Johnson. Reservations may be made either in regard to reciprocity between States, Members of the League, or in regard to time. To my mind, clearly the only reservation that can be made and the only reservations that so far have been made are in regard to time or reciprocity between certain States. Most of the States which have already signed the Optional Clause have made reservations on the point of reciprocity, and a number have signed with a time limitation."

I then went to the other point that Senator Johnson had alluded to. I said "Senator Johnson correctly outlined our normal relationships with the British Commonwealth of Nations.

We recognise a certain relationship established by the Treaty, and in determining disputes between ourselves and Great Britain we would try the ordinary methods of negotiation to see if they could be settled. The matter in dispute might be a matter of Commonwealth importance as opposed to one of importance only to ourselves and Great Britain, and we might have some sort of Commonwealth conference on it, but in no event can we rule out the possibility of appeal to the International Court or suffer the right of recourse to that Court to be removed from us. But normally we recognise the particular relationship between Members of the Commonwealth and we would try to hammer out an agreement among ourselves. We have given indications on several occasions that we are anxious to sign the Optional Clause, but we are not going to accept any reservations in connection with the signature which would reduce signature to a farce." (Seanad Debates, 17th July, columns 1425-1426.)

That was the declaration of policy that I made before going to Geneva. On proceeding to Geneva we found that the signature to the Optional Clause was the outstanding matter of last year's Assembly. It was raised by a number of people, but it was specially raised by the British Prime Minister, who pleaded that the Assembly might so direct its attention to the Optional Clause that the Assembly itself would be known in history as the Optional Clause meeting. We later came to the question of signature and to the question of reservations that would seem proper to us to make when we were signing. There were quite long discussions on the reservations, which certain of the Dominion Governments were inclined to accept, and which most of them did in fact accept afterwards. We could not agree to these. We signed in the form which is before the House—in the simple form: "We accept as compulsory ipso facto and without special convention the jurisdiction of the Court in conformity with Article 36 of the Statute of the Permanent Court of International Justice for a period of twenty years and on the sole condition of reciprocity." The declaration which was signed by the British Government was different. It was as follows:—

"On behalf of His Majesty's Government in the United Kingdom and subject to ratification, I accept as compulsory ipso facto and without special convention, on condition of reciprocity, the jurisdiction of the Court in conformity with Article 36, paragraph 2, of the statute of the Court, for a period of ten years and thereafter until such time as notice may be given to terminate the acceptance, over all disputes arising after the ratification of the present declaration with regard to situations or facts subsequent to the said ratification, other than:—

"Disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method of peaceful settlement; and

"Disputes with the Government of any other member of the League which is a member of the British Commonwealth of Nations, all of which disputes shall be settled in such manner as the parties have agreed or shall agree; and

"Disputes with regard to questions which by international law fall exclusively within the jurisdiction of the United Kingdom.

"And subject to the condition that His Majesty's Government reserve the right to require that proceedings in the Court shall be suspended in respect of any dispute which has been submitted to and is under consideration by the Council of the League of Nations, provided that notice to suspend is given after the dispute has been submitted to the Council and is given within ten days of the notification of the initiation of the proceedings in the Court, and provided also that such suspension shall be limited to a period of twelve months or such longer period as may be agreed by the parties to the dispute or determined by a decision of all the Members of the Council other than the parties to the dispute."

The meaning of those reservations I think can best be followed by reading to the House what was said by Mr. Henderson, who signed on behalf of the British Government at the time. He said:—

"The ‘Optional Clause' which His Majesty's Government in the United Kingdom are now accepting gives the Permanent Court of International Justice at The Hague jurisdiction over juridical disputes with other parties accepting the like obligation without the necessity for framing in respect of each dispute a special agreement for its submission to the Court.

The formula which I have just signed on behalf of the United Kingdom and copies of which are, I believe, available follows the usual practice in being subject to reciprocity and in including a time-limit. This is fixed at ten years, but the acceptance continues in force after the expiration of this period unless notice is given to terminate it. The signature is also subject to ratification. This will enable the question to be raised in Parliament, if so desired, before the acceptance of the compulsory jurisdiction comes into operation.

The declaration accepting the jurisdiction covers only disputes which may arise in future. Past disputes and disputes relating to past events will continue to be submitted to the Court under a special agreement concluded in each case.

Three classes of disputes are excluded from the operation of the declaration of acceptance. These are disputes for the submission of which to some other method of peaceful settlement provision is made by existing or future agreements, disputes with other Members of the British Commonwealth of Nations, and disputes about matters which fall within what is called the domestic jurisdiction of a State. Commercial treaties and conventions dealing with special subjects, such as reparations, or with technical matters, such as copyright, very often contain provisions setting up special tribunals to deal with disputes which may arise as to the meaning of application of their terms. When that is the case, the dispute will be dealt with as provided in the agreement and will not be submitted to the Court at The Hague. This is the effect of the exclusion of the first class of disputes."

The second paragraph is an important paragraph. It is specially important because this is the exact form in which Mr. Henderson spoke. He was not correctly reported in the newspapers when the speech was delivered. This is the form in which he spoke. We know that, because we heard it spoken in this form:—

"Disputes with other Members of the British Commonwealth of Nations are excluded, because the Members of the Commonwealth, though international units individually in the fullest sense of the term, are united by their common allegiance to the Crown, Disputes between them should, therefore, be dealt with by some other mode of settlement, and for this provision is made in the exclusion clause.

"On certain matters, international law recognises that the authority of the State is supreme. When once it is determined that the subject-matter of the dispute falls within the category of cases where this is so, there is no scope for the exercise of the jurisdiction of an international tribunal."

He then spoke on the last proviso of all with regard to the sending of disputes to the Council of the League —that the British Government might require that proceedings should be suspended. I do not think it is of any great relevancy. If it is thought to be I can read what was said about it.

Two declarations were made in addition to the declaration made by Mr. Henderson. The South African delegate made this statement:—

"With regard to the reservation as to disputes between Members of the British Commonwealth of Nations, I wish to state that, although in the view of my Government such disputes are justiciable by the International Court of Justice, my Government prefers to settle them by other means— hence the reservation."

The representative of Canada made the following statement:—

"The Dominion of Canada has excluded from the purview of the Court legal disputes with other Members of the British Commonwealth for the sole reason that it is its expressed policy to settle these matters by some other methods, and it has deemed opportune to include its will as a reservation, although a doubt may exist as to such reservation being consistent with Article 36 of the Statute of the Court."

The first reason why we refused to sign a declaration like that was that it was contrary to our policy to do so; another reason was that we felt grave doubts as to such reservation being consistent with Article 36 of the Statute. Article 36 and its terms must be adverted to here. The terms are given in the leaflet already circulated.

Leaving out the first paragraph it reads:

"The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the protocol to which the present Statute is adjoined, or at a later moment, declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court in all or any of the classes of legal disputes concerning:—

(a) the interpretation of a treaty;

(b) any question of international law;

(d) the nature or extent of the reparation to be made for the breach of an international obligation.

The declaration referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain Members or States, or for a certain time.

In the event of a dispute, as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court."

Into that framework there is attempted to be fitted a reservation which has a limitation which is allowable. It has further the exclusion of certain disputes. One class of excluded disputes is:

"Disputes with the Government of any other Member of the League which is a Member of the British Commonwealth of Nations all of which disputes shall be settled in such manner as the parties have agreed or shall agree."

It was competent for anybody signing this Article to have excluded any one of the classes of legal disputes mentioned in the A, B, C or D category. If they were going to sign they had to sign for some one of these categories, but it was competent to exclude any number up to three. It was competent for them to say: "We signed unconditionally or on a condition of reciprocity on the part of certain Members or States and for a certain time." What does the phrase "unconditionally or on a condition of reciprocity on the part of certain members" mean? So far as the clause or a clause like it has been incorporated in other Conventions and has been accepted, it means this: that certain nations have from time to time said with regard to Conventions: "We accept that, whatever it may be, on condition that A, B and C nations also accept or that a certain nation accepts," but it has been unknown in any of these Conventions for any nation to say: "We accept that with regard to every State except a certain mentioned one." It is very hard to see—there is more than a doubt expressed— how far a declaration which excludes disputes with certain States mentioned can come within the terms of Article 36. That had some effect upon our decision as to whether or not we would make certain reservations. The biggest reason was a matter of policy. The second reason was that we were more than doubtful as to the validity of a reservation against certain States, members of the League of Nations. However, it is a point which may not be very material, because I still go back to what I said in the Seanad, and I want to emphasise it again, that we do recognise a certain relationship established by the Treaty as between ourselves and other members of the British Commonwealth of Nations, and in certain disputes arising hereafter between ourselves and any one of these other nations we would seek other means before we would go to the Court of International Justice.

We would pretty well exhaust every other method of settlement before we would take the decision to try and force a dispute before the Permanent Court of International Justice. We take that stand for the reasons I stated in the Seanad and read here—the special conditions that exist as between us, the fact that we do feel that although the Court should be there in the last resort and that we would not have our right to resort to that Court taken from us there should and very probably would be other methods of settlement more available to us, ones that we would more readily avail of, before we would go to the Permanent Court of International Justice. We would have to be satisfied that the other means gave us a proper hearing, as to the procedure to be adopted, the type of law or convention to be administered and the people to decide. But granted agreement on all these things, and that it would not be impossible to find that type of tribunal or type of law or convention to be administered before that tribunal, then I would state as the policy of this Government that the Court would be the last resort.

We have a further point of view, however, with regard to the British reservation. The whole atmosphere of the Covenant of the League, the whole atmosphere of the Statute that established the Court is that disputes should be settled in some way other than war. Three methods are indicated, inquiry by the council, arbitration or judicial settlement, but it is doubtful if the League of Nations would break on the point that a group of States, or even a majority of States of the League would agree in conventions or treaties between themselves to have special tribunals for the settlement of disputes as long as these tribunals would give a likelihood of disputes being settled without any rupture occurring.

So long as there was in the background this Court and so long as they could get a certain number of nations to accept the principle of judicial settlement rather than war, I do not think that they were going to be much concerned about other tribunals. Nevertheless, we felt that members of the League of Nations should uphold the Court specially established under the authority of the League, and should have a leaning towards that, and that only some peculiar or special relationship as between States should be considered a sufficiently important matter to preclude or postpone—because that, at its best, is all that could be done —recourse to the International Court. We felt as members of the League that until a case was made for the other tribunal—and no case at the particular time we were discussing it had been made—there could be no justification for the establishment of the special tribunal, or for our refusing to go, as one member of the League, to a Court established by the League and choosing instead a special tribunal Consequently that point also had some bearing on the decision which we took.

Mr. Moore

Is there any authority to decide whether the British reservation is valid and consistent with the Covenant?

Mr. McGilligan

Of course there is. The last sentence of the article provides for that. The Court itself decides. If a dispute arises and if it is a question whether or not the Court has a right to decide, the Court itself is the final authority to say whether it has or has not.

If one were merely to take what I might call the narrow view of all this or desire to find out whether the legal view that an Irish delegation at last Assembly held was correct—a view apparently shared by the Canadian delegation and to some extent shared by the South African delegation—or whether the British declaration was valid, and therefore represented the correct view, we might look with favour on the early occurrence of some dispute that might give us reason to test it. One has, however, to look a little beyond that.

Is it a sufficiently important thing to get a nation like Great Britain to sign that before going to war on certain matters here declared they will refer them for judicial settlement to the Court at the Hague, and further to sign that they will loyally abide by and carry out any decision of that Court? Supposing the view that we had was the correct one, it might turn out then that the British attempt to accept the jurisdiction of the Court in a compulsory way had not been effective, and that they, in fact, had not signed and had not accepted as compulsory the jurisdiction of the Court.

Now a very large group of nations this year took the step of accepting the compulsory jurisdiction of this Court. The present position is that twenty States have both signed and ratified, twenty others have signed but not yet ratified, and fourteen States, members of the League, have not yet signed. Forty States out of fifty-four have either signed and ratified or signed and are moving towards ratification. The meeting did become the Optional Clause Meeting. People were swayed by the events of the last couple of years, by the Covenant of the League itself, the Kellogg Pact, and by the better feeling which there was in regard to peace. People were signing also with a view to bringing to a speedier and better conclusion the Commission sitting on disarmament, because it was realised that the progress of disarmament was going to be very slow until there had been better progress in regard to bringing into the world some sense of security. It is a very big thing, and if the British Government last year had not announced its intention of signing the Optional Clause it is doubtful whether there would be anything like the number of States agreeing to accept the jurisdiction of the Court. One would have to deliberate long and seriously before one would welcome the occurrence of some case that would lead to a decision of the Court itself that the British reservation had been made in such a way that the signature was, in fact, of no effect.

Mr. Moore

Has any country definitely refused to accept?

Mr. McGilligan

I do not think that it can be said that anyone had definitely refused unless one considers as a refusal the fact that fourteen nations have not yet signed the Optional Clause. We signed that Clause in the form in which we did sign it. We had to consider very definitely at somewhat short notice what reservations, if any, we were going to put in. We had to consider, in the atmosphere of which I have spoken, reservations which other delegations were putting in, and we had to weigh up and decide how far our refusal to stand on certain reservations would preclude the British delegation this year from taking the step of signing. We had, on the other side, our own declared policy in regard to the matter. We wanted to have the Court as the last resort. We felt it our duty as Members of the League to stand by the Court, but we felt that we also had duties in regard to other nations in close association with us in the British Commonwealth of Nations. Although it was not then before us, we could see the possibility of a tribunal being established in such a way, with such laws to be administered and with such judges to administer them, as would give us as fair a decision in any case that might go before it as the International Court might give. There was no such Court concretely before us, and we signed for the Hague Court without reservation. It is a lucky thing from the point of view of the State Members of the League that the fact that we did not agree with the British reservation did not preclude the British delegation from signing. That would have been something approaching a calamity from the point of view of the other Members of the League, as well as from the point of view of the Irish delegation especially. The British did sign, and have since ratified. The terms in which they made the reservation, to which we took strong exception, ought to be known, and particularly the explanatory phrase used with regard to it. They except disputes with the Government of any other Member of the League which is a Member of the British Commonwealth of Nations, and of these they say that "they shall be settled in such a manner as the parties have agreed or shall agree."

One might question, however, what would happen if the parties had not agreed and did not agree in the future. In relation to that we must consider the statement made by the British signatory: "Disputes with other Members of the British Commonwealth of Nations are excluded because the Members of the Commonwealth, though international units individually in the fullest sense of the term, are united by common allegiance to the Crown. Disputes between them should therefore be dealt with by some other mode of settlement and for this provision is made in the Exclusion Clause." I am not sure if such provision has been made. One can say that an arrangement has been made to allow some other tribunal to come into being but the sort of tribunal to be set up has not yet been agreed on.

Finally, I desire to refer to comments which I have seen about that declaration and that signature— comments which proceed on a false basis and a false assumption. Comments have been made as if our only purpose at Geneva should have been the fixing of the British delegation in a position in which they would have to have recourse to the Permanent Court of International Justice. These arguments proceeded further on the basis that that was the actual position and that therefore, so far as we allowed the British to make special reservations, we allowed them to get away from the position in which the previously found themselves, a position which was to our advantage. Remember the truth, the facts of the matter. Nobody was bound to accept the jurisdiction of the Court. No Member of the British Commonwealth of Nations had signed it. The British had not signed it. They, have now signed, but if they had not signed, the question of resort to the Court would not arise in relation to them. They decided to take the step and to accept the jurisdiction of the Court as compulsory. They felt that they should not decide that without making certain reservations and, now that they have made these reservations, the question may have to be fought out as to how far these reservations are sound. But people should not argue on the basis that before going to Geneva we could have insisted on cases being brought to the Court at the Hague. We could not have done so if the British did not sign.

They did sign, and we contend that now, but only now, cases may be brought to the Hague. They may have to be brought, but that is a very remote contingency, as we would pretty well exhaust every other means of securing a pacific settlement before going to the Court. We would only go there because we were disappointed in the other means suggested or because there was a defect in the law or because we were not satisfied in regard to the impartiality of the tribunal. As it is, we have signed in a particular way and our signature binds us. We believe that it is a signature which, under the circumstances, was the only one to which we could put our hand. We accept ipso facto the jurisdiction of the Court in conformity with Article 36 of the Statute of the Permanent Court of International Justice for a period of twenty years, and on the sole condition of reciprocity. That is what we have signed, and we are moving towards ratification. I, therefore, ask the Dáil to approve of the declaration accepting that signature and to recommend the Executive Council to take the necessary steps for the ratification of the declaration.

Mr. O'Kelly

We on this side would be happy, too, if we could envisage the end of war, the end of disputes merely by a resort to arms, not alone for ourselves and our neighbours but for the world at large. It would be a very happy day indeed if such an agreement could be arrived at, and nobody would be more pleased than the Deputies on these Benches. Anything that would help to bring nearer that day, anything that would help to promote that atmosphere, anything that would help to bring any nation or all nations nearer to that point of view—the settlement of disputes without recourse to arms— would have and will have our fullest sympathy and support. The League has now been almost eleven years in existence. As the Minister has just said, things have developed, perhaps not to the extent I imagine he thinks in that direction, in the direction of the acceptance by nations of peaceful methods of ending international disputes.

They have developed to some extent in the right direction, but one of the things that does most in the world to promote strife, armaments and the growth of armaments, has not been curtailed at anything like the pace that one might have expected in the eleven years' history of the League of Nations. However, the Minister confined himself fairly strictly to the motion before us and I will not develop the debate further on these lines beyond saying that the main purpose, as quoted by the Minister from the Covenant of the League of Nations, of the foundation of the League was the abolition of war, and to that end a reduction, if not the total abolition, of armaments has not progressed. It might be said, I think, that, on the contrary, armaments have gone on increasing, increasing beyond what they were at any rate before the European War started.

To confine ourselves to the Optional Clause, we are satisfied that the world is moving at perhaps too moderate and too slow a rate in that direction, and if future development on these lines enables us here in Ireland to settle international disputes without recourse to arms, we will be very happy. Of course, we have our suspicious that when the time comes, as in recent years, it will not be a matter of settling peacefully by arbitration whatever disputes exist or may hereafter arise between ourselves and other nations. We are suspicious that the same methods used in the past, the same pressure and the same means will again be tried. As I say, if by agreement that method is put on the scrap heap we will be very glad. We think, however, that it is rather soon considering the fact that the question of armaments remains in the state in which it does remain, to do anything more than to make the gesture which the Government have made in signing this Optional Clause. We would, as I say, be happy to see all armaments scrapped, if our neighbours would do likewise, not that we are such a big and powerful nation that we could go to war with any hope of victory through the strength of our armed forces over other armed forces, but small as we are and insignificant as we are, especially from the purely military standpoint, we think it would be unwise, unless similar declarations were made by our neighbours, that we should say that hereafter we will never have recourse to any methods which will include force.

I still maintain our right to defend ourselves. We are content and are happy, as I have said already, to see a development in the direction of a settlement of disputes, especially disputes in which we might be concerned—international disputes—by arbitration and by recourse to the Permanent Court of International Justice. Any further development in that direction will all the better please us. I was glad to hear the Minister state definitely that the first statement that was reported in the Press here as having been made by Mr. Henderson when he signed the Optional Clause on behalf of the British Government was not a correct one. Small as the point is, it is of value to have the statement that was attributed by Reuter to Mr. Henderson repudiated. The signing of the Optional Clause may be something of value. That remains to be seen. I think the Minister himself admits that. It is possible that with the reservations which the British have put in, it may be only a gesture on our part and nothing more.

It may be that if the matter does ever go to the Court to decide—and it is well to know that it is the Court that will finally have the interpretation of that clause—it may prove to be a gesture, or the signature may prove to have been something of value. But it is significant that the British took the opportunity to insist that disputes between members of the British Commonwealth of Nations, so far as they were concerned, should not go to the Court. I agree with the Minister that every other means should be tried—every means other than going to war, first of all—and I am with the Minister again when he says every means other than forcing the issue with the International Court should be tried. We would be glad if the dispute that does exist and continues, the dispute with regard to our territory and our status that does exist and will continue to exist, should be thrashed out over the table. We would like if means of that kind could be used with confidence by us in order to bring about a settlement of important questions. There are certain questions that are bound to trouble this country, its people and its relations with its nearest neighbour, as long as they remain unsettled. If there were opportunities and means —there are not at present—to settle these questions by a conference around a table, and if we could enter the conference with the confidence that these questions could be settled in that way, nobody would be better pleased than we. We have yet to see such conditions exist as would give us confidence that such an arrangement would be come to with our neighbour and that there would be a possibility of arriving at a satisfactory settlement on these important matters.

I take it then that the Minister is of opinion, and I take it that he is properly advised over it, that so far as he is concerned the conditions put in by the British are ultra vires. Of course, as he has said, it is the International Court itself that must finally decide that issue. But it is well to know that he and his advisors are of opinion that the conditions set down by the British when signing that Optional Clause that Mr. Henderson signed in October last, are not valid. It is hardly likely that we would ever have any dispute with any member of the British Commonwealth of Nations but one— the British themselves. It is less likely that we would have disputes with any nation outside that community. We are a peaceful people. It is not likely that out of questions of commerce or trade disputes of an international character are likely to arise. In considering this matter, therefore, we have to consider it in practice. It brings itself down to the consideration of the relations between ourselves and the British nation and the possibility of arriving at some convention or some understanding which would avoid a recourse to arms at any time again between that nation and ourselves. Therefore, although there might be obstacles or bars in the way of having settled matters of dispute that might arise between ourselves and the members of the British Commonwealth of Nations who have signed that with similar reservations to that put in by the British—though such difficulties might arise, still that is a very remote possibility; and the conditions as put in by Canada, Australia or any other British Dominion, therefore, do not concern us. The condition put in by the British is certainly of importance. It is doubtful, seeing that condition put in there, and knowing the strength of the British in the League of Nations and the influence that they would be able to exert in the International Court and on the members of that Court—it is doubtful if our interpretation or our case would result in a satisfactory finding for us. However, in principle we are satisfied that our case is a good one, and we should be prepared to let it go before any impartial International Court of Justice or any arbitration court. We would be prepared to take whatever risks there might be in submitting to such a court. We do realise that there are risks and that the influences against us would be very great. But we have faith in the validity of our own case and in its justice and we would be prepared to take the risks of the submission of our case to an International Court or a body of arbitrators set up with our full approval.

That is all I have to say on the matter. Again, I would add that anything that could be done to promote the object of ending war, and the main objects of the League of Nations and its Covenant, would have our support. We are not satisfied that all that might be done has been done by the League of Nations. We are not satisfied that the Great Powers, that are even now in conference to abolish or modify armaments, are doing all that might be done in conformity with their own signatures to the League of Nations' Covenant, the Kellogg Pact, and other things. At any rate, if there were any sincerity in the declarations made on the matter by the nations, if there were any real attempt to bring about disarmament, the same disarmament that the Great Powers themselves have insisted on in the case of Germany, we will be happy. If we could be satisfied that there would be any real opportunity offered us to bring about a satisfactory settlement of our international disputes by peaceful means, nobody would be more pleased than we, and anything that can be done to bring about an atmosphere of peace in that direction, and bring us nearer the possibility of a settlement in that direction, will have our fullest support.

Mr. T.J. O'Connell

Repeatedly from these Benches in the last few years we have pressed the Minister to sign this Optional Clause. Now that he has signed it we must say that we approve of his action and we are prepared to support this motion.

Mr. Esmonde

I was very glad to listen to the pleasant and peaceful speech delivered by Deputy O'Kelly. He has created a very pleasant atmosphere in the discussion of this matter, an atmosphere very different to the stormy and more warlike atmosphere with which the Deputy was associated on previous discussions concerning external relations. The Minister is to be congratulated on having taken this decisive step in signing the Optional Clause without reservation. There have been a lot of critics of his action, particularly in Great Britain. I notice that Sir Austen Chamberlain regretted that we had not made the same reservations as the other members of the Commonwealth. I think there is one matter that was overlooked by our critics across the water; that is, that if they had followed our good example they would have the protection and the prestige of the International Court to see that we, irrespective of any change of Government, would not violate any of our undertakings to them.

The Minister referred to the third reservation of the British Government, and although he stated that in the text of the Clause itself the Court had jurisdiction as usual in all international arbitration to decide the extent of its power and the tribunal's jurisdiction, still I do not know whether the British Government are agreed that their third reservation, as regards questions of purely internal concern according to international law, is governed by sub-section (b) of the Optional Clause, which states that all matters of international law are questions suitable for the decision of the Court, or, on the other hand, whether sub-section (b) of the Optional Clause is governed by reservation three of the British Government. I do not know whether that will ever arise. I presume the attitude of our Government is that sub-section (b) of the Optional Clause governs the third reservation of His Majesty's Government in Great Britain.

The final recommendation I would make to the Minister is that now that we have set a good example in the Commonwealth by unreservedly accepting the jurisdiction of this Court for twenty years he should exert his good offices to see that we get a judge on this Court. I understand that when any case is being tried, besides the permanent judges there is also one judge each from the contesting nations. Mr. Justice Charles Doherty, who was Minister of Justice in Canada, some years ago introduced a Bill in the Canadian Parliament to define the term "Canadian National" in order to ensure that Canada would have the right to appoint a permanent justice on the International Court. Under Article 3 of our Constitution that necessity would not arise so far as we are concerned, but I hope the Minister will keep in mind the desirability of obtaining at least one Irish permanent judge on the International Tribunal.

Dáil Éireann díospóireacht - Wednesday, 26 Feb 1930

Permanent Court of International Justice.

Acting-Chairman

Acting-Chairman

Dáil Éireann díospóireacht -
Wednesday, 26 Feb 1930