Did Ireland violate the Anglo- IRish Treaty by staying neutral in WWII?

JohnD66

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Ok so this is a deliberately provocative thread. And it's not a thread on the morality or not of joining the Second World War.

Rather it's a legal question. Was de Valera legally within his rights to withhold Ireland's ports from Britain during 'The Emergency'?

The reason I ask this question is, having recently read over the Anglo Irish Treaty, I came upon this clause:

7. The Government of the Irish Free State shall afford to His Majesty's Imperial Forces
(a) In time of peace such harbour and other facilities as are indicated in the Annex hereto, or such other facilities as may from time to time be agreed between the British Government and the Government of the Irish Free State; and
(b) In time of war or of strained relations with a Foreign Power such harbour and other facilities as the British Government may require for the purposes of such defence as aforesaid.
Now the British gave the ports back in 1938. But did they think that under the Treaty 'in time of war' they were entitled to use them?

Malcolm McDonald the Dominions Secretary said ‘we hoped that if there was a war, if or because we had given up the ports, Eire would come in on our side’. (Fisk In Time of War p41).

Neville Chamberlain, replying to Winston Churchill’s criticism of the return of the ports, argued it was ‘an act of faith’ and that de Valera had agreed ‘to put the ports in a proper state of defence’. (P42-32)

And when war did break out, the first thing the British did was ask for use of the Ports and were surprised when de Valera refused. (In Time of War p.70).

Churchill explicitly used the argument that the Irish state had no right to be neutral as it was a breach of the Treaty.

In 1938 he said of 'Eire'

It is is a state based upon a Treaty, which Treaty has been completely demolished. Southern Ireland therefore becomes a state which is an unknown and unclassified anomaly.
And later, during the war;

‘So far as legality counts the question surely turns on whether ‘Eire is to be regarded as a neutral state….But is the neutrality which Mr de Valera proclaimed a valid condition on all fours with the neutrality of say, Holland or Switzerland? … What is the international juridicial status of Southern Ireland? It is not a Dominion. They themselves repudiate the idea. It is certainly under the Crown. Nothing has been defined. Legally I believe they are at war but skulking.’ (Fisk In Time of War p.120-121)
The point is, did de Valera break the Treaty? And would Churchill have been legally within his rights to invade Ireland and seize the ports back? (As he claimed and as he in fact want to do, but was dissuaded by cooler, perhaps wiser heads.

My own view, I think, is that since there was an agreement in 1938 to hand over the ports, and this was unconditional, this superseded the Treaty and Churchill was wrong and de Valera was right. Legally speaking anyway.
 


DeBanksofDeLee

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Ok so this is a deliberately provocative thread. And it's not a thread on the morality or not of joining the Second World War.

Rather it's a legal question. Was de Valera legally within his rights to withhold Ireland's ports from Britain during 'The Emergency'?

The reason I ask this question is, having recently read over the Anglo Irish Treaty, I came upon this clause:



Now the British gave the ports back in 1938. But did they think that under the Treaty 'in time of war' they were entitled to use them?

Malcolm McDonald the Dominions Secretary said ‘we hoped that if there was a war, if or because we had given up the ports, Eire would come in on our side’. (Fisk In Time of War p41).

Neville Chamberlain, replying to Winston Churchill’s criticism of the return of the ports, argued it was ‘an act of faith’ and that de Valera had agreed ‘to put the ports in a proper state of defence’. (P42-32)

And when war did break out, the first thing the British did was ask for use of the Ports and were surprised when de Valera refused. (In Time of War p.70).

Churchill explicitly used the argument that the Irish state had no right to be neutral as it was a breach of the Treaty.

In 1938 he said of 'Eire'



And later, during the war;



The point is, did de Valera break the Treaty? And would Churchill have been legally within his rights to invade Ireland and seize the ports back? (As he claimed and as he in fact want to do, but was dissuaded by cooler, perhaps wiser heads.

My own view, I think, is that since there was an agreement in 1938 to hand over the ports, and this was unconditional, this superseded the Treaty and Churchill was wrong and de Valera was right. Legally speaking anyway.
Dev had the ports sown up it wasn't up for debate but Belfast was and UCC Professor Joe Lee said to us back then Belfast was actually a Treaty port it's rarely mentioned but it was, and Winston Churchill actually asked Dev for permission to use it for the Royal Navy.
 

JohnD66

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Dev had the ports sown up it wasn't up for debate but Belfast was and UCC Professor Joe Lee said to us back then Belfast was actually a Treaty port it's rarely mentioned but it was, and Winston Churchill actually asked Dev for permission to use it for the Royal Navy.
Really? Didn't know that. Can you point me to a source for that?
 
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Catalpast

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Ok so this is a deliberately provocative thread. And it's not a thread on the morality or not of joining the Second World War.

Rather it's a legal question. Was de Valera legally within his rights to withhold Ireland's ports from Britain during 'The Emergency'?

The reason I ask this question is, having recently read over the Anglo Irish Treaty, I came upon this clause:



Now the British gave the ports back in 1938. But did they think that under the Treaty 'in time of war' they were entitled to use them?

Malcolm McDonald the Dominions Secretary said ‘we hoped that if there was a war, if or because we had given up the ports, Eire would come in on our side’. (Fisk In Time of War p41).

Neville Chamberlain, replying to Winston Churchill’s criticism of the return of the ports, argued it was ‘an act of faith’ and that de Valera had agreed ‘to put the ports in a proper state of defence’. (P42-32)

And when war did break out, the first thing the British did was ask for use of the Ports and were surprised when de Valera refused. (In Time of War p.70).

Churchill explicitly used the argument that the Irish state had no right to be neutral as it was a breach of the Treaty.

In 1938 he said of 'Eire'



And later, during the war;



The point is, did de Valera break the Treaty? And would Churchill have been legally within his rights to invade Ireland and seize the ports back? (As he claimed and as he in fact want to do, but was dissuaded by cooler, perhaps wiser heads.

My own view, I think, is that since there was an agreement in 1938 to hand over the ports, and this was unconditional, this superseded the Treaty and Churchill was wrong and de Valera was right. Legally speaking anyway.
I think you have answered your question John

But was the agreement of 1938 a Treaty between two States

- or simply an Understanding?

As for this State being an Anomaly

- it has been argued that the UK is itself something of an Anomaly.
 

JohnD66

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I think you have answered your question John

But was the agreement of 1938 a Treaty between two States

- or simply an Understanding?

As for this State being an Anomaly

- it has been argued that the UK is itself something of an Anomaly.
Not sure, interesting point. I'll have to look it up.

Edit: No it was a formal agreement, by which the British also acknowledged Ireland's 1937 constitution.

https://en.wikipedia.org/wiki/Eire_(Confirmation_of_Agreements)_Act_1938

So basically Churchill's legal argument was really a pseudo legal argument and totally wrong it seems?
 

Catalpast

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Not sure, interesting point. I'll have to look it up.

Edit: No it was a formal agreement, by which the British also acknowledged Ireland's 1937 constitution.

https://en.wikipedia.org/wiki/Eire_(Confirmation_of_Agreements)_Act_1938

So basically Churchill's legal argument was really a pseudo legal argument and totally wrong it seems?
one to rescind Articles 6 and 7 of the Anglo-Irish Treaty and the transfer of British Admiralty property to Ireland;

Done and dusted so


And fully legal under the British Constitution

So Dev was standing on firm legal ground in not handing them back
 

JohnD66

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one to rescind Articles 6 and 7 of the Anglo-Irish Treaty and the transfer of British Admiralty property to Ireland;

Done and dusted so


And fully legal under the British Constitution

So Dev was standing on firm legal ground in not handing them back
Good to know. Case closed.
 

GDPR

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Any talk of what was "legal" or "illegal" during WW2 is simply laughable.
 

Mitsui2

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Any talk of what was "legal" or "illegal" during WW2 is simply laughable.
Not really - certainly when you're talking about Dev. Look at that whole later visiting-the-German-Embassy lark: he'd have spared himself a lot of grief by ignoring the established protocol, but decided that it took precedent.

Not saying I personally find it a terribly sensible attitude or anything.
 

GDPR

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Not really - certainly when you're talking about Dev. Look at that whole later visiting-the-German-Embassy lark: he'd have spared himself a lot of grief by ignoring the established protocol, but decided that it took precedent.

Not saying I personally find it a terribly sensible attitude or anything.
You mistake my point.

it might have been very important to Dev, but in the general way that war was run, legality was whatever the occupiers said it was.
 

automaticforthepeople

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The British government might have wished to have used the facilities however to access them they had to have regard to the internal politics of the Republic of Ireland. Without a doubt Dev wouldn't have acceded to the request and then Britain might have needed to invade the facilities so as to use them.

That would have thrown the cat among the pigeons and there would have been no guarantee that the grief would have been worth it for Churchill.
 

Dame_Enda

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The Statute of Westminister meant that much of the Treaty was on borrowed time anyway. It allowed Dominion states like the Irish Free State to repeal laws passed for them by Britain. The Treaty was both British legislation passed in Westminister, and Irish legislation passed in Ireland, and one of the issues of debate after statehood was whether it was an Irish law or a British law in Ireland. The Statute of Westminster made that a moot point by allowing member states to repeal laws passed for them by Britain.

On the question of whether we violated the Treaty, I would point out that we already did that when we stopped paying the land-annuities, abolished the Governor General and the Oath of Allegiance, and I would point out that the British returned the Treaty Ports in 1938 which was another nail in the Treaty's coffin.
 

Sweet Darling

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The British government might have wished to have used the facilities however to access them they had to have regard to the internal politics of the Republic of Ireland. Without a doubt Dev wouldn't have acceded to the request and then Britain might have needed to invade the facilities so as to use them.

That would have thrown the cat among the pigeons and there would have been no guarantee that the grief would have been worth it for Churchill.
Britain were allowed to station a RAF rescue launch in the ports
 


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