CAB129-33 — Page 40

(ii) there is no threat to the peace as between ourselves and Eire, because

neither country has any intention of going to wal perself,

the issue; ado Pagninin so far as there is; friction, this has been created by Fire herself, and is due to her refusal to face the facts that Northern Ireland is legally a part of the United Kingdom, and that partition could be modified only against the wishes of the great majority of the population.

But it is uncertain how much support we should get.

3. Possible United Kingdom initiative at the United Nations to forestall Eire.

A move by the United Kingdom Government would take the wind out of Eire's sails, enable us to choose the Security Council rather than the Assembly as the forum, and, if the matter was brought up as a situation," retain the United Kingdom right of veto. But it is uncertain whether seven votes could be obtained for a resolution favourable to the United Kingdom. Moreover there might bể serious objection by Northern Ireland. It appears, therefore, that no advantage would be gained by the United Kingdom Government themselves bringing the issue before the Security Council and a fortiori the Assembly.

4. International Court of Justice

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(a) Issue for decision.-Broadly speaking, the possible legal issues in relation to Partition are, first, whether Northern Ireland or any substantial part thereof belongs in law to Eire or to the United Kingdom, or, secondly, what is the exact boundary between Northern Ireland and Eire. It is almost inconceivable that Eire could succeed before the Court on the first issue. It is equally inconceivable that she would place the second issue before the Court because that in itself would involve confirmation of partition:

(b) Limited scope of compulsory jurisdiction. At present Eiré is not a party either to the Statute of the Court, or to the optional clause and could not therefore

compel the United compel to accept its jurisdiction. Conversely, the United

2.

Kingdom could not compel Eire to go to the Court. In order to become a party to the Statute of the Court, it would be necessary for Eire to comply with conditions to be determined by the General Assembly of the United Nations upon the recommendation of the Security Council. If Eire, in fact, became a party to the Statute, and made an appropriate declaration under the optional clause, she could, after leaving the Commonwealth, compel the United Kingdom, and the United Kingdom could compel Eire, to submit to the Court's jurisdiction. It is very doubtful, however, whether either country could compel the other on the legal issues relating to Partition because the United Kingdom declaration does not apply to disputes arising with regard to situations or facts existing before 5th February, 1930. Moreover, as it is unlikely that it will be in Eire's interest to take the legal issues to the Court, she may think it unwise to make herself vulnerable by making a declaration under the optional clause.

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(c) Consideration ex æquo et bono.-Neither country can compel the other to accept the jurisdiction of the Court on an ex æquo et bono basis since the Court can only decide the case on an ex æquo et bono basis if the parties agree thereto. We should regard our legal title to Northern Ireland as unassailable, and we would not agree to such a reference. While, therefore, there is no prospect of proceedings, the Eire Government might seek to gain a tactical advantage in the United Nations or otherwise by offering to refer to the Court on an ex æquo et bono basis. We could counter this by an offer to have the legal issues examined by the Court.

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5. Action outside the United Nations

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(a) The Eire Government are likely to participate in the proposed Council of Europe. They may, therefore, raise partition in the Assembly of this body.

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(b) The Eire Government are reported to have approached the State Depart- ment in connection with their refusal to join in discussion on the North Atlantic Pact, and sounded them about the possibility of the States of the North Atlantic community "mediating the Partition dispute.' In view of the attitude previously adopted by the United States Government; this approach presumably received Page 41 ofgragement.