Extracts from a memorandum on treaty procedure by John J. Hearne for the 1930 Imperial Conference

It will be seen that the main changes made by the Imperial Conference 1926 in the treaty procedure are:-

It is proposed to deal with the subject of treaties under three heads:

I. LEAGUE

The procedure settled by the Imperial Conference 1926 is that all treaties are to be made in the name of Heads of States. The object of this procedure is to avoid the insertion of what is known as the Inter-Imperial Clause, which according to the British Memorandum E.104 was always open to the risk of being opposed by foreign countries. The report states that the making of a treaty in the name of the King, as the symbol of the special relationship between the different parts of the Empire, will render superfluous the inclusion of any provision that its terms must not be regarded as regulating inter se the right and obligations of the various territories on behalf of which it has been signed in the name of the King. This statement is based on the decision of the Legal Committee of the Arms Traffic Conference 1925, to the effect that the above principle underlies all international conventions.

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4. It is clear from the Minutes of the Inter-Imperial Relations Committee that Sir Cecil Hurst was not prepared to rely entirely on the principle laid down by the Arms Traffic Convention, 1925. He made it quite clear that in his view it was necessary to find a treaty formula that was watertight. He said, 'We must make it certain that the form of the treaty is such as to prevent there being any risk of an international body maintaining that the treaty does operate between the various parts of the Empire'. It is contended that the present form of treaty in which all the plenipotentiaries of the different parts of the Commonwealth are grouped together after the King as contracting party makes the King one High Contracting Party for the purpose in question, though the contract extends to all the territories in respect of which plenipotentiaries are named. This means that the treaty has no more operation between the various parts of the Commonwealth for which it is signed, than between such parts and any other part which has not signed. If that contention is accepted the various parts of the Commonwealth which are members of the League must be regarded for all purposes of International Law as 'part of one and the same Sovereign State'.

5. It is quite useless for Great Britain, or any other member of the Commonwealth to declare that all the members of the British Commonwealth of Nations are international units in the fullest sense of the word, if at the same time we declare that the relations between these so-called international units are not international relations. If they are not international relations, what are they? They must clearly be relations which result from all the members forming part of one and the same sovereign State, namely national or domestic relations. If that is so, surely those who hold that the British Empire, as a member of the League, is a single State exercising seven votes, are justified. Further, the opposition of M. Politis¹ at the meeting of the Committee of Jurists, 1929, to the nomination of a national Judge to the Permanent Court of International Justice in the case of a dispute between a member of the Commonwealth and another member of the League, where there is already a national of some member of the Commonwealth sitting as Judge, is equally justified.

At this Committee Sir Cecil Hurst, whilst advocating that the Dominions had the right to appoint national Judges under the terms of Article 31 of the Statute of the Permanent Court, made the following statements with regard to the 'inter se' relations of the Members of the British Commonwealth which gave M. Politis good ground for his opposition. In bringing the question to the attention of the Committee, Sir Cecil stated that 'the British Empire was a political unit of an exceptional kind. One of the consequences of its peculiar legal structure was that some British subjects lawfully possessed two nationalities – general nationality of the British Empire and also the citizenship of a particular self-governing member of the British Empire to which they belonged.' Later during the discussion, M. Raested asked whether the Constitution of the British Empire prevented a dispute between Great Britain and a Dominion or between two Dominions from being brought before the Court. Sir Cecil Hurst replied 'that this matter had been discussed in London, where the view was that no question arising between Great Britain and a Dominion could be brought before the Permanent Court owing to the provisions of Article 14 of the Covenant, which laid down that the Court possessed jurisdiction only in regard to international disputes. This provision excluded the submission to the Court of a dispute between two units composing the British Empire, because the relations between them were different from the relations between two foreign States, and for this reason the relations between them were not international. Although the Dominions were autonomous, a dispute between two of them or a dispute between a Dominion and Great Britain was not an international matter, and could not technically be brought before the Court.' This was clearly an assertion that, though the Dominions were separate members of the League, they were not separate international units, and that in international affairs the Commonwealth must be regarded as a single unit. It is worth noting that Mr. Root, the representative of the United States, stated 'that he would like to place on record the fact that the United States had recognised the separate international personality of the Dominions by exchanging Ministers with Canada and with the United States'.

6.

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The inclusion of the 'inter se' clause in League Conventions implies that in its absence a Convention would be binding between members of the Commonwealth. The Irish Free State objected to the insertion of this clause on two grounds - firstly, because it was inserted at the instance of one member of the Commonwealth without agreement with the other members, and secondly because the wording definitely implied that the British Commonwealth was a single sovereign State. Professor Keith discussing the inter se clause in relation to the new doctrine of the 1926 report says: 'if the British principle were self-evident it would not be necessary to insert such clauses'.

7. The next point to consider is how the 'inter se' doctrine affects the members of the Commonwealth as members of the League of Nations. It is submitted that the 'inter se' Statement is inconsistent with the Covenant of the League of Nations, because it restricts the members of the Commonwealth in the exercise of their rights as members of the League. The members of the Commonwealth are separate members of the League with rights and obligations equal in every particular to those of all other members. The Covenant makes no provision for limited or partial membership. The First Assembly in 1920 rejected the idea of partial membership. The Council of the League has declared as recently as 1928 that 'the Covenant of the League forms a whole; the Articles of which it is composed confer upon all the members of the League equal obligations and equal rights'. These rights and obligations have been assumed by the members of the Commonwealth towards all members of the League without distinction. If we take, for example, Article 15 of the Covenant, we find that it confers the right on all members of the League to bring a dispute to the Council. Amember of the Commonwealth, however, is debarred from exercising this right vis-à-vis another member of the Commonwealth, because the Covenant does not apply to their mutual relations. There is nothing anywhere in the Covenant to suggest that the whole of its provisions are not to apply generally to the mutual relations of all members of the League. The 'inter se' Statement is clearly a restriction on a right which the Covenant confers on all members equally. The position then is, that the members of the Commonwealth can only exercise their rights as members of the League in regard to those members who are not members of the Commonwealth. This means that the members of the Commonwealth have only a limited right instead of the General right which the Covenant accords. Such a limited right is not provided for in the Covenant, and there is no authority for its exercise. As there is nothing in the Covenant to indicate the extent to which, and the terms on which its provisions are to apply to the relations of the members of the Commonwealth, it must be taken to apply to them in the same manner as to all other members. Any understanding such as the 'inter se' Statement of the 1926 Conference is, therefore, inconsistent with the terms of the Covenant, as it prevents the exercise of rights of members of the League in the manner intended by that instrument.

8. If the equality of the members of the Commonwealth is to be maintained, and the international position of the members safeguarded, the articles of the Covenant and the provisions of international treaties made under its auspices must be regarded as operative amongst those members. The position of Great Britain is so firmly established that it needs no outward demonstration of its international character. The other members of the Commonwealth are in constant need of showing to the world at large that they are separate international units, and any intra- Commonwealth arrangement which detracts from that position increases the difficulties of maintaining the international position of these members. The British are naturally anxious to preserve the organic unity of the Commonwealth. This attitude is quite comprehensible, because, as I have endeavoured to show, Great Britain risks nothing in so doing, but the other members of the Commonwealth have to sacrifice equality to unity. This sacrifice involves jeopardising their international position and does not, in fact, safeguard the interests of the Commonwealth more effectively than they could be safeguarded when occasion demands by express declarations attached to the signatures of the plenipotentiaries of members of the Commonwealth. All the difficulties which it is feared might arise if international treaties were to be applicable inter se can be provided against by express provision, or declaration at time of signature, without, as under the present procedure, detracting from the international position of the members of the Commonwealth. The relationship between the members of the Commonwealth is already sufficiently difficult for the foreigner to understand, without increasing the difficulty by declaring that while the members of the British Commonwealth of Nations are full international units, nevertheless, the relations between those units are not international relations.

To sum up it may be said that the inter se Statement is objectionable because:-

II. NON- LEAGUE TREATIES

9. It is proposed to deal with these treaties under the following heads:-

10. Multilateral Political

It has invariably been the practice for treaties of this kind to be drawn in the form of Heads of States. The Imperial Conference Report has not in any way affected the existing procedure, but it has provided that, owing to the form of these treaties, they are not binding inter se. The most recent example of a treaty of this nature is the Kellogg Pact. All the Contracting Parties undertook to renounce war as an instrument of national policy, and further agreed only to have recourse to pacific means for the settlement of any dispute that might arise between them.

11. There can be no doubt that the King made separate contracts with the other contracting States in respect of each member of the Commonwealth. These contracts he subsequently ratified by separate instruments, and these separate ratifications were necessary to bring the Pact into force. Notwithstanding these facts, the Kellogg Pact, owing to the Statement of 1926, is not binding inter se. It is not a fundamental principle in the Constitution of the British Commonwealth that all international agreements are not binding inter se. The Imperial Conference Report of 1926 provides only for treaties made in the name of Heads of States, and expressly excludes agreements between Governments from the operation of the inter se doctrine. Agreements between Governments are undoubtedly international agreements which bind the State on whose behalf they are made, in just the same manner as agreements in the name of Heads of States. The distinction between them and other forms of treaties is purely formal. It would appear that the motive behind the inter se Statement is to maintain the idea that in all matters of international importance the Commonwealth must be regarded as a unit. As I have already pointed out, the position by which we endeavour to maintain unity with regard to the application of international agreements, and severalty in their negotiations and conclusion, has a very adverse effect on the international position of the members of the Commonwealth other than Great Britain. The most recent case where our right to participate in the negotiations of an international question was queried, was at the Naval Conference in London this year. The American delegation objected to the representation of a Dominion delegate on the Committee for the examination of the Three Power Pact, on the ground that the British representation was sufficient for the whole unit, and that further representations gave the Commonwealth undue representation over the other Powers. Though the other members of the Commonwealth finally secured representation on this Committee, the action of the American Government in addressing communications, in reference to the Naval conference, only to the British Government shows that they regard the British as the representative of the whole Commonwealth.

12. With the implementation of the 1929 Report, the legal bond will disappear, and the only link between the various members of the Commonwealth will be that of a common King. It has already been admitted that the King is King in each Dominion precisely as he is King in the United Kingdom. The special interests of the Commonwealth, owing to the relationship of the Members, can - as I have already pointed out - be safeguarded by declaration whenever occasion demands. If, in order to maintain the principle of the unity and indivisibility of the Crown, the inter se doctrine is continued, it is impossible to expect foreign countries to recognise the members of the British Commonwealth as international units, and to treat with them in international matters on a basis of equality.

Technical

13. The foregoing remarks with regard to political treaties apply equally to technical multilateral treaties. Members of the Commonwealth may apply their provisions as an administrative measure between themselves, but in such a case the carrying out of the provisions of the Convention would depend upon the intra-Commonwealth arrangement and not upon the International Treaty. In such matters as copyright, which is governed by an International Convention the terms of which were revised at Rome in 1928, the copyright arrangements between members of the Commonwealth, who are all parties to the Convention, is regulated by the British Copyright Act, 1911. From the practical point of view no inconvenience arises from basing the copyright relations of the members of the Commonwealth on the International Convention. At the present moment the copyright relations of the Irish Free State with the other members of the Commonwealth is so based and no difficulty has arisen. The only reason for opposing the application of an international treaty of this kind is the maintenance of the principle, viz. that the various parts of the Commonwealth stand in relation to one another in a position entirely different from that in which each stands in relation to foreign countries. All international treaties of this kind provide for what may be described as minimum treatment between the Contracting Parties. There is, therefore, no danger that the interests of the Commonwealth would be adversely affected by the operations of technical conventions inter se.

Bilateral Political

14. Treaties of this nature are in the main treaties of friendship such as the treaty with the Hedjaz² in 1927 or treaties conceding recognition as in the case of the Treaty with Iraq in 1927. These treaties do not impose what is described in the 1926 report as active obligations on the other members of the Commonwealth. They are, however, regarded as treaties which should be binding on the whole Commonwealth, and the other members of the Commonwealth are as a rule given the opportunity to participate in them if they so desire. In some cases these treaties are negotiated under a Full Power limited to Great Britain and as a result their binding force is confined to the area of jurisdiction of the government in Great Britain. Nevertheless, it has been definitely ascertained from the Foreign Office that in case of bilateral treaties between His Majesty the King and another power conferring benefits upon the subjects or citizens of the High Contracting parties, the established practice is to regard such provisions (in the absence of express stipulation to the contrary) as operating to confer benefits upon all subjects of His Majesty, even if they are connected with a part of His Majesty's Dominions to which the treaty does not apply. While this procedure may in many cases be very convenient it undoubtedly implies that the King, when acting on the advice of His British Ministers, has the right to contract for all subjects of His Majesty no matter where situate. If the idea of equality of members of the Commonwealth is to be maintained it must be definitely laid down that no government has authority to advise the King to enter into a contract with another State in respect of either the territory or nationals subject to another government of the Commonwealth. Extradition and Arbitration Treaties are semi- political in character, and it is, accordingly, proposed to deal with them under this section.

Extradition Treaties

15. Prior to the Imperial Conference, 1926, these treaties were concluded with foreign countries by the British under an unlimited Full Power. Provision was made in the treaty excluding the Dominions from its operation unless notice of application was given concerning each Dominion. Since the 1926 Conference the Full Power is limited to the United Kingdom, but an accession clause, similar to that in commercial treaties, is included. The carrying out of these treaties depends upon the Extradition Acts 1870-1906. In order to maintain our international position it would appear that treaties dealing with the apprehension of our nationals should be directly negotiated between ourselves and foreign countries, and not by means of accession to a British treaty. The continuance of the accession clause in British bilateral treaties, whether political or technical, reinforces the idea that the Empire is an international unit.

16. The conclusion of Extradition treaties by the Irish Free State would involve an Act of Parliament, similar to the British Act, to enable the Government to detain a criminal who was the national of a State with whom a treaty was in force and to surrender him to that State in accordance with the terms of the treaty.

Arbitration Treaties

17. These treaties, with the exception of the treaty with the U.S.A., were always concluded between governments. They were made for a term of five years, and the practice was to extend them for further periods of five years by means of an exchange of Notes. (Annex B).³ They provide for a reference to the Permanent Court of Arbitration at The Hague of all 'differences which may arise of a legal nature, or relating to the interpretation of treaties existing between the parties and which it may not have been possible to settle by diplomacy'. In 1924, as a matter of convenience, and because there was no definite decision as to the attitude of the Irish Free State to such treaties, it was agreed to allow their extension, by means of an exchange of Notes between the British Government and the governments concerned, to the Irish Free State. In 1927 the question of the renewal of the treaty of 1908 with the United States was raised, and the Government of the Irish Free State expressed the opinion that the Dominions had been in no sense parties to the Treaty of 1908, and that the new situation required either the complete exclusion of the Dominions from the Convention or their inclusion as separate parties. It was further the view of the Irish Free State Government that each member of the Commonwealth should make its own arbitration treaties while adhering in essentials to the same form in the interests of general Commonwealth policy.

18. At the end of 1928, when the existing arbitration treaties with France, Spain and Italy fell due for renewal, the Government of the Irish Free State informed the British Government that they did not intend to renew these treaties, but would take an early opportunity to negotiate separate treaties with these countries. The British Government expressed their agreement with the proposal that these treaties should in future be made in the form of Heads of States Treaties, but argued that it was essential for the general interests that there should be joint action. This would mean that all members of the Commonwealth would join in a single treaty with each of the various States concerned. The British contended that 'a most difficult situation would arise if a serious dispute took place with a foreign country affecting two or more members, one alone of which had a general arbitration treaty with the country in question covering the subject of dispute'. They instanced the case of a dispute arising with regard to the right to exclude certain classes of immigrants in which several parts of the Commonwealth might be interested, but only one part having a general arbitration treaty with the country concerned without any reservation to cover such a case. The part of the Commonwealth not having an arbitration treaty would, they assert, find it difficult to resist a demand for arbitration on the question, and even if they succeeded in resisting the demand, their interests might be directly affected by the result of the arbitration, which the other part would be bound to accept.

19. It is not clear why difficulty should arise in resisting a demand for the submission to arbitration of a question not the subject of an agreement to do so, nor is it clear how the result of an arbitration deciding an issue between a member of the Commonwealth and another State, under an arbitration agreement could affect the interests of members of the Commonwealth not having arbitration treaties with that State. It is, of course, assumed that the separate arbitration treaties of the members of the Commonwealth would not differ materially in terms. There is really only one objection to the proposal of separate arbitration treaties and that is, that in all political or semi- political questions the Commonwealth should appear as a unit.

Judicial Procedure Conventions

20. These Conventions are always concluded in the Heads of States form. As in the case of Commercial Treaties it was the practice prior to the 1926 Conference to conclude these Conventions under unlimited Full Powers to the British Plenipotentiary, provision being made in the Convention for the exclusion of the other members of the Commonwealth, unless notice of application was given through the diplomatic channel. Since 1926 the full power of the British Plenipotentiary is limited to Great Britain and Northern Ireland and all British Colonies and Protectorates, etc. A general accession clause is, however, included by virtue of which any member of the British Commonwealth may adhere to the Convention. The purpose of the Convention is to provide machinery in Civil and Commercial matters for the service of judicial documents and the taking of evidence. The observations in connection with commercial and other bilateral treaties apply equally to these Conventions.

Commercial Treaties

21. Since the Imperial Conference of 1926 the British have adopted a new form of Commercial Treaty.

The preamble sets out the Royal Titles in the new form, and goes on to state that the object of the treaties is to facilitate and extend the commercial relations between the foreign country and Great Britain and Northern Ireland, and such other territories under the sovereignty, protection or authority of His Britannic Majesty as he may desire should be bound by the treaty.

The full power of the plenipotentiary is limited to Great Britain and Northern Ireland, all British Colonies and Protectorates and all mandated areas administered by His Majesty's Government in Great Britain. The reference in the preamble to 'such other territories, etc.' is open to the interpretation that His Majesty may bind any of his territories without distinction through the signature of the plenipotentiary of Great Britain. It is suggested that as provision is made in the body of the treaty for its application to any British Colony etc., on notice being given, and as the Full Power covers all colonies and protectorates, etc., this reference in the preamble is unnecessary and should be omitted. All these commercial treaties contain a general accession clause providing for the accession of any other member of the Commonwealth. There is a further clause which provides, in the absence of accession by the members of the Commonwealth, for the grant to them of most-favoured nation treatment on a basis of reciprocity.

22. The inclusion of these two clauses in a bilateral treaty between Great Britain and a foreign country clearly implies that the King, acting on the advice of his British Ministers, is competent to enter into arrangements for the other members of the Commonwealth without their participation. There is no doubt that some members of the Commonwealth regard the inclusion of these provisions as very convenient, more especially in the case of countries with which their commercial relations are not sufficiently close to warrant separate commercial treaties. For that reason, it will probably be difficult to secure the deletion of these provisions. It is to be noted that some countries have objected to the inclusion of the accession clause, the latest instance being that of the Anglo-Roumanian Commercial Treaty. By way of compromise it could be suggested that where any members of the Commonwealth desire to have the right to accede to a British Commercial Treaty they should be set out nomenatim in the treaty, and that the general accession article should be deleted. In connection with these treaties it will be remembered that the British hold that Imperial preference is outside the scope of the most-favoured-nation treatment granted therein. The treatment accorded by the British may be described as most-favoured-foreign-country treatment. The idea being that the use of the word 'foreign' will exclude members of the British Commonwealth. It has been ascertained that, though no outside country has ever raised the question, it is generally held that an international court would not recognise the use of the word 'foreign' as preventing any country from claiming, under the most-favoured-nation treatment clause, the treatment granted to other members of the Commonwealth. During the discussion on the Saorstát-German Commercial Treaty Herr Sarnow held that view very strongly. He held that the only way to safeguard Imperial preference was by express provisions, as was done in the Saorstát-German Treaty.

Governmental Agreements

23. Since the 1926 Conference the use of this form of agreement has been confined to cases providing for the abolition of visas, and the establishment of Commercial Modus Vivendi.

In agreements for the abolition of visas between the British Government and a foreign country, it is the practice to secure that the abolition of the visas extends to all British subjects of whatsoever origin. The Irish Free State objected to these agreements being made covering British subjects within the jurisdiction of other governments of the Commonwealth without the participation of such government in the Agreement. The British replied that the agreement only provided benefits for British subjects within the jurisdiction of the other governments of the Commonwealth, and did not impose any obligation on the other Governments to give anything to the foreign country in return for these benefits. They agreed to the Irish Free State Government joining in the agreement if they so desired.

24. Quite recently, in the Commercial Modus Vivendi between Great Britain and Russia, the agreement provided for the accession by any other member of the Commonwealth by means of an exchange of Notes between the Dominion Government concerned and the Russian Government. Provisions of this sort in inter- governmental treaties clearly show that the British Government consider that they have the right to act in the same manner as the King, when advised by British Ministers, acts in bilateral treaties.

FULL POWERS AND INSTRUMENTS OF RATIFICATION

Full Powers

25. The system in force since the 1926 Conference in reference to these documents is, that the Government of the part of the Commonwealth concerned advises His Majesty to issue Full Powers to their nominees. The King issues a warrant under his Sign Manual authorising the document appointing the Dominion Plenipotentiary to be passed under the Great Seal. In order to have the Seal affixed to the document the Sign Manual Warrant must be countersigned by a Secretary of State. A similar procedure is adopted in the case of instruments of Ratification of treaties on behalf of the Dominions. It has been stated on more than one occasion that the intervention of the British Minister is purely formal, and that the advice on which these documents are issued is that tendered by the Government concerned. Sir Cecil Hurst has stated that 'The ratification of a treaty is the act of the King, and constitutionally the King must act on the advice of his Ministers when he gives the ratification, and the Ministers on whose advice he acts must be the Ministers responsible for the part of the Empire affected by the treaty'. There can be no doubt, however, that the intervention of a British Minister in the issue of these documents is regarded by Keith,⁴ Corbett⁵ and Smith,⁶ and other writers on Dominion Status as a restriction on the Dominions for the purpose of maintaining unity. It is a part of the machinery to ensure unity in foreign relations.

26. Keith further suggests that if a treaty concluded by the King, for one dominion, is broken, the other party to the treaty might require the British Government to put pressure on the Dominion to carry out its obligation, on the ground that the ratification of the treaty involved the personal action of the King, who could only act on the authority of the British Government.

27. It has been ascertained that the Department of State in Washington regard the British Government as having responsibility for treaties between the U.S.A. and the Dominions for the reasons cited in the foregoing paragraph.

28. It is submitted that the only way in which the position of the Dominion in relation to these documents can be cleared up is by their being submitted to the King through some channel other than a Secretary of State, and sealed with the Seal of the part of the Commonwealth concerned.