Memorandum by Joseph P. Walshe on the 1926 Imperial Conference
(Copy)

IMPERIAL CONFERENCE

PRELIMINARY MEMORANDUM

RELATIONS WITH GREAT BRITAIN. DIFFICULTIES SUMMARISED

A. Usurpation by the British Government of the right to advise His Majesty

The detailed procedure is as follows: The Foreign Government sends to the Foreign Office a document called a commission setting out the desire of the Foreign Government that Mr. X, a member of the permanent consular service, should be permitted to act as consul at Dublin, Ottawa, Capetown, etc. Immediately on receipt of the Commission, the Foreign Office without further inquiry presents for the King's signature a document called an Exequatur empowering the consul to act. The Exequatur is then countersigned by the British Foreign Secretary and returned to the Foreign Government for transmission to the consul appointed.

It is a matter of international usage to issue exequaturs without question to consuls de carrière.

Dominion Governments are given an opportunity of stating whether they agree to the appointment of their own nationals as honorary consuls but the procedure as to the signing of the exequatur and the transmission to the Foreign Government is identical with that followed in the case of Consuls de Carrière.

The manner of appointing consuls confuses foreign governments concerning the real status of the Dominions. From beginning to end of the procedure the Foreign Governments deal with the British Government alone and they can form no other impression than that the British Government alone has the power to sanction the appointment of consuls within the territory of the Dominions.

It is suggested that the consular commission should be sent direct to the Dominion Government from the Foreign Government and that the Exequatur should be signed by the King on the advice of the Dominion Ministers and countersigned by the Dominion Minster for External Affairs.

B. The Foreign Office: the channel of communication between the Dominions and Foreign Governments

Although Dominions have frequently communicated with Foreign Governments through Consuls-General for the purpose of initiating treaties and obtaining information, the British Foreign Office is still the ordinary channel for the great bulk of Dominion foreign relations. This is especially true when the first step in any matter is taken by the Foreign Government. Invitations to Congresses, notification about accessions to International Conventions, requests for information, notification of official visits of foreign naval vessels to Dominions come through the British Foreign Office.

Communications with Foreign Governments initiating with the Dominion Government present no difficulty when there is a Consul-General of the Foreign Government in the Dominion, but in the absence of a Consul-General the Dominion Government by communicating direct with a foreign government would run the risk of being snubbed and having its communication referred to the British Foreign Office.

This anomalous situation can only be regularised by definite action on the part of the British Government. Foreign governments will not communicate direct with us unless they are informed by the British that that course is agreeable to them.

C. The Royal Titles

The Royal Titles are still as they were before the separation of the Saorstát from the United Kingdom. The change can only be effected by legislation and there is little likelihood of the Dominions agreeing whole-heartedly to the proposal unless the change involves a fuller recognition of their own status. If the Dominions were to be set out specifically in the title instead of being lumped together the proposal would have a good chance of success. The title would then run as follows: 'King of the United Kingdom of Great Britain, of Ireland, Canada, Australia, New Zealand and South Africa, Emperor of India'. A solution on these lines would have the advantage of emphasizing the multiplicity of kingship which must serve as the theoretic basis for the recognition of the right inherent in the Dominion Government to advise the King directly in all matters whatsoever concerning the Dominion's internal and external affairs.

D. Extraterritorial Legislation

The Canadian Government on June 30, 1924, moved the House of Commons to ask for the amendment of the British North America Act to the following effect:

No notice has apparently been taken of this motion by the British Government and the question is not in the Agenda suggested by the British for the Imperial Conference.

Keith¹ suggests that the motion has not been dealt with because of the manner in which it has been drafted. The passing of the Act proposed would give Canada the power to enact legislation binding in theory at least on persons in the other parts of the Commonwealth. Keith thinks that the operation of the proposal should be restricted to Canadian citizens in the technical sense of the term: that authority to bind Canadian citizens alone outside Canadian territory should be sought. Complete authority would, on the other hand, be exercised over Canadian ships and air craft. Hitherto the power of regulating the actions of British subjects beyond British territory has been the prerogative of the British Parliament.

Australia has power over ships whose first port of clearance and whose port of destination are in the Commonwealth.

New Zealand has no extraterritorial powers.

E. The British Commonwealth and the League of Nations

In the view of the British Government, the International relations between the various parts of the British Empire are not intended to be regulated by the terms of international instruments negotiated under the auspices of the League of Nations. Their formal protest to the League on the occasion of the registration of the Anglo-Irish Treaty² (repeated when the supplementary agreement was registered³) under Art.18 of the Covenant will be remembered.

The British first revealed their attitude as to the position of the Dominions in the League at the Barcelona Conference (held under the auspices of the League) relating to Freedom of Transit in 1921. There was no Dominion represented.

The draft conventions circulated at the Conference were expressed as conventions between High Contracting Parties and were based on the supposition that each of the parties was an independent sovereign State. The British delegates wishing to maintain the view that there was only one unit for international purposes - the British Empire - and one indivisible sovereign to act as High Contracting Party succeeded in getting the Conference to adopt the device of dividing each draft convention into two parts:-

The Convention contains the formal articles and receives its binding international character as far as the Dominions are concerned, solely from the fact that they are deemed to be included in the signature of the British Representative unless formally excluded therefrom. Sir Hubert Llewellyn Smith,⁴ at the opening of the discussion, explained that as the League contains a certain number of members ' which are Dominions and not sovereign States', they could not properly be described as High Contracting Parties.

So long as the view is allowed to go unchallenged that the King can only be a High Contracting Party once in the same international agreement, the Dominions will find themselves stowed away in some unimportant annex and their status will remain a puzzle to other nations. The British wanted to establish the principle at Barcelona that not only could the King not be a High Contracting Party more than once in the same international agreement, he must also contract through the British Empire Plenipotentiary.

The Canadians refused to allow the British Ambassador to act for the King when signing the Halibut Treaty⁵ with America and established a precedent according to which the King can act through a Dominion Government.

The British have now retreated to a second line of defence. They are making the ratification not the signing of international agreements the criterion by which the international status of the Dominions is to be judged. The ratification is made for the Empire in the King's name. It formally excludes the parts which do not come within the scope of the Agreement implying, without formally mentioning, that the other parts are included.

We have refused to allow the British to ratify the Opium Convention and the Convention against obscene literature⁶on our behalf in the instrument containing the general ratification. When we advise the King to ratify specifically for the Irish Free State doubtless some attempt will be made to give the document the appearance of being an addendum to the first instrument by way of correction. The British are holding up their ratifications to the amendments to Art.16 of the Covenant for our consent to be a party to it.⁷ To further emphasize the view that the Empire constituted a unit internationally it was essential to make it clear that the relations existing between the States composing it were different from those existing between independent States. Hence the insertion of the ' inter se' clause which runs as follows: ' It is understood that this statute must not be interpreted as regulating in any way rights and obligations inter se of territories forming part of or placed under the protection of the same sovereign State, whether or not these territories are individually members of the League of Nations'. Disputes arising between the various States of the Empire could not therefore be brought (under the disputes clause) before an international tribunal. Furthermore, the articles of the Barcelona or of any other convention containing the inter se clause need not apply as between the States of the Commonwealth without special agreement between them.

The British were forced to change their attitude at the Opium Conference. M. Sugimura, the Japanese delegate, asked whether the omission of the clause in the draft convention was deliberate. Mr. Malkin, the British Delegate,replied that the clause was omitted because it was intended that certain provisions in the Convention, such as those dealing with export authorisation and import certificates, should be applied as between Great Britain and Canada for example. Mr. Sugimura's question was put at Mr. MacWhite's suggestion. Mr. MacWhite had previously told the British delegation that if the ' inter se' clause were inserted he would fight it in open conference.

Conclusions

The main obstacles to equality of status are set out in the foregoing. The Canadian Liberal Press is showing considerable resentment at the statement in King-v-Nadan that Dominion legislation of thirty-nine years standing excluding criminal cases from the jurisdiction of the Privy Council was ultra vires and no doubt the Canadian Government will have the point raised at the Conference.

The right to fly our own flag at sea will follow from the abolition of the monopoly in extra-territorial legislation at present held by the London Parliament.

The right to advise the King in all matters internal and external and the complete recognition of his Kingship on both sides in the case of each individual dominion seems to be the only logical road to equal status.

The British Agenda contains among others the following points: Representation of the British Empire at International Conferences; Completion of the Resolution of the Imperial Conference, 1923, on the negotiation, signature and ratification of Treaties; Imperial Shipping; Airship Services and Empire Air Routes; law of nationality. All the points outlined in this Memo and other questions such as those concerning passports and consular representation can be brought up under the British items without formal notification. The British will naturally be ready with subtle proposals destined to emphasize the Federationist character of the Commonwealth. The only means of being able to combat these proposals is prior consultation and agreement with Canada as to the points of view which should be upheld in common.

The stage of evolution at which the Dominions have arrived, the anxiety of the British to bring the Dominions more and more into their foreign policy, and the continued instability of Europe combine to make this Conference incomparably more important for the Dominions than any one that has preceded it.

In the circumstances, I think it extremely advisable that you should take the first opportunity of going to Ottawa for the purpose of discussing the whole matter with the Prime Minister⁸ and Mr. Skelton.

Detailed memoranda will be furnished by this and other departments on all points likely to be raised.