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Treaty-Making Procedure in the British Dominions*

Published online by Cambridge University Press:  12 April 2017

Robert B. Stewart
Robert B. Stewart*
Affiliation:
Harvard University
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Extract

The British Dominions prior to the World War had already achieved practically unrestricted freedom with respect to technical and commercial treaties. They had not attained any comparable freedom with respect to “political” treaties. They were, with rare exceptions, excluded from participation in the conclusion of such treaties but were, nevertheless, bound automatically by the obligations undertaken by the mother country. The Government of the United Kingdom, subject to its responsibility to the Imperial Parliament at Westminster, exercised sole authority in all matters relating to the conduct of foreign policy, the maintenance of peace, and the declaration of war. That authority, Prime Minister Asquith declared at the Imperial Conference of 1911, could not be shared with the Dominions. Yet at the close of the War the Dominions were given separate representation at the Paris Peace Conference.

Type
Research Article
Information
American Journal of International Law , Volume 32 , Issue 3 , July 1938 , pp. 467 - 487
Copyright
Copyright © by the American Society of International Law 1938

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Footnotes

*

This study has been made possible by a grant from the International Law Division of the Carnegie Endowment for International Peace, Washington, D. C. The writer wishes also to acknowledge the assistance of many officials of the United Kingdom and of the British Dominions who have given generously of their time in discussing with him the treaty-making procedures of the several Dominions and who have in other ways provided him with much information not available in books or printed documents. The writer alone is responsible for the accuracy of the facts and judgments recorded in these pages.

References

1 The exchange of notes, Oct. 16, 1931, between the Irish Free State and Brazil, which was effected through the British Minister at Rio de Janeiro, may be taken as typical of the procedure followed where the Dominions do not have their own diplomatic representatives. The British Minister addressed the Brazilian Minister of Foreign Affairs as follows: “In order to regulate commercial relations between the Irish Free State and Brazil, I have the honour, at the instance of His Majesty’s Government in the Irish Free State, to inform your Excellency that that Government are prepared to enter into an agreement to the following effect.” (Irish Free State, Treaty Series, 1931, No. 7, P. No. 589. This exchange of notes is reprinted in United Kingdom, Treaty Series, 1932, No. 2, Cmd. 3998. The Foreign Office emphasizes that the reprinting of Irish Free State treaties in the United Kingdom Treaty Series “is only possible through the courtesy of the Irish Free State Government.”) This was an agreement between governments, yet it is also illustrative of the procedure followed in other cases. In a similar exchange of notes between the Government of India and the Brazilian Government, the British Minister at Rio de Janeiro acted “under instructions from His Majesty’s Principal Secretary of State for Foreign Affairs, and in accordance with the wishes of the Government of India.” Ibid., 1932, No. 29, Cmd. 4168

2 Exchanges of notes, which record agreements between governments, are of course included in this calculation.

3 Imperial Conference, 1930, Summary of Proceedings, Cmd. 3717, p. 28.

4 International Treaty for the Renunciation of War, Paris, Aug. 27, 1928. United Kingdom, Treaty Series, 1929, No. 29, Cmd. 3410.

5 Ibid., 1935, No. 36, Cmd. 6006.

6 United Kingdom, Treaty Series, 1933, No. 14, Cmd. 4318.

7 Mr. O. D. Skelton, for the Secretary of State for External Affairs, to the Secretary of State for Dominion Affairs, May 17, 1935. Dominion of Canada, Treaty Series, 1935, No. 19.

8 These nine conventions are printed in Dominion of Canada, Treaty Series, 1935, Nos. 11–19.

9 From the Chargé d’Affaires at the British Embassy in Turkey to the Minister for Foreign Affairs of the Government of the Turkish Republic, July 1, 1935. The Minister for Foreign Affairs acknowledged receipt of this communication by return note. Ibid., No. 19.

10 For further examples see Sir Ernest Satow, A Guide to Diplomatic Practice, 3rd ed. rev., by H. Ritchie, London, 1932, Chap. 23–26.

11 See the Parliament of the Commonwealth of Australia, 1934–35, No. 149, List of International Agreements (Treaties, Conventions, etc.) to Which Australia is a Party, or Which Affect Australia, Together With Prefatory Note, p. 8.

12 Treaty of Amity, Commerce, and Navigation between His Majesty and the United Provinces of Rio de La Plata, signed at Buenos Ayres, February 2, 1825. Hertslet’s Commereiai Treaties, Vol. 3 (1841), p. 44.

13 In January, 1937, it was announced that four Australians had been attached as diplomatic liaison officers to British embassies in order to give them diplomatic training with the purpose of preparing them for Australian diplomatic service.

14 The Commonwealth of Australia Gazette, 1931, p. 297. The following may be quoted as a further example:

“It is notified, for general information, that an Order in Council has been made to the effect that His Majesty the King be moved to ratify in respect of the Commonwealth of Australia the Geneva Red Cross Convention of 1929, and the Prisoners of War Convention of 1929, which were signed on behalf of the Commonwealth on January 30, 1930.” Ibid.

15 Parliament of the Commonwealth of Australia, op. cit.

16 Statutes of the Union of South Africa, 1934, No. 70, p. 922.

17 Ibid., No. 69, p. 914.

18 The High Commissioner served as plenipotentiary at every international conference held in Europe in which the Union of South Africa participated during the seven years prior to the Montreux Capitulations Conference of 1937.

19 Exceptions to this rule may be observed. On Oct. 13, 1932, an agreement was entered into between the Government of the Union of South Africa and the Government of the German Reich by means of an exchange of notes (amending the Treaty of Commerce and Navigation of Sept. 1, 1928) between the Union Minister of External Affairs and the German Consul Greneral at Pretoria. The agreement was subject to ratification and was ratified by His Majesty, the instrument of ratification being signed by His Majesty and passing under the Great Seal in the same manner as the ratification of a heads-of-states treaty. United Kingdom, Treaty Series, 1935, No. 25, Cmd. 4961 (Reprint of Union of South Africa Treaty Series, 1932, No. 14).

20 Irish Free State (Constitution) Act, 1922, 13 Geo. 5, c. 1. This is an Act of the Imperial Parliament at Westminster.

21 The “Government” here referred to is the Cabinet composed of the Prime Minister and not less than seven and not more than fifteen members appointed by the President in accordance with the provisions of the Constitution.

22 Draft Constitution as Approved by Dáil Eireann, published by the Stationery Office, Dublin. Art. 29, par. 4 (2). This Draft Constitution was approved by the people at a special general election held for that purpose July 1, 1937, and came into operation Dec. 29, 1937.

23 Ibid.

24 On July 26, 1937, Signor Romano Lodi Fè, first Envoy Extraordinary and Minister Plenipotentiary of Italy to Ireland, presented his credentials to President Eamon de Valera at Dublin Castle. In presenting his credentials the Minister said: “I have the honor of presenting to your Excellency the Letter of Credence which accredits me as Envoy Extraordinary and Minister Plenipotentiary to the Government of the Irish Free State.” In fact the letter of credence did not accredit him to the Government of the Irish Free State but rather to His Majesty. In using the above language the Minister was not, therefore, strictly accurate. He was, however, undoubtedly conforming with the wishes of the Irish Government.

25 Draft Constitution, Art. 29.

26 Agreement between the Government of the Irish Free State and the Polish Government regarding the Tonnage Measurement of Merchant Ships, Oct. 19, 1934, Irish Free State, Treaty Series, 1935, No. 5; United Kingdom, Treaty Series, 1935, No. 28, Cmd. 4966. The form of the agreement does not indicate that the full powers of the Polish plenipotentiary were issued by the President of the Republic of Poland.

27 Irish Free State, Treaty Series, 1932–1936. This calculation excludes two agreements with Commonwealth governments—one with the Government of the Dominion of Canada and the other with the Government of the Union of South Africa.

28 Ibid., 1934, No. 6, P. No. 1369.

29 Irish Free State, Treaty Series, 1931, No. 9, P. No. 223.

30 Final Act, Convention, and other Documents regarding the Abolition of Capitulations in Egypt, Montreux, May 8, 1937, Cmd. 5491 of 1937.

31 Imperial Conference, 1937, Summary of Proceedings, Cmd. 5482, p. 27.