76
The University of Queensland Law Journal, Vol. 9 , No. 1
International Personality and the British Dominions :
Evolution and Accomplishment.
M.H.M. KIDWAI*
The loss of the North American colonies as a result of the American War of
Independence was a disaster of such a magnitude that it inevitably brought
about a sharp and "strong reaction on the part of the British Government"The Imperial garrisons which had been refused before the revolution were now
lavishly supplied, the funds which might have relieved Governors from dependence on
their legislature and postponed the revolution were freely voted, and the bishops
whose episcopal care might have created a loyal church were now readily consecrated
and funds provided for their maintenance. Naturally the rule of strict subordination in
the sphere of external relations was rigidly enforced, and readily accepted by communities which depended essentially for their possibility of peaceful development on
the protection of the British fleet and army.
All foreign relations were thus under full British control which in trade expressed
itself by the system of Navigation laws and by the regulation of tariffs for the
colonies.'
Representative Government in the Colonies
Nevertheless, with the establishment of representative legislatures and expressions of dissatisfaction by colonists of means of exercising control over
colonial administrations, introduction of responsible governments became inevitable. Lord Durham while strongly advocating establishment of responsible
government as essential and unavoidable consequence of representative
legislature, however, perceived the existence of a clear line of demarcation
between internal affairs and imperial affairs. His recommended transfer of
power was accordingly confined to internal or colonial affairs alone.2 Consequently, constitutional arrangements in the colonies, regulation of foreign relations, control of external trade and disposal of public lands were explicitly
. ~ extent
reserved for the "mother country" as matters of imperial ~ o n c e r nThe
of and justification for such control were not left vague and were spelled out by
Lord Durham in unmistakable termsA perfect subordination, on the part of the Colony, on these points, is secured by the
advantages which it finds in the continuance of its connexion with the E m ~ i r e . ~
With the grant of responsible government indefinite continuation of a state of
"perfect subordination" which Lord Durham so ardently advocated was unimaginable. Sir Charles Lucas, editor of Lord Durham's Report has critically
examined this approach and has rightly concluded that while Lord Durham
laid stress on self-government as creating a national existence, he did not seem fully to
recognize that when once an overseas community has been endowed with national institutions, it is difficult, if not impossible, to set a limit to its growth as a nation, or
*
B.A. (Hons.), M.A., LL.B. (Lucknow); LL.M. (Harvard); Ph.D. (Melbourne); Ph.D.
(Queensland), Dean. Faculty of Law, University of Queensland.
1. Keith, The Dominions as Sovereign States (1938), p.5.
2. See Duncan Hall, The British Commonwealth of Nations (1920), p.25.
3. Lord Durham's Report on the Affairs of British North America, Vol.11. (ed. Sir C.P. Lucas),
(1912), p.82.
4. Ibid.
International Personality and the British Dominions
77
permanently to withold any subject as outside its scope . . . History has abundantly
shown that, starting from the grant of self-government, there can be but one line of
movement, from subordination to complete equality . . . The grant of responsible
government was the beginning of the end of subordination.'
Fiscal Freedom
It is significant, though not surprising, that the process of gradual transfer to
the control of the colonial administrations matters reserved by Lord Durham as
obviously falling within the jurisdiction of the imperial authority commenced
not long after the submission of his r e p ~ r t Probably
.~
it would not be incorrect
to say that a beginning was made almost coincidentally with the installation of
responsible governments. Though the policy of free trade was adopted in 1846,
both in the context of the mother country and the colonies, in relation to external trade specifically, the Colonial Secretary, Earl Grey did not intend to
entrust the colonies with the power to discriminate or formulate independent
commercial policies.' Practical considerations, however, were so overwhelming
that the approach could not survive for 10ng.~Thus in relation to external trade,
which ultimately had a direct bearing on external affairs generally, the
"inevitable consequences of responsible government", as summarised by
Stewart werefreedom to enact tariff laws independently of the mother country, which in turn, gave
birth to still further demands by the colonies-demands for feedom to make commercial treaties with foreign countries and freedom to withdraw from commercial treaties
concluded without the consent or consultation of the colonies. These three aspects of
Empire Constitutional development are closely interrelated-the establishment of
responsible government in the period 1840-1850, the concession of fiscal freedom
1846-1898 and the concession of treaty-making power 1865 to 1907 with respect to
commerce, and down to the World War and after with respect to other matter^.^
Moreover, it is essential to note that during the first half of the nineteenth
century the commercial structure had substantially changed. Stringent controls
were removed by a series of enactments of the Imperial Parliament which
revolutionized the fiscal arrangements within the Empire.lo The newly acquired
fiscal powers by the self-governing colonies were put to use in Canada in 1858
and again in 1859 by imposition of protective tariffs against even the "mother
country". It was no doubt within the constitutional competence of the Crown to
withhold Royal assent to these measures, but political climate precluded taking
of such steps. Tariff autonomy of the self-governing colonies thus followed and
in due course became an accomplished fact. Edward Porritt regards and rightly
so, the year 1858 as "a date-line in the fiscal history of the dominions"."
5. Ibid., pp.285-286; 313.
6. See Duncan Hall, op.cit. supra note 2, p.32.
7. Earl Grey explained that by adopting a policy of free trade "Parliament did not abdicate the
duty and power of regulating the commercial policy not only of the United Kingdom but of the
British Empire. The common interests of all parts of that extended Empire require that its commercial policy should be the same throughout its numerous dependencies, nor is this less important than before because her policy is now directed to removal as formerly to the maintenance of
artificial restrictions on trade," See Earl Grey, The Colonial Policy of Lord John Russell's Administrations, Vol.1, (2nd ed., 1853), p.281.
8. Keith, op.cit. supra, note 1, pp.6-10.
9. Stewart, Treaty Relations of the British Commonwealth of Nations (1939), pp.47-48.
10. For details of legislative measures see Ibid. pp.48-49.
11. Porritt, The Fiscal and Diplomatic Freedom of the British Overseas Dominions (1922), pp.7677.
M.H.M. Kidwai
Commercial Treaties
Grant of freedom in tariff matters involved not only acceptance of the
authority of the colonial Governments to formulate divers fiscal policies, but
also an acknowledgment of the fact that these policies could even be at variance,
as at times they actually were, with the imperial policy itself. Naturally in these
circumstances the desire of the colonies to possess the right of influencing and of
conducting their trade relations with foreign countries could not be characterised
as unreasonable. Before they came to enjoy full and complete control oftheir international trade relations, a gradual relaxation of imperial control started
manifesting itself in successive stages-in the association of colonial representatives in the negotiation of bilateral commercial treaties with foreign states; in the
independent negotiation of such agreements through these representatives
themselves; in the resentment to the automatic extension to the colonies of imperial commercial treaties; in the desire to secure release from those that already
extended to them and in the claim to have the right to separate adherence to and
withdrawal from those that might be signed by the Imperial Goverment subsequently. The development of the treaty-making power of the colonies was,
therefore, accomplished by a process of gradual realisation of their claims and of
continuing relaxation of imperial contr01.'~Thejustification for a readjustment of
the treaty-making process lies in the realisation that subsequent tothe creation of several tariff units, each following a policy designed to meet its own needs
or wishes, the old system of commercial agreements became obsolete. Commercial relations with foreign nations ceased to be those of a single and undivided Empire and
became those of separate units with frequently diverging interests. From the view-point
of the colonies, general treaties for the whole Empire no longer sufficed, and United
Kingdom officials-because of the divergence of interests which they represented and
because of their unfamiliarity with local circumstances-were no longer qualified to
serve as sole agents in concluding commercial treaties applicable to the c ~ l o n i e s . ' ~
It is vitally important to realise that the most revealing element in the attainment of autonomy in external affairs by the colonies and subsequent accomplishment of equality of status by them with the "mother country"
manifests itself in their acquisition of treaty-making capacity. This is so, as
treaty-making capacity projects international personality. It is, therefore, imperative to examine the process by which the self-governing colonies and other
territories ultimately acquired the treaty-making competence.
Colonial Participation in Commercial Treaty-making
In May 1846, promotion of reciprocal trade prompted the Canadian
Legislative assembly to impress upon the Imperial Government the desirability
of initiating negotiations on behalf of Canada with the Government of the
United States. When negotiations commenced, neither the Imperial Government deemed it necessary to associate Canadian representatives nor such a demand was made by the Colonial Government itself. Two years later, in July
1848 when responsible government had been installed in Canada a request for
the association of Canadian representatives in the negotiations was submitted
and accredited representatives were made available at Washington. It was urged
that their association was desirable on account of the need of maintaining direct
communications between Canadian and American Governments. However, in
spite of the availability of the services of Canadian representatives to the British
Mission in Washington, their role remained "entirely unofficial" and "obscure"
12. Stewart, op.cit.supra note 9, p.50.
13. Ibid., pp.50-51.
International Personality and the British Dominions
79
during the negotiations leading to the signing of the Reciprocity Treaty of 1854
between Great Britain and the United States regarding "Fisheries, Commerce
and Navigation in North America." At the time of its expiry under notice given
by the United States in 1865-1866 when attempts at direct negotiation were initiated by Canadian statesmen, the British Foreign Office felt the desirability of
formulating procedures regulating colonial participation. In a letter dated
November 11, 1865 the Foreign Office spelled out the conditions under with it
would be willing to sanction and facilitate colonial participation in the negotiation of trade agreements. It was envisaged to assign a mere advisory role to
colonial representatives; the conduct of actual negotiations and signing of resultant treaty was exclusively reserved for the British Minister.I4 The principles
enunciated in the Foreign Office Letter of 1865 were soon rendered obsolete
when Canadian representatives were not only appointed co-plenipotentiaries but
they succeeded in winning for themselves important and sometimes even leading
roles in the negotiations. Subsequently they were enabled to actually sign
treaties.15
The Canadian precedent natually raised hopes in some other self-governing
colonies of its application to them. At the first Colonial Conference, held in
London on the occasion of Queen Victoria's Golden Jubilee in 1887, Sir Francis
Dillon Bell of New Zealand submitted a Memorandum on "Negotiations with
Foreign Powers in Matters of Trade,"16 advocating extension of the privilege enjoyed by Canada to other self governing colonies. This was prompted by the
desire of the government of New Zealand to negotiate a tariff agreement with
France and served as the basis for a general review of existing procedures. In
view of the prevailing strong feeling amongst the participants to maintain and
preserve the unity of the Empire," the proposal was not put to vote and was
merely recorded as a suggestion.18
By the time the Colonial Conference met again in 1894 at Ottawa, the
representative of New Zealand was not alone in making the demand. He was
joined by New South Wales and Victorian representatives and they all urged the
general extension of the privilege already enjoyed by Canada now for sometime.
The motion of Sir Henry Wrixon of Victoria secured the general approval of the
Conference and aimed at the association of colonial plenipotentiaries to work in
association with the British Ministers in the negotiation19of commercial treaties.
14. For extracts of this letter see Porritt, op.cit.supra note 11, pp.184-185.
15. Sir John Macdonald was the first colonial representative who in 1871 during the conclusion of
Treaty of Washington was appointed as one of the plenipotentiaries, and participated in the
negotiations and signed the Treaty; In 1874 Mr. George Brown was also appointed a coplenipotentiary during the negotiations with the United States; Sir A.T. Galt on the other hand
was placed in a position of subordination to the British Minister at Madrid during the negotiations of a reciprocity treaty with Canada in 1879. This was however rectified as a result of a
vigorous Canadian protest and Sir Charles Tupper in 1884, when negotiations with Spain were
resumed, was given the status of a plenipotentiary and entrusted with actual negotiations. In
1888 he enjoyed the same status, conducted the negotiations and signed the treaty, which failed
for ratification by the United States. Again in 1893 he acted similarly at the time of negotiation
of the Agreement between Great Britain and France regulating the commercial relations
between Canada and France in respect of customs tariffs. Also see Olliver, Problems of Canadian Sovereignty (1945), pp.83,85.
16. Colonial Conference, 1887 Proceedings, Vol.1. C.5091, pp.475-476.
17. Ibid., pp.479-483 Sir Thomas Uppington of Cape of Good Hope, Sir Samuel Griffith of
Queensland and Mr. James Service of Victoria were its outspoken critics, as it was feared this
might breach the ideal of imperial unity; other delegates seemed to be satisfied with the existing
procedures.
18. See O'Connell, "The Evolution of Australia's International Personality" in International Law
in Australia (ed. O'Connell), (1965), p.4; Stewart, op.cit.supra, note 9, pp.61-63.
19. See for example the views expressed by Mr. George Foster of Canada who emphasised that, "I
am entirely at one and so are the people of Canada, as well as the Parliament of Canada, with the
M . H.M . Kidwai
80
T h e resulting treaties were however still required t o be concluded in the n a m e of
H e r Majesty. T h e Conference while dutifully reaffirming t h e notion of t h e unity
of t h e Empire m a d e it explicit that the scope of the recommendations did not in
a n y manner whatsoever amount t o a recognition of the right of t h e colonies t o
enter into commercial treaties with foreign countries directely. Commercial
engagements in any event, it was felt, could b e accomplished exclusively by the
imperial authority.*O
In the light of these recommendations of the Conference, the need for a n
authoritative restatement of t h e procedures became imperative. T h e Colonial
Secretary, Marquess of Ripon on J u n e 28, 1895 in a despatch t o the Colonial
Golrernors explicitly outlined the views of the Imperial Government2'A foreign Power can only be approached through Her Majesty's Representative, and
any agreement entered into with it, affecting any part of Her Majesty's Dominions, is
an agreement between Her Majesty and the Sovereign of the foreign state, and it is to
Her Majesty's Government that the foreign State would apply in case of any question
arising under it.
H e further proceeded t o elucidate the reasons why colonies could not b e invested with treaty-making competenceTo give the colonies the power of negotiating Treaties for themselves without
reference to Her Majesty's Government would be to give them an international
statuts as separate and sovereign States, and would be equivalent to breaking up the
Empire into a number of independent States, a result which Her Majesty's Government are satisfied would be injurious equally to the colonies and to the Mother
Country and would be desired by neither.
Arising out of this hypothesis, he proceeded t o formulate principles which he
considered ought t o govern the agreements contemplated. Keith has summarised these formulations in these terms( I ) the colonies neither desired nor would it be possible to give them the treaty power,
since that would result in the destruction of Imperial unity;
(2) that separate treaties could properly be made with colonial co-operation for
colonies which desired them;
(3) that in such treaties colonies should not accept concessions from foreign powers
which would operate detrimentally to the interests of other parts of the Empire;
(4) that any concessions made to foreign powers should be extended forthwith to all
other powers entitled by treaty to most-favoured nation treatment; and
(5) that such concessions should also be granted gratis to any other part of the Em-
ire.^^
T h e despatch had gone even farther than laying down the guiding principles. I t
actually prescribed t h e procedure t o b e observed and a s outlined by Starke,
stipulated(a) The negotiations should be carried on by the British Ambassador or Minister accredited to the foreign State concerned. (b) This envoy was to keep the British Government informed of the progress of the parleys, and seek instructionsfrom this Government 'as necessity arose.' (c) This envoy should have the assistance of a delegate appointed by the colonial Government concerned 'as a second Plenipotentiary or in a subordinate capacity, as Her Majesty's Government think the Circumstances require',
sentiment that, as we are all parts of one country and we are under that one Imperial Government, the Imperial power must negotiate with regard to these treaties, but at the same time we
have all the freedom that is necessary and all the voice that we could possibly desire." Colonial
Conference, 1894, Proceedings, C. 7553, p.77.
20. Ibid. pp.68-70.
21. Despatches on Questions of Trade and Commercial Treaties (1895), C.7824, pp.15-16.
22. Keith, op.cit.supranote 1, p.8.
International Personalily and the British Dominions
81
in order to enable the negotiations to be conducted with due regard for the circumstances and wishes of the Colony.23
In addition to the consent of the Colonial Government concerned , thus the
approval of the Imperial Government was also considered essential for arrangements resulting from negotiations. Besides the agreement of the two governments, in appropriate cases where implementing legislation was required,
naturally the Colonial Legislature in the course of enacting such legislation also
had the opportunity of expressing itself. It was however envisaged that the
Imperial Government's approval would not be withheld on the ground of inconsistency with "the general commercial or financial policy" of the Empire, but
before ratification could be effected it would be necessary to satisfy the Imperial
Government that the colonial legislation enacted to implement the agreement
had made adequate safeguards for the "observance of international obligations
and the preservation of the Empire unity by extending to the rest of the Empire
any concessions granted to a foreign country."2J
Stewart has characterised these principles in Lord Ripon's Despatch as
"decidedly reactionary" and has rightly pointed out that these had never before
been distinctly formulated in such harsh terms. Colonies in the past had been
conceded and exercised greater power than those incorporated in the
'LDe~pat~h".25
Nevertheless, the reactionary view of the Colonial Office, expressed in Lord
Ripon's Despatch prevailed only for a few years and it was not long before that
this procedure was repudiated. The concern of the colonies was fully
demonstrated by their desire to be kept informed of the terms of the treaties
before their conclusion. At the Colonial Conference of 1902 the Australian
representative raised the question of prior consultation with the colonies affected
and was given the assurance that as far as the treaties of commerce and navigation
were concerned, the practice of prior consultation was already in vogue.
Moreover, in such cases where a colony was "specially concerned", it was
customary to arrange special representation of the colony in the negotiation^.^^
In spite of these assurances the matter was again raised by the Australian
Prime Minister, Mr. Deakin at the Colonial Conference of 1907 on the ground
that besides the earlier assurances "apparently nothing was done in this direction". The delegates, however, were presumably satisfied with the contents of a
confidential Board of Trade circular distributed at the Conference which clearly
stated that henceforth without their consent no commercial treaty shall
automatically apply to the colonies and that a provision for their separate
adherence to and withdrawal from such treaties would be incorporated in the
text of treatiesq2'
The Canadian Prime Minister, Sir Wilfrid Laurier, secured a significant concession during the same year when the British Foreign Secretary, Sir Edward
Grey, agreed that the Canadian plenipotentiaries alone might conduct negotiations with the French Government for a commercial treaty. Following negotiations by the Canadian representatives, the British Ambassador, it was agreed,
would be instructed to sign the agreement along with the Canadian plenipotentiaries and that they would be invested with full powers for this purpose after the
23. Starke, "Commonwealth in International Affairs" in Essays on the Australian Constitution (ed.
Else-Mitchell), (2nd ed., 1956). p.344. These rules amounted to a reversal of the precedents set
up earlier In the case of Sir ~ h a r l e sTupper, See supra note 15
24. Ibid.
25. See Stewart, op.ci(.supra note 9, pp.66-67.
26. Colonial Conference, 1902, Papers, Cd.1299, pp.ix, 34.
27. O'Connell, op.cit.supm note 18 pp.5 and 7.
82
M . H. M . Kidwai
proposed agreement had been cleared by the Colonial Office and the Board of
Trade. The Convention was accordingly signed at Paris on September 19, 1907
by the Canadian plenipotentiaries, Mr. Fielding and Mr. Borden along with the
British Ambassador to France.28It will thus be observed that by 1907, the selfgoverning colonies, which were re-designated as the Dominions, were invested
with powers of separate negotiations of commercial treaties binding them.
Though final approval of the Colonial Office and the Board of Trade before
signing these treaties still continued to remain with them, concessions given to
the colonies in the negotiation procedure amounted to a repudiation of Lord
Ripon's innovations regarding colonial participation as contained in his
Despatch of 1895. Stewart regards the new concessions accorded to the Dominions as "definite recognition by the British Government" of the "autonomous
status of the Dominion commercial treaty-making" and Keith similarly
characterises it as a "further extension of the power of making commercial
treatie~."~~
The next logical step forward towards the removal of the remaining vestiges
of imperial control was temporarily halted on account of the outbreak of the
First World War, but in the post-war climate it was inconceivable to postpone
much longer a further advance in the treaty-making procedures. During the
negotiation of the Halibut Fisheries Treaty of 1923)O a departure from the established procedure was made.The draft of the treaty was forwarded to Ottawa
by the State Department at Washington through the British Ambassador in the
United States. On completion of negotiations, the Governor-General of Canada
approached the Colonial Secretary to arrange from the British Foreign Office
the issue of full powers to the Canadian plenipotentiary, Mr. Lapointe, which
were accordingly issued. In the mentime the British Ambassador at Washington
was also instructed by the British Foreign Office to sign the treaty in accordance
with the usual practice. These instructions to the Ambassador attracted immediate Canadian protests and it was contended that since the proposed Treaty
dealt exclusively with Canadian matters and in no way affected any imperial interests, instructions sent to the British Ambassador asking him to sign with the
Canadian plenipotentiary should be withdrawn. The British Government having
acceded to the request, the Halibut Fisheries Treaty was signed on March 2,
1923 by Mr. Lapointe alone by virtue of the full powers issued to him. Stewart
contends that this is the first instance where Dominion representative alone, and
"regarded as a purely Dominion plenipotentiary" signed a treaty on behalf of
that Dominion, an act which was an "important inn~vation."~'
The precedent created by the conclusion of the Halibut Fisheries Treaty was,
without doubt, of great significance and called for reassessment of the existing
practices and procedures. The Imperial Conference of 1923 provided such an
opportunity. It may be noted that in relation to commercial treaties after 1923
the practice of submitting them for the approval of the Imperial Government
ceased any more to be obligatory. With the disappearance of this obligation the
Dominions acquired complete control and authority in matters concerning the
conclusion of commercial treaties.
Thus in the course of a period extending to three quarters of a century, beginning with the association of Canadian representatives in an advisory capacity in
1848 and ending with Halibut Fisheries Treaty of 1923, British commercial
28. Convention regulating Commercial Relations between Canada and France, 1907, Hertslet's
Commercial Treaties, A Collection of Treaties and Conventions between Great Britain and
Foreign Powers (hereinafter referred as Hertslet), Vol.XXV, p.800.
29. Stewart, op.cit.supra note 9, p.70; Keith, op.cit.supra note 1, p.8.
30. U.K.T.S., 1925, No.18, Cmd. 2377.
31. Stewart, op.cit.supra note 9, p.72-73.
International Personality and the British Dominions
83
treaty-making procedure in its application to the self-governing colonies and
later Dominions, had gone through a process of considerable change and adjustment and can be summaried in few words. Under the old colonial practice all
treaties made by the Imperial Government automatically applied to the colonies,
though instances could be cited when for specific reasons separate treaties were
made for a colony by the Imperial Government. During the seventy-five years, as
has been pointed out, the practice passed through several evolutionary stages.
Establishment of responsible government and the emergence of diverse fiscal
policies led to the association of colonial representatives in an advisory capacity in
the negotiation of treaties affecting them. An important precedent was created
when some colonial representatives were given the status of plenipotentiaries and
participated in actual negotiations and signature along with British Ministers. In
order to rule out the possibility of any misunderstanding as to their subordinate
and secondary status, Lord Ripon's Despatch laid down the precise conditions of
their association. Within a few years the position reversed and the British
Ministers assumed the secondary role leaving the conduct of negotiations primarily in the hands of colonial representatives. However the resulting arrangements
still continued to require the approval of the British Government till as late as 1923
when both the participation of British representative and the requirement of approval of the British Government disappeared and the right of the Dominions to
negotiate and sign commercial treaties through the instrumentality of their own
representatives came to be fully established.
Right of Separate Accession
The practice of automatic application of British treaty obligations, whether of
a commercial and fiscal nature or otherwise, continued to operate muuch later
than the association of the colonial representatives in negotiations. It was viewed
as yet another manifestation of the concept of the unity of the Empire and a
direct outcome of the doctrines of the indivisibility of the Crown and common allegiance. In late 1870's Canada started exerting pressure for a change in relation
to commercial treaties. Consequently the Imperial Government commenced an
examination of the problem with a view to formulate a new policy. The Colonial
Office and the Foreign Office engaged in devising a formulation, incorporation
of which in commercial treaties would preclude their automatic application to
the colonies. In a letter, dated January 19, 1877 the proposed draft article was
forwarded by the Foreign Office to the Colonial Office, which after approval by
the Colonial Secretary, was circulated to the colonial Governors in the following
year.32In spite of this indication of a change in the policy, a stipulation of the
32. The terms of the draft article proposed by the Foreign Office and approved by the Colonial
Secretary were as follows:
"The stipulations of the present Treaty shall be applicable to the Colonies and Foreign Possessions of the two High Contracting Parties named in this Article. (Here insert names of those
Colonies, etc. which have, previous to the signature of the Treaty, signified their willingness to
be included in the Treaty.)
The stipulations of the present Treaty shall be also applicable to any Colony or Foreign Possession of the two High Contracting Parties not included in this Article, upon a notification
from either Party to the other that it is desired that any such Colony or Foreign Possession shall
be admitted to the operation of the present Treaty.
In the latter case, the stipulations of the present Treaty shall, from and after a date to be
agreed upon, not later than six months from the date of such notification, become as fully applicable to such Colony or Foreign Possession as if it had been mentioned by name in the present
Article."
See Despatch No. 183 of November 29, 1890 from the Agent General, New Zealand to the
Premier of New Zealand reproduced as Annexure I1 to Section I of the Master of Laws and
Honours in Law dissertation submitted at the Victoria University of Wellington, New Zealand
M . H. M . Kidwai
nature mentioned in the circular remained conspicuous by its omission from the
treaties signed in 1880 with Serbia,33Roumania3' and E ~ q u a d o r . ~Regarding
'
the Treaty with Serbia the Colonial Secretary, Lord Kimberly in his circular
despatch of July 22, 1880 admitted that the self-governing colonies were included "inadvertently" and the Imperial Government undertook to help them in
securing release from obligations if any one of them so desired.36On the other
hand arrangements were made under a protocol signed simultaneously with the
Roumanian Treaty to enable the exclusion of the South African colonies from
the operation of the Treaty and extend the right to secure release of others from
its obligations within six months of its ratification if they so desired." Since the
Treaty with Ecquador remained unratified till 1886, a protocol was signed prior
to its ratification in 1885 which excluded Canada, New South Wales, Victoria
. ~ ~ Treaty, however, continued to remain
and Tasmania from its a p p l i c a t i ~ nThe
applicable to other colonies which presumably did not seek exclusion.
The new policy manifested itself by the incorporation of a "separate exception or adherence clause" dealing with the self-governing colonies in future commercial treaties, like the one included in the treaty with Montenegro in 188239XIV. The stipulations of the present Treaty shall be applicable to all the Colonies and
foreign possessions of Her Britannic Majesty, so far as the laws permit, excepting to
these hereinafter named, that is to say, except toThe Dominion of Canada;
Newfoundland;
The Cape;
Natal;
New South Wales;
Victoria;
Queensland;
Tasmania;
South Australia;
Western Australia;
New Zealand.
Provided always, that the stipulations of the present Treaty shall be made applicable
to any of the above-named Colonies or foreign possessions on whose behalf notice to
that effect shall have been given by Her Britannic Majesty's Representative at the
33.
34.
35.
36.
37.
38.
39.
by Robin Burnett entitled "A study of the Principal Developments During the Nineteenth Century Leading up to the Attainment of Treaty Making Powers by the British Self-Governing
Colonies with special Reference to the part played by New Zealand in securing such Powers"
(1967), cited at p.32. (Unpublished).
Treaty of Friendship and Commerce between Great Britain and Servia, 1880 Hertslet, Vol.XV,
p.342.
Treaty of Commerce and Navigation between Her Majesty and the Prince of Roumania, 1880,
Ibid., Vol.XV, p.314.
Treaty of Friendship, Commerce and Navigation between Great Britain and the Republic of Ecquator, 1880, Ibid., Vol.XVII, p.386.
As a result of this undertaking a Declaration was made in 1881 with the agreement of Great Britain and Serbia which excluded Canada and the South African colonies from the application of
the Treaty of 1880. Other self-governing colonies presumably did not seek exclusion. See Ibid.
Vol.XV, p.348.
Protocol excluding the South African colonies from the application of the Treaty of Commerce
between Great Britain and Roumania of 1880 and conceding the right of separate withdrawal to
other self-governing colonies. See Ibid. Vol.XV, p.322. Canada later exercised the right and
notified exclusion. See Ibid..
Protocol regarding application of the Treaty of Commerce between Great Britain and Republic
of Ecquator of 1880 to British Colonies with certain exceptions signed in 1885, See Ibid.,
Vol.XVIII, p.394.
Treaty of Friendship, Commerce and Navigation between Great Britain and Montenegro, 1882,
Ibid., Vol.XV, p.240.
International Personality and the British Dominions
85
Court of Montenegro to the Montenegrin Minister for Foreign Affairs, within one
year from the date of the exchange of the ratification of the present Treaty.
A similar stipulation was included the following year in the treaty with Italy.40
A material difference between the separate adherence clauses incorporated in
the Treaty with Montenegro and that with Italy was that India was also included in the list of the excluded territories in the treaty with Italy; otherwise
both clauses were included in identical terms." Following these precedents the
inclusion of separate adherence clause in commercial treaties became the ac:
the self-governing colonies and specified territories
cepted p r a ~ t i c e , ~whereby
were not only excluded from the application of the British Commercial Treaties,
but had the advantage of exercising the right of adherence to such treaties as
they deemed fit, provided that this was done within the time specified in the
treaty. A natural extension of the practice of separate adherence by the colonies
was the formulation of a procedure, whereby accession to the treaty could be accomplished with reservations, if a colony so desired.43This was achieved by the
execution of a special protocol purporting to be the instrument of accession or
adherence of the colony to the treaty subject to specified stipulation^.'^
Most-Favoured-Nation Treatment
Irrespective of whether a colony acceded to a commercial treaty within the
specified time or even if it decided against it, the Imperial Government managed
however to secure for all the colonies and British territories some very valuable
concessions and benefits accruing from the treaty by the incorporation of a
device in the text of these treaties, which came to be known as the "Nevertheless
Clause." An early use of this was made in 1905 in the Commercial Convention
with Bulgaria. The Convention explicitly stated that it does not extend to any
"Colony, Possession or Protectorate of His Britannic Majesty beyond the
Seas," though it provided for their separate adherence within one year of its
ratification. I t was, however, further stipulated in the ConventionNevertheless, the goods produced or manufactured in any of His Britannic Majesty's
Colonies, Possessions or Protectorates shall enjoy in Bulgaria complete and unconditional most-favored-nation treatment so long as such Colony, Possession or Protectorate shall accord to goods'of Bulgarian origin or manufacture treatment as
-
40. Treatv of Commerce and Navigation betwoeen Great Britain and Italv, 1883, Ibid. Vol.XV
p.776:
41. It seems O'Connell overlooked the separate adherence clause in the treaty with Montenegro and
treated the treaty with Italy as "apparently the first of its kind" incorporating that clause. See
O'Connell, op.cit.supra note 18, p.4. He repeated this by emphasising that "The first such treaty
(i.e. a treaty incorporating the exception clause) was that with Italy . . ." See O'Connell, State
Succession in Municipal Law and International Law, Vol.1, (1967), p.41, n.1. The Treaty with
Montenegro was signed on January 21, 1882 and ratifications were exchanged on May 14, 1882
while that with Italy was signed on June 15, 1883 and ratifications exchanged on June 30, 1883;
See Hertslet Vol.XV. pp.240 and 776.
42. See Colonial Conference, 1894, Proceedings, C.7553, pp.5-6. Also see British Commercial
Treaties with: Paraguay, 1884, Hertslet, Vol.XVI1, p.851, (Art.XV); Greece, 1886, Ibid., Vol.
XVII, p.757, (Art. XVII); Honduras, 1887, Ibid., Vol.XXI p.660 (Art.XIV) and p.668, (Arts. 1
a n d 2); Mexico. 1888, I b i d . , Vol.XVII1, p.855, ( A r t . X I V ) ; Egypt, 1889, I b i d .
Vol.XVII1 p.379, (Art.XV); Muscat, 1891, Ibid., Vol.XIX, p.745, (Art.XX1); Japan, 1894,
Ibid., Vol.XIX, p.691, (Art.XIX).
43. See O'Connell, op.cit.supra note 18, p.5 and note 41, p.41.
44. For example Newfoundland, Victoria, Western Australia, Tasmania, Queensland, Cape of
Good Hope and Natal acceded to the commercial treaty with Paraguay of 1884 subject to reservation with regard to Article VIII of the Treaty; See Agreement of Accession of British
Colonies between Great Britain and Paraguay, 1890, Hertslet, Vol.XVII1, p.944. Similarly
India acceded to the commercial treaty with Honduras of 1887 with reservations; See Explanatory Protocol to the Treaty, 1900, Ibid., Vol.XXI, p.669 (Art.5).
M .H. M . Kidwai
favourable as it gives to the similar produce or manufacture of any other foreign
This stipulation in the treaty proved to be very advantageous for the colonies
as they were by its application entitled to the benefits of a most-favoured-nation
treatment for their goods on a basis of reciprocity without undertaking any
other obligations under the treaty. Since the availability of the treatment was
exclusively dependent upon reciprocity, there was a great deal of flexibility and
the Colonial Governments were endowed with wide discretion. They could
decline or avail of the benefits as they deemed fit by extending or denying
reciprocal treatment. In a like manner, they were capable of reversing their
course of conduct as they felt the need to modify it. The "Nevertheless Clause"
became a standard device and continued to be used in the British Commercial
T r e a t i e ~till~ ~along with other drastic changes in the structure and procedures of
the Empire it was swept away by the ravages of the Second World War.
Right of Separate Withdrawal
With the acquisition of the right of separate adherence or accession, automatic
application of the British Commercial Treaties finally disappeared, but this only
marks the completion of the first phase. The self-governing colonies still lacked
full and complete freedom to conduct their commercial relations with foreign
states. They were not yet invested with the complementary powers to withdraw
from treaties to which they had acceded or to free themselves from the obligations of treaties to which they had been burdened when they were still entirely
dependent upon the mother country. Subsequent to the acquisition of the right of
separate adherence, little time was lost before the colonies started pressuring for
the grant of the power of separate withdrawal without affecting the application
of the treaty to the mother country or to other colonies which had acceded to it.
There was great force in their argument in view of the fact that the very nature of
the right of separate adherence necessitated the acquisition of the corresponding
right of separate withdrawal. Following the discussion of the problem at the
Colonial Conference of 1894, the right was conceded and it was proposed to incorporate a provision to this effect in future commercial treaties along with the
voluntary separate adherence clause.47 Even before separate adherence and
withdrawal clause in the agreed form began to be incorporated in the new commercial treaties, in such treaties as were already in existence, if an opportunity
arose and it could possibly be accomplished, stipulation exercisable within a
specified time for separate withdrawal of colonies was incorporated by Agreements, Protocols or Exchange of Notes. In the Agreement with El Salvador
signed in 1886 extending the duration of the Commercial Treaty of 186248it was
provided that any of the named colonies and foreign possessions of Her Majesty
might notify "to be excepted from the operation of the Treaty" within two years
of the exchange of ratification of the Agreement; the treaty would then cease to
45. Commercial Convention, Protocol and Declaration between Great Britain and Bulgaria, 1905,
Ibid.,Vol.XXV, p.53, (Art.XX).
46. For example the Clause was incorporated in the British Commercial Treaties with: Greece, 1904,
Ibid.,Vol.XXIV, p.668; Servia, 1907, Ibid.,Vol.XXV, p.1055; Paraguay, 1908, Ibid.,Vol.XXV,
p.983; Liberia, 1908, Ibid.,Vol.XXV, p.918; Sweden, 1911 Ibid.,Vol.XXV1, p.953; Austria, 1924,
U.K.T.S., 1925, No.21, Cmd. 241 1; Germany, 1925, Ibid.,1925, No.45, Cmd.2520; Siam, 1925,
Ibid.,1926, No.8, Cmd.2643; Estonia, 1926, Ibid., 1926, No.19, Cmd.2709; Spain, 1927, Ibid.
1927, No.13, Cmd.2855; Hungary, 1926, Ibid., 1927, No.23, Cmd.2933.
47. Colonial Conference, 1894, Proceedings, C.7553, pp.5-6.
48. Treaty of Friendship, Commerce and Navigation between Great Britain and Salvador, 1862,
Hertslet, Vol.XI, p.885.
International Personality and the British Dominions
87
apply to such colony or possession but would continue to be operative in relation
to others.49A similar arrangement was made by Exchange of Notes with Spain
in 1894 where in the communications of both Great Britain and Spain it was
provided in identical terms thatAs before, it is agreed that it shall be open to any British Colony to withdraw from the
present Agreement on notice to that effect being given by the Ambassador at Madrid
to the Spanish Foreign Minister within six months after the date of signature.?'
Commercial agreement with Bulgaria of 1897 contained a different provision
but having the same effectV. The present Arrangement shall be applicable so far as the laws permit, to all the
Colonies, and foreign Possessions of Her Britannic Majesty, provided always that
each of the said Colonies and foreign Possessions shall be free to refuse its acceptance
of the Arrangement within six months from the date of the signature thereof . . ."
Though the Commercial Treaty with Honduras of 188752contained a voluntary
adherence clause, Article XPV, it had no provision for separate withdrawals.
This was remedied at the time of the ratification of the treaty in 1900 by
providing in the Explanatory Protocol to the treaty that3rd, Her Majesty's Government shall also have the right to separately terminate the
Treaty at any time on giving twelve months notice to that effect on behalf of any
British colony, foreign possession or dependency which may have acceded thereto.??
It is noteworthy that the terms of this stipulation were wider than those noted
earlier. In this article the right of withdrawal was not confined to a specified
period, but could be exercised at any time during the currency of the treaty.
Another important distinction was that while the provision in the Explanatory
Protocol to the Treaty with Honduras followed the insertion of the voluntary
adherence clause in the Treaty itself, this was not the case with regard to others.
In these cases the terms of the treaty had automatic application subject to the
availability of a right of withdrawal from the treaty, which the interested
colonies were obliged to exercise within a specified time. It is presumably correct to treat the arrangements made with El Salvador in 1886, Spain in 1894 and
Bulgaria in 1897 as ad hoe arrangements purporting to secure the right of
"separate release" for the colonies from the existing treaties and which could be
exercised by them within a specified time. In fact these arrangements did not
purport to acknowledge the right to separate withdrawal, which the Explanatory Protocol with Honduras accomplished.
British Commercial Treaty with Japan of 189454also deserves attention in
this context as under its voluntary adherence clause, Article XIX, Queensland
acceded in 1897 to the treaty with certain reservations along with a further
condition2. That the said Treaty shall cease to be binding, as between Japan and the said
49. Agreement between Great Britain and Salvador prolonging for 20 years the Treaty of
Friendship Commerce and Navigation of 1862, 1886, Ibid. XVII, p.929.
50. Exchange of Notes between the British and Spanish Governments, respecting the Commercial
Relations between the two Countries, 1894, Ibid., Vol.XIX, pp.844-845.
51. Commercial Agreement between Great Britain and Bulgaria, 1897, Ibid., Vol.XX., p.202.
52. Treaty of Friendship, Commerce and Navigation between Great Britain and the Republic of
Honduras, 1887, Ibid. Vol.XX1, p.660.
53. Explanatory Protocol relating to the Treaty of Commerce between Great Britain and the
Republic of Honduras of 1887, 1900, Ibid., Vol.XX1, p.669.
54. Treaty of Commerce and Navigation between Great Britain and Japan, 1894, Ibid., Vol.XIX,
p.691.
M . H. M . Kidwai
88
Colony of Queensland, at the expiration of twelve months after notice shall have been
given on either side of a desire to terminate the same.'$
Thus the right of withdrawal was conceded to either side without affecting the
general applicability of the treaty.
The application of the right of withdrawal in conjunction with the voluntary
adherence clause in a true sense, as Stewart contends, "appears first in a commercial convention with Uruguay of July 15, 1899,56which purports to renew
the Commercial Treaty of 1885.57It providesthat British Colonies and possessions may adhere to the present Convention within six
months counting from the exchange of ratifications and may withdraw from the same
at any time; by giving six months notice of their intenti~n.~~
Release from Existing Treaty Obligations
With both the right of separate adherence or accession and the right of
separate withdrawal having been conceded, there remained one last serious obstacle yet to be removed before the self-governing colonies could rightly claim to
have acquired complete control over commercial treaties applicable to them.
This related to the application of the British Commercial Treaties automatically
extending to the colonies in respect of which, under their terms neither the
colonies enjoyed the concurrent right of separate withdrawal, nor was there an
opportunity to secure such a concession for them as was done in the arrangements made with El Salvador, Spain and Bulgaria, noted above. Though the
terms of these treaties called for a change in order to bring them in line with the
new practice by securing the right of separate withdrawal, this could only be
achieved with the consent and concurrence of the other party. It was, consequently, neither adomestic nor an Empire problem, but an international question.
The nature of inconvenience caused by the obligations under these treaties in
some cases were of far reaching consequence to the growing structure of the Empire and the Commonwealth. In certain cases, like the Belgiad9 and German6'
treaties of commerce, the obligations under them imposed special disability upon
the colonies in respect of colonial tariffs. Apart from the reciprocal unconditional
most-favoured-nation treatment clauses which commonly found a place in commercial treaties, both these treaties provided that all concessions extended to
British imports into the colonies, would also be available automatically to Germany and Belgium. Considerations of inter-colonial trade and the movement for
Empire Preference, which had in the meantime gathered enough momentum,
looked upon such obligations with complete distaste and disfavour and desired to
be released from these obligations. In the face of lack of cooperation from both
Belgium and Germany the only possible way out was the denunciation of both
these treaties. After protracted struggle and despite continued opposition from the
Colonial Office and persistent refusal of Her Majesty's Government to denounce
the treaties, the Colonial Conference of 1897 "unanimously" asked for
55. Protocol between Great Britain and Japan providing for the Accession of Queensland to the
Commercial Treaty of 1894, 1897, Ibid., Vol.XXIV, p.694.
56. Stewart, op.cit.supra note 9 pp.101-102.
57. Treaty of Friendship, Commerce and Navigation between Great Britain and Uruguay, 1885,
Hertslet, Vol.XVII, p.1084.
58. Convention between Great Britain and Uruguay, renewing the Treaty of Friendship, Commerce
and Navigation of 1885, 1899, Ibid., Vol.XX1, p.1120.
59. Treaty of Commerce and Navigation between Great Britain and Belgium, 1862, Ibid., Vol.XI,
p.66.
60. Treaty of Commerce between Great Britain and Germany, 1865, Ibid., Vol.XII, p.761.
International Personality and the British Dominions
89
their denunciation6' and the Imperial Government ultimately acceded to the request without any further o p p o ~ i t i o n . ~ ~
On the other hand satisfactory arrangements were made with G r e e ~ e , ~ '
P a r a g ~ a yand
~ ~Liberia,6sall of whom conceded the right of separate withdrawal
to the self-governing colonies on twelve months' notice without impairing the
validity of the treaty in its application to the mother country and other territories which desired its continued application. A s a result of the decisions of
the Imperial Conference of 191 1 which impressed upon His Majesty's Government the urgency of opening negotiations with foreign governments "with a
view to securing liberty for those Dominions which might so desire to withdraw
from the operation of commercial treaty"66 vigorous efforts with considerable
success were made to secure the agreements of foreign states to the revision of
such t r e a t i e ~ . ~In' spite of these efforts it cannot be claimed that by subsequent
arrangements the right of separate withdrawal was acquired in respect of all the
British Commercial Treaties that applied to the colonies.
Besides obtaining from foreign states modifications in favour of the colonies
to enable separate withdrawal if they so desired, O'Connell mentions specifically the actual withdrawal of Australia from Treaties of Commerce with Mexico
in 1912, Paraguay in 191 1, Egypt in 1910, Belgium in 1919 and Muscat in 1923,
apparently without enjoying the right of separate withdrawal in respect of
treaties and explains thatprobably . . . it was informally agreed between the parties at the time when Australia
sought to withdraw, that the separate accession clauses, by virtue of which Australia
had become a party, implied a separate right of withdrawaL6"
The nature of the explanation is not quite c o m p r e h e n ~ i b l eThe
. ~ ~ consequences
61. See Colonial Conference, 1897, Proceedings, (2.8596, pp. 10-14.
62. See Notes respecting the Termination of the Commercial Treaty of 1862 between Great Britain
and Belgium, 1897, Hertslet, Vol.XX, pp.197-198 and Notes respecting the Termination of the
Commercial Treaty of 1865 between Great Britain and Germany, 1897, Ibid. Vol.XX, p.38.
63. See Declarations between the United Kingdom and Greece with respect to Commercial Matters, 1904, Ibid., Vol.XXIV, p.668.
64. See Declaration between Great Britain and Paraguay Amending the Treaty of Commerce of
1884, 1908, Ibid., Vol.XXV, p.983.
65. See Agreement between Great Britain and Liberia Modifying the Treaty of Commerce of 1848,
1908, Ibid., Vol.XXV, p.918.
66. Imperial Conference, 191 1, Minutes of Proceedings, Cd.5745, pp.18, 333-339.
67. In addition to the treaties mentioned supra in which right of separate withdrawal was secured,
other notable instances inter alia were: Sweden, 1911, Hertslet, Vol.XXV, p.953; Denmark,
1912, Ibid., Vol.XXV1, p. 102; France, 1912, Ibid., Vol.XXV1, p. 170; Columbia, 1912 Ibid.,
Vol.XXV1, p.90; Norway, 1913, U.K.T.S., 1913, No.14, Cd.7095; Costa Rica, 1913, Ibid.,
1913, No.16, Cd.7097; Switzerland, 1914, Ibid., 1915, No.6, Cd.7963.
68. O'Connell, op.cit.supra note 18, p.7 and note 41, p.43.
69. It is further incomprehensible in view of the fact that no guidance for the identification of the
affected treaties with Mexico, Paraguay, Egypt, Belgium and Muscat has been provided. Though
it has been pointed out that "extensive search has failed to reveal any protocol or declaration
granting the right of separate withdrawal", further investigation in the absence of such information, it is submitted, is bound to be conjectural. Nevertheless, it is worth an attempt. If treaties
with Paraguay and Egypt mean the Treaty of Friendship, Commerce and Navigation of 1884
and the Commercial Convention of 1889 respectively, then it is respectfully submitted that it
seems that in the observation, the treaties with these states have been included by some oversight.
There exists a Declaration between Great Britain and Paraguay amending the Treaty of Commerce of 1884 which was signed on March 14, 1908, precisely for the purpose of separate
withdrawals "at any time on giving twelve months' notice to that effect" of "His Majesty's
Colonies, Possessions, or Protectorates." It also includes the "Nevertheless Clause", See
Hertslet, Vol.XXV, pp.983-984. Similarly the right of separate withdrawal "at any time on giving
twelve months' notice to that effect" has been provided for "any British Colony, Possession or
Protectorate which may have acceded thereto" in the case of theTreaty with Egypt by the Agreement Additional to the Commercial Convention between Great Britain and Egypt of 1889 which
90
M . H.M . Kidwai
of such an approach, it is submitted, would result in widening the dimensions of
the concept of voluntary adherence or separate accession to an extent which
presumably was not conceived when the right was conceded to the colonies.
Technical Treaties and Conventions and International Conferences
Along with commercial treaties steady progress was recorded by the colonies
in arrangements which regulated those matters which were of a technical nature.
This involved separate membership of international organisations, participation
in conferences, signature of multilateral conventions and even entering into
bilateral agreements.
Surprisingly enough, British India was admitted to the membership of the
International Congress of Postal Union by acceding to the Berne Convention of
1874,70as early as 1876,'' soon followed by Canada in 187gT2and both separately
signed the Universal Postal Union Convention of 187g7' and subsequent Additional Act and Protocol of 1885" together with the Conventions of 1891" and
189776.The practice was continued and separate signatures were appended by
other colonies following their admission to the Universal Postal Union Convention of 1906." There are innumerable bilateral Postal Agreements listed in
Hertslet's Commercial Treaties between the colonies and foreign states, which
conclusively establish the practice of separate postal agreements between the
colonies and foreign countries.
Similar procedure was followed in the case of the International Union for the
Publication of Customs Tariffs where the Convention to form the Union was
signed separately by British India and the Colonies and separate right of
withdrawal was also conceded to the signatorie~.'~
Right of participation in the international organisations and conventions was
soon extended to the colonies. Canada was invited to send a delegation in its
own right to participate at the conference summoned by the United States for
the revision of the International Convention on the Protection of Industrial
Property.
The year 1912 is of great significance as at the International Radiotelegraphic Conference of that year "for the first time separate delegates were
appointed by the King on the advice of the Dominion Governments, tendered
70.
71.
72.
73.
74.
75.
76.
77.
78.
was signed on December 16, 1907. See Ibid. Vol.XXV, pp.240-241. In the case of Belgium, following the denunciation in 1897 of the Treaty of Commerce of 1862, See Ibid., Vol.XI p.66 and
Vol.XX, p.197, and pending the signature of a definitive treaty, a provisional "modus vivendi"
was established in the following year between the United Kingdom and Belgium with a provision
of a three months notice for future modifications, which obviously includes annulment, See
Ibid., Vol.XXI, p.273. During 1898 and 1899 separate Exchange of Notes took place to extend
this arrangement on "the conditions therein specified" to India, Malta, Cyprus, Newfoundland,
Ceylon, Lagos and Queensland respectively, See Ibid., Vol.XXI pp.274 and 275. It seems unlikely that this procedure of separate adherence and modification and consequent annulment
would have been abandoned and not followed to its logical conclusion. This, however, does not
settle the question regarding Belgium and still leaves the problem with regard to Mexico and
Muscat, which probably merit further investigation.
Hertslet, Vol.XIV, p.67.
Ibid., Vol.XIV, p. 1080.
Ibid., Vol.XIV, p.1166.
Ibid., Vol.XIV, p.1016.
Ibid., Vol.XVI1, pp.235, 241.
Ibid., Vol.XIX, pp.325, 339, 341, 470.
Ibid., Vol.XX1, pp.484, 501, 502.
Ibid., Vol.XXV, 430.
See International Convention for the Publication of Customs Tariffs, 1890, Ibid., vol.XVIII,
p.542.
International Personality and the British Dominions
91
through the Colonial and Foreign Offices and received separate full power^'^ to
sign the International Radio-telegraph C o n v e n t i ~ n .Keith,
~ ~ therfore argues
thatSince the Convention was signed by separate plenipotentiaries for India, as well as for
the four Dominions, it seems that His Majesty was represented by six separate delegations . . . A recital of the preamble of the Convention concluded at the Conference
would indicate that the plenipotentiaries received their full powers not from His Majesty but from their respective government^.^'
A similar procedure was followed at the Conference on the Safety of Life at Sea
and the Convention was signed for Australia, Canada and New Zealand in addition to the signatures of His Majesty's Governmentsa2Though Ewart treats
these and other dozen or more International Conferences in which Canada participated like the Conference of Social Insurance, the International Conference
on Labour Legislation, the International Sanitary Conference, the International
Conference on Expositions as "educative and sociological" and not of
"diplomatic" signifi~ance,~'
a noteworthy consequence of separate colonial participation as Keith rightly noted was thatThe British Empire had thus been driven by the practical needs of the case to appear
in a measure divided, and it was at any rate clear the primary responsibliity for execution of any treaty must rest with the Dominion which accepted it under such a form of
negotiation, even if the British Government might be involved ultimately.a4
Extradition Treaties
In a strict sense Extradition Treaties cannot be construed as political treaties.
It is true that in given cases they might have some oblique political overtones,
but both technical or commercial treaties are not completely free from this.
However, as Stewart points out "even long after the Dominions ceased to be
bound by British commercial treaties they were still included in extradition
treaties" and it was only after the First World War that provision for voluntary
adherence and separate withdrawal came to be used in future Extradition
Treatie~.~~
External Affairs in Pre-First World War Period
It will thus be observed that as gradual progress was made by the colonies
towards recognition of their status as Dominions, a corresponding process
shaped itself in the attainment of treaty-making powers in particular and the
removal of restraints from the conduct of external affairs in general. During the
years preceding the beginning of the First World War their control over commercial treaties affecting them had been substantially accomplished. The old
British practice which automatically extended all treaties made by the Imperial
Government to the Colonies had been breached to the extent that from around
1880 British Commercial Treaties had ceased to be so applied and a right of
voluntary adherence by the self-governing colonies had come to be recognised.
79. The difference was that the British delegates possessed unqualified full powers without
geographical limitations and other delegations received special full powers confined to the territorial limits they represented. See Keith, op.cit.supra. note 1, p.14.
80. U.K.T.S., 1913, No.10, (Cd.6873).
81. Keith, The Sovereignty of the British Dominions (1929), p.309.
82. See text of Convention for the safety of Life at Sea, 1914, Cd. 7246.
83. Ewart, The Kingdom Papers, Vol.11, (191 I), p.233-235.
84. Keith, op.cit.supra. note 1, p.14.
85. Stewart, op.cit.supra note 9, p.121.
M . H . M . Kidwai
Following such adherence, without affecting the general validity of the treaty,
authority to exercise the right of separate withdrawal had also been conceded by
the end of the nineteenth century. This right of entry and withdrawal, as has
been discussed earlier, was provided by the mechanics of incorporating a clause
in the British Commercial Treaties which were subsequently signed. T o make
this equally applicable to the existing treaties it was necessary to make arrangements with other parties to treaties in order to secure release, provide for voluntary adherence, and modify their application to self-governing colonies and
other specified territories. A policy securing such modifications was pursued by
the Imperial Government by means of Protocols, Additional Agreements and
Declarations. In the two extreme cases of Belgium and Germany as noted above
the colonies even prevailed upon the mother country to denounce the commercial treaties with them. Along with these concessions, irrespective of their
adherence or withdrawal or otherwise, the ideals of imperial unity were so dominant that most-favoured nation treatment continued to be available to the Empire as a whole on the basis of reciprocity and its continuance was ensured by
the incorporation of the "Nevertheless Clause" in the British Commercial
Treaties. This was further demonstrated in the commercial treaty-making
procedures. Though colonial representatives were simultaneously enabled to
participate in negotiations, at first in an advisory role, then in a secondary position and ultimately in a dominant and exclusive capacity, the conclusion of commercial treaties continued to be contrived at least in form, through imperial
agency. Along with the commercial treaties, similar freedom was conceded in
the conclusion of treaties of a technical nature except Extradition.
Nevertheless these concessions given to the Dominions, as already noted,
were strictly confined to the commercial and technical treaties. In matters of
general foreign policy or with respect to political treaties the old British practice
remained unaffected. Stewart has summarised the situation in this area as it existed during the years just preceding the First World War and points out that
"with rare exceptions," the Dominions were excluded from participation in the
conclusion of political treatiesbut were, nevertheless, bound automatically by the obligations undertaken. In the formalities of international intercourse, too the Dominions were dependent upon the
Foreign office and the British diplomatic services abroad. They could not, without assistance from Downing Street, enter into direct official relations with any foreign
country. They were not entitled to exercise the right of legation by sending or receiving diplomatic representatives. The government of the United Kingdom, subject to its
responsibility to the Imperial Parliament exercised sole authority in all matters
relating to the conduct of foreign policy, the maintenance of peace, and the declaration of war.86
Keith suggests that in non-commercial matters "the British Government from
the first adopted the doctrine that colonial interests must be fully considered in
negotiati~ns."~'This, however, does not mean that colonies and later the
86. Ibid., pp.367-368.
87. Several instances have been cited by him to substantiate the principle that the British Government ascertained and gave due consideration to the views expressed by the colonies in matters
affecting them. As early as 1857 the situation in Newfoundland arising from the concessions enjoyed by France and the United States was handled in a manner which conformed with the best
interests of Newfoundland. The Canadian Prime Minister Sir John Macdonald was associated
with the negotiation of the Treaty of Washington of 1871 for the settlement of Alabama Claims
and its results proved highly advantageous to Canada. Arrangements for North Atlantic
Fisheries Arbitration under Agreement of 1909 with the United States were worked out after full
consultation with Canada and Newfoundland. See Agreement between Great Britain and United
States for the Submission to Arbitration of Questions Relating to Fisheries on the North Atlantic
Coast, 1909, U.K.T.S. 1909, No. 21, Cd. 4815. Similar practice preceded the negotiation of
International Personality and the British Dominions
93
Dominions enjoyed any right to be consulted or that the Imperial Government
was under an obligation to act only in accordance with the views expressed by
them. At best it only demonstrates that the Imperial Government acted as a
benevolent guardian protecting the interests of its wards and that though it
listened to their views in relatively less important matters affecting them individually generally it acted as was considered appropriate by the Imperial
Government itself. On the other hand in important matters affecting the Empire
as a whole the Dominions had no say, whatsoever, and were even denied the
. ~ ~the complete exclusion of at first the colonies
right of prior c o n ~ u l t a t i o nTo
and later the Dominions, these arrangements were looked upon as the exclusive
preserve of the Imperial Government, a view with which the Dominions
themselves coalesced initially with great enthusiasm. In a climate permeated
with the doctrine of Imperial unity, a notion to which the colonial statesmen
subscribed firmly, any act leading to the weakening of this concept was unthinkable. The views expressed at the Colonial Conference of 1887,89Mr.
Foster's observations at the Colonial Conference of 1894,90Earl Grey's explanation of the British Commercial policy9' and above all Marquess of Ripon's
D e ~ p a t c h ,all
~ ~ project this approach. In subsequent years when colonial
statesmen had started modifying their views,93even then it seems there was little
change visible in the attitude of the British statesmen. Speaking on the New
Zealand Prime Minister Sir Joseph Ward's proposal for an Imperial Federation, which however found little support, at the Imperial Conference of 19 l l the
British Prime Minister, Mr. Asquith made it abundantly clear in precise terms
in what Harrison Moore has described as Mr. Asquith's "arcana imperii
d e ~ l a r a t i o n "that
~ ~ the proposed Imperial Federation Schemewould impair if not altogether destroy the authority of the Government of the United
Kingdom in such grave matters as the conduct of foreign policy, the conclusion of
treaties, the declaration and maintenance of peace, or the declaration of war, and indeed, all those relations with Foreign powers, necessarily of the most delicate
character, which are now in the hands of the Imperial Parliament. That authority cannot be shared . . . 95
Precisely ten years later, when substantial changes affecting the Dominions
88.
89.
90.
91.
92.
93.
94.
95.
Convention between Great Britain and United States, 1908, Ibid., 1908, No.21, Cd. 4179
relating to arbitration on question of interpretation of treaties; the Treaty of 1909 between Great
Britain and United States relating to the boundary between Canada and the United States,
Ibid., 1911, No.23, Cd. 5223; and the Bryan Treaty of 1914 between Great Britain and the
United States for the establishment of an International Commission to investigate and report all
disputes between the United States and Canada, Ibid. 1914, No.16, Cd. 7714. See Keith
op.cit.supra note 1, pp. 10-11; Stewart op.cit.supra note 9, pp.133.
For example the Dominions were not consulted before concluding important arrangements like
the Anglo-Frelich Entente, the Anglo-Japanese Alliance or the Conventions signed to implement the decisions of the First and the Second Hague Conferences of 1899 and 1907. See
Stewart, op.cif.supra note 9, p.135.
See supra note 17.
See supra note 19.
See supra note 7.
See supra note 21.
For example see Imperial Conference, 1911, Minutes of Proceedings, Cd. 5745, pp. 97-134;
While conceding that the final and ultimate authority in executing treaties of a political nature
vests with the imperial Government, the Prime Minister of Australia, Mr. Fisher, voiced dissatisfaction with the existing procedure which precluded prior consultation with the Dominions
in matters affecting the Empire as a whole and considered it insufficient for the Foreign Office
to sign even a good treaty affecting the Dominions and informing them only after it had been
signed.
Harrison Moore, "Separate Action by the British Dominions in Foreign Affairs" Australia, and
New Zealand Society of International Law, Proceedings, (1935), Vol.1, p.44.
Imperial Conference, 1911, Minutes of Proceedings, Cd. 5745, pp.71-72.
94
M . H. M. Kidwai
had taken place, speaking on the machinery responsible for conducting the
foreign relations, another British Prime Minister, Mr. Lloyd George, was
equally emphaticThe machine must remain here. It is impossible that it could be otherwise unless you
had a Council of Empire, with representatives elected for the purpose. Apart from
that, you must act through one instrument. The instrument of the foreign policy of the
Empire is the British Foreign Office. That has been accepted by all the Dominions as
ine~itable.~~
In spite of the acquisition of almost unrestricted freedom in matters concerning commercial and other non-political treaties and irrespective of the fact that
precedent, howsoever weak it might be considered, existed during the later half
of the nineteenth century that the Dominions claimed and "were accorded the
right to be heard" and sometimes even "took the initiative" pertaining to
political problems affecting their independent interests:' seriously the Dominions neither raised the question of their participation in the conduct of general
foreign policy nor did the Imperial Government ever deemed it proper to do so.
The entire field of external affairs of the Empire as a single political entity
remained under the exclusive control of the government of Great Britian.
Whenever it was considered appropriate the Dominions were apprised of
whatever the Imperial Government thought was expedient. Consequently the
right of prior consultation in matters concerning political treaties was also never
seriously mooted,9still the signing of the Declaration of London in 1909, a highly
controversial measure which was "widely denounced." According to the esixting
practice the Dominions had neither been associated with the Hague Conferences
of 1899 and 1907 nor had they been consulted before the signing of theDeclaration
which was in fact formulated as a result of the latter Conference. Australia
immediately demanded modifications in the Declaration, which naturally was
too late at that stage. This provided the Australian Prime Minister, Mr. Fisher,
the necessary incentive to raise at the Imperial Conference of 1911 the question
of Dominion participation in general foreign policy.99 Though neither the
Australian proposal for full consultation in matters pertaining to all treaties,"'
nor the New Zealand Prime Minister, Sir Joseph Ward's proposal for the establishment of an Imperial Council to deal with issues of peace and war, foreign
policy and treaties affecting the Empirel0l found favour amongst the participants
generally,lo2the discussion was successful in extracting concessions from the
96. Keith, Speeches and Documents on the British Dominions, 1918-1931 (1931), p.83.
97. See Roberts-Wray, Commonwealth and Colonial Law (1966), p.251. He points out that the
area of special interests of the British North American Colony was its relations with the United
States; of Australia and New Zealand extended to the affairs of the islands of the South Pacific
and of the two South African Colonies comprised of their relations with the neighbouring
Republic and the effect of German penetration in that region.
98. As early as 1870 the Victorian Royal Commission on Federation demanded that the right to
conclude treaties should be conceded to the colonies with a view to enable them to remain
neutral during wars. The demand is attributed to the fear that the colonies were defenceless and
exposed to foreign aggression. A similar view was expressed in Cape Colony regarding its right
of neutrality during the Boer War, 1899-1902. These were however, not regarded as serious
claims for autonomy in external affairs. See Keith, op.cit.supraNote 1, pp.11-12; RobertsWray, op.cit.supra note 97, pp.251-252.
99. Imperial Conference, 1911, Minutes of Proceedings, Cd. 5745, pp.97-134.
100. Ibid.
101. See supra.
102. On the Australian proposal, Sir Wilfrid Laurier, Prime Minister of Canada did not consider
consultation desirable in general foreign policy matters "on the ground that consultation implied obligation to back up advice" and Canada was not prepared to make a firm commitment
on that. New Zealand, Newfoundland and Union of South Africa were similarly unwilling to
be involved in Imperial Foreign Affairs. See Keith op.cit.supranote 138, p.13. Sir Joseph
International Personality and the British Dominions
95
Foreign Secretary, Sir Edward Grey, which ultimately found expression in the
text of a resolution that the Conference adopted. It was agreed that when instructions would be given to delegates attending future Hague Conferences, the
Dominions would have the benefit of prior consultations and before signing the
Conventions, the Dominions would be apprised of the terms that were likely to
affect them and their views would be ascertained. It was further agreed that a
similar procedure would be followed in respect of "other International Agreements affecting the Dominions" if "time and opportunity and the subject matter" would permit.'03
It will, however, be observed that if the assurances of Sir Edward Grey
regarding the future practice were construed in the light of the "arcana imperii''declaration of the Prime Minister, Mr. Asquith, it would invariably lead to the
conclusion that the concessions acquired by the Dominions at the Imperial
Conference of 1911 in the field of political treaties were not very significant.
Since further Hague Conferences were ruled out due to the outbreak of the First
World War in 1914, immediate practical effect of these assurances was almost
none. However, the Conference did succeed in dealing with this problem in the
sense that it became absolutely clear that a stage was approaching fast, if it had
not already rezched, when the Dominions would probably be disinclined to
perpetuate the disparity that existed in the nature and extent of their participation in the negotiation of political and non-political treaties. The course of events
during and after the First World War of 1914 accelerated that slow process.
The war was declared on the advice of the government of the United
Kingdom and the Dominions were not consulted before the declaration on account of the "unsatisfactory constitutional position," but it was accepted as applying to the whole Empire including the Dominions.'04 The Dominions were,
however, not excluded from exercising a measure of control both in matters of
defence and foreign policy. It was fully recognisedin view of the ever increasing part played by the Dominions in the war, that it was
necessary that their Governments should not only be informed as fully as was possible, of the situation but that as far as practicable, they should participate, on the basis
of complete equality in the deliberations which determined the main outlines of
Imperial Policy.1os
This was an eloquent testimony of a marked change that had overtaken the imperial thinking, brought about under the exigencies of a pressing situation. It
was translated into action by the summoning of the Imperial War Conferences
of 1917-18 and the creation of the Imperial War Cabinet on which the Dominions and India were represented and which ultimately paved the way for their
participation at the Versailles Peace Conference of 1919.
External Affairs in Post-First World War Period
In place of a single Imperial delegation, unceasing efforts of the Canadian
Prime Minister Sir Robert Borden secured for India and each Dominion, other
than Newfoundland, separate representation as "belligerent powers with special
interests" on the same scale as the minor allied powers. In order to preserve at
least the semblance of imperial unity, so dear to its protagonists, the British
delegation of five as "belligerent power with general interest" included a
Ward's view that the Empire as a whole should undertake the conduct of foreign policy was
supported by neither the United Kingdom nor by other Dominions.
103. Imperial Conference, 191 1, Minutes of Proceedings, Cd. 5745, pp.15, 132.
104. Roberts-Wray, op.cit.supranote 97, p.252.
105. The War Cabinet, Report for the Year 1917, Cd. 9005, p.6.
96
M . H . M . Kidwai
representative from the Dominions and India by a system of rotation from a
panel. The Treaty of Peace emerging out of the Conference was signed for the
Empire by His Majesty's plenipotentiaries carrying full powers without limitation in area and other plenipotentiaries given full powers with territorial limitations signed for their respective Dominions and India. Ratification for the Empire, as once again Sir Robert Borden successfully insisted, took place only after
the Dominion Parliaments had also approved the Treaty. Scepticism prevailed
in some quarters regarding the Dominion participation, the procedure followed
and separate signatures by Dominion plenipotentiaries..lo6Attempts have been
made to "minimize the significance" of these acts, and dismiss them as "unimportant internationally." Stewart vigorously contests this, by characterising
these arguments as not merely placing "the emphasis in the wrong direction"
but "in some respects positively misleading."L0' H e considersthat a new epoch in the development of Dominion treaty relations opened with their
separate representation at the Paris Peace Conference in 1919. The Dominions obtained a special status at the Peace Conference and a recognition both by Great Britain and by foreign powers of their membership in the international community as
well as the membership in the British Commonwealth of Nations.Io8
There seems to be no reason to doubt the first part of the contention, but
whether the membership of the Dominions in the international community
came to be finally recognized and settled is not free from doubt in view of the
subsequent events which shall form part of observation in the succeeding pages.
There is little doubt that the participation of the Dominions in the
proceedings of the Conference in their own right and the procedures applied in
the signing of the Treaty stand out as a landmark in the process which ultimately consolidated their changed status and finally culminated in the unquestioned
recognition of their full international personality. The presence of India at this
and other similar conferences, her signatures on the treaties and membership of
international organisations for long remained an unexplained anomalous
British ingenuity.
The extent and nature of the participation of the Dominions and India both in
the conduct of the war and the role assigned to them at the Peace Conference assisted Sir Robert Borden to overcome opposition to their participation in the
League of Nations. They were admitted as Original Members of the League
along with the British Empirelogby their inclusion in the Annexure containing the
list of original members attached to the Covenant of the League which forms
Part I of the Treaty of Peace. The distinct character of their representation came
to be confirmed by the subsequent admission of the Irish Free State to the
membership of the League in 1923 and by successive elections of one of the
Dominions to the non-permanent seat on the Council of the League."' It was
equally strengthened by the allocation of Mandates to Australia, New Zealand
and the Union of South Africa. Membership in the League entitled them to the
106. See Noel Baker, The Present Juridical Status of the British Dominions in International Law
(1929) pp.67-83.
107. Stewart, op.cit.supranote 9, pp.147-150.
108. Ibid.,p.146.
109. The term "British Empire" continued to be used for the composite membership of the Empire
and unlike the Dominions and India, United Kingdom, was not given a separate membership.
The term was displaced in 1932 by the use of "The United Kingdom of Great Britain and
Northern Ireland" in its place.
110. Canada was elected in 1927 followed by the Irish Free State in 1930, Australia in 1933 and
New Zealand in 1936, each for a three year term fixed for a non permanent seat of the Council
of the League.
International Personality and the British Dominions
97
membership of the International Labour Organization set up under Part XI11 of
the Treaty of Versailles and of the Permanent Court of International Justice.")
Nevertheless the difficulties experienced at the time of securing separate
representation for the Dominions and for India at the Peace Conference and the
problem of their separate signatures on the Treaty together with the question of
their membership in the League of Nations is a clear indication of the reluctance
that the international community was showing in accepting the Dominions as
full members of the Community of Nations. This was further aggravated when
in 1921 President Harding of the United States did not issue separate invitations
to the Dominions to participate in the Conference on the Limitation of Armament held at Washington. Stewart regards this as "a sharp reminder" to the
Dominions that irrespective of their participation in the Peace Conference, as
far as the United States was concerned they "had not yet attained the international status."112Though attempts to secure separate invitation failed and
they could not be represented separately, their representatives were associated
by the Imperial Government with its own representatives to form an Empire
Delegation. Thus the Dominions and India did not have separate delegations;
the British Empire Delegation enjoyed the same status as it did at the Paris
Peace Conference and the form in which the resulting treaties were signed was
similar to that of the Peace Treaty of 1919.'13
A marked departure from the practice so far followed and a serious setback
to the advance so far made took place when the Imperial Government itself in
conjunction with the Governments of France and Italy decided not to invite the
Dominions to participate at the Lausanne Conference of 1922-23 which was
summoned to conclude a treaty ending war with Turkey and replace the Treaty
of Sevres.Il4 Not only were the Dominions not invited separately, even their
representatives were not included in the British Empire Delegation and the
Treaty1I5was signed by an Imperial plenipotentiary for the Empire as a whole
on July 24, 1923. While conceding in a strictly legal sense that any Treaty signed
by the Imperial Government emerging from the Conference would "be binding
on the whole Empire when ratified," Canada made it clear at the very outset
that it would "much prefer that any new Treaty should follow Paris precedent
and include signatures on behalf of all the dominion^.""^ The new Canadian
Prime Minister, Mr. Mackenzie King, drew a clear line of distinction between
the treaties negotiated and signed by Canadian delegates, which according to
him, bound Canada to all the obligations arising under them and others, the extent of binding obligations under which would be different. Accordingly, a note
of warning was sounded that Canada wantedto make it perfectly clear that in our opinion extent to which Canada may be held to
be bound by proceedings of Conference or by provisions of any treaty was necessarily
a matter for the Parliament of Canada to decide."'
1l I. See Stewart op.cit.supranote 9, pp.140-141, 143-146, 150-153; Duncan Hall, op.cit.supranote
2 pp.180-194: Miller, The Drafting of the Covenant (1928) Vol.1 pp.3, 10-13, 57-58, 150, 164165.
112. See Stewart, op cit.supra note 9, p.160. There seems to be difficulty in reconciling this conclusion, though correct, with his contention c~tedsupra note 108 that the membership of the
Dominions in the international community came to be recognised with their participation in
the Paris Peace Conference of 1919 and with their membership of the League of Nations.
113. See The Washington Naval Treaty of 1922, U.K.T.S., 1924, No.50, Cmd. 2037.
114. Ibid., 1920, No.5.
115. Ibid., 1923, No. 16, Cmd. 1929.
116. Correspondence with the Canadian Government on the subject of the Peace Settlement with
Turkey, (1924), Cmd. 2146, p.6.
117. Ibid.,p.5.
M . H . M . Kidwai
98
Apparently the Canadian Prime Minister based his argument on what he
regarded as the established post-war practice in respect of political treaties in
which the Dominions had an interest and the emerging general rule thatwhenever the Dominions could be said to have a direct or immediate interest, the procedure was shaped to include their participation and signature of the proceedings."'
Imperial Conference of 1923
The circumstances under which the Halibut Fisheries Treaty had been signed
between Canada and the United States on March 2, 1923 have already been discussed in relation to the procedure regulating the negotiation of commercial
treaties. It has been submitted that it was the first instance where a Dominion
representative not only negotiated a treaty without the association of an
Imperial representative, but also signed it in the similar manner. It will be
observed that the controversy that arose as a result of the procedure adopted for
the Lausanne Conference and the signature of the Treaty on July 24, 1923 occurred almost simultaneously with the negotiation and signature of the Halibut
Fisheries Treaty. The conflicting attitudes of the Canadian and Imperial
Governments therefore called for an examination of the treaty-making
procedure generally with a view to arrive at some understanding. The opportunity was offered almost instantly at the Imperial Conference which commenced its deliberations on October 1, 1923. The Conference examined the
procedures relating to negotiation, signatures and ratification of treaties. It was
resolved that the "Governments of the Empire" should refrain from negotiation
of any treaty "without due consideration" of its effect on other parts of the Empire and in appropriate circumstances "on the Empire as a whole." Before initiating negotiations with a view to conclude a treaty, prior consultation with
parts of the Empire likely to be affected should be held so that if they desire participation in negotiations they should have an opportunity to do so. The
desirability of mutual consultation before and during negotiations between the
participant governments of the Empire in order to achieve this objective was
stressed. At International Conferences representation of the Dominions and
India in the British Empire Delegation, in accordance with the established postwar practice was emphasised. It was also considered necessary that Empire
Governments, which were not participating in negotiations, but were likely to be
interested in its outcome, should be kept informed of the progress generally and
of those matters in particular in which they were likely to be interested."'
For future compliance the Conference proceeded to endorse in case of
bilateral treaties the procedure which was adopted at the time of the signing of
Halibut Fisheries Treaty between Canada and the United States and in case of
treaties emerging out of International Conferences those that were adopted at
the Paris Peace Conference and the Washington Disarmament Conference. It
reiterated the established practice that in cases where only one or more parts of
the Empire were interested in the bilateral treaty it should be signed by the
representative of that part or the parts interested and both the full powers issued
to the plenipotentiary or plenipotentiaries for the purpose and the preamble and
the text of the treaty should clearly indicate the part or parts of the Empire undertaking the obligations. While in the case of multilateral treaties, existing
practice of signatures by plenipotentiaries on behalf of all the governments of the
Empire represented, should continue to be followed and the full powers issued to
118. [bid., p.8.
119. Imperial Conference, 1923, Summary of Proceedings, Cmd. 1987, pp.13-14.
International Personality and the British Dominions
99
the plenipotentiaries should be in the same terms as those that were issued on the
occasion of the Peace Treaty of Paris and the Naval Treaty of W a s h i n g t ~ n . ' ~ ~
With regard to the ratification of treaties the Conference restated the existing
practice. In the case of treaties affecting only one part of the Empire ratification
should be effected at the instance of the Government of that part, while in those
cases where more than one part of the Empire were concerned, it should be effected after consultation between the Governments of those parts. Necessity of
parliamentary approval or prior legislation before ratification should be a matter to be determined by the Governments of the parts concerned. The conference
proceeded to reaffirm this practice.12'
There is little doubt that the resolutions adopted at the Conference were a
clear rebuff to the protagonists of the practice followed at Lausanne and a vindication in unmistakable-terms of the stand that Canada and its Prime Minister,
Mr. Mackenzie King had taken.
Exemption of Dominions from Application of Political Treaties
Not long after the exposition of the treaty-making procedure at the Imperial
Conference, noted above, arrangements commenced for the holding of the
Reparations Conference in London. Though agreement regarding participation
had already been reached between the Imperial Government and the foreign
participant states, subsequent consultations before the Conference commenced
its deliberations took place between the British and the Dominion Governments
during which the former attempted to impress upon the latter, the difficulties in
securing separate representation for the Dominions and India and an attempt
was made to by-pass the understanding arrived at the Imperial Conference.
During the course of negotiations, it was discovered that these consultations
were in fact not aimed at exploring the ways and means by which separate
Dominion participation at the forthcoming Conference could be secured, but
were meant more or less to explain the improbabilities of doing so. This, once
again, brought an emphatic protest from Mr. Mackenzie King on behalf of
Canada, in unmistakable termsFrom the Statements of your telegram of July 1lth it would seem that the preliminary
conference was not, as we had been led to believe, so much for the purpose of arranging for representation of the Dominions and India on a British Empire Delegation as
for the purpose of informing the Dominions and India of what in advance of consultation with their representatives, had been decided upon with respect to representation
at the Inter-Allied Conference. This is precisely the procedure adopted with respect to
representation at the Lausanne Conference to which exception has been taken .. .
which for many reasons we had hoped would not be repeated.lZ2
Despite the protest, Dominions and India were not invited to the Conference, but
they were given representation only on the panel system and the agreement^'^^
were signed by their representatives along with the British Delegates.lZ4
Growing concern demonstrated by the Dominions on account of the
automatic application of political treaties signed by the Imperial Government
without prior consultation with them and repeated protests, some of which have
been noted above, were ultimately responsible for the incorporation of a clause
120.
121.
122.
123.
124.
Ibid., p.14.
Ibid., p.15.
Inter-Allied Conference, Canada, Sessional Papers, 1924, No.309, P.15.
London Reparations Agreements, 1924, U.K.T.S., 1924, No.36, Cmd. 2259.
See Stewart, op.cit.supra note 9, pp.169-172; Keith, op.cit.supra note 1, p.19.
100
M . H . M . Kidwai
in the Treaty of Locarno of 1925,'25which excluded the Dominions from its application. Historically, as early as 1919, Sir Robert Borden had already raised
the question that treaties should clearly state the part of the Empire for which
they had been concluded and that the Dominions should not be subjected to the
obligations which had been undertaken without their consent,'26but the proposition remained unadopted in the Empire treaty-making practice.
It seems that for a short while the view did find favour with the Imperial
Government, but was later abandoned. At the time of the signing of the abortive
Anglo-French Treaty of Assistance of 191912' the intention was not to commit
the Dominions to the obligations arising from the Treaty without the approval
of the respective Dominion Parliaments. Consequently, to avoid its automatic
extension to the Dominions, a provision was incorporated in the Treaty to this
effect. However the Treaty itself did not come into operation in view of the
failure of the United States to ratify the complimentary arrangement and the
provision, therefore, lost all its practical importance. Thereafter it seems such a
stipulation had not appeared in subsequent treaties, till 1925.
With its reappearance in the Locarno Treaty, it demonstrated that the
"ingenious Theory of the Unity" of the Empire had started losing its vitality
and strength in the face of "the stubborn facts of economics and geography."
The Dominions had started exhibiting signs of reluctance to get involved in
purely European issues'28and consequently desired to make it known that they
neither intended to participate in the Locarno Conference nor would like to be
committed to active obligations that may be incurred by the Imperial Government. The British Government was equally keen to avoid yet another cause of
friction between the Imperial and the Dominion Governments. Accordingly,
their exemption from the obligations arising from the treaty emerging from the
decisions of the Conference was secured by the incorporation of a provision
similar to that, which was included in the Anglo-French Treaty of 1919. The
only difference between the two provisions was that India was also exempted
from the application of the later Treaty though the earlier Treaty applied to her.
The other difference was that under the later Treaty the concurrence of the
Dominions and India was made dependent upon the acceptance of the obligations by their respective Governments instead of their Parliaments. Keith appears distressed with this concession accorded to the Dominions and India as it
demonstrates "how slight was the unity of the Empire even in so grave an
issue."'29 On the other hand "though it was widely regarded as a great blow to
the diplomatic unity of the Commonwealth", Stewart points out two very
significant consequences arising from the provision; it "marks an entirely new
departure in the treaty relations of the British Commonwealth" and that it
raises the very significant issue thatIf His Majesty went to war to fulfil his promise of assistance, would not the Dominions also be at War? Many answered this question in the affirmative. Thus interpreted, the Treaty recognizes the distinction between active and passive belligerency. Although the Dominions might legally be in a state of belligerency, they
would be morally free to decide whether, and to what extent, they would participate in
the enforcement of His Majesty's obligation^.'^^
125. Treaty of Mutual Guarantee between the United Kingdom, Belgium, France, Germany and
Italy, U.K.T.S. 1926, No.28, Cmd. 2764.
126. Keith, op.cit.supranote 1, p.20.
127. U.K.T.S. 1919, No.6, Cmd. 221.
128. See Stewart, op.cit.supra note 9, p.368; Keith, op.cit.supranote 1, p.21.
129. Ibid.
130. Stewart, op.cit.supranote 9, p.174.
International Personality and the British Dominions
101
Imperial Conference of 1926
In view of the issues that had arisen since the Imperial Conference of 1923 and
also in view ofthe Balfour Declaration defining the status ofthe Dominions interse
and vis-a-vis the mother country, areview and re-appraisal seemed inevitable. Following an examination of questions concerning internal relationship within the
Empire the Imperial Conference of 1926 decided to examine those affecting relations with foreign countries. It was acknowledged that "a beginning had been
made towards making clear those relations by the Resloution of the Imperial
Conference of 1923" and it was felt desirable to examine the working of the
procedures then settled with a view to their extension from treaties to "a wider
sphere."I3l Inevitably the major part of the deliberations of the Conference on matters dealing with external affairs revolved round the treaties and specifically it
recorded recommendations regarding "negotiations" "form" "full powers"
"signatures" and "coming into force of multilateral treaties."
The understanding arrived at the Imperial Conference of 1923 that Empire
Governments contemplating negotiation of treaties should not only give due
consideration to their possible impact on other parts of the Empire but should
also keep informed governments of those parts that they considered were likely
to be interested, came up for a re-appraisal. It was decided that the understanding should comprehend all intended negotiations that were commenced
with the intention of ultimately concluding a treaty. This extension of the scope
could thus enable the Empire Governments, so informed, to determine whether
they would be directly interested in participating in the negotiations. In the
absence of an indication of their attitude "with reasonable promptitude", it
could be assumed that there was no objection on their part which in turn could
be construed as their general concurrence. If, however, other Empire Governments were likely to be involved in active obligations, their definite assent was
deemed obligatory. A similar assumption could be made where ratification by
all Governments of the Empire was considered necessary or desirable. However,
if such ratification was considered dependent upon signatures of their respective
representatives, it would be deemed obligatory on the part of such Governments
to take prompt steps in designating their plenipotentiarie~.'~
The Conference recorded its dissatisfaction with the existing form used in the
treaties. It was pointed out that the use of "the term British Empire with
enumeration of the Dominions and India, but without any mention of Great Britain and Northern Ireland and the Colonies and Protectorates," was far from
satisfactory. Though it implied participation of the latter by virtue of the use of the
general term "British Empire'' under which it was deemed to have been covered, it
nevertheless suggested that the Dominions and India were not on equal footing
with Great Britain. In order to remove this fallacy, the use of Head of State
was recommended in the treaties, so as to demonstrate the intention,
in the first place, that the treaty has been made "in the name of the King as the
symbol of the special relationship between the different parts of the Empire" and
also to indicate the part or parts of the Empire to which the treaty was to apply
and on whose behalf the King was making it. Like the respective Dominions
and India which were separate units, "Great Britain and Northern Ireland
(and) all parts of the British Empire which were not members of the League"
were to be regarded as a separate single unit for the purposes of this indication
131. Imperial Conference, 1926, Summary of Proceedings, Cmd. 2768, p.20.
132. Ibid.,p.22.
133. For a discussion of the Head-of-State form of Treaties, see Stewart, op.cit.supra note 9,
pp.178-184.
102
M . H. M . Kidwai
and should be used in the enumeration indicative of His Majesty's territorie~."~
These recommendations of the Conference dealing with the form of a treaty, it
seems, were the result of the desire on the part of the delegates to achieve an
equilibrium between the concept of the unity of the Empire and the growing
concern exhibited by the Dominions to be masters of their own destinies.
This inclination is further demonstrated by the formulation of the doctrine
that the Dominions and Great Britain in their relationship inter se were
governed by the internal law and conventions of the Empire and were not subject to international law. The Conference felt, that in view of the recommended
Head-of-State form of treaties, a treaty would be signed in the name of one and
the same sovereign "on behalf of any or all Governments of the Empire." In a
strictly legal sense the question of the "rights and obligations of the various territories on behalf of which it had been signed in the name of the King" affecting
their relationship inter se would therefore not arise. Thus the Head-of-State
form would be sufficient to "render superfluous the inclusion of any provision
that its terms must not be regarded as regulating inter se rights and obligations"
of these territories since it implied the juridical identity of these territories with
the King as the symbol. If, however, some of the Governments of the Empire
were "willing to apply between themselves some of the provisions" of an international agreement they could do so "as an administrative r n e a ~ u r e . " ' ~ ~
Nevertheless, it was felt, that in case international agreements were intended
"to be applied between different parts of the Empire, the form of a treaty
between Heads-of-States should be avoided."'36 Though the Conference itself
has thrown no light on the "general issue whether agreements between members
could be treaties", but in view of the inhibitions of the concept of the unity of the
Empire and the "the theory of the indivisibility of the Crown," if the Conference
would have ventured to elucidate, it would have arrived at only one conclusion,
that "bilateral agreements between members" were not treaties.'!'
Both the Head-of-State form of treaties and the inter se doctrine, in the face
of a rapidly changing pattern of relationships within the Empire, could not
withstand the ever increasing pressures. The juridical identity of the territories
constituting the Empire and intended to manifest through the device of Headof-State form had far reaching legal consequences. It was suggested that breach
of an obligation by a territory or territories on whose behalf the treaty had been
signed in the name of the King, would have rendered the Imperial Government
liable for such a breach, as the personality of Dominions had "merged in the un-
134. Imperial Conference, 1926, Summary of Proceedings, Cmd. 2768, pp.22-23. A remarkable admission was made by the British Foreign Secretary, Sir Austen Chamberlain in this connection
in his speech at the Council of the League of Nations on March 9, 1927, which deserves attention: "The Covenant of the League of Nations has omitted to take note of the fact that there is
an entity Great Britain as well as the Dominions. The seat which I occupy here and in the Assembly is attributed by the Covenant to the "British Empire", but the Dominions sit in the Assembly in their own names, Great Britain appears nowhere, and the existing form of treaty concluded under the auspices of the League, therefore, causes us some inconvenience." See League
of Nations, Official Journal, Vol.VII1, (1927), p.377.
135. O'Connell alludes to the vagueness of the term since it had not been clarified as to what is
meant by "an administrative measure", See O'Connell, op.cit.supra note 18, p.18. Jennings
regards it as "obviously a mere form of words and it would be both difficult and probably unprofitable to attempt t o give it any meaning." These words were used, he contends, to
emphasise that even if it was intended to create inter se obligations, it should "not be regarded
as creating inter se obligations suo proprio vigore". The acceptance of this position by the
Commonwealth members, it was felt, would insure that "inter se position was preserved." See
Jennings, "The Commonwealth and International Law" (1953), XXX B.Y.I.L., p.331.
136. Imperial Conference, 1926, summary of Proceedings, Cmd. 2768, p.23.
137. O'Connell, op.cit.supra note 18, p.18.
International Personality and the British Dominions
103
divided unity of the British state^.""^ Irrespective of the merits of the suggestion, such implications, it is submitted hastened the change andthis theory was quickly demonstrated to be untenable when the normal method of
treaty-making came to be inter-governmental contracting, with the Dominions signing
in their own right, and when the treaty in Head-of-State form fell rapidly into disuse.139
The inter se doctrine on the other hand, never came to be recognized as a rule
of customary international law and whenever applied, was dependent upon the
specific provision of the treaty in which it was incorporated. It even lacked
general acceptance among the territories that constituted the Empire and later
the Commonwealth and even in those Dominions where it was accepted in
limited fields, its scope and form was not always free from doubt. Fawcett
regards it as a constitutional convention, mainly relied in the United Kingdom
to facilitate the transformation of "a unitary empire" into "an association of
dependent states."140 In addition to its "ephemeral" nature the inter se doctrine
asserts O'Connellwas never more than a doctrine of treaty construction to the effect that unless
otherwise stated, a multilateral treaty was not to operate inter se the members of the
Commonwealth, just as bilateral agreements interse were to be construed as governed
by municipal law and not international law (if, in fact, governed by law at all). It
raised no implications for the multipartite vincula juris forged by a single Imperial act
between a foreign power and several British territories whose autonomy was ever on
the i n ~ r e a s e . ' ~ '
While considering the question of full powers, the Conference reaffirmed the
practice agreed in 1923 that full powers should be issued to the plenipotentiaries
"on the advice of the Government concerned indicating and corresponding to
the part of the Empire for which they (were) to sign." However, conferring of
powers on common plenipotentiaries was not ruled out. Similarly making of
provisions in treaties for later accession by other parts of the Empire, if so
desired by them, was also r e c ~ m m e n d e d . ' ~ ~
Signatures, it was thought, should conform with the manner proposed for the
form of the treaty. Plenipotentiaries of the different units of the Empire should
sign for and on behalf of their respective parts.143
It was pointed out that sometimes questions had been raised whether for
bringing into force a multilateral convention, ratification by those parts of the
Empire who were members of the League should be counted as separate ratifications or all these ratifications together should count as one single ratification. The
problem, it was thought, could be settled by making a provision in the treaty itself
that it should come into force on ratification by a specified number of members of
the League instead of specified number of ratification^."^
In addition to matters dealing with treaty-making, the related question of
Dominion representation at the International Conferences, was once again examined by the Conference. As members of the League of Nations, the Dominions had experienced little difficulty in securing separate representation by
means of separate delegations at the International Conferences sponsored by the
League. It was, however, as has been pointed out, at the Conferences convened
138. Harrison Moore, "The Dominions and Treaties" (1926), 8 J.C.L. & I.L., p.35.
139. O'Connell, op.cit.supra note 41, p.47.
140. See Fawcett, The British Commonwealth in International Law (1963), pp.144-194. For a discussion on inter se doctrine see Keith, Constitutional Law of the British Dominions (1933),
p.82; Stewart, op.cit.supra note 9, pp.358-362 and Jennings, op.cit.supra note 135, pp.320-351.
141. O'Connell op.cit.supra note 41, p.47.
142. Imperial Conference, 1926, Summary of Proceedings, Cmd. 2768, p.23.
143. Ibid., pp.23-24.
I Ad
lhid
n >A
M . H . M . Kidwai
by foreign States or even those by the Imperial Government that problems of
Dominion representation had arisen. The Conference indicated its awareness of
the problem but recorded its helplessness in prescribing "a rule of universal application." The Conference, however, noted that it was desirable for the Dominions to be represented by separate delegations at the Conferences of technical
nature and if necessary "efforts should be made to secure invitiations" for this
purpose. On the other hand with regard to the political conferences convened by
foreign Governments, it was felt, that the question deserved consideration on
the basis of "the special circumstances of each case." The Conference felt that
the question whether a Dominion should be separately represented or should
leave negotiations in the hands of another part of the Empire was a matter for
the Dominion concerned to decide and in many instances was dependent upon
the nature of obligations "likely to be imposed by any resulting treaty."
Similarly the extent and magnitude of obligations, which could be undertaken
only after separate representation, was a question for the Dominions concerned
to determine. It was noted, that in conferences where more than one part of the
Empire sought representation, the participants could either be represented by
common plenipotentiaries holding full powers on their behalf, or by a single
British Empire delegation composed of separate representatives of participating
Dominions as was done at the Washington Disarmament Conference of 1921 or
else by separate delegations representing them separately. It was felt that selection of either of these methods for a particular occasion should be dependent
upon mutual consultation. A significant feature of this discussion was the
acknowledgement of the fact that certain non-technical treaties from their very
nature demanded that these should be concluded in a form which made them
binding on all parts of the Empire. Such treaties, it was agreed, should only be
ratified after the concurrence of all the Empire Governments.
Though it was felt that the extent and nature of its participation in a
Conference as a pre-requisite to its concurrence prior to ratification, was for
each Dominion Government to decide, yet the determiniation, whether a treaty
calls for the concurrence of all parts of the Empire before ratification was a
matter for mutual discussion and agreement between them. It deserves to be
noted, that through all these understandings, which reposed a large measure of
discretion in the Dominions and their Governments manifested a desire to assert
an equality of status between themselves and with the Government of the United
Kingdom.145
The conclusion that the Conference reached after a survey of the general conduct of foreign policy strengthens this observation. Though it was "frankly
recognised" that in "matters arising in the conduct of foreign affairs generally"
"as in the sphere of defence, the major responsibility rest now, and must for
sometime continue to rest with His Majesty's Government in Great Britain;" it
was, however, asserted that the Dominions too were engaged in the conduct of
foreign relations, at least with the neighbouring foreign states. Consequently it
was
felt that the governing consideration underlying all discussion of this problem must be
that neither Great Britain nor the Dominions could be committed to the acceptance of
active obligations except with the definate assent of their own G0~ernments.l~~
It was therefore considered desirable to extend the system of mutual consultation established for treaty negotiations to all matters dealing with the general
conduct of foreign policy."'
145. Ibid., pp.25-27.
146. Ibid.
147. Ibid.
'nternational Personality and the British Dominions
105
Under the prevalent practice, it was pointed out, dissimilar procedures were
'ollowed in the issuing of His Majesty's exequaturs to Consuls de Carriere and
~ t h e Consuls
r
in the Dominions. In the case of the former, in any part of British
Zmpire, on being notified of their proposed appointments by the foreign governnent concerned through normal diplomatic channels, His Majesty's Governnent in Great Britain issued the exequaturs to them without any further fornality while in the case of the latter they were issued after consulting the Domilion concerned. The Foreign Secretary on the suggestion of the Dominion
3overnments agreed that henceforth in either case a request for the issue of exeluatur will be forwarded to the Dominion Government concerned and in case of
ts agreement the exequatur will be forwarded for the counter-signature of the
Dominion Minister before it was issued.14s
Along with the question of Consuls in the Dominions, the Conference noted
'with interest' developments that had taken place in the field of diplomatic
representation of the Dominions in foreign states and recorded its satisfac-
External Affairs in Post-1926 Period
The decisions reached at an Imperial Conference, it is true, lack any legislative
3r executive sanction, but they are without doubt indicative of the fact that the
.ecommendations will gradually be translated into practice by executive and
egislative action. The procedure agreed at the Imperial Conference of 1926 for
?egotiation, signature and ratification of treaties, noted earlier, was put into
pera at ion in its entirety at the time of the negotiations and signing of the Treaty for
the Renunciation of War 1928.Is0AS a result of the Draft Pact of Perpetual
Freindship between France and the United States and following consultations
between the French Foreign Minister, Monsieur Briand and the United States
Secretary of State, Mr. Kellogg, when the British Government inter alia other
principal powers of the world was invited to sign the treaty, such an invitation was
not extended to the Dominions. The British response purporting to be "on behalf
of His Majesty's Government in Great Britain" alone, made it clear that in the
absence of separate invitation to the Dominions and India, the British Government will be ill-advised to participate. It was pointed out thatIt will however, be appreciated that the proposed treaty, from its very nature, is not
one which concerns His Majesty's Government in Great Britain alone, but is one in
which they could not undertake to participate otherwise than jointly and
simultaneously with His Majesty's Governments in the Dominions and the Government of India.15'
The British Foreign Secretary, Sir Austen Chamberlain, however, assured the
Ambassador of the United States of America at the Court of St. James, Mr.
Houghton thatIt has been ascertained that they are all in cordial agreement with the general principle of the proposed treaty. I feel confident, therefore, that on receipt of an invitation
to participate in the conclusion of such a treaty, they, no less than His Majesty's
Government in Great Britain will be prepared to accept the i n v i t a t i ~ n . ' ~ ~
Whereupon the Dominions and India received invitations; signed the Treaty
148.
149.
150.
151.
Ibid.
Ibid. For developments in the field of diplomatic representation, See infm.
U.K.T.S., 1929, No.29, Cmd. 3410.
See United States Department of State, Treaty for the Renunciation of War, Text of the
Treaty, Notes exchanged, Instruments of Ratification and Other Papers, (1933).
152. Ibid., pp.11-12.
106
M . H . M . Kidwai
which was in the Head of State form and ratifications were effected in seven
separate instruments on behalf of Great Britain, the five Dominions and India.
Stewart emphasisesthe procedure followed at every step in the conclusion and ratification of the Treaty
for the Renunciation of War demonstrates how completely the resolutions of the
Imperial Conference of 1926 had been carried into effect and how fully the international status of the Dominions was thus recognized by the United Kingdom and by
foreign powers.Is3
Similarly separate invitations to the Dominions and India by the United
States, it has been suggested, are capable of being construed as "a formal and
complete recognition of the international status of the component parts of the
British Commonwealth of Nations by the United state^."'^^
The agreed procedures having once found expression in practice, were followed in other international conferences and most significantly at the inconclusive Geneva Conference for the Limitation of Naval Armament of 1927
and the London Naval Conference of 1930 and 1935. Precisely the same form
and procedure was applied in the signing of the treaty that emerged from the
Conference of 1930.'55However, the Treaty for the Limitation of Naval Armament of 1936'56signed as a result of the 1935 Conference could not be signed on
behalf the Union of South Africa and the Irish Free State as following
praticipation in the Conference they declined. They regarded the subject matter
of the Treaty concerned only naval powers, which neither they were, nor contemplated to become.
Keith in his assessment of the significance of the Treaty for the Renunciation
of War acknowledges that the procedure agreed at the Imperial Conference of
1926 "under which each Dominion was reckoned definitely a distinct entity in
all international business, was put into full operation" at the time of the signing
of the Treaty, but suggests that when His Majesty's Government in Great Britain declined to sign the Treaty in the absence of separate invitations to the
Dominions and India and without their concurrence, it was still prompted by the
desire to preserve and protect the ideal of the Empire unity. This, however, was
breached when Great Britain signed that Treaty with a reservation while "no
Dominion formally repeated this limitation." It reappeared at the London
Conference of 1930 where, though the Dominions and India were separately
represented, for the purposes of quantitive restrictions on the strengths of the
Navy, the Empire was treated as a unit. It was again breached both in the case
of the acceptance of the Optional Clause of the Statute of Permanent Court of
International Justice and that of the General Act for the Pacific Settlement of
International Disputes of 1928. Though other Dominions agreed, Irish Free
State refused to agree to the exclusion of inter-Imperial disputes from their
jurisdictions and the Union of South Africa decided to follow an entirely different course. Moreover, since the British Foreign Secretary acted as a channel
through whom in important matters of foreign policy the Dominions operated,
lack of unity in some instances was capable of creating complicated questions
on inconsistency between his obligation to the Dominions and his duty to the
King. It was also realised that it
had proved hard enough to convince the outer world that the Dominions were really
153. Stewart, op.cit.supra note 9, p.192.
154. Myers, Origin and Conclusion of the Paris Pact. (1929), p.49.
155. Treaty for the Reduction and Limitation of Naval Armament of 1930. U.K.T.S., 1931, No.1
Cmd. 3758.
156. U.K.T.S. 1937 No.36 Cmd. 5561.
lnternational Personality and the British Dominions
107
sovereign States of international law, and procedure by the use of British instrumentality was a stumbling
Though the constitutional and international position of the Dominions in
relation to each other and vis-a-vis Great Britain was clearly defined by the
Imperial Conference of 1926 by the adoption of the Balfour Declaration, 158 the
disbelief regarding their independent sovereign status in no less a measure was
conditioned by the inequalities in legal competence and powers of the British
Government on the one hand and that of the Dominion Governments on the
other. The removal of legal incompetence required a legislative process and the
Imperial Conference of 1930 assembled to pave the way for the formulation of
the required legislation, which ultimately shaped into what came to be known as
the Statute of Westminster, 193 1.159
While it was anticipated that the measure would ensure the removal of the
remaining vestiges of colonial subordination, a reappraisal of the procedures
relating to the Dominion competence in the conduct of external relations was
also required. I t was all the more imperative in view of the emerging new
legislative competence of the Dominions. The Conference, following an examination of the procedures recommended and adopted by the previous
Imperial Conferences envisaging mutual consultation and communication of information between themselves and with His Majesty's Government in Great
Britain, reaffirmed the principles in treaty negotiation specially and in relation
to all aspects of foreign affairs generally. These principles laid down that(1) Any of His Majesty's Governments conducting negotiations should inform the
other Governments of His Majesty in case they should be interested and give them the
opportunity of expressing their views, if they think their interests may be affected.
(2) Any of His Majesty's Governments on receiving such information should, if it
desires to express any views, do so with reasonable promptitude.
(3) None of His Majesty's Governments can take any steps which might involve the
other Governments of His Majesty in any active obligations without their definate assent.I6O
A reference has already been made earlier of the London Naval Conference of
1935 and the Treaty for the Limitation of Naval Armament of 193616'which was
signed as a result of the deliberations oftheConference. I t had also been noted that
the Irish Free State and the Union of South Africa, though participated in theconference, declined to sign the Treaty on the stated ground that they were not concerned with the subject matter of the Treaty, not being naval powers.
The deliberations of the conference, however, are significant from another
point of view. In spite of the fact that the Dominions and India had been
separately invited and signed the Treaty for the Renunciation of War in 1928
and irrespective of the consideration that they had been invited at the earlier
Naval Conference of 1930 and had signed the resulting Treaty without any
serious threat to their status, a t the Naval Conference of 1935 not only the
nature of the separate representation of the Dominions and India was
questioned, but even doubts were expressed by some foreign powers with regard
to the real import of the Statute of Westminster, 1931. This brought spirited
remarks from the representatives of the Union of South Africa and the Irish
Free State. The South African representative while disclaiming "to speak for the
157.
158.
159.
160.
161.
See Keith, op.cit.supra note I, pp.22-24.
Imperial Conference, 1926, Summary of Proceedings, (1926), Cmd. 2768, p.14.
22 and 23 Geo. 5, C . 4.
Imperial Conference, 1930, Summary of Proceedings, Cmd. 3717, p.27.
See supra note 156.
M . H. M. Kidwai
other Dominions" and confining his arguments with regard to the international
personality of the Union alone pointed out thatI might substantiate that argument by a reference to the position of my country at the
League of Nations as an independent and sovereign State-a postion which of course
is accepted at any rate at Geneva by all the Powers represented at this Conference.. .
It would be wise therefore not to raise an issue involving so many interests, which
might possibly lead to different interpretations of the Statute of W e ~ t m i n s t e r . ' ~ ~
The representative of the Irish Free State did not enter into any of the legal
arguments regarding the international status of the Dominions or the legal consequences of the Statute of Westminster. He explicitly stated how his country
viewed the situationI only want to say, in this connection, that as far as my Government is concerned, the
position of Saorstat Eireann at the present Conference is that of a separate High
Contracting Party to the Naval Treaty of 1930, and that, in this respect its position is
in no way different from that of any of the other States represented here.
Saorstat Eireann could not become a party to any agreement concluded at this
Conference in which that position was not fully and clearly recognised.I6'
Whatever the stated reasons might be, both the Union of South Africa and
the Irish Free State refused to sign the Treaty, which was a clear demonstration
of their views regarding their international status.
These views received final and full recognition when the Imperial Conference
of 1937 formally stated the position and status of the members of the British
Commonwealth vis-a-vis multilateral treaties and placed on record that
each member takes part in a multilateral treaty as an individual entity, and, in the
absence of express provision in the treaty to the contrary, it is in no way responsible
for the obligations undertaken by any other
Dominion Diplomatic Representation
References have been made earlier of the diplomatic channels of communication between Dominions and foreign governments, which initially were exclusively limited to the Imperial instrumentalities. In these circumstances at
least some of the Dominion Governments had started viewing with favour the
possibilities of limited separate diplomatic representation both on the grounds
of necessity and as manifestations of their changing status. In the wake of other
post-First World War developments the problem of separate diplomatic
representation was bound to surface. Having accomplished the task of securing
separate Dominion participation in the Paris Peace Conference of 1919 and the
membership of the League of Nations, the Canadian Prime Minister, Sir
Robert Borden instantly directed his attention towards acquiring diplomatic
representation for Canada. The move was viewed as a direct threat to the concept
of the Imperial unity. However, in 1920 he succeeded in persuading the Imperial
Government to a special arrangement which aimed at the preservation of the
Imperial unity while accommodating the Canadian assertion. It envisaged the appointment ofacanadian Minister at Washington to look after theexclusive Canadian matters under instructions from the Dominion Government and whose offices would be located within the British Embassy. Thus the Minister was not only
expected to be in the closest touch with the British Embassy, but was to take
162. See United States Department of State, Conference Series No. 24, The London Naval
Conference, 1935, (1936), p.142.
163. Ibid., p.232.
164. Imperial Conference, 1937, Summary of Proceedings, Cmd. 5482, p.27.
International Personality and the British Dominions
109
charge of the Embassy itself during the absence on leave from the United States
of the British Ambassador at Washington. Though in principle the arrangements had been agreed, an appointment was not made by the Canadian Government forthwith and remained in abeyance. In the meantime the Irish Free State
was also conceded the right of diplomatic representation in the United States
and an Irish Minister Mr. Timothy Smidy presented his credentials at
Washington in 1924, who was subsequently followed by the appointment of a
Canadian Minister in 1926. The arrangement made in 1920 whereby offices of
the Canadian Minister were to be located within the British Embassy and he
was required to take charge of the Embassy in the absence of the British Ambassador "was not adhered to" in the case of the Irish representation on account of
various consideration^.'^^ As has already been mentioned the Imperial
Conference of 1926 took note of this development with "special interest" and
"felt that most fruitful results could be anticipated from the co-operation"
between the Dominion and the British diplomatic representatives. The
Conference, however, thought that wherever separate Dominion diplomatic
respresentation did not exist it was advisable to continue the use of "the existing
diplomatic channels" between the Dominion and foreign governments "in matters of general and political concern."'66 Obviously the "existing diplomatic
channels" were none other than the usual British channels, the British Foreign
Office and the British diplomatic missions.
By the time the Imperial Conference of 1930 was held, in addition to
Washington, Irish Free State had already established diplomatic missions at
Paris, Berlin, the Vatican and Geneva, while Canada was further represented at
Paris, Tokyo and Geneva. The Union of South Africa had also appointed
Ministers at Washington, The Hague and Rome.167It is interesting to note that
while Canada, Irish Free State and the Union of South Africa appeared keen on
the establishment of diplomatic representation, the exercise was viewed with
scepticism in Australia and New Zealand. The presence of an Australian Commissioner "who seems to have had credentials not addressed to anyone" was
noted in the United States as early as 1920 and the question of his status seems
Six years later, in 1926,
to have arisen for the purposes of customs fa~i1ities.l~~
the Legal Adviser of the United States State Department ruled on the status of
the then Australian Commissioner Sir Hugh Denison,
H e is not to be regarded as diplomatic officer nor is he a consular officer. His mission
is one pertaining to trade and commerce. He belongs to that class of officers
designated as Trade Commissioners as distinguished from Commissioners whose missions are for political purposes and whose status is analogous to that of a minister.I6'
Consequently,
All formal relations relative to Australia are conducted by the Department through
the British Embassy in Wa~hington.''~
A later appointee Sir Herbert Brooks in 1929 confirmed this, by pointing out
that "I am not an a m b a ~ s a d o r . " Strangely
'~~
enough as late as 1950, when India,
Pakistan and Ceylon had emerged as new members of the Commonwealth, the
165.
166.
167.
168.
See Keith, op.cit.supra note 1, p.20.
See Imperial Conference, 1926, Summary of Proceedings, Cmd. 2768, pp.25-27.
Foreign Office List, 1930, pp.47-49.
U.S. Dept. of State File (National Archives), 846.01 B11/50 cited by Wilson, "Official
Representation" in The International Law Standard and Commonwealth Developments. (ed.
Wilson), (1966), pp.51-52.
169. Ibid.,847.01 B11/45.
170. Ibid.
110
M . H.M . Kidwai
Australian Foreign Minister, Sir Percy Spender, was still talking in terms of
Commonwealth representation as suchAlthough the main burden of British Commonwealth policy in relation to European
affairs falls not unnaturally upon the United Kingdom, it is necessary for the Commonwealth as a whole to make its presence and strength felt in Europe as well as Asia.
It is therefore essential for us, along with other Commonwealth countries to maintain
direct diplomatic relations with the leading countries of Western Europe as to be fully
informed of events, and to adjust our policies in accordance with such events.'12
The establishment of diplomatic missions by the Dominions, however, in
early stages was conceived as a process supplementing the British representation
and not as completely replacing the existing arrangements regarding diplomatic
intercourse with foreign states.
The British "machinery of diplomatic communication" was still in extensive
use by the Dominions where they were not separately represented and it was felt
at the Imperial Conference of 1930 that there was need of introducing
procedures of "sufficiently elastic and flexible character." It was therefore considered desirable that in "subjects falling within the category of matters of
general and political concern" the Dominions may "for reasons of urgency"
communicate directly with the British diplomatic missions in foreign states indicating however that in appropriate cases the missionsshould before taking any action await a telegram from His Majesty's Government in
the United Kingdom, with whom the Dominion Government concerned would
simultaneously comm~nicate."~
But in matters other than those of general and poltical nature, such as, for
examplethe negotiation of the commercial arrangements affecting exclusively a Dominion
Government and a foreign power, complimentary messages, invitations to nonpolitical
conferences and requests for information of a technical or scientific character.
the Conference recommended that the communications should pass directly
between the Dominion Governments and the British diplomatic representatives
in foreign states.'14
The Conference viewed it proper to record its understanding that the use of
the British machinery of diplomatic communications by the Dominion Governments does not however preclude the use of other "appropriate channels of communication" if it was felt convenient to do so."5 The willingness of His Majesty's Government in the United Kingdom to implement these recommenda~
to completion the
tions, which was communicated to the C ~ n f e r e n c e , "brought
process that was initiated in 1920 when Canada was conceded the right to appoint a Minister at Washington.
The Concept of Automatic Belligerency
Even as late as the beginning of the Second World War in 1939, the theory of
automatic belligerency, whereby the Dominions were deemed to be at war by
virtue of a declaration of war by His Majesty's Government in the United
Kingdom, had not been breached. The political reaction and legal implications
172. Australia, Department of External Affairs, Current Notes on International Affairs, Vo1.21,
(1950), p. 167.
173. Imperial Conference, 1930, Summary of Proceedings. Cmd. 3717, pp.29-30.
174. Ibid.
175. Ibid.
176. Ibid.
International Personality and the British Dominions
111
of the signing of the Treaty of Lausanne of 1923 and the Treaty of Locarno of
1925 giving rise to the notions of active and passive belligerency have already
been examined. At one time the concept of the indivisibility of the Crown and
the unity of the Empire permeated the thinking of British jurists with such intensity and force that this not only postulated "political and legal difficulties"'" but
sometime assumed "an almost metaphysical chara~ter"."~It is therefore, not
surprising that in view of the doctrine of the indivisibility of the Crown, to which
a common allegiance was habitually accorded, it was generally assumed that irrespective of the changes that had taken place between the two wars, in the position and status of the Dominions, separate belligerency, neutrality and peace
were inconceivable. However the assumption was discredited by the course of
events subsequently. Second World War was declared on September 3,1939 and a
public notification was gazetted by the Privy Council Office. In Canada the Prime
Minister was authorised by an Order in Council to petition the King for a declaration of war on Germany which was approved and the decision was conveyed to the
Canadian Government through the Canadian High Commissioner in London.
Thereupon, the Proclamation of War was issued on September 10, 1939 by the
Governor-General of Canada, counter-signed by the Prime Minister. Following
the defeat of the Government in the Union of South Africa headed by General
Hertzog on a motion of neutrality moved by him, the Governor-General issued the
Proclamation on September 6, 1939 under section 6 of the Royal Functions and
Seals Act, 1934.'79Eire announced her neutrality. In Australia and New Zealand
proclamations of the existence of a state of war were issued on precisely the same
day, September 3, 1939 and in the case of Australia it was explicitly stated that
"Britain has declared war and as a result Australia is at war also." O'Connell attributes this declaration on the part of Australia as having been "apparently
drafted without due consideration of its implication^."'^^
Even the views of Australia and New Zealand did not take long to change.
War against Italy, Roumania, Hungary, Finland and Japan was declared by
Canada, Australia, New Zealand and South Africa on different dates. In the
case of Australia the previous omission was rectified and as pointed out by the
Australian External Affairs Minister, Dr. Evatt, "special care was taken by the
Commonwealth Government to adopt a procedure . . . which should correspond
with the fact that the Commoriwealth possessed"full status in every aspect of its external relationships, as well as in all its internal affairs . . . (and that) in relation to Australia, the vital decision as to peace or war with
any country should be determined exclusively by Commonwealth Ministers.18'
177. See for example the assertion of Sir Robert Borden, the Prime Minister of Canada in his
Memorandum of March 12, 1919 circulated at the Paris Peace Conference reprinted in
Canada, Sessional Papers, 1919, Special Session No. 41 pp.6-7 and that of Sir Cecil Hurst in
"The British Empire as a Political Unit under International law", in Great Britain and the
Dominions, (Harris Foundation Lectures, 1927), (1928), p.52. Sir Robert pointed out that
"The Crown is the supreme Executive in the United Kingdom and in all the Dominions, but it
acts on the advice of different Ministries within different constitutional units." Sir Cecil
claimed that, "the British Empire is not a personal union. It is linked together by more than the
accidental fact that it has the same individual as monarch for all the communities of which it
consists. The fact that they all have the same individual as monarch is not accidental."
178. Latham, Australia and the British Commonwealth (1929) p.27. Also see Latham, C.J. in
Minister for Works v. Gulson, (1944) 69 C.L.R. 338 at pp.350-351. The Chief Justice has
pointed out in relation to the doctrine of the indivisibility of the Crown that "When stated as a
legal principle, it tends to dissolve into verbally impressive mysticism. It is of little assistance in
a practical system of law . . ."
179. No. 7 of ,934 (S. Africa).
180. See O'Connell, op.cit.supra note 18, pp.20-21; Also see Halsbury, Laws of England, Vol. 5,
(3rd ed., 1953), pp. 454-455.
181. Australia, Department of External Affairs, Current Notes on International Affairs Vol.XI,
(1941), pp.268-269. Also see Ibid., Vo1.12 (1942) pp.3-7.
112
M .H . M . Kidwai
It was further stated that inter alia
the procedure adopted was in accordance with proper constitutional practice that in
all matters affecting Australia both the King and his representative should act exclusively upon the advice of the Prime Minister and Ministers responsible to the Commonwealth House of R e p r e s e n t a t i ~ e . ' ~ ~
The conduct of Canada, the Union of South Africa and Eire in 1939 together
with the subsequent actions taken by Australia and New Zealand, support the
view that the Dominions claimed and asserted the right to separate belligerency,
neutrality and peace as an attribute of their changed status. Naturally the assertion of the claim resulted into the evaporation of the concept of automatic belligerency. Dr. Evatt's explanation confirms the basis of the claim and lends support to Oppenheim's contention that
the importance attached to the independent exercise of that weighty prerogative of
Statehood was due primarily not to doubts as to the operation of what has been
termed 'automatic belligerency' but to the assertion of the principle that in matters of
peace and war alike any action of the Crown legally affecting the foreign relations of
the members of the Commonwealth takes place in pursuance and on the advice of
their Governments responsible to their own parliament^.'^^
The Attainment of Unrestricted International Personality
In the post-Second World War period the erosion of the doctrine of the indivisibility of the Crown and of common allegiance manifested with even
greater intensity. Measures like the British Nationality Act,Ia4 1948 and the
Royal Titles Act, 1953Ia5rendered continuation of these hitherto withering concepts anachronistic and completely redundant. The Nationality Act with parallel legislation in the Commonwealth Countries resulted in separate citizenship
laws and similarly following the enactment of Royal Titles ActsIa5in these
countries each member state came to adopt separate royal title for its own purpose and suitable to its own peculiar circumstances. An indirect acceptance of
the changed situation is further discernible from the application of the Visiting
Forces Act, 1952Ia6to the Visiting Forces of the Commonwealth States under
which they receive treatment identical to that applied to visiting Foreign Forces.
Moreover, with the enactment of the Diplomatic Immunities (Commonwealth
Countries and Republic of Ireland) Act, 1952,Ia7privileges and immunities
similar to those enjoyed by Ambassadors, their staff and the properties of
foreign states are accorded to High Commissioners, their Staff and the properties of the Commonwealth States. Complimentary legislation was enacted by
the Commonwealth Countries in similar terms.Ia8
182. Ibid., p.7.
183. Oppenheim International Law-A Treatise, Vol.1 (ed. Lauterpacht), (8th ed., 1955), pp.207208.
184. 11 and 12 Geo.6, C. 56; Also see Canadian Citizenship Act, 1946, (1946, C. 15) (Can.), The
Nationality and Citizenship Act, 1948, (No. 83 of 1948) (Aust.); The British Nationality and
New Zealand Citizenship Act, 1948 (1948, No. 15) (N.Z.); The South African Citizenship Act,
1949, (No. 44 of 1949) (S. Africa).
185. 1 and 2 Eliz. 2, C.9; Also see Royal Style and Titles Act, 1953, (1953, C.9) (Can); Royal Style
and Titles Act 1953 (No. 32 of 1953) (Aust); Royal Titles Act, 1953 (1953, No. 2) (N.Z.);
Royal Style and Titles Act, 1953 (No. 6 of 1953) (S. Africa).
186. 15 and 16 Geo. 6 & 1 Eliz. 2, C.67.
187. 15 & 16 Geo. 6 & 1 Eliz. 2, C.18.
188. For example, Diplomatic Immunities (Commonwealth Countries) Act, 1953, (1953, C.54)
(Can); Diplomatic Immunities Act, 1952, (No. 67 of 1952) (Aust.)
International Personality and the British Dominions
113
The foregoing survey illustrates that in the pre-First World War period the
self-governing Dominions, in spite of the fact that they had been admitted to the
membership of international administrative organisations like the Universal
Postal Union and had started exercising in certain fields independent powers to
enter into treaty arrangements with foreign states had not yet attained an international personality. Oppenheim rightly regards the exercise of these powers
simply limited delegated functions, which were assigned to them by the mother
country entitling them to
no international position whatever, because they were, from the point of view of International Law, mere Colonial portions of the Mother Country. It did not matter that
some of them, as, for example Canada and Australia, flew as their own flag the
modified flag of the Mother Country, or that they had their own coinage, their own
postage stamps and the,like.'B9
When the self-governing colonies in British North America decided to
federate and a federal structure was consequently provided by the Imperial
Parliament under the British North America Act, 1867I9O naturally the newly
created federal entity was invested with powers of internal self-g~vernment.'~'
Similar arrangements were made when the Australian self-governing colonies
federated under the Commonwealth of Australia Constitution Act, 1900,19*but
neither the Dominion of Canada nor the Commonwealth of Australia were
granted what has been described as "external sovereignty"19'. Subsequently
judicial dicta in In re the Regulation and Control of Radio Communication in
Canada'94and five years later in the Attorney Generalfor Canada'95v. Attorney
General for Ontario confirmed that in 1867 when the Dominion of Canada was
established it was "unthought o f ' and "not contemplated" that Canada would
"possess treaty making-powers," which indeed is the direct manifestation of external sovereignty. Australian position was no better. In 1902, not long after the
inauguration of the Commonwealth of Australia in 1901, the Colonial Secretary,
Joseph Chamberlain in his Note to the Lieutenant Governor of South Australia in
connection with the "Vondel" affair impressed upon the South Australian
Government that under the Constitution Act a new entity has been
created armed with paramount power not only to settle the more important internal
affairs .. . but also to deal with qll political matters arising between them and any
other part of the Empire
and through the instrumentality of the Imperial Government with foreign
~ 0 w e r s . lIt~ is,
~ therefore, clear that the Imperial Government during the preFirst World War period was in no doubt, whatsoever, that the only channel
through which the Dominion Governments could deal externally was the
Imperial Government alone and that other than that the Dominions lacked
competence to deal directly with the foreign powers.
It appears that the participation in the Paris Peace Conference, separate
signature of the Peace Treaty of 1919 and membership of the League still were
not considered sufficient to remove doubts with regard to their competence as
189.
190.
191.
192.
193.
194.
195.
196.
Oppenheim, op.rit.supra note 183. p.198.
30 & 31 Vict., C.30.
See British North America Act, 1867 (30 & 31 Vict., C.30).
63 & 64 Vict., C.12.
See McNair, International Law Opinions, Vol.1, (1956) p.63.
[1932] A.C. 304 at p.312.
[I9371 A.C. 326 at p.350.
Correspondence Respecting the Constitutional Relations of the Australian Commonwealth
and States in Regard to External Affairs (1903), Cd. 1587, p.13. Also cited in The King v.
Burgess, Ex parte Henry, (1936) 55 C.L.R. 608 at p.685.
M.H. M . Kidwai
was reflected in the practice followed at the time of the Washington Conference
on the Limitation of Armaments in 1921 and the Lausanne Conference of 1923
when the Dominions were not invited to participate. It was recognized that theresponsibility of the British Government for acts of the self-governing dominions has
never been questioned and apparently remained even though these dominions are
given independent representation in the League of Nations19'
Though the Imperial Conference of 1926 settled all doubts with regard to the
constitutional and international status of the Dominions by placing on record
the nature of the Commonwealth relationships, yet some lingering disbeliefs still
persisted198with regard to the real implications of the Dominion Status, till the
enactment of the Statute of Westminster of 1931, which removed the remaining
vestiges of legislative restraints on the Dominion competence. Presumably
much of this dust of doubt that was raised could be attributed to the British
juridical thinking which was then obsessed by the dominance of the concepts of
the indivisibility of the Crown and of common allegiance, a natural off-shoot of
which was the inter se doctrine. Writing in 1953 when these notions had already
lost substance and withered away, Jennings has made a very apt assessmentIt must be apparent from even a glance at modern Commonwealth relations that the
old and strict version of the interse doctrine, by which it was denied that international
law could ever apply between members of the Commonwealth has long been untenable. It is no great loss, for it always had something of an unreality. It was a
juristic periphrasis for a denial of what had in fact happened: an attempt to retain the
shadow having conceded the sub~tance."~
Conclusion
It can therefore be concluded on the basis of this evaluation that though at the
time of the establishment of the Federations in British North America and
Australia, the founding-fathers did not anticipate the emergence of separate independent sovereign political entities capable of being subjects of international
law and that the Empire as a whole continued to claim and receive this privilege,
a fragmentary process commenced in 1919. Once internal autonomy had been
conceded, its further expansion externally was inevitable in due course of time.
Between 1919 and 1926 the Dominions had reached a stage that even doctrinal
attempts in subsequent years to protect and preserve the integrity of the Empire
as a single political entity in the post 1926 era of inter se doctrine proved illusive.
Significant changes that had already taken place in the Commonwealth
relationships and its consequences received adequate judicial attention in these
wordsThe progress of the Dominion along the path of nationhood had been rapid in recent
years. The older conception of subordination to a central legislative authority has
been superseded by the conception of partnership of independent nations bound
together by ties of loyalty to the same King, ties of kinship, ties of common interests,
common beliefs, common faith in the future. If this was not clear before, it was made
abundantly clear by the proceedings of the Imperial Conference of 1926.200
197. Quincy Wright, The Control of American Foreign Relations (1922) p.16n.
198. See Hall, International Law (ed. Pearce Higgins), (8th ed. 1924), p.35; Oppenheim, International Law (ed. McNair), (4th ed. 1928), p.198; Corbett and Smith, Canada and World
Politics: A study of the British Empire (1928), p.56; Keith, Responsible Government in the
Dominions (1928) p. XVIII and Wheaton's Elements of International Law, (6th ed., 1929) p.
XVI; Contra Duncan Hall, op.cit.supra note 2, pp.349-350; Hurst, op.cit.supra note 177, p.92,
Noel Baker, op.cit.supra note 106, p.73.
199. Jennings, op.cit.supra note 135, p.349.
200. Tagaloa v. Inspector ofPolice, Fuataga v. Inspector ofPolice, [I9271 N.Z.L.R. 883 at p.900
(per Ostler, J.).
International Personality and the British Dominions
115
The proceedings of the Imperial Conference of 1926, as has been submitted,
were constitutionally and legally incapable of conferring or enhancing the status
of the Dominions. These comprehend a record of what has already been
achieved and of what ought to be accomplished by executive action or competent legislative process. Whether the recognition of Dominion Status as defined
in the Balfour formula could be interpreted as an acknowledgement of the
sovereign status of the Dominions is contentious. Any claim of the attainment
of international personality by the Dominions at this stage would, therefore, be
not free from vulnerability. There seems to be very little doubt that the
acknowledgement of their status inter se and vis-a-vis to the mother country as
equals, in no way subordinate to each other in domestic or external affairs, is an
eloquent testimony of the fact that by some process there has already taken
place a substantial change in the constitutional arrangements within the Empire
both internally and externally. Inevitably, this change was bound to project
itself in both internal and external procedures. Externally, Schwarsenberger
very correctly concludesThe British Empire had already ceased to be an absolute international personality. It
had become a merely relative international unit, that is to say, a unit for such purposes only for which it chose to regard itself as such, and an association of sovereign
States for purposes for which it preferred such diversity. By accepting the members of
the Dominions in the League on this footing, the other members of the League
recognised this relativity of the international personality of the British Empire.20'
Following the enactment of the Statute of Westminster of 1931 which removed
legislative restraints from Dominion competence and as the Dominions availed of
its "emancipating provisions" it came to be accepted that the "cumulative result"
of this and other measures that have been noted "has been to make their status indistinguishable from that of full international personality."202
In the previously noted case, Attorney General for Canada v. Attorney
General for Ontario,203Lord Atkin in relation to Canada, which applies with
equal force to other Dominions explained the existing status, that it has not been
suggested that there was
any doubt as to the international status which Canada has now attained involving her
competence to enter into international treaties as an international juristic personzo4
and admittedly agreed with the suggestion regardingits accession to international status, and the consequent increase in the scope of its executive functions. [and] that . . . the executive is now clothed with the powers of making treaties . . .20S
His Lordship, however, declined to express any opinion on the important
questions that in the light of its changed status
as to how the executive power was to be exercised to bind Canada, whether it must be
exercised in the name of the King, and whether the prerogative right of making
treaties in respect of Canada was now vested in the Governor-General in Council, or
his Ministers, whether by constitutional usage or otherwise.206
It seems inappropriate to d i g r e s ~upon the magnitude of uncertainties that
arise from lack of clear exposition on constitutional, or for that matter any other
201.
202.
203.
204.
205.
206.
Schwarzenberger, International law, Vol.1, (1957), p.91
Oppenheim, op.cit.supra note 183, pp.203-205.
[I9371 A.C. 326.
Ibid., at p.349.
Ibid., at p.352.
Ibid., at p.349.
M .H.M . Kidwai
legal concepts and practices. It is perhaps sufficient to acknowledge that evasion
from accepting the consequences of changing situations and endeavour to avoid
clarification of doubtful premises solely on account of the desire to perpetrate
what no more exists or is valid, is by its very nature contributory to sheer exa ~ p e r a t i o n . ~This
~ ' also explains thatwhile the Empire strode forward, politically, its law stood still. The rules which it
needed-for no institution can do without rules of some sort-it formulated in
another language and with other sanctions, the language and sanctions of constitutional convention. When, therefore, the Empire became Commonwealth of Nations, its fundamental law was still in all substantial respects the law of George I11 the
same law which lost Britain the American colonies.208
This attitude of ambiguity and imboility is fully discernible in the "legal
links" that the provisions of the Statute of Westminster contemplated between
the Dominions and the mother country. The Statute, it is true, was never intended to bestow independence upon the Dominions and its main purpose was to
remove the existing restrictions on their legislative competence.
Be that as it may, under the terms of the Statute Imperial legislation extending to the Dominions in disregard of the requirements of request and consent has been rendered at least "politically impossible, even if legally valid".209
Similarly, restrictions imposed upon the constitution amending processes in the
Dominions merely operate as restrictions on the unrestricted supremacy of
Dominion Federal Parliaments in the internal constitutional arrangements, and
have no external significance.210Thus the continuing links with the mother
country do not impose upon the Dominions burdens destructive of their international personality, which as already seen, has been acknowledged by commentators and has the support of judicial authority. Viewed thus, it is submitted
that the Statute regulates the independence of the Dominions in the "internal
order" and imposes no constraints in the "external order".
The removal of legislative restrictions however "was not accompanied by the
removal of prerogative restraints", as O'Connell aptly suggests, which meant
that independence in the "external order" still remained in abeyance.
Improbable as it seems, in legal theory at least by the exercise of Royal
prerogatives, the Government of the United Kingdom seemed to occupy "a
paramount position." Realities apart, Dominion Status externally was thus
capable of being regarded as something short of complete independen~e.~"
In 1926 the term "Dominion Status" was viewed as a developing and
dynamic concept and it was through its mechanics that independence of the
Dominions in the internal order was secured and confirmed. Within the next
decade it had outlived its dynamism and by the end of the Second World War its
demise was already in the air.212Presumably the desire to eradicate all visible
manifestations of external inequality hastened the process since,
207. For example see Potter, "Dominion, Commonwealth and the Society of Nations" (1931), 25
Am. J.I.L. p.316, where faced with such situation he remarked that the constitutional practice
in the Commonwealth betrays "a fine disregard of the cherished principles and instinctive feelings of other peoples regarding national independence and even logical honesty in political
practice." Also see de Smith, The New Commonwealth and its Constitutions, (1964), p.9
where it has been pointed out that when for all practical purposes Irish Free State adopted a
republican constitution, Britain and the Dominions did not recognise the change and "insisted
that no fundamental change in existing constitutional relationship has taken place."
208. Latham, The Law and the Commonwealth, (1949), pp.512-513.
209. See Fawcett, op.cit.supra note 140, p.106.
210. Ibid.
21 1. O'Connell, op.cit.supra note 41 pp.48-49.
212. See for example Scott, "The End of Dominion Status" (1944), 38 Am. J.I.L. p.23.
International Personality and the British Dominions
117
there was attached to "Dominion Status" some remaining notion of inferiority to the
United Kingdom, some historical memory of subordinate status, of adolescence, of
the Mother country's apron-strings, it is true that "Member Status" in the Commonwealth means a change. 'Member Status' has no such associations, it contains no
embarrassing reminders of past ~ubjection."~
Since by its very nature sovereignty is regarded integral; it is incapable of a
partial allocation. History convincingly shows that once the process of transfer
of sovereignty commences it ceases only when the grant is ultimate and final.
Even the evolutionary process by which the colonies achieved sovereign independent status in the "internal order" and for all practical purposes in the
"external order" establishes that once the process of transfer was initiated it
could not be withheld. It therefore seems appropriate to conclude this examination with the significant observation of O'Connell regarding the final and ultimate step, with which the present writer finds himself in full and respectful
agreement and which, he feels would have been viewed with consternation and
disbelief not very long
Once, however, the structure of legislative unity was demolished, an accretion of competence in the matter of foreign affairs was inevitable, and even before the Statute of
Westminster the mysterious process whereby the Crown ceased to be unitary and
became divisble had set in. The process was completed at the outbreak of war in 1939,
and was formerly recognized with respect to the Royal Style and Titles upon the accession of Queen Elizabeth 11. In the outcome, the relationship between the
monarchies of the Commonwealth is that of personal union, achieved not by the
coalescence of two Crowns but by the fragmentation of a corporate sole, and it is indistinguishable from the union between Great Britain and Hanover in 1714.2'5
213. Wheare, The Statute of Westminster & Dominion Status (1953), p.309.
214. See for example Sir Cecil Hurst's remarks about the nature of the British Empire, supra note
177.
215. O'Connell, op.cit.supra note 41, p.49.