govern

Dominions, except Newfoundland, were represented by delegates appointed by their governments and not included in the British delegation. These delegates were thoroughly anomalous in status. They did not act, as has been supposed,1 under the authority of the appointment of their local ¡ments only: to avoid trouble arising, each colonial delegate was presented with a curious document, signed by the Secretary of State for the Colonies, purporting to confer on him full power to act in the matter. The procedure was in every way undesirable: the British delegates also had not full powers, but authority from the Postmaster-General, and the arrangements arrived at were not ratified but approved, and confirmed by the administrations concerned. The anomaly of the colonial delegates' position was thus lessened, but the whole plan of action seems to be badly arranged.

At any rate, the same mode of action was not followed in the case of the Radio-telegraphic Conference: the four great self-governing Dominions were each represented at it by delegates who carried with them as their credentials full powers 2 under the great seal of the United Kingdom, differing only from the full powers granted to the Imperial delegates in having the words ' on behalf of the Dominion of Canada', or as the case might be, added after the words 'Commissioner, Procurator and Plenipotentiary'. The excellent precedent thus set was followed less than two years later when, at the International Conference 3 on the safety of life at sea, held at London in December 1913 and January 1914, the selfgoverning Dominions of Canada, the Commonwealth of Australia, and New Zealand were all represented by plenipotentiaries.

The essential difference from the new as compared with the old practice lies of course in the fact that the plenipotentiaries of the Dominions are now no longer merely plenipotentiaries

1 J. S. Ewart, Kingdom Papers, ii. 234.

2 See the extract from the full powers in Ewart, Kingdom Papers, ii. 235. 3 Parl. Pap., Cd. 7426. Ewart, loc. cit., is misinformed as to the position of the Canadian delegate.

for the United Kingdom. In the case of their being included in the British delegation, the vote of the British delegation must be cast in the same sense,1 whatever the views of the different members in the case of separate plenipotentiaries the votes of the several plenipotentiaries might be very differently cast. This involves, of course, the curious position that His Majesty may through one set of plenipotentiaries declare one view and, through another, another view, but it is merely a common-sense recognition of the diversity within the uniformity of the Empire. It is no more curious than the existence of independent governments within the Empire pursuing different policies in many respects. Nor must it be ignored that the grant of full powers is advised by the Imperial Government, and that the ratification of any convention rests with the King on the advice of the Imperial Government. Thus the Imperial Government retains an effective means of control on the action of the Dominion Governments, however little such control may be likely to be required.

1 In a case in 1883, on a conference on submarine cables, Sir C. Tupper opposed the other British delegates and induced them to accept his view, Recollections of Sixty Years, p. 175.

CHAPTER XIV

POLITICAL TREATIES.

FROM the political point of view, few points remain doubtful in the rules regarding the treaty power. It is at present settled law that a treaty proper can be made only by the Crown on the advice in the long run of his Imperial ministers, that responsibility for the carrying out of treaty rests on the Imperial Government, to which demands for redress must be sent by foreign powers, and that the mere making of a treaty has no effect to alter the law of the United Kingdom or any Dominion. The Imperial Government, therefore, if it makes a treaty, must be prepared to secure that the treaty shall be put into force, and to interpret the treaty unless it is required or induced by the other party to submit the meaning of the treaty to arbitration. But the main duty of dealing with treaties which affect a Dominion must lie with a Dominion, and any treaty which requires action by a Dominion has normally been made subject to legislation therein, as in the case of the treaties with the United States affecting fishery matters in Canada in 1854 and 1871, as well as the abortive treaty negotiated by Mr. Chamberlain in 1888 and the agreement made by the Canadian ministers and the United States Secretary of State on January 21, 1911, which never came to fruition. The theory that none but a sovereign legislature and executive can deal with any matter affecting treaty rights was nevertheless actually put forward by the Government of the United States in 1886, when that Government was annoyed by Canada, but was at once refuted by the British Government, and Mr. Bayard, who put it forward,1 is shortly afterwards to be found writing to Sir C. Tupper 2 expressing his regret at the troublesome procedure of not 1 Parl. Pap., C. 4937, p. 37.

2 Recollections of Sixty Years, p. 177.

dealing direct with Canada on the matter. A similar protest against colonial action in 1891-2 by the French Government in connexion with Newfoundland was met by a similar reply,1 and the Hague arbitral tribunal of 1910, in settling the fishery dispute between the United Kingdom and the United States, provided for the case of the carrying out of British legislation by the Imperial Parliament and the Parliaments of Canada and Newfoundland.2

The question has been raised in the Dominions, by no less a person than the present Prime Minister of Canada,3 whether any treaty which requires legislative action to make it effective should not be expressed to be subject to the approval of any Parliament whose action would be concerned. The circumstances of the case on which his remarks were based were, however, very exceptional in international relations. In the United States the treaty-making power is vested in the President of the United States, and until the Senate approves a treaty it is contrary to practice that its terms should be published, though de facto the treaty is printed in all the newspapers from a copy lent by some Senator. This happened in the case of the Treaty of 1909 with the United States regarding boundary waters, which was published in the United States at a time when the Canadian House of Commons had been unable to obtain any details of its terms. The occasion was made a ground of complaint against the theoretic ignoring of Canada in the negotiations. Mr. Borden thought that by making treaties subject to parliamentary ratification such an incident would be avoided, but it does not appear that this would in any way be the case, so long as the United States Government continue to refuse official publication before consideration by the Senate, and so long as the Senate allows the treaties submitted to it to be divulged. The rest of Mr. Borden's speech of May 14, 1909, was devoted to showing the necessity of legislation to give effect to the treaty in question, the desirability of ratification being made subject to Parliamentary approval, and the enumeration of cases 1 Parl. Pap., C. 6703. 2 Parl. Pap., Cd. 5396. 3 Canada House of Commons Debates, May 14, 1909.

where treaties had been expressed as not taking effect unless legislation should be passed. His arguments, however, are not altogether convincing, if it is remembered that a treaty must be ratified, and that it is easy enough to secure discussion of a treaty before it is ratified, and that such a practice has grown up in the United Kingdom, where even if legislation is not required before ratification opportunity is given to allow of discussion, while if legislation is needed it is duly introduced and carried before ratification is accorded, as was the case with the Copyright Act of 1911, passed in order to allow of ratification of the Berlin Copyright Convention of 1908. Whether it is worth while making the treaty formally dependent on parliamentary approval, as in the case of the cessions of territory in the Anglo-German Treaty of 18901 and the Anglo-French Treaty of 1904,2 is in the main a matter of form. The important part of the question is the securing of parliamentary approval3 and the closer control of the treaty power by Parliament, of the value of which a striking instance has been given by the European War, which vindicates the action of the Upper Chamber in rejecting in 1911 the Bill which would have enabled the Government to ratify the unhappy London Convention regarding naval warfare.

The ultimate right of the Imperial Government to interpret treaties was contested very bitterly at various times by Newfoundland, but the Imperial Government have twice asserted their right in a convincing manner. On the first occasion, an episode in the long discussion over the French fishery rights in the colony, the Newfoundland delegates would not yield to the views of the Imperial Government until not only was a modus vivendi with the Republic passed over their heads, but the Imperial Government, having enforced it without legal authority, and having thought it

1 53 and 54 Vict. c. 32.

2 4 Edw. VII, c. 33.

3 So in 1914 the Act 5 Geo. V, c. 1, was obtained to allow of the ratification of the Portuguese treaty of Aug. 12, 1914. In 1911 the Geneva Convention Act was passed to allow of adherence in full to the Convention of 1906 regarding the Red Cross.

4 Parl. Pap., C. 6703; Baird v. Walker [1892] A.C. 491.