Xi Jinping in His Own Words
What China’s Leader Wants—and How to Stop Him From Getting It
THE Balfour Report of the Imperial Conference of 1926, with characteristic British pride in being able to renounce logic, declared that the British Empire, "considered as a whole, defies classification and bears no real resemblance to any other political organization which now exists or has ever yet been tried." Now this is a challenge which has troubled not merely the ingenuity of jurists and the classifications of political scientists. More important, from the practical point of view, it has sadly puzzled the foreign offices of the Powers -- and perhaps even England's own! Lord Balfour, himself a philosopher of rank, might view with satisfaction this solution of a metaphysical problem in which unity had simultaneously to be combined with multiplicity, and in which perfect independence of diplomatic action had to be reconciled with complete loyalty to a common crown. But skeptics, at least outside the Empire, began to wonder whether the talk about the Dominions being "equal in status" to Great Britain was intended to quiet the insistent nationalism of Premier Hertzog of the Union of South Africa as well as the demands of the delegates of the Irish Free State; to salve the wounded feelings of Mr. Mackenzie King of Canada, after his constitutional brush with General Byng over the dissolution of parliament; and at the same time to make no substantial changes in the actual relations of the Dominions, either within or without the Empire. To Premier Hertzog it was as good as a declaration of Dominion independence; to Premier Bruce of Australia it was a comfortably conservative statement that nothing of present practice needed to be changed.
There was much to support the view that the Report might be intended to mean all things to all men. For the right of reservation and disallowance of Dominion Acts still remained intact, as did the right to grant appeals to the Judicial Committee of the Privy Council by special leave that existed, substantially unimpaired for several Dominions, under the Royal Prerogative; there also remained the fact that Imperial Acts of the British Parliament consistently overrode Dominion Acts, whenever the former were applicable to the entire Empire, as was the case of Shipping Acts; and the fact that the Dominions could not change the basis of the common citizenship of British subjects for the entire Empire, whereas Great Britain could.
More important than any of these internal limitations, which presumably could be completed by denying to the Dominions the right legally to secede, was the external limitation upon their relations with foreign powers. Here the touchstone might be taken to be the ultimate responsibility for war and peace: the Dominions could not remain legal neutrals, neither could they issue full powers nor ratify treaties without the consent of the Crown. And in this respect the Crown was still a British Crown, acting ultimately on the advice of ministers responsible to the British Parliament.
But the foreign offices of other Powers are now having to reexamine these legalistic assumptions in the light of the actual practice of the Dominions in diplomatic relations. As it is practice rather than legal theory which has always shaped British institutions, it has become increasingly necessary to estimate the drift of practice to determine to what degree the Dominions act upon their own sole responsibility, and to what degree that right is conceded by foreign states.
President Lowell, long a close student of the actual working of the British constitutional system, gave it as his opinion in his article in FOREIGN AFFAIRS that the Balfour Report was a better guide to the facts of Dominion development than a too close scrutiny of the vestigial remains of British supremacy which the Report left for future settlement.[i] It was his view that the document implied something closely approximating a personal-union of independent states. He was convinced that, if the Crown was to be advised as of right "by the Government of each Dominion . . . in all matters relating to its own affairs" and if the Governor-General was to cease to represent the Government of Great Britain (as the Report definitely said), the Commonwealth would become a personal-union such as existed under the Hanoverian succession until, under the Salic Law, the accession of Queen Victoria put an end to the sharing of the Crown of the United Kingdom of Great Britain and Ireland and that of the Kingdom of Hanover by the same person. Under a personal-union neither government is subject to the control of the other. The Crown can be -- and actually had been in the instance before us -- at peace in one kingdom and at war in another.
That position -- which would amount to a league of independent states united by a crown symbolic only of their willingness to confer together before taking action which would affect common interests -- has not yet been reached in the development of diplomatic relations by the Dominions. Still, it is highly significant that General Hertzog, in securing the approval of the South African Parliament for the Report of the Imperial Conference of 1926, interpreted it as conceding legal neutrality to the Dominions, citing and relying upon President Lowell's arguments throughout the debate.[ii] Mr. Blythe, Minister of Finance and Vice-President of the Executive Council, has spoken for the Irish Free State Government in similar terms.[iii]
If the unanimous report which the Committee of Legal Experts submitted to the Commonwealth governments in November 1929 (published February 3, 1930) is accepted by the various parliaments and by the Imperial Conference which is to meet in the autumn of 1930, it will have pushed the development further in the direction indicated by President Lowell. For this report provides that the assent of the Dominions is to be required for any future changes in "the law touching the Succession to the Throne."
Nor is it a valid argument against the personal-union theory[iv] to urge, as Sir Cecil Hurst did, that if this view is taken officially it will affect the common citizenship of British subjects.[v] A citizen of Hanover was treated by the British courts as a natural born British subject. The advantages to the Dominions of common citizenship in the enjoyment of British treaty rights as well as in having the protection of British ministers and consular officials are undoubted, but they would not be lost by the most complete acknowledgment of a personal-union.
On the other hand, the existing supremacy of imperial legislation is not practically effective to prevent any Dominion from making immigration restrictions or limitations of political rights against any class of British subjects which it chooses to deal with. British Indians and other Asiatic subjects have been the particular victims of both types of discrimination, and even the residents of the British Isles have been subjected to strict immigration restrictions by the Dominions. England and the Irish Free State, furthermore, do not yet appear to have found how to afford British consular services to citizens of the Irish Free State unless the latter carry a British passport, since the Irish Free State puts "Citizen of the Irish Free State and of the British Commonwealth of Nations" on its passports in place of the conventional description of the bearer as a "British subject." The advantages of a completely common citizenship, then, are not in all respects achieved under the present system. So far as they exist, their retention would be no legally insuperable bar to the development of a personal-union as the constitutional basis of imperial unity.
Nor, from a practical aspect, need the international recognition of the legal neutrality of the Dominions in British wars be considered a real stumbling block. Its value within the Empire would be chiefly psychological, since it would cut almost the last ground for objection to the imperial connection from under the feet of the Nationalists in South Africa and Fianna Fail (De Valera's party) in the Irish Free State, while it would satisfy at the same time a number of anti-imperialists in Canada. Acknowledged neutrality would cut both ways. It might bring the Dominions to a more grateful appreciation of the gift they now enjoy in the protection of the British fleet if they realized that England might leave them in the future to face their own difficulties.
If this sounds very much like the disintegration of the British Empire, we must remember several things which qualify that conclusion: Great Britain has not proclaimed to foreign states the right of the Dominions to neutral status and for the present this is a most unlikely step, despite pressure from the Union of South Africa and from the Irish Free State. But should she do so, and should the Dominions possess the right to neutrality as fully as any of the other states which are members of the League, their neutrality would nevertheless be extremely improbable in any actual conflict of importance. Now that the Kellogg Pact has been added to the Covenant of the League, there are few loopholes which permit neutrality. Whether or not the United States would or could be neutral in the case of a flagrant violation of the Peace Pact is a very delicate question in American politics. For the Dominions the issue is simpler. Only if the League Council declares Great Britain to be the offender will they have neutral rights or positive duties of a different order from those of Great Britain.
Few states would care to base strategic policy on the legal neutrality of the Dominions, since in practice this would be worth little if anything more than their existing right -- conceded by England for a long time -- to remain passive belligerents should they so desire. It is even possible that the right of legal neutrality would be positively advantageous to the Empire as a whole, by permitting the Dominions to choose separately the time and circumstances of their intervention, while remaining protected by their legal neutrality from enemy attack.
Apparently, then, the concession of this point holds for Great Britain possible advantages, not the least of which would be the removal of the legal obstacle which to some degree still militates against the enjoyment of all the privileges of League membership by the Dominions. The League and the World Court now bulk so large in the instrumentalities by which Great Britain must maintain the peace essential to her commercial survival that any steps in the direction of increasing the prestige of the Dominions and their power in the League ought to be worth taking. Since the United States Senate's stand in 1920 against the Dominions and India having full membership in the League, on the grounds that it would mean "packing" that body, the feeling has never died down among foreign states that the situation was anomalous. India's position is particularly embarrassing to the Dominions that have struck out since the Peace Conference on independent lines of policy, because, in spite of the Viceroy's declaration that Dominion status is " the ultimate goal of British policy in India,"[vi] it is obvious that for some time India's attitude on the League will continue to be dictated by an Indian Office responsible to the British Parliament. Important differences of policy will not be permitted. But the fact that the League is far more important as a machinery for regular conference than as a wielder of coercive powers certainly justifies the original concession of places to India as well as to the Dominions.
The British Commonwealth of Nations is rapidly being transformed into a League -- bound by a working entente of which the Crown is a symbol -- of closely coöperating states, with the substantial privileges of common citizenship and an enormous range of joint legislation. This will become apparent as we proceed to examine, first, the British League in the World League; second, the Empire not including the self-governing Dominions; and third, the Dominions in their extra-League relations.
It is in the international relations of the British Dominions as they develop at Geneva perhaps more than in any other of their relations that we see their new status. For the Dominions accredit their League delegates by Orders of Council completed in the Dominions. There is no necessity for the Crown of Great Britain to intervene even pro forma, as it does in the granting of full powers for other negotiations and in giving Letters of Credence to the Dominion Ministers to foreign capitals. It is true that the ratification of all conventions (except the curious type "recommended" by the International Labor Organization) must come before the British Secretary of State for Foreign Affairs through his custody of the Sign Manual, which releases the King's Great Seal. So it can still be said that the formal control of treaty-making rests here, as it does elsewhere, in British hands.
But practice, again, shows that this element of legal control is purely formal for both individual and joint treaties which the Dominions sign. If action by a Dominion is considered undesirable, consultation between governments may smooth out the difficulty. If, however, a Dominion Government desires to proceed against the advice of Great Britain or that of other Dominions, it does so not only in throwing its weight and vote in the League, but in signing conventions and in advising the British Government that they have been ratified by the Dominion Parliament. It is the advice of the Dominion ministers that is now generally conceded to bind the Crown in the affixing of the Great Seal. A constitutional convention is coming into existence, certainly so far as League treaties are concerned, which no British ministry would dare to violate.
Examples of a divergence of views within the Empire began with the First Assembly of the League and have not been lacking in any session. The fact that South Africa and Canada championed the admission of Albania into the League against British opposition showed that they were not to be mere puppets of British policy. Canada's independent stand in trying to have Article X amended or, later, interpreted out of existence, though it was probably approved by Great Britain from the beginning, made a great impression in the League. Even Australia, which has on occasion been suspected of being almost as much a British stalking horse as India, helped Nansen in the vain attempt to force League intervention after the Chanak episode. Since the Australian Prime Minister had declared his intention of bringing the matter before the League immediately after receiving the unhappy surprise "telegram" which Winston Churchill and Lloyd George sent out to the Dominions as a plea for help against the Turks, and since Great Britain opposed League action, Australia may be thought in this instance to have acted independently. The attitude of the Irish Free State was never in doubt from the moment Mr. Cosgrave began talking of "sovereignty" in his first speech thanking the Assembly for the honor of admission. The registration with the Secretariat of the League of the Irish "Treaty" was followed, in spite of Great Britain's denial of its validity, by the registration of the Boundary Adjustment Agreement of 1925.
No less significant than these instances of an assertion of independent action on matters which have attracted wide attention has been the steady resistance of all the Dominions, led by Canada, to any widening of the scope of the League's activities which would empower it to raise such questions as the "equitable distribution" of raw materials, immigration, or the lowering of tariffs. One ought generally to except New Zealand in talking of Dominion independence of action, in the League or elsewhere, as she has hardly any more claim than Northern Ireland or Newfoundland to interests of her own which she is willing to assert against England. Yet in several instances even New Zealand has opposed League action in matters which Great Britain favored. For instance, along with all the other Dominions and India, she in 1920 seconded Canada's opposition to the Italian and Swiss proposal to have an examination of monopolies in raw materials and their unfair distribution.
In this particular case no doubt England's consent in the Council to have such an inquiry undertaken was given from motives of conciliation. She probably regarded the action of the Dominions as useful, if she did not inspire it. But more recently she has found them increasingly unsympathetic toward the bureaucratic expansion of the International Labor Office's functions, which England has supported. It was partly due to Dominion opposition that the International Labor Office was not able to proceed by the "inevitability of gradualness" from the repatriation of refugees to general problems of migration. And in the most recent of the efforts fostered by the League's Economic Section -- the proposal to have a two or three years' "tariff truce" -- Great Britain could not have been happy over the tenacious and even bitter opposition of all the Dominions and India to the plan to which her own delegates had given so much hopeful attention and support. All the Dominions except the Irish Free State and Canada refused to attend the 1930 conference on this proposal, and these two wished only to protect their interests by being present.
In economic matters and in labor conventions the Dominions' interests are those of countries still in the formative stage, hence with attitudes much like that of the United States. England, on the other hand, has everything to gain by freer trade, higher standards of social legislation and stronger international control (or at least pressure) in matters like the treatment of foreigners. The divergence of interests is natural, and Great Britain has come to accept it. Perhaps she gains as much by the education of the Dominions in international politics as she loses by their failure to support her.
Canada's economic importance, her rapid growth in this century, and the fact that she can fill the detached and unbiassed rôle of an umpire in European affairs and at the same time act as a useful interpreter of American opinion, all naturally fitted her to receive the first recognition of the right of a Dominion to a place on the Council. The Irish Free State had prepared the way by an unsuccessful candidacy in 1926, which was generally thought to have been rendered hopeless by the opposition of Great Britain. It remained for Canada, urged on by Senator Dandurand and M. Lapointe (both French-Canadians), to secure something just over the majority of votes required the next year, and thus reap the fruits of the independent attitude shown by the Dominions at Geneva. Senator Dandurand had been President of the Assembly and had made something of a bid for support in Central Europe at that time by stressing Canada's peculiar fitness to play a rôle in the settlement of the minority problem, as a country which had already successfully settled such a problem at home. His unusual mastery of both French and English gave him a happy technical fitness for a Council seat. In succeeding meetings of the Council he made good his hint to states interested in the protection of minorities by raising the question of the procedure followed in hearing and disposing of minority petitions before the Council. Although he did not take so extreme a position as that urged by the late Dr. Stresemann, he appeared to cause Sir Austen Chamberlain some annoyance.
It is very probable that, unless quite unforeseen changes of attitude take place among the members of the League, one Dominion will almost always have a seat on the Council. The Irish Free State has publicly indicated an intention of standing for the place which Canada must vacate in September of the present year. If she can convince Great Britain that she will not use the Council seat as she has to some degree used her membership in the League (i. e., as a platform from which to assert her independent status), she will probably achieve her ambitions. She has been very ably represented at past Assemblies, and has, in addition to her importance as a "Mother Country," a sympathetic understanding of the Latin mind which offers good opportunities of British liaison with the Latin states.
Disagreement between London and the Dominion capitals is not only to be expected on some matters but proves to be positively useful for the effective realization of British aims on questions of primary importance, since it prevents the Dominions from being treated simply as additional British spokesmen on the League. There is always more or less consultation among the delegates from the Dominions, both with each other and with the British delegates, though hardly more than takes place among other groups like the Little Entente and the Latin and the Scandinavian blocs. It is usually of a very informal type and never consists of a conference in London before the delegates reach Geneva. At Geneva there are as many meetings as the occasion requires. Whenever the Labor Party is in power in England there is apt to be something like a continuous session in Geneva of the members of the British Commonwealth of Nations (when the League Committees or the Assembly itself are not sitting). Sometimes skeleton conferences of the British Commonwealth are going on even while the League is at work.
This habit has in the past been due to the valiant efforts of the Labor Government to carry the Dominions with it in adopting sweeping changes of policy toward the League. The first of these efforts centered about the Geneva Protocol for the Pacific Settlement of International Disputes which the Labor Party backed in 1924. It became evident at that time that not all the Dominions were going to follow this lead, particularly after the "Japanese Amendment" had raised the old bogey of a clash over immigration. Senator Dandurand appeared to have been converted, but Ottawa was not. Australia was hostile, and New Zealand, embarrassed by her traditional loyalty to the British lead, prayed strongly for a change of government in the mother country. South Africa was suspicious and uncertain, and so was the Irish Free State. The demise of the Labor Government in Great Britain put an end to that dilemma, since the Conservative Government was even more eager to bury the Protocol than were the Dominions.
But the problem remained to some extent to complicate the Locarno Treaties, which the Conservatives offered to the world as a substitute for the Protocol. Canada, by refusing to place the Lausanne Treaty before Parliament for ratification, had already given a warning that she could not be led by purely British policy into "European entanglements." The lesson was accepted by Great Britain and incorporated into exemptions written into the main Locarno Treaty; these absolve the Dominions that do not choose to adhere to it from any positive obligations under the Treaty. Not a single Dominion has adhered, although there is an ambiguous statement added to the Balfour Report to the effect that the Conference wished to record that it had "heard with satisfaction" the British Foreign Secretary's statement of the efforts made in the Locarno Treaties to ensure European peace, and that it "congratulated His Majesty's Government in Great Britain on its share in this successful contribution towards the promotion of the peace of the world."
There is no want of Cassandras to prophesy that these divergencies on crucial matters of foreign policy mean that the effective unity of the Empire has disappeared. But it may well be that the Locarno method of negotiation was the only possible way to free Great Britain from an intolerable drag on her relations with European Powers. Up to 1925 there was a marked tendency on the part of England to back away from the problem of security left over from the peace treaties. At least a partial factor in this recession was the necessity which existed under the "united front" theory of imperial unity. The Dominions had sufficiently indicated their unwillingness to go as far as was thought essential by England. While their Prime Ministers were in Paris in 1919 they had made it clear that the abortive Security Treaty between France, Great Britain and the United States should contain a provision exempting the Dominions from positive obligations, similar in its principles to the clause later inserted in the Locarno Pact. At that time Great Britain had accepted the principle by signing the Treaty in this form, though it was of course not ratified.
The difficulties imposed upon British policy during the interval between the two Treaties of Mutual Guarantee and Assistance arose from an attempt on the part of Mr. Winston Churchill and others to draw the Empire closer together in foreign affairs. The meeting of Prime Ministers in 1921 was ambitiously but quite inaccurately termed "the Imperial Peace Cabinet" instead of a mere conference. It was obviously the hope of Great Britain to get the Dominions committed to joint action, guided by the British Foreign Office, in all matters of "high policy." After the reception accorded to the broadcast appeal for solidarity against the Turk at Chanak in 1922 and the equally positive attitude of refusal of obligations under the Lausanne Treaty of 1923, the 1919 policy of exempting the Dominions was revived at Locarno. In substance a united front can still be expected, for the Dominions can hardly stand aside if Great Britain is vitally involved through carrying out the Locarno Pact. The hands of the British negotiators are considerably freed by this procedure, without serious loss of Dominion support.
The Dominions have insisted upon separate invitations for their delegates to conferences where united action seemed imperative to the Dominions as well as to England. Although separate invitations were not sent them for the Washington Conference in 1923, the Dominions were separately represented, as they were also at the Reparation Conferences at Genoa, London (for the Dawes Settlement), and The Hague (for the Young Plan), and at the Geneva and London Naval Conferences in 1927 and in 1930. Separate invitations were extended to them for all the later conferences. The Dominions also successfully urged their right to sign the Kellogg Pact separately with full powers, though their victory in having notes addressed to them as individuals by the United States Department of State was minimized by the inclusion of India on the same terms.
When the Labor Government in Great Britain returned to power it had the question of the signature of the Optional Clause under Article 36 of the Statute of the Permanent Court of International Justice to deal with. Although Canada, the Irish Free State and the Union of South Africa had, after much hesitation, come to the conclusion that they could accept the compulsory jurisdiction of the Court under the Optional Clause, they were precluded from taking separate action by an agreement which had been reached at the 1926 Conference. For nearly three weeks the Dominion and British delegates at the Tenth Assembly of the League in 1929 strove to agree upon a formula of reservations which they could all sign, the assumption being that on this point uniformity of action was essential. Agreement proved to be possible on all the reservations, except so far as the Irish Free State was concerned.
The British reservations have recently been set forth and defended in a White Paper[vii] which caused a considerable stir in the American press because of the supposed implication that even American neutrality was made impossible by the Kellogg Pact. But interesting as they are because of their sweeping character, they need not detain us here except to note that several of the Dominions were insistent upon an explicit statement that matters of domestic jurisdiction -- i. e., immigration, tariffs, raw materials, etc. -- were not to be included in the disputes to be considered as justiciable by the Court; and also that the British Foreign Office was insistent upon the inclusion of a reservation which would except disputes between the members of the British Commonwealth of Nations from the compulsory jurisdiction of the Court. This no doubt was primarily aimed at preventing the Irish Free State from using the Court to raise issues like the interpretation of the Irish Treaty or the Boundary Agreement, or even the pending dispute over the Lough Foyle fisheries. The Irish refusal to accept such a reservation, and disagreement as to the necessity of the other reservations, led the Free State to affix a separate signature in advance of the other members of the Commonwealth.
The explanation which Foreign Secretary Henderson gave for the reservation regarding inter se disputes, at the time of his signature on September 19, 1929, appeared not to have been specifically included in the matters agreed upon in previous consultation, although it was simply a reiteration of the Balfour Report's conclusions on this point. At any rate it caused Mr. Eric Louw, then High Commissioner for the Union of South Africa in London and now Minister to the United States, to draw up -- after Mr. Henderson had spoken and before his own turn came to sign -- a further explanation, as follows: "With regard to the reservation as to disputes between members of the British Commonwealth of Nations, I wish to state that, although in the view of my Government such disputes are justiciable by the International Court of Justice, my Government prefers to settle them by other means -- hence the reservation." This was a support at least for the principle which the Irish Free State had been asserting, as it accepted the claim that the relations between members of the British Commonwealth were international relations of such a nature as to permit their scrutiny by the Court if not by the League. Much that has been said in South Africa by General Hertzog and other responsible leaders of the Nationalist Party would also support the Irish thesis to its extreme limits.
Canada's position on this reservation was awaited with eagerness at the Assembly, since at the present time she seems to hold the balance of power either in restraining the South African and the Irish Governments or in forcing concessions from the British Foreign Office. Along with Australia, Canada had not yet instructed her delegates at the League to sign when Great Britain, India, New Zealand and South Africa signed at a specially arranged ceremony. Two days later, however, the Canadian delegates were able to sign with the British reservations, to which Senator Dandurand added an interpretative explanation of the greatest interest: "The Dominion of Canada has excluded from the purview of the Court legal disputes with other members of the British Commonwealth for the sole reason that it is its expressed policy to settle these matters by some other method. And it has deemed opportune to include its will as a reservation, although a doubt may exist as to such a reservation being consistent with Article 36 of the Statute of the Court."
The first part of this explanation seems to support the principle advanced by Mr. Louw. As for the doubt expressed in the second part, Senator Dandurand explained it in interviews afterward to mean whether the language of Article 36 would permit the exclusion of special states or classes of states, although the article clearly did permit the exclusion of classes of disputes. The point raises the interesting question of the validity and the effect of these reservations. The British White Paper previously alluded to suggests that if the reservations are invalid the whole signature is invalid. Senator Dandurand, on the contrary, expressed the view that it would be within the competence of the Court to examine them, thus raising at least a theoretical possibility that the Irish Free State, which has not accepted such a reservation, might still be able to bring the validity of the reservations, and then an actual case, before the Court. The officially announced intention of the Irish Free State to render appeals to the Judicial Committee of the Privy Council useless, through nullifying legislation, shows that the method of judicial settlement within the Empire will not be accepted unless some radically new form of imperial court is devised.
From the British point of view there seems to be little except a principle at stake in this, just as in the matter of neutrality. At present Great Britain's record of settlement of disputes with the Irish Free State by means of what are really diplomatic negotiations has been one long history of concessions to the Free State. She might be able to take a very much stronger line with success if the Court could actually be invoked. Of course there is her imperial prestige to be considered and the dangerous character of precedents which might be used by India at some future date. But granting all this, and also the dubious assumption that such litigation before an international body would develop family feuds instead of extinguishing them, we may still question whether she has not more to gain than to lose by permitting to the Dominions whatever use they choose to make of their position as members of the League and of the Court -- subject always to the agreement that there should be prior consultation and efforts at settlement.
At the present time the British attitude toward the use of the League or the Court for inter se matters is not without a bearing on the question of whether the Dominions are to become "international units in the fullest sense of the term," as Mr. Henderson claimed they were in his explanation of the British reservation. For if the fact that they "are united by their common allegiance to the Crown" means not only, as he went on to say, that "disputes between them should be dealt with by some other mode of settlement," but that no international conventions are applicable as between the members of the Commonwealth, other states may be excused for raising a skeptical eyebrow at this British defiance of logic.
The Irish Free State has been so far from accepting this view of the nature of the Crown that she has persisted in raising difficulties over the form of signature for international conventions (under which Great Britain used to sign with full powers for the Empire, while the Dominions were grouped together below this signature). Indeed, she actually raised before the International Labor Organization at its twelfth session (May-June, 1929) an alleged violation by Northern Ireland of the "equality of treatment" provisions of the Unemployment Relief Convention; and, although she did not lodge a formal protest, she requested the International Labor Organization to obtain assurances from Great Britain that steps would be taken to repeal the requirement of three years' residence in Northern Ireland before benefit might be extended through the Unemployment Relief Act.
It was to make impossible any future assertion of an international status for the relations between the members of the Commonwealth that the Balfour Report declared that all treaties -- except mere agreements between governments -- should in the future be made "in the name of the King as a symbol of the special relationship between the different parts of the Empire." In effect, this means that only the Crown can act for any part or all parts of the Empire, except where minor administrative agreements are made between the governments of members of the Commonwealth and foreign governments. This ensures two things: first, that all treaties come to Great Britain for final ratification; and second, that, as the Crown cannot quarrel with itself, no inter se relations can have any international status. The unity of the Crown would thus make unnecessary the inclusion in further international conventions of an inter se clause of exemption.
Does the Balfour Declaration destroy the international validity of international conventions which had previously been concluded without inter se reservations and under a separate "Heads of Governments" form? That suggestion has been advanced by Professor P. Noel Baker, M.P., whose connection with the Labor Government makes his opinion interesting. But there is no ground for believing that an announcement of policy of a quasi-constitutional nature can alter international conventions, of any date, without international recognition of its validity.
If the validity of the Balfour formula goes unchallenged by foreign powers, it will probably have curious repercussions on the position of the members of the British Commonwealth in the World Court and in the League Council and possibly elsewhere. This became apparent when Sir Cecil Hurst attempted, at a meeting of the Fourteenth Session of the Committee of Jurists on March 19, 1929, to get a recognition of the right of the Dominions to have judges of their own nationality on the Court when they were interested parties. He argued that the presence of a judge of British nationality already on the Court should not preclude the presence of Dominion judges, since "an Englishman did not possess Canadian nationality and vice versa." Therefore Articles 26, 27 and 31 of the Court's Statute should permit the addition of Dominion judges, as those privileges of separate nationality were already enjoyed under Articles 4 and 10. He might have added, too, that a Canadian national now sits on the Council at the same time with a British representative.[viii]
The reception which this request obtained showed that other nations were not prepared to allow the members of the British Commonwealth to have their cake and eat it too. M. Politis led off with a counter-attack to protect the smaller states from what he feared would mean a packing of the Court by "combinations of states such as the British Empire . . . the members of which were bound together by certain ties, the nature of which it would be difficult to define." Instead of considering each Dominion as entitled to a judge where their common interests might be involved, he proposed to complete Article 17 of the Statute "to make possible for the parties to a case to object to the presence of, for example, an English or a Canadian judge when they were in dispute with a Dominion."
Although both M. Fromageot and M. Raestead were better disposed to the proposal than M. Politis, they saw certain difficulties against which Sir Cecil's plan, taken without qualifications, offered no safeguards. M. Raestead raised the very point now at issue between the Irish Free State and Great Britain as to whether there was not a sufficient constitutional bond of community in the Empire to prevent a dispute between members of the British Commonwealth from being brought before the Court. Sir Cecil was forced to reply that the British view was that relations between the units of the British Empire were different from their relations with foreign states, since the former "were not international." The Japanese delegate, M. Ito, although professing with Oriental suavity to be much embarrassed by the lack (and perhaps the unavailability) of sufficient information regarding the complex structure of the British Empire, was nevertheless certain that in international relations Australians and Canadians possessed only British nationality. He felt it dangerous to adopt Sir Cecil's views. In the face of this opposition Sir Cecil Hurst thought it wise to withdraw his request for committee action. It is noteworthy that the nearest thing to support that he received came from the United States' delegate, Mr. Root, who merely stated that, without wishing to reopen the discussion, he would like to place on record the fact that the United States had "recognized the separate international personality of the Dominions by exchanging Ministers with Canada and the Irish Free State."[ix]
Obviously this episode, if one takes into account not only the importance of the spokesmen involved but the potential bearing on the future influence of the Dominions in world politics, has more significance than to be rated as merely another of the numerous passages at arms between Sir Cecil Hurst and M. Politis. As the Greek representative is not probably ignorant of recent progress in Dominion status, his attitude seems to indicate an unwillingness to recognize the international validity of the British formula. It possibly throws some light also on the highly interesting question of the attitude of the Powers toward the even more important question of whether or not at the present time the vote of Canada should be allowed in the Council in a question affecting, say, a dispute between France and Great Britain. Would not Canada, too, be an interested party? In 1920 the answer to this seemed clear to everyone, including Canadians; or clear to everyone except certain Senators of the United States who saw in the separate Dominion votes in the Council a possibility of holding up all action in the event that the Council was about to move against Great Britain. At that time Mr. Rowell, the Canadian Minister of Justice and delegate to the League of Nations for the first Assemblies, answered this hypothetical problem by stating: "Canada owes allegiance to the same sovereign as Great Britain, and so long as she continues to do so she would be a party in the interest and disentitled to a vote (under Section 6 of Article XV). If she disclaimed her interest and claimed the right to vote she would thereby proclaim her independence."[x] But the answer now is hardly so clear as it was in 1920; Canada is actually on the Council.
The obvious difficulty arises here, as in all other matters which are affected by the peculiar status of the Members of the British Commonwealth, from the fact that much depends on the particular circumstances under which such an issue might arise. It is hard to lay down a fixed rule. Canada is "British" on any issue vitally involving the peace of the Empire. Yet in many other types of disputes the presence of Canada on the Council or on the Court would be a positive advantage to all parties to the dispute, just as in many types of international conventions of an economic or of an administrative nature it is entirely possible to omit any inter se reservation without causing any conceivable jeopardy to imperial interests even without the Balfour formula.
But international relations, wherever they assume legal form, tend almost of necessity to become stereotyped, in order that some uniform method of fixing responsibility may give legal security. The League, like the Empire, has up to the present wisely refrained from pressing some questions to a conclusion in the hope that each will follow the rule: solvitur ambulando. Yet as the legal tissues of reciprocally assumed responsibilities grow more complex in international relations, some definition of the position of the Dominions will be essential. Are they a League of fully responsible and independent states, subject in their foreign policies only to the considerations imposed by an entente symbolized as loyalty to the same King? Or is the Crown an indivisible legal unity, acting in common concerns only by unanimity and with only the whole British Commonwealth of Nations a fully competent unit internationally? Or is Great Britain always the government ultimately able to advise and control the Crown, and hence still imperial sovereign of the Commonwealth? If the second theory be the line of development, it will impose limitations equally upon Great Britain, whose freedom of action might be seriously compromised. The third is indubitably the simplest legally, but it does not fit the facts. The development of the Dominions considered as members of the League seems to be in the direction of the first.
Whatever the issue may be, decline or rebirth of the unity of the Empire, one is safe in the assumption that the nations in the British Commonwealth have moved too far along the new road to turn back to mere British supremacy. As Kevin O'Higgins put it: "The British Empire of Queen Victoria and John Mitchell is as dead as that great Queen and that great statesman." Since the middle of the nineteenth century British Liberalism has advanced the Empire far toward the art of governing by mutual consent, by compromises and adjustments of interests. The Labor Party has entered into this heritage with enthusiasm. If the newer fashion of substituting international judicial settlement for trial by arms is to be at all permanent, it will entirely change the world conditions in which the British Empire has to exist.
But this linking of the British Commonwealth and the League of Nations is perhaps tending to leave out of account two other matters of practice which have an equal importance in shaping the development of the relations of Great Britain and the Dominions with each other and with foreign powers. The first is that Great Britain alone is responsible for the government of that vast Empire where her acts are still truly imperial. It includes every shade of dependency which political ingenuity has been able to devise -- army rule combined with dyarchy and diplomacy in India, the lion's paw still held on Egypt, and colonial or "protected" bases for British exploitation of the tropics or for her sea-borne trade. The defense and the rule of this Empire Great Britain does not share with the Dominions, though she has never yet prevented them from free access to its riches, and they have in great crises come to her aid. At present her relations with India and especially with Egypt are somewhat complicated by the claim of Australia to a share in any determination of the future status of these two areas of British difficulty, as well as the future of the naval base at Singapore. Will Great Britain, in dealing with her dependencies, require a completely free hand? Can she allow the Union of South Africa or India to hold up her settlement of the problems of Kenya Colony and of the whole of East Africa? Or let Canada determine with her the future of the West Indies? Consultation, of course, and coöperation. But when ultimate determination is to be made, will it not be on her own responsibility?
If it is, it will mean that she will have to concede to the Dominions that the "Council of Empire" idea has broken down in a very important part of its functioning. The Commonwealth will not be a super-state erected over the dependent Empire. Great Britain alone will bear the burden of that Empire, and its responsibilities. She may find, too, that the relations which she has with the rest of the world, particularly with Europe and with Russia, do not permit of joint action with the Dominions, as in the Locarno Pacts.
Coming now to the third matter of practice which is shaping the outlines of the new British Commonwealth, do the Dominions enjoy as much weight outside of the League as they do inside? Do they enjoy in the ordinary unilateral diplomatic relations between states such privileges as they have won in the multilateral relations of international conferences? The answer, so far as practice to date can give it, is yes. Wherever they have cared, for reasons of trade relations or prestige or sentiment, to have ministers accredited, these have been named on the advice of their own governments, and appropriate letters of credence have been furnished. Australia and New Zealand have not enough commercial contacts to warrant the window-dressing of ministers plenipotentiary in addition to their trade commissioners: they are both content to use "informal diplomacy" to work out "gentlemen's agreements" on immigration, and for their other contacts to use the British diplomatic channels. But the Irish Free State, in addition to its minister at Washington and its advisory representative to the League at Geneva, now has opened legations at Paris, Berlin and the Holy See. Canada has legations in Washington, Paris and Tokyo, and a Geneva representative. The Union of South Africa not only has instituted a representative at Geneva, and legations at Washington, The Hague and Rome, but has also named the first Dominion consul-general, one to Lourenço Marques, to take care of her intimate railway and shipping interests in the Portuguese East African port.
In their letters of instructions, the Dominion diplomats no longer have the limiting phrases "exclusively" and "only" coupled with the name of the Dominion which they represent in order to designate the affairs to which their competence extends.[xi] The British Ambassador is to consult with them on all matters of common concern, so that they take on somewhat the aspect of a college of diplomats on Commonwealth affairs. They get their working instructions straight from their own ministries of external affairs.
What sort of juristic structure do these facts argue? For the personal-union theory, there would be some additional support in the fact that the Government of the Irish Free State successfully insisted upon having only the signatures of the members of the Royal Family on Mr. MacWhite's letter of credence, although the Regency Council which functioned during the illness of the King included a British Prime Minister and the Archbishop of Canterbury. But the existing law undoubtedly does not permit Dominion neutrality, nor can it be doubted that the Crown is not directly advised as yet by the Dominions. Ultimately, the machinery of Empire, like its power, still rests to a great degree in the hands of British ministers. The crucial test of whether the machinery is more than formal would come if, for example, De Valera as President of the Irish Free State Council should advise the King to accept the secession of the Irish Free State.
But the practices which are rapidly becoming conventions of constitutional usage to meet the everyday working strains on inter-imperial relations seem to mean that Dominion advice is automatically accepted on matters which affect only that Dominion. The shadowland of indeterminate outline emerges when we ask, Who shall determine what are matters of common concern, and who, finally, shall say how they will be settled? The one answer so far is afforded by the magic propensities of the word "consultation." Persuasion will, one is told, do away with the necessity of suasion. And as the legal forms still do insure consultation at some stage of the proceedings before the Great Seal is applied, there is good ground for hoping that no divergence of advice over treaty-making need arise so formidable as to test whether or not the British Cabinet can prevent the ratification of a treaty. The legal forms are still those of a super-state controlled by Great Britain. The practice is that of a League of States, bound by an entente to seek common solutions on matters of joint interests, even at the cost of delaying action.
This element of delay, which is an unavoidable feature of a system in which personal conferences between prime ministers can be counted upon only at Imperial Conferences every three or four years, is the serious difficulty. Distance and the inevitable growth of nationalism -- what Turgot called the ripening of colonies that makes them drop off the mother tree -- have made all plans for a federal parliament for the Empire visionary. Neither Joseph Chamberlain's "Great Council of Empire" nor the more elaborate scheme of Lionel Curtis and his Round Table associates was ever within the range of possibilities, if only because the relations of such a body with the Mother of Parliaments offer insuperable difficulties. But if consultation between conferences is to be at all workable it must depend upon some more satisfactory interchange of views than is possible through telegrams or letters from prime minister to prime minister, or even the very useful Dominions Information Service maintained by the Foreign Office, and posted through the Dominions Office. Through the latter the Dominions are kept informed of the main outlines of British foreign policy which would interest them, but references to general principles and policies are necessarily omitted. The High Commissioners in London for the Dominions do not attempt to keep in touch with the Foreign Office, although in other respects they are taking on a more diplomatic status.
If consultation comes to be relied upon instead of the guidance of the Foreign Office and the Dominion Office, perhaps the machinery of consultation may be taken more seriously. There seems to be no valid reason, except a lack of political pressure to force the issue on politicians, why the British League should not set up a council meeting of its own members every year in London, utilizing its Geneva delegations. Nor, except for inertia and the suspicion left as a heritage from the days of British political supremacy, is there any reason why the numerous imperial services for which London now pays -- such as the Imperial Economic Committee, the Empire Marketing Board, the Empire Shipping Board, the Imperial Institute, and the endless special conferences -- should not be organized like the Secretariat of the League of Nations and supported also by Dominion contributions, as is already the case with the Imperial Agricultural Bureaus.
Only if the British League takes a hint from the more inclusive League of Nations, it may be hazarded, will the coöperation develop which will make easier the difficult partnership that England has undertaken in letting so many junior members into the firm. On economic grounds, indeed, this is probably the one hopeful line of development. Or it may be that Great Britain will remain quite willing to pay the piper for all the imperial services which she now supports unaided, in order that there may be no doubt as to who shall call the tune.
[i] FOREIGN AFFAIRS, April 1927: "The Imperial Conference." This view was shared by Justice John S. Ewart in his article "Canada, the Empire and the United States" in FOREIGN AFFAIRS, October 1927, p. 127.
[ii] House of Assembly Debates, Union of South Africa, March 8, 1928, et seq.
[iii]Manchester Guardian, October 29, 1929.
[iv] Which Professor Smiddy, then Irish Free State Minister to the United States, advanced in the Harris Lectures in Chicago.
[v] For the controversy between Professor Smiddy and Sir Cecil Hurst, see "Great Britain and the Dominions," pp. 117 and 50-55. (The Norman Waite Harris Lectures at the University of Chicago, 1928.)
[vi] Earl Russell, Parliamentary Undersecretary for India, in his Cambridge speech of January 4, 1929, was reported to have said that the reason why Dominion status was " a long time ahead" for India was that between Dominion status and independence there was very little difference. Apparently the speech greatly embarrassed the Viceroy.
[vii]See memorandum on the Signature by His Majesty's Government in the United Kingdom of the Optional Clause of the Statute of the Permanent Court of International Justice. Cmd. 3452, 1929.
[viii]The Canadian Nationals Act of 1921 was passed specifically to differentiate Englishmen from Canadians in order to make Canadians eligible for the Court. But Sir Cecil would be hard put to produce legal support for the "vice versa" part of his statement: Canadians do possess British nationality, and so do all British subjects -- though not all British nationals are Canadian nationals, even if they settle in Canada.
[ix] It may be not without significance that, in the Protocol for the Revision of the Statute of the Permanent Court, the Dominions now appear in alphabetical order among the other states, and are not grouped according to the Balfour formula. (Cmd. 3453, 1929.)
[x]Morning Post, Feb. 4, 1920.
[xi] This was the case with the first Irish Free State Minister to the United States. Some doubt apparently existed in the mind of the Secretary of State at the time of issuing the invitations to sign the Kellogg Peace Pact as to whether the matter "exclusively" concerned the Irish Free State.