The Treaty-Making Power of Canada

THE destiny of the self-governing colonies of Great Britain and their relation to the parent state is highly interesting to students of political science. It is one of the cases where the direction of the present tendency is evident, while, with the complexities of the problem, it is by no means clear whither the path will lead.

After the American Revolution, colonies were compared to fruits which when ripe fall from the tree that bears them. People were not sanguine about the value of dependencies peopled by emigrants from home, and in fact at the close of our Revolution the English-speaking colonists of Britain were too few to be of much importance. By reason, however, of her control of the sea, of the energy of her people, and the emigration of her growing population, she built up in the course of the nineteenth century colonies of ever growing power, in Canada, at the Cape of Good Hope and in Australasia; and with their increasing value to the mother country, coupled with their tendency to have opinions of their own, the problem of colonial administration presented itself afresh.

The modern relation of the United Kingdom to those dependencies with a dominant European population may be said to have begun with Lord Durham's report of 1839 on the conditions in Canada, in which he suggested that the Governor should rule through ministers responsible to the local parliament. This suggestion was put into effect by his son-in-law, Lord Elgin, in 1848, and thereafter was extended not only throughout British North America, but also to the states of Australia, to New Zealand and to Cape Colony, which in consequence became known as the self-governing colonies. The British Government retained, however, no slight measure of control through instructions to the Governors and through the right to disallow acts of the local parliaments; but these powers were used with greater and greater caution as the colonies grew in population and in self-consciousness. The progress of autonomy was further enhanced by federations among the colonies. The first of these was made in Canada in 1867, and now includes every part of British North America except Newfoundland. A generation later it was followed by the creation, in 1900, of the Commonwealth of Australia, including all the states on the mainland of that continent and Tasmania; and finally by the establishment of the Union of South Africa in 1910. The formation of these larger units has naturally fostered the spirit of nationality, and with it a stronger desire for autonomy.

Except for a few special questions, such as the treatment of native races in South Africa, and matters that may affect imperial interests or other parts of the Empire, the self-governing colonies are now wholly autonomous in regard to their internal affairs. In fact they are so in some things that affect seriously other parts of the Empire, for all these colonies exclude natives of India (although British subjects), a policy which exasperates the people of that country and has caused no little embarrassment to the government in England. But these colonies, or Dominions as they prefer to be styled, are not satisfied with internal self-government. They desire to be consulted, at least, about foreign relations, and to have power to make with foreign nations treaties which affect only themselves. Such an international autonomy has aspects akin to independence, and raises difficult and serious problems. The situation is peculiar, one that has, perhaps, never arisen before in the history of colonization. In Great Britain it is perfectly well understood that if in Canada or Australia there were a clear, general and apparently permanent desire for absolute independence, by cutting off all connection with the mother country, no attempt would be made to prevent it by force; but there is no significant desire in either of those places for such a severance. On the other hand Great Britain is not prepared to create an organic federal government for the Empire, nor are the Dominions; and the means of mutual understanding are nearly limited to informal consultations between the Governments, and to the assembling once in four years of an Imperial Conference of ministers for merely consultative purposes. Whether the Empire will in time develop a real federal government, or some looser kind of confederation, or under the pressure of events now unforeseen will disintegrate, is a momentous question for the Empire and for the whole world. The object of this paper is not, however, to speculate on that problem, but to explain a particular recent episode.

If Great Britain would not resist a genuine desire of the larger self-governing Dominions for complete separation, still less can she oppose their eagerness for a measure of international recognition. Even before the World War their representatives had been appointed British delegates for their respective Dominions at international conferences on special subjects, such as that on Radio-Telegraphy in 1912, and on Safety of Life at Sea in 1913-14. Moreover, commercial treaties made by Great Britain had of late years habitually contained a clause permitting the Dominions to adhere or not as they pleased; and treaties of commerce have been made on behalf of Canada alone, being practically negotiated by her representative, and signed by him in conjunction with the British Ambassador. This was true of the treaties with France in 1893, 1907 and 1909.^[i]

After the Dominions had sent voluntarily large forces to the World War--into which England had entered before there was time to consult them--a feeling arose among them that they ought to have a larger influence in questions of war and peace, and ought in particular to be represented by their own delegates at the conference that would close the war. They were so represented, and in March, 1919, their views on their proper status, as well as on their immediate relation to the treaty of peace, were expressed in a memorandum signed by the prime ministers of all the Dominions as follows:

"All the treaties and conventions resulting from the Peace Conference should be so drafted as to enable the Dominions to become parties and signatories thereto. This procedure will give suitable recognition to the part played at the Peace Table by the British Commonwealth as a whole, and will, at the same time, record the status attained there by the Dominions. The procedure is in consonance with the principles of constitutional government that obtain throughout the Empire. 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; and under Resolution IX of the Imperial War Conference, 1917, the organization of the Empire is to be based upon equality of nationhood."

The Treaty of Versailles was in fact signed by the representatives of the Dominions, and in its provisions for the League of Nations they were given a representation in the Assembly like independent nations. This was a long step forward in a claim for recognition as distinct international units, and one of many cases where the war hastened a process that had been slowly going on before. But while merely another step in a direction long pursued, it was one so marked as to create the impression of something new. As Mr. Rene Morin stated in the Canadian House of Commons on June 27 last: "It may be said that from that moment a status separate and distinct from that of the Empire as a whole was fully recognized as appertaining to the Dominions by the Government of Great Britain and by the foreign nations which entered the League." For freedom in the internal affairs of the Dominions an understanding with the mother country is enough. No one else is concerned. But to acquire the position of international units involves a recognition by foreign states. That was accorded by ratification of the Treaty of Versailles, with its separate membership in the League of Nations for the Dominions --at least these so regarded it. But the United States did not ratify the Treaty or accept the Covenant, and in fact the representation of the Dominions in the Assembly was one of the objections raised against the League here; and therefore the United States by failing to ratify the Treaty failed also to recognize the new status desired by them.

An opportunity for raising the question with the United States again seemed to present itself when Secretary Hughes invited the powers to send delegates to the Naval Disarmament Conference at Washington. On that occasion General Smuts, the prime minister of the Union of South Africa, sent the following cablegram to Mr. Meighen, then prime minister of Canada:^[ii]

"Pretoria, October 19, 1921

"I notice from press that you are sending representative to Washington Conference. I do not know whether you have received invitation from United States through British Government or otherwise. Would very strongly urge that you should press for such invitation before sending delegate. United States did not ratify peace treaty to which we are signatories as component independent states of British Empire. On the contrary agitation in Congress against our independent voting power in League Nations was direct challenge to new Dominion status. This is first great international Conference after Paris and if Dominions concerned are not invited and yet attend, bad precedent will be set and Dominion status will suffer. If a stand is made now and America acquiesces, battle for international recognition our equal status is finally won."

The answer was that there had not been time to ask for a separate invitation to Canada, and that to demand it would involve an unfortunate delay. Although Mr. Lloyd George informed Mr. Meighen that General Smuts had sent him a copy of this cablegram, and that he was completely in accord with the view that Dominion representatives should hold the same status as at Paris; and although he proposed that each Dominion representative should sign only on behalf of his Dominion in accordance with the precedent established at Paris, still this did not give the recognition of status desired from the United States. Nor has the concession by the Government of Great Britain that Canada might send a permanent diplomatic representative of her own to Washington accomplished the result, since it has not yet been carried out. Then came the negotiations over the Halibut Treaty.

After investigations and negotiations on the subject of fisheries, covering four years, the State Department in December, 1922, sent to the Canadian Government, through the British Ambassador, the draft of a treaty providing for a closed season for the protection of halibut on the Pacific coast of the two countries. The preamble recited the desire of the United States of America and His Majesty George V to secure the halibut fishery of the Northern Pacific Ocean, and Article 1 began:

"The nationals and inhabitants and the fishing vessels and boats, of the United States and of the Dominion of Canada, respectively, are hereby prohibited from fishing for halibut (Hippoglossus) both in the territorial waters and in the high seas off the western coasts of the Dominion of Canada and the United States, including Behring sea" during a certain season.

Nothing was said about any other British subjects, but the heading was "Convention Between the United States of America and Great Britain Concerning Halibut Fishery."

The draft of the treaty was sent on December 21 by the Ambassador to the Governor General of Canada and he, in accordance with a vote of the Committee of the Privy Council for Canada, replied on January 16 by telegram and by letter asking, beside other changes unimportant in this connection, that in the heading the words "the Dominion of Canada" should be substituted for "Great Britain." Simultaneously he cabled and wrote the same request to the Secretary of State for the Colonies in England. On February 12 the Ambassador wrote that since "the Treaty as signed will bear no title, its object being plainly expressed in the preamble of the document, I have, under instructions from His Majesty's Government, omitted from my note to Mr. Hughes modification No. 1 proposed by the Canadian Government, namely, the substitution in the title of the words 'the Dominion of Canada' for the words 'Great Britain.' " Three days later, however, there came from the Secretary for the Colonies in London a cablegram suggesting the title "Convention for the Regulation of Halibut Fisheries on the Pacific Coast of Canada and the United States." This omitted the mention of Great Britain as a party to the treaty, and was accepted by the Canadian Government.

More contentious in its implications was another request made of the Colonial Secretary in the cablegram of January 16. It was that full powers be given to Mr. Lapointe, the Canadian Minister of Marine and Fisheries, to enable him to sign the treaty on behalf of the Dominion. This involved a noteworthy correspondence of the Canadian authorities both with the Ambassador and with the Colonial Secretary in London; and, judging from the delay in obtaining an answer to the request in spite of the desire of Canada for haste in completing the treaty, there were doubtless also communications between the Ambassador and the British Foreign Office which have not been made public. On January 30 the Governor General cabled to London "My telegram January 16. Fishery Treaty last paragraph. My Ministers most anxious for reply"; and again on February 13 "My Ministers most anxious for reply to my telegram January 30 relative to furnishing Minister of Marine and Fisheries with necessary full powers to sign Halibut Fishery Treaty at earliest possible moment." On that day the full powers requested were dispatched from London. But this by no means ended the discussion of the question who was to sign the treaty. On the same date the Ambassador, evidently informed of the decision by the British Government to issue the powers, telegraphed from Washington "In signature of Treaty I understand the Canadian Minister of Marine will be with me and will have the full powers necessary"; and the next day "Enquiry made by State Department whether Mr. Lapointe will sign Treaty with me. Early reply would be much appreciated. See my telegram of February 13th." The Governor General telegraphed a reply on February 17 "My Ministers request Your Excellency to inform the United States Department that Mr. Lapointe will sign this treaty, for which purpose full powers have been mailed by the Secretary of State for the Colonies on the 13th instant"; and in another telegram, on February 21, he said "My Ministers are of the opinion that as respects Canada, signature of the treaty by Mr. Lapointe alone will be sufficient and that it will not be necessary for you to sign as well." In a telegram, however, of February 23 the Ambassador replied "I have been instructed by His Majesty's Government to sign Treaty in association with Mr. Lapointe. The above is answer to your telegram No. 7 of the 21st of February." Four days later he telegraphed that the United States wanted to present the treaty to the Senate on March 1st and had asked him whether he could sign it on the morrow on behalf of Canada, adding "I presume, however, that it would be more satisfactory that Mr. Lapointe should sign with me. Please telegraph."

Evidently there was no time to be lost. On February 28th the Governor General cabled to London, and, after acknowledging the receipt of the full powers, proceeded as follows:

"My Ministers are of opinion that, as respects Canada, signature of the Treaty by Mr. Lapointe alone should be sufficient. They proceeded on this assumption in asking for full powers for Mr. Lapointe. Having so notified the British Ambassador at Washington, it was with some surprise that an intimation was received from Sir Auckland Geddes to the effect that he had been instructed by His Majesty's Government to sign the Treaty in association with Mr. Lapointe. Evidently it has been assumed by His Majesty's Government that such was the wish of the Canadian Government. The view of my Ministers, however, is that the Treaty being one of concern solely to Canada and the United States, and not affecting in any particular any imperial interest, the signature of the Canadian Minister should be sufficient, and they would respectfully request that His Majesty's Ambassador at Washington be instructed accordingly."

The cablegram concluded with a request for a reply as soon as possible. After the receipt of this message it did not take the British Government long to decide the question. The next day came a cable from the Colonial Secretary saying "The wishes of your Ministers are being telegraphed to His Majesty's Ambassador at Washington by the Secretary of State for Foreign Affairs." The Canadian Government expressed its hearty thanks, and on March 2nd the treaty was signed on its behalf by Mr. Lapointe alone.

The principle that Canada is autonomous, not only for her internal matters, but in foreign relations so far as they affect the Dominion alone, seemed to be recognized and a precedent made for acting thereon in future. The fact was observed with interest in South Africa and Australasia; but it encountered an obstacle in an unexpected quarter. The Congressional Record for March 4 runs as follows:

"Preservation of the Halibut Fishery of the Northern Pacific Ocean

"In Executive Session, Senate of the United States.

"Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of Executive D, Sixty-seventh Congress, fourth session, a convention between the United States and Great Britain, signed on March 2, 1923, for the preservation of the halibut fishery on the Northern Pacific Ocean, including the Bering Sea, subject to the understanding, which is hereby made a part of this resolution of ratification, that none of the nationals and inhabitants and vessels and boats of any other part of Great Britain shall engage in halibut fishing contrary to any of the provisions of this treaty."

Thereupon Mr. Hughes transmitted this resolution to the British Ambassador, expressing a hope that His Majesty's Government would accept the understanding which had been made part of the ratification. As the Senate acted in executive session the reasons for adding the understanding have not been made public, but one may suppose that the object was to exclude during the closed season all other British subjects as well as the Canadians. The resolution must have been hastily drawn, for the extension of the exclusion to "any other part of Great Britain" is inaccurate. It treats Canada as a part of Great Britain. Strictly interpreted it would exclude the people of England, Scotland and Wales, but not those of Australasia or South Africa. Obviously the intention was to exclude all British subjects, but the very looseness of expression shows that the Senators were quite unaware of the intent of the Canadian Ministers and of their negotiations with the Government in London. It may safely be assumed that the Senate had no such unwillingness as has been suggested by some English writers to deal directly with Canada; no desire, by making treaties only with the authorities at Westminster, to prevent the Dominion from obtaining an independent status in this respect. Our traditions favoring the regulation of American questions by American peoples are too strong for that.

In England, as well as in Canada, the signature of the treaty by the Dominion Minister alone was regarded as an important precedent. In the House of Commons a question was asked whether this is the first occasion on which a British treaty with a foreign power has not borne the signature of a representative of the British Executive; and whether, in signing the treaty, the Canadian Minister did so as the representative of His Majesty. Mr. Bonar Law answered that the plenipotentiary who signs a treaty does so on behalf of the King, by whom his full powers are issued, and the Canadian Minister acted in that capacity on the present occasion. More he could hardly say without a statement of the attitude of the government on the status of the Dominions, and probably a later debate on a very delicate subject that might well cause irritation somewhere and would be especially inopportune in view of the Imperial Conference to be held next autumn. But he was criticized in the press for not saying whether the Cabinet had advised the King to issue the power to Mr. Lapointe and thereby assumed responsibility for the treaty, or not. The critics argued that treaties are an attribute of sovereignty, that they must bind the Empire as a whole, and therefore must be made on the advice of the imperial government (that is the Cabinet in Great Britain); that if not the unity of the Empire is dissolved.^[iii] But this view is hard to reconcile with the statement of the Dominion prime ministers in March, 1919: "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 . . . the organization of the Empire is to be based upon equality of nationhood." This statement was signed, not in view of internal matters, but of an international question--the treaty of peace. Some English authorities claim that no Governor General can issue full powers with international validity on any subjects not connected with the League of Nations^[iv]--although they admit the full independence of the Dominions from control as regards the selection and action of their delegates to the Assembly of the League. But the Dominions do not all agree with that limitation.

The opinion of Canada on the question is perfectly clear. The debate on the ratification of the Halibut Treaty took place in her House of Commons on June 27. Mr. Lapointe quoted numerous authorities on the status of the Dominions, and remarked "we are an international unit, and Canadians should not be ashamed of it. . . . Now, I claim that by signing and accepting the signature of Canada on that treaty the United States have recognized the international status of Canada, and it should not be the part of Canadians to criticize that status." Mr. Robert Forke, the leader of the Progressive Party, said "I rejoice in the fact that step by step this young country is attaining to full national existence, a nation free and equal with other nations in the commonwealth. . . . I repeat that I am only too glad to associate myself with the idea of Canada as a free and independent nation--a nation co-equal with her sister nations in the commonwealth." Mr. Rene Morin asked "Who will hold now when Canada has entered the League of Nations as a separate entity on a footing equal to that of other full sovereign states with her distinct representation that she should not necessarily enjoy a status and a diplomatic freedom enabling her to act alone in her intercourse with foreign nations in all matters which are her exclusive concern?"

These sentiments seem to have been general throughout the House, for although Mr. Meighen, the leader of the Opposition, criticized the exclusion of the British Ambassador from signing the treaty, he did so on the ground that it was discourteous and inappropriate, taking pains to make clear that he did not disagree with the opinions advanced on the status of Canada; which, indeed, he had maintained when Prime Minister. At the same time the speakers insisted that they had no desire to impair the unity of the Empire--a view expressed by the Prime Minister, Mr. Mackenzie King, when he said "We believe that the more the British Empire comes to be understood as a Britannic League of Nations, the more serviceable it will be to its component parts and to human society in general, and the more likely will it be to endure on a permanent basis. It is as a part of a league of Britannic nations, as one of a community of sister nations within the British Empire, that we have taken a course which we believe will afford recognition to that particular status."

Believing that the motive for the Senate reservation was merely to exclude all other British subjects from the halibut fishery during the closed season, and being informed by its experts that this fishery can be conducted only by using a port in Canada or the United States as a base, the Canadian Government proposed to accomplish the object of the Senate by inserting in the statute to carry out the treaty a clause forbidding the use of their ports for such a purpose during the closed season by persons of any nationality. This they preferred to accepting the Senate reservation which would have defeated their aim. They submitted the treaty for ratification, therefore, as it had been signed, and in doing so Mr. Lapointe said: "We do not wish, after considering everything, to accept this reservation, for obvious reasons; . . . We have submitted the treaty for approval because we have reasonable expectation that the Senate of the United States will withdraw that reservation at the next session of Congress. Moreover, with the legislation which we are going to enact and which will be put in force by the Governor in Council, it will be possible to reach the same end if the United States enact the same legislation, quite independently of the treaty."

The treaty, as signed, was then ratified, and the act to carry it into effect--with the clause against persons of any nationality--was passed, by both House and Senate without a division.

That the problem of the relation of the Dominions to the treaty making power is difficult, delicate and far reaching is clear; that it will be considered at the Imperial Conference this autumn is certain, for it affects every member of the Empire, including the Irish Free State. But it is hardly appropriate for a stranger to express an opinion on the constitutional questions involved, or to offer suggestions on the probable results of pursuing any course of policy. The aim of this paper is simply to set forth the standpoint of Canadian statesmen, as shown by the negotiations over a recent convention. One thing would, however, seem to be obvious. It is not conceivable that any branch of the United States Government should seek intentionally to exert an influence, direct or indirect, on the organization of the British Empire, or the relation to each other of its component parts; still less that it should strive to prevent a relaxation in the guardianship of Great Britain over Canada.

^[i]The negotiations for reciprocity with the United States in 1911 did not take the form of a treaty, but of an arrangement for concurrent legislation. It was not approved by the Canadian Parliament.

^[ii]This cablegram, and all the subsequent communications between the Governments of the Dominions and Great Britain, are taken from the copies of correspondence laid before the Canadian Parliament.

^[iii]See for example the letter to the London Times of March 19 by Prof. A. Barriedale Keith, a very high authority on the subject; and an excellent article in the Fortnightly Review for May by Mr. J. A. R. Marriott.

^[iv]e.g. Prof. Keith's letter in the Times. March 19.