PUBLIC RECORD OFFICE
Reference :-
C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
Draft.*
High Commissioner Sir A. Milner, G.C.M.G., K.C.B., &c.
&c.
South Africa,
No.
SIR,
&c.
Downing Street,
September, 1897.
HER Majesty's Government have carefully considered the Note of the Acting State Secretary of the South African Republic of the 7th of May, a translation of which you transmitted with your Despatch, No. 446, of the 12th of May, conveying the reply of the Government of the Republic to my Despatches, Nos. 92 and 93 of the 6th of March of this year.
2. They have learned with much satisfaction that the Volksraad, on the recommendation of the Government of the South African Republic, has repealed the Alien Immigrants Law (No. 30 of 1896), and thus removed a serious ground of complaint on the part of Her Majesty's Government in connection with the London Convention. They note that the reason assigned for its repeal is not that it conflicts with the Convention, but that it has exposed the inhabitants of the neighbouring States and Colonies to inconvenience, an admission which proves that Her Majesty's Government had substantial grounds for objecting to it on its merits and independently of the fact that its enactment without the assent of Her Majesty's Government constituted a clear breach of the Convention.
3. The Government of the South African Republic decline the proposal of Her Majesty's Government for a friendly discussion between themselves and Her Majesty's Agent at Pretoria, with a view to agreeing upon the terms of a measure which, while securing the objects which they had in view in enacting the law now repealed, might justify Her Majesty's Government in waiving the strict interpretation of Article 14 of the Convention; but they propose to endeavour to come to an agreement with other Governments in South Africa as to the principles of legislation for the purpose of - excluding dangerous or detrimental immigrants.
4. Her Majesty's Government consider that a conference on this subject of the several South African Governments is desirable, but they cannot withdraw their claim to be consulted before any legislation is introduced in the South African Republic derogating from the rights secured by the Convention, to which the other South African Governments are not parties.
5. H Majesty's Government cannot accept the restricted construction which the Government of the South African Republic seek to give to Article 14 of the Convention. That Article contains one of the essential conditions upon which the internal independence of the South African Republic was accorded by Her Majesty; its terms are clear and comprehensive, expressly including all persons, other than natives, without any other qualification than that of conforming to the laws of the Republic; and Her Majesty's Government maintain that, without their consent, the Government of the South African Republic are precluded from imposing any restriction upon the entrance of aliens other than natives. At the same time they have expressed their willingness
to consider and confer with the Government of the South African Republic upon any proposed measure for effecting such restriction as may be shown to be necessary for the safety or good government of the Republic.
6. Her Majesty's Government must remind the Government of the South African Republic that when they desired to enact a law excluding Asiatic immigrants they were advised by Dr. Leyds, then State Attorney, that such a law would be contrary to the London Convention.
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7. The words in Article 14, which make conformity with the laws of the Republic condition of the right to enter, travel, and reside therein, do not, in the opinion of Her Majesty's Government, give an implied power to the South African Republic to legislate for the purpose of excluding persons who would otherwise be entitled to the benefit of the Article, by imposing conditions which it is impossible for them to fulfil. Such an implication would enable the Republic to reduce the Article to a nuility.
8. The arguments adduced in the Note of the Acting State Secretary, based on the
• For despatch as finally sent, dated 16 October 1897, sr African (South) No. 536.
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general principles of international law as applied to ordinary treaties between independent Powers, and on the actual or proposed legislation of other nations (including the United Kingdom), do not, in the view of Her Majesty's Government, apply to the case under consideration, which is not that of a treaty between two States on an equal footing, but a declaration by the Queen of Great Britain and Ireland of the conditions upon which She accorded the internal independence of the South African Republic subject to Her suzerainty, these conditions having been accepted by the delegates of the South African Republic and subsequently ratified by the Volksrand.
9. Her Majesty's Government maintain that the South African Republic is bound to adhere strictly to the terms of those conditions, and is not entitled to import into them any qualifications based on rights of nations which are not bound by similar obligations arising out of similar circumstances.
10. The Alien Immigrants Law having been repealed, Her Majesty's Government do not think it necessary to discuss further the details of its provisions to which objection was taken by them.
11. The Note proceeds to comment on the cases mentioned in my Despatch, No. 93, in which, in the opinion of Her Majesty's Government, the Goverment of the South African Republic have failed to observe the requirements of Article 4 of the Convention. The views of the Government of the South African Republic upon these cases have also been stated in the letters of the 8th of April and the 7th of May, translations of which were transmitted with your Despatches, No. 378, of the 16th of April, and No. 465, of the 14th of May.
12. As regards the Extradition Treaties with the Netherlands and Portugal, the point of difference between the two Governments lies in the meaning to be assigned to the word "completion" in Article 4 of the Convention. that the word is not used in the sense of final conclusion, and Her Majesty's Government From the context it is certain must adhere to the view that it refers to the stage at which a treaty first assumes a complete shape, viz., the signature of the Plenipotentiaries or other negotiators. It has been already pointed out in previous Despatches that the submission of a treaty for the approval of the Queen before it is submitted for confirmation by the Volksraad or by the Legislature of the other contracting State obviates the risk in the one case of friction with the Volksraad, and in the other of any complaint of a breach of international comity which might arise in the event of Her Majesty declining to approve a treaty after it had been confirmed by the Volksraad or by the foreign Legislature, and for this reason Her Majesty's Government have attached importance to the maintenance of what they hold to be the correct interpretation of Article 4, but they would be prepared in the case of treaties which require the-approval of the Volkeranda-condition-which-does-not apply to extradition-trentier-sucht-ns ime-which-are-immediately in question-to-raise-no-objection to the tent--not-being-submitted for the Queen-a-approval until after-ite neve; tuuse-by-the-Volksraad, provided-that-it-is-so-submitte-l betone-being presented-to-the-Legislature of the other contracting State. This-van-he-seenred-ly- obtaining the-approval-of-the-Volksraad-before-the-treat--is-si-ned] to be confirmed by the Legislatures of the Contracting States, and which contain or have appended to them y declaration that they will not come into force until they have been either expressly approved by the Queen or submitted to Her Majesty's Government for Her approval and not objected to within six months after such submission, to waive their strict rights and be satisfied if such treaties are submitted to them immediately after having been confirmed by the Legislatures of the contracting States.
13. The passage cited in the note of the Acting State Secretary from Lord Derby's letter of the 15th of February 1884 does not appear to have any bearing on the question of the stage at which a treaty is to be submitted for the approval of Her Majesty.
14. In the matter of the accession of the South African Republic to the Geneva Convention Her Majesty's Government, while they maintain that the London Convention required the Government of the South African Republie to obtain the Queen's approval of such accession, are willing to admit that the language of Article IX. of the Geneva Convention may have led the Government of the South African Republic to infer that such approval might be assumed; but they desire to point out that the Geneva Convention was signed in 1864. Twenty years afterwards the London Convention was concluded under which certain restrictions were laid down in regard to the engagements into which the Republie could enter with foreign States. It would seem, therefore, to follow that the terms of the Geneva Convention in its relation to the South African Republic must be read in conjunction with the London Convention, and with due regard to the limitations imposed on the Republic thereby. With reference, however, to the remark in the Acting State Secretary's letter of the 7th of May, enclosed in your Despatch, No. 465, that the accession of the South African Republic to the