CO885-(13-15) — Page 458

PUBLIC RECORD OFFICE

Reference :-

TLC.O.885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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same time, it must be remembered that in the first instance quoted hereafter (the Treaty of 17th May 1884 between Portugal and the South African Republic) the Government of the Republic actually asked for the approval of the Queen before submitting the Treaty to the Volksraad. But that the case of the foreign state which was a party to any such treaty presented a further point requiring special consideration. That Her Majesty's approval had not hitherto been withheld from any treaty, but that, were the Queen's right of disapproval to be exercised, Mr. Wingfield was to point out that it might be regarded as contrary to international comity that Her Majesty's Government should step in at the last moment, after the treaty had been discussed and authorised by the foreign legislature.

That a foreign government might fairly contend that it should not be invited to seek from its legislature authorisation to ratify a treaty or engagement without being informed whether, if it should succeed in obtaining such authorisation, the British Government would assent to its coming into force. That in case of a subsequent veto the foreign government might not unreasonably complain that its legislature should have been permitted to waste time in an idle discussion through the reticence of Her Majesty's Government, which might be treated as discourteous.

That on that ground, more especially, you considered it desirable to maintain that the word "completion" in Article IV. referred to the signature of a Treaty by plenipotentiaries.

That the practice hitherto followed had not been uniform, and was therefore not conclusive as to the interpretation of the Article:-

(i.) That in the case of the Supplementary Treaty of 17th May 1884, between Portugal and the South African Republic, the Government of the South African Republic requested the approval of Her Majesty previous to the authorisation of the Treaty by the Volksraad, as would be seen by reference to p. 73 of Parliamentary Blue Book C. 4213.

(ii.) That the Treaty between the South African Republic and Germany of 22nd January 1885 was submitted to and authorised by the German Reichstag before it was submitted for the approval of Her Majesty. That the records of the Colonial Office did not show at what date it was submitted to the Volksraad. That a Protocol appended to that Treaty declared that both contracting parties understood that the Treaty should not be ratified till it should have met with the expressed or tacit approval of Her Majesty in accordance with Article IV. of the London Convention.

(iii.) That a commercial Treaty between the South African Republic and France, signed on 10th July 1885, was communicated to Her Majesty's Government after it had been authorised by the Volksraad, but before it had been authorised by the French Legislature.

(iv.) That in the case of the commercial Treaty between the South African Republic and Switzerland of 6th November 1885, paragraph 2 of the Protocol attached to the Treaty was in the following terms:-

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"En raison de l'Article IV. de la Convention conclue le 27 Février 1884,

entre la Grande Bretagne et la Republique Sud-Africaine le présent traité

ne sera soumis à la ratification de l'Assemblée Fédérale Suisse que lorsque

le Gouvernement de la Republique Sud-Africaine aura fait savoir au "Conseil Fédéral Suisse que la conclusion du traité a obtenu, en conformité du sus-dit Article IV., l'approbation expresse ou tacite du Gouvernement ́ Britannique."

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That that Treaty was submitted to and authorised by the Volksraad before being communicated to Her Majesty's Government, and that the Swiss Federal Assembly authorised it after the Swiss Government had been informed by the British Minister that Her Majesty's Government had no objection to it. (v.) That the Treaty between the South African Republic and Italy of 6th October 1886 was authorised by the Volksraad before being submitted for the approval of Her Majesty. That at the time of the signature of that Treaty the Plenipotentiaries signed a Protocol declaring that it was understood that the Treaty should be ratified only after the expressed or tacit approval of the British Government.

(vi.) That the Treaty between the South African Republic and Belgium signed on 21st April 1888 was communicated to Her Majesty's Government before it was authorised by the Legislature of Belgium. That the records of the Colonial Office did not show whether it had been authorised by the Volksraad before such communication.

"

We have taken the matter into our consideration and, in obedience to your commands, have the honour to

Report-

That, by Article IV. of the Convention of 1884 the Government of the South African Republic are bound to submit to Her Majesty's Government any treaty "immediately upon its completion." This means that the treaty must be submitted as soon as its terms have been settled between the plenipotentiaries, or other agents by whom it was negotiated.

It is quite impossible that the word "completion" in this connexion can denote the final conclusion of the treaty by the ratification of the respective Governments, inasmuch as the Government of the South African Republic has bound itself by Article IV. to conclude no treaty or engagement with other Powers until the same has been approved by Her Majesty.

After " completion" of the treaty it must at once be submitted to Her Majesty. Her approval is to be inferred if six months elapse from such submission without notification of dissent on the grounds mentioned in the second sentence of Article IV. Upon such approval, express or implied, and not before, the South African Republic Government may "conclude" the treaty.

We think that the Government of the South African Republic is not bound to wait for Her Majesty's approval before submitting the terms of the treaty to the Volksraad. Whether they do so or not is a matter for their own consideration. There would certainly be some discourtesy on the part of the Government of the South African Republic if they invited the legislature of another Power to consider the terms of a treaty before they knew that Her Majesty, by approving the same, had given them authority to conclude it.

We are, therefore, of opinion that the Government of the South African Republic are bound to deliver to Her Majesty's Government a copy of any treaty or engagement immediately after such treaty or engagement has been signed, although it requires before ratification the authorisation of the legislature of both or one of the contracting parties. On the other hand, we do not think that Her Majesty's approval must be obtained before the treaty is submitted for the authorisation of the legislatures of the contracting States. The treaty cannot be concluded (by ratification) till after such approval by Her Majesty.

With reference to the suggestion that it might be supposed to involve some breach of international comity if Her Majesty's Government should withhold approval after the treaty had been discussed by the foreign legislature, it might be worthy of consi- deration whether Her Majesty's Government should not, as soon as it has received a any treaty, inform the government of the foreign State that the approval of copy of Her Majesty's Government is necessary, that the matter is under consideration, and that until Her Majesty's approval has been given the Government of the South African Republic has no power to conclude the treaty.

We have, &c.

The Right Hon. Joseph Chamberlain, M.P.,

&c.

&c.

&c.

RICHARD E. WEBSTER. ROBERT B. FINLAY.

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