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PUBLIC

RECORD OFFICE

Reference :-

.885

16 PUBLIC RECORD OFFICE, LONDON

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

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with that country. The treaty with Japan refers to the rights of the "subjects of the High Contracting Parties," and provides (Article XIX.) that the stipulations of the treaty shall not apply to India and certain Colonies except on notice of adhesion. The Law Officers reported (see Paper D) that, in their opinion, Article XIX. had not the effect of limiting the rights of British subjects, connected with non- adhering Colonies or possessions, and that the question who are British subjects for the purposes of the treaty is one of British law. No test, they said, could be sug: gested for discrimination against persons connected with non-adhering Colonies, and Article XIX. merely provided that the privileges and obligations of the treaty should not enure for the benefit of non-adhering Colonies--e.g., the produce of a non- adhering Colony would not be entitled to the tariff prescribed by the treaty. The discrimination of the Article was in fact, in their view, "territorial merely, and not personal," and they accordingly held that "all persons who by British law are recog nised as possessing the rights of British citizenship all over the world are entitled to the benefits of its (ie, the Commercial Treaty's) stipulations, and this test includes the inhabitants, being British subjects, of all Colonies and dependencies, whether they adhere to the treaty or not." This opinion they confirmed in a subsequent Report furnished in the same year on a kindred point arising out of the International Con- vention for the Protection of Industrial Property, to which certain Dominions had not adhered. This subsequent Report is likewise enclosed (Paper E), as well as the circular despatch (Paper F), in which the substance of both these Reports was com-

municated to the Colonies.

a certain

6. It must be borne in mind, however, that the circumstances attending the conclusion of the Commercial Convention with Japan were somewhat exceptional. Great Britain undertook to renounce those rights of extra-territoriality which British subjects had till then enjoyed in Japan in exchange for the privileges accorded in the convention, so that the inhabitants of a non-adhering Dominion were in danger, on being deprived of the rights of extra-territoriality which they had so far enjoyed, of not being able to benefit by the fresh privileges which were mani- festly intended as substitutes for those which were resigned. It is possible, there- fore, that the peculiar circumstances of the case may perhaps have, to extent, influenced your predecessors in arriving at their decision in the case of Japan. 7. However that may be, neither Japan nor any other Power has, so far, advanced the contention that it is possible to draw a distinction between Colonial British subjects and the inhabitants of the United Kingdom, though this may be possibly because no case involving the question has ever occurred. On the other hand, it has been pointed out to Sir E. Grey by the Secretary of State for the Colonies that the admission of this distinction would entail considerable practical difficulties in certain cases-eg., if His Majesty's Government were compelled to differentiate between a Canadian and an Englishman both appealing in respect of the same grievance, or again, in the case of persons born in this country who emigrated to Australia, or in the case of Australians settled in this country. In neither of the latter cases would the change of domicil (in itself often a fact of considerable difficulty of proof) have effected any alteration in their status in the eyes of English law, but some test would clearly have to be devised whereby the moment of their change of status could be determined. I am to enclose herewith copy of a randum drawn up in the Colonial Office, which explains in detail the views held by the Secretary of State for the Colonies (Paper G).

memo-

8. In spite of the considerations therein set forth, Sir E: Grey is uncertain whether the decision taken in 1899 with regard to the Treaty with Japan should at the present time be applied generally in the case of all commercial treaties where no exceptional circumstances, such as those existing in the case of Japan, have to be

taken into account.

9. He will be glad, therefore, to be informed whether you consider that an International Court of Arbitration would be likely to approve the contention that all persons who by British law are recognised as possessing the rights of British citizen- ship all over the world are entitled to the benefits accorded to British subjects nomine in commercial conventions concluded by His Majesty's Government, and that this test includes the inhabitants-being British subjects-of each of the Dominions and dependencies, whether such Dominion or dependency has adhered to the convention or not. If, on the other hand, you consider that this contention cannot be maintained, I am to request that you will state what, in your opinion, constitutes an inhabitant of a self-governing Dominion of the Empire, for the pur- poses of excluding him from rights and privileges accorded to British subjects by a

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treaty to which the Dominion to which he belongs is not a party. Sir E. Grey will at the same time be glad to be furnished with any further observations which you may be good enough to offer on the subject generally.

LIST OF PAPERS.

I have, &c.,

LOUIS MALLET.

(A.) Model of draft Commercial Treaty. (Confidential paper (Library) No. 9378.) (B.) Treaty of Friendship, Commerce, and Navigation, between Great Britain and

Colombia of February, 16, 1866. (C) Note from the Colombian Minister for Foreign Affairs to His Majesty's

Minister, dated March 26, 1908.

(D) Letter of reference from Foreign Office to the Law Officers and their Report,

dated January 23, 1899.*

(E.), Letter of reference from Foreign Office to the Law Officers and their Report,

ར

dated October 13, 1899.†

(F.) Circular to Colonies, dated December 2, 1899.

(G.) Colonial Office Memorandum, January, 1911.

That

every

Report.

non-

individual who owes personal allegiance to the British Crown is a British subject, wherever he resides or whatever may be his domicil. His inter-. national status as a British subject cannot be affected by the adhesion, or adhesion, to any treaty of the Dominion or dependency which he inhabits. All such persons are, therefore, entitled to the benefits accorded to British subjects eo nomine in any treaty or convention concluded by His Majesty's Government, unless the par- ticular treaty or convention indicates an intention that they, or any class of them, should be excluded from the benefits conferred by it upon British subjects at large. The question whether in the case of any given treaty or convention such an intention is indicated must, of course, depend upon the construction to be placed upon the particular document,

In the case of a treaty in the form of the draft model (Paper A), the treaty- apart from Articles 20 and 21-includes within its scope all British subjects and all British territory. The only exceptions to the generality of the treaty are those contained in Article 20 (for Article 21 is merely complementary to Article 20, and goes no further in principle). Article 20, whilst it excepts from the operation of the treaty certain portions of British territory and the goods produced or manufac tured therein, does not except any persons, and so leaves the treaty applicable to all British subjects without distinction.

The result is that, in our opinion, an International Court of Arbitration, in construing a treaty in the form of the draft model, would hold that all subjects of the British Crown, including British subjects inhabiting a non-adhering Dominion or dependency, are entitled to all the benefits accorded to British subjects eo nomine in such a treaty.

We have, &c.,

Law Officers' Department,

Royal Courts of Justice, April 4, 1911.

RUFUS D. ISAACS. JOHN SIMON,

• No. 206A in Vol. V.

† No. 232A in Vol. V.

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