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PUBLIC RECORD OFFICE

Reference :-

ITC.O. 885

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PUBLIC RECORD OFFICE, LONDON

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

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be held in this connexion to mean only "any other foreign country" as they must do if the opinion of the Law Officers be correct.

But however this may be, I do not think it is possible to hold that the words "British origin" which I have underlined in the Belgian Treaty can mean anything else than goods produced in any part of Her Britannic Majesty's Dominions.

If that is so, no higher duties, for example, could be imposed in Canada on Belgian goods than on similar goods coming from Australia; and the rights conceded by this treaty to Belgium could be claimed also by other countries under most-favoured-nation articles of a more general character.

Also under the Zollverein Treaty it is clear, as appears from the Law Officers' Report, that remissions of duty granted, for example, in Canada to Australian goods, could not be granted to similar goods coming from the United Kingdoin without the same remission being claimed by Germany, and so also hy other foreign countries under most. favoured-nation articles of a more general character.

From the above considerations it would be seen that even if, as a matter of principle, it were conceded to be expedient that British Colonies should be allowed to grant to each other customs tariffs of a preferential kind to those granted to the Mother-country, such a policy could not be carried into effect without according the preferential tariffs to foreign countries, in view of the Treaty of July 23rd, 1862, with Belgium.

Some time ago, in connexion with the question of a possible British Imperial Zoll- verein, the Belgian and German Governments were approached as to whether the two particular Articles above quoted could be abrogated; but from the replies it became evident that we could only get rid of them by denouncing the entire Treaties, which are very valuable to British trade, and which could not probably be easily replaced if we had denounced them.

In view of the opinion expressed by the Law Officers on May 6th, 1871, it would be desirable that they should again be consulted on the point now raised.

H. G. BERGNE.

March 26th, 1894.

(Signed)

COLONIAL OFFICE LETTER OF APRIL 16TH, 1894.

INTER-COLONIAL TRADE ARRANGEMENTS.

The Colonial Office now send us for the first time opinions of great weight and authority which have been expressed as to the bearing of International Treaties upon this question. No allusion is made to those opinions in their previous letter of the 22nd March last, in which the opinion of this office was asked upon this very question; and 1 wish to observe in the first place that these opinions should have been brought to our knowledge when our opinion was first asked. It is scarcely conducive to the formation of an accurate judgment, and certainly is not fair to those who have to express opinions, Had I been aware of these opinions, which if such very material facts are withheld.

were not given to the Foreign, but to the Colonial, Office, I should certainly have expressed any opinion of my own with great hesitation-and if I had ventured to differ, should have given iny reasons for doing so.

The considerations which weigh with me are the following

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1. As a general rule of treaty interpretation in cases of doubt or ambiguity, it is certainly a correct principle to compare the foreign with the English text, but in questions of this kind, which relate entirely to matters of internal concern of the British as the superior Empire, the English text would always, and rightly, be appealed to authority-as being the authoritative expression in its own tongue of that one of the two Parties who alone, in such a matter was in a position to speak with full knowledge and authority.

Therefore the suggestion that we are to take our stand on the French text only is one We must stand or fall by the English text in this which cannot be recommended. particular.

2. It is a rather curious fact that at present no adjective has been invented which comprehends with any certainty or authority the whole of the British Empire. So far "British subjects," as any word does so in any degree it is the word "British." "British ships," "British commerce," are all phrases used in existing treaties with the intention apparently of comprehending the subjects, ships, and commerce of the whole British Empire.

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3. If in this particular instance we were to assume as an unassailable proposition that the word "British" in Article 15 of the Belgian Treaty does not comprehend the British Colonies, it would be difficult to support a contrary contention in many such cases and the Colonies would lose the benefit of the stipulations now considered to be granted to them in many treaties under this form of words. In recent Treaties the difficulty has been avoided by the use of a Colonial Article, which applies the stipulations of the Treaty to the Colonies in such a way as to leave no room for doubt on this score --but many valuable Treaties still remain which do not contain an Article of this kind.

4. Even if the French text be taken in all strictness in the present case it would not help us much, as it would exclude Ireland. The words are " produits similaires, originaires de la Grande Bretagne."

5. In view that there are two parties to the construction to be placed on Treaties, I still think that these considerations are of sufficient weight to render a reference to the Law Officers desirable.

6. It is clear from the Law Officers' opinion of May 6th, 1871, that any inter-colonial tariff concessions could not be granted to the United Kingdom without being also granted to Germany under the Zollverein Treaty.

7. If the Law Officers decide that in Article 15 of the Belgian Treaty the words "articles of British origin" refer to articles coming from the United Kingdom but not to articles coming from a British Colony, it would remain for the Cabinet to consider whether a policy of differentiation by the Colonies against the Mother-country would be permissible for this would be the alternative forced on us by our Treaty with the Zollverein, under which, according to the Law Officers' opinion, a British Colony might grant preferential tariff concessions to another British Colony, but could not extend the concessions to the Mother-country without granting them to Germany, and so, under many Treaties, to various other foreign States.

8. If, on the other hand, the Law Officers advise that the words in Article 15 of the Belgian Treaty relate to articles produced in any part of the British Empire, it would remain to be considered whether that Treaty could not be modified.

Great as are the objections which (although perhaps on other grounds) may be urged against the article now in question in the Belgian Treaty, it is not likely that public opinion in the United Kingdom would be satisfied with the denunciation of the Treaty for such an object as that now proposed, which would mean the loss to the gigantic industry of the United Kingdom of the entire benefits of the Treaty-in order that the comparatively trifling interests of the Colonies should be advanced by means of differ- ential duties against the United Kingdom itself.

I put aside, therefore, the idea that the Government would contemplate the denuncia- tions of either the Belgian or Zollverein Treaties for such an object.

Both the German and Belgian Governments have been approached as to whether they would consent to modify these Treaties by the elimination of these particular articles, but they have not been willing to do so. It is very unlikely that Germany would recede from this position, but it is possible that the Belgian Government, if frankly appealed to, would not insist on a strict construction of Article 15 in a sense which would be incon- venient to Her Majesty's Government without perhaps being of much practical importance to Belgium. If Belgium did not herself claim rights they could not be claimed by other countries under general most-favoured-nation clauses.

As to the possible attitude of Belgium if they were approached on the subject, I attach great weight to Sir Thomas Farrar's views expressed on page 8 of the printed enclosure to Colonial Office letter of April 16th and think that though they would probably not insist on the application of the words of the Treaty to concessions granted to each other by groups of neighbouring Colonies, they might very possibly hold that the Treaty prohibited such concessions as between distant Colonies, such as Canada and the Australian Colonies, unless the concessions were also granted to Belgium.

(Signed) H. G. BERGNE.

Foreign Office,

April 20th, 1894.

Mr. Davidson should see the papers.-E. G.

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