"CANADA'S NATIONAL STATUS": A REPLY BY JOHN S. EWART ALLEGING that with reference to Canada's national status "ignorant misinterpretations are abroad which need to be challenged", Professor Kennedy contributed recently to THE NORTH AMERICAN REVIEW an article with a view to making "clear to foreign nations, especially to the United States", what that status is. The task is difficult. The relation between the United Kingdom and Canada is anomalous and fluid. No known political term or phrase can describe it. The legalities are sharply contradicted by the acknowledged conventions. That Canada has no power to do this or that may be admitted, but that she does it must be added. Under these circumstances, definition is impossible, and all that can be done is (1) to relate accurately the facts bearing upon Canada's status, and (2) to note their tendency. In both of these respects, there are points in Professor Kennedy's article which "need to be challenged". The chief of these, and that which is of principal interest in the United States, relates to the treaty power. Upon that subject the Professor (referring to Lord Ripon's dispatch) says: Finally regulations were drawn up in 1895 which hold the field substantially to the present time. Any treaty must be made between the Imperial Government, not the Dominion of Canada, and the foreign State concerned. Since final responsibility must remain with Great Britain, independent powers of negotiation could not be granted to Canada. Negotiations must be conducted by the British representative aided by Canadian representatives as second plenipotentiaries or as subordinates. Any treaty which might be concluded would be signed by the plenipotentiaries only after its terms had been approved by the Imperial and Canadian Governments. It would ultimately be ratified by the Crown acting on the advice of the British Cabinet, if the Canadian Government so desired; or, in the event of legislation being requisite to make its terms effective, if the Canadian Parliament so desired. Conditions of negotiation were laid down: concessions made to any foreign Power must be made to any other foreign Power having by existing treaties most-favorednation rights in Canada; any concessions so made must be extended without compensation to all British possessions; no concessions must be accepted from a foreign Government which would be prejudicial to other parts of the Empire. To say that all this holds "the field substantially to the present time" is to ignore everything that has subsequently happened. Twelve years after the Ripon dispatch.1 Sir Edward Grey when referring to the Franco-Canadian negotiations at Paris said: I do not, however, think it necessary to adhere in the present case to the strict letter of this regulation, the object of which was to secure that negotiation should not be entered into, and carried through, by a colony unknown to and independently of His Majesty's Government. The selection of the negotiator is principally a matter of convenience, and in the present instance it will obviously be left to Sir Wilfrid Laurier and to the Canadian Minister of Finance, who will doubtless keep you informed of their progress. Upon this occasion, two Canadian ministers carried on the negotiations, quite independently of the British Foreign Office, and after agreement had been reached, one of them wrote to the Foreign Secretary saying that the treaty was nearly ready and asking that arrangements might be made for its signature without delay. This marked advance upon 1895 was acclaimed in the United Kingdom as well as in Canada. Following up that precedent, and acting quite independently, Canada has carried on a series of negotiations with foreign countries with France, Germany, Italy, Spain, and, principally, with the United States. Under a treaty with the United States (1910) a permanent International Joint Commission, composed of three Americans and three Canadians (appointed by Canada), has dealt with and successfully settled a large number of questions between the two countries, and made no report of its proceedings to the Foreign Office. Canada has moved a long way from the Ripon notions, and not the least attention is paid to his "condi tions of negotiation" to which the Professor refers. Canada makes such treaty arrangements as please her. 1 Only three years after the Ripon dispatch (1898) a High Joint Commission was appointed for the settlement of questions with the United States upon which there were four Canadians and only one British representative. Ripon was out of office and his ideas already out of date. With reference to "strictly political treaties", Professor Kennedy declares: there has been no fundamental advance in this period, as international responsibility must lie with Great Britain. But he overlooks not only the secular work of the International Joint Commission, but the fact that in political treaties, as in commercial treaties, there has of late years been inserted a clause providing that Canada is not bound by them unless she assents to them. The Professor refers to such a provision in commercial treaties as a “development". He is undoubtedly right, and it is true also of political treaties, for it gives to Canada a negative control of her relations with foreign Powers. The Anglo-Japanese treaties of 1894 and 1911, for example, contained the reservation of Canada's option, and the negotiations with Japan for Canadian adhesion to the treaties were carried on, partly by a Canadian minister at Tokio and partly at Ottawa, without any interference from London. Of greater significance is the fact that the treaty between the United Kingdom and France of 28 June 1919, providing for war-assistance to France as against Germany, contained the following clause: The present treaty shall impose no obligation upon any of the Dominions of the British Empire unless and until it is approved by the parliament of the Dominion concerned. It is noteworthy that this provision contemplates the possibility of Canada abstaining from participation in a war in which the United Kingdom would be engaged. And of still greater significance, from one point of view, is the fact that the treaty of Versailles and the other peace treaties were not deemed to be complete until ratified by the parliaments of the Dominions. Referring to "foreign affairs", the Professor says: In spite of all the phrases which have passed into currency, Canada has no international status. . . Canada cannot negotiate directly with a foreign country in the political or any other important sphere. If negotiations are necessary, or called for, or Canada is vitally interested, the Crown will act on Ministerial advice with the consent of the Canadian Government. Mr. Kennedy did not forget the arrangement for the appointment of a Canadian Minister Plenipotentiary at Washington, but he made to any other foreign Power having by existing treaties most-favorednation rights in Canada; any concessions so made must be extended without compensation to all British possessions; no concessions must be accepted from a foreign Government which would be prejudicial to other parts of the Empire. To say that all this holds "the field substantially to the present time" is to ignore everything that has subsequently happened. Twelve years after the Ripon dispatch.1 Sir Edward Grey when referring to the Franco-Canadian negotiations at Paris said: I do not, however, think it necessary to adhere in the present case to the strict letter of this regulation, the object of which was to secure that negotiation should not be entered into, and carried through, by a colony unknown to and independently of His Majesty's Government. The selection of the negotiator is principally a matter of convenience, and in the present instance it will obviously be left to Sir Wilfrid Laurier and to the Canadian Minister of Finance, who will doubtless keep you informed of their progress. Upon this occasion, two Canadian ministers carried on the negotiations, quite independently of the British Foreign Office, and after agreement had been reached, one of them wrote to the Foreign Secretary saying that the treaty was nearly ready and asking that arrangements might be made for its signature without delay. This marked advance upon 1895 was acclaimed in the United Kingdom as well as in Canada. Following up that precedent, and acting quite independently, Canada has carried on a series of negotiations with foreign countries—with France, Germany, Italy, Spain, and, principally, with the United States. Under a treaty with the United States (1910) a permanent International Joint Commission, composed of three Americans and three Canadians (appointed by Canada), has dealt with and successfully settled a large number of questions between the two countries, and made no report of its proceedings to the Foreign Office. Canada has moved a long way from the Ripon notions, and not the least attention is paid to his "conditions of negotiation" to which the Professor refers. Canada makes such treaty arrangements as please her. 1 Only three years after the Ripon dispatch (1898) a High Joint Commission was appointed for the settlement of questions with the United States upon which there were four Canadians and only one British representative. Ripon was out of office and his ideas already out of date. With reference to "strictly political treaties", Professor Kennedy declares: there has been no fundamental advance in this period, as international responsibility must lie with Great Britain. But he overlooks not only the secular work of the International Joint Commission, but the fact that in political treaties, as in commercial treaties, there has of late years been inserted a clause providing that Canada is not bound by them unless she assents to them. The Professor refers to such a provision in commercial treaties as a "development". He is undoubtedly right, and it is true also of political treaties, for it gives to Canada a negative control of her relations with foreign Powers. The Anglo-Japanese treaties of 1894 and 1911, for example, contained the reservation of Canada's option, and the negotiations with Japan for Canadian adhesion to the treaties were carried on, partly by a Canadian minister at Tokio and partly at Ottawa, without any interference from London. Of greater significance is the fact that the treaty between the United Kingdom and France of 28 June 1919, providing for war-assistance to France as against Germany, contained the following clause: The present treaty shall impose no obligation upon any of the Dominions of the British Empire unless and until it is approved by the parliament of the Dominion concerned. It is noteworthy that this provision contemplates the possibility of Canada abstaining from participation in a war in which the United Kingdom would be engaged. And of still greater significance, from one point of view, is the fact that the treaty of Versailles and the other peace treaties were not deemed to be complete until ratified by the parliaments of the Dominions. Referring to "foreign affairs", the Professor says: In spite of all the phrases which have passed into currency, Canada has no international status. Canada cannot negotiate directly with a foreign country in the political or any other important sphere. If negotiations are necessary, or called for, or Canada is vitally interested, the Crown will act on Ministerial advice with the consent of the Canadian Government. Mr. Kennedy did not forget the arrangement for the appointment of a Canadian Minister Plenipotentiary at Washington, but he |