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Treaty-Making Procedure in the United Kingdom*

Published online by Cambridge University Press:  02 September 2013

Robert B. Stewart
Robert B. Stewart
Affiliation:
Harvard University
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Extract

The power to conclude and ratify treaties in the United Kingdom is one of the few remaining prerogatives of the crown. We may search in vain for constitutional laws, provisions, and decrees specifying the required formalities incident to the negotiation, conclusion, and ratification of treaties by Great Britain, because these matters are not governed by any act of Parliament or by any written regulations. British constitutional law on these points has not been embodied in statute and rests upon the common law alone. Thus there is no express definition of the treaty-making power and no reference to the authority by whom the treaty-making power may be exercised. Nevertheless, it may be said that under British constitutional law, which in this instance is common law, the authority to make treaties is vested absolutely in the crown as the unquestioned prerogative of sovereignty.

Type
Research Article
Information
American Political Science Review , Volume 32 , Issue 4 , August 1938 , pp. 655 - 669
Copyright
Copyright © American Political Science Association 1938

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References

1 Under the British constitution, there are two kinds of executive power. There are special powers conferred by Parliament upon the king in council and on secretaries of state or other executive officers. There is also the king's old undefined prerogative power in so far as it has not been abrogated or limited by statutes or tacitly abandoned by long disuse. Prerogative in English law means “the powers, privileges, and immunities peculiar to the king.” Prerogative powers of the king are the powers “original and inherent in the kingship, as distinct from powers conferred on him by statute.” They are “the ancient customary powers of the crown.” See Anson, W. R., The Law and Custom of the Constitution (4th ed., by Keith, A. Berriedale, Oxford, 1935), Vol. 2, Pt. 1, p. 17Google Scholar. The source of the king's executive power in the realm of treaty-making is still the ancient common-law prerogative. It has been maintained by Judge Atherley-Jones, however, that: “There is no custom or usage of the constitution to support the view that the sole power of making treaties resides in the prerogative of the crown, subject to certain defined exceptions. … The treaty-making prerogative of the crown was a usurpation of individual monarchs; on the decay of monarchism the prerogative has been arrogated by a council with no responsibility to the sovereign, and with only ex post facto responsibility to the Parliament which is its master.” Transactions of the Grotius Society, Vol. 4, 1919, pp. 95, 105, 108Google Scholar.

2 See United States, Department of State, The Treaty-Making Power in Various States (Washington, 1919), pp. 23–25Google Scholar. See also Arnold, Ralph, Treaty-Making Procedure (London, 1933), p. 38Google Scholar. This valuable little volume, compiled by Mr. Arnold on behalf of the Information Department of the Royal Institute of International Affairs, is a comparative study of the methods of treaty-making obtaining in different states, including all the members of the British Commonwealth except Canada. Palmer, Gerald E. H., Consultation and Coöperation in the British Commonwealth (London, 1934), pp. 142–150Google Scholar, deals with the practice of negotiation and ratification of treaties in the several Dominions, Canada included.

3 This limitation on the binding effect of the signature is embodied in all full powers. There are instances in the history of other countries in which signature makes ratification obligatory. The full power carried by the Spanish plenipotentiary who signed the Treaty of Amity, Settlement, and Limits with the United States, February 22, 1819, contained an authorization by the king of Spain “to conclude and sign a treaty of amity, … obliging ourselves, as we do hereby oblige our-selves and promise, on the faith and word of a King, to approve, ratify, and fulfill, and to cause to be inviolably observed and fulfilled, whatsoever may be stipulated and signed by you. …” Miller, Hunter, Treaties and Other International Acts of the United States of America (Washington, 1933), Vol. 3, pp. 3, 35Google Scholar.

4 Extradition Treaty between His Majesty, in respect of the United Kingdom, and the President of the United States of America, December 22, 1931. United Kingdom, Treaty Series, 1935Google Scholar, No. 18, Cmd. 4928.

5 See, for example, the Convention between His Majesty in respect of the United Kingdom and the President of Finland regarding the Suppression of Illicit Importation of Alcoholic Liquors into Finland, October 3, 1933. Ibid., 1933, No. 36, Cmd. 4436. Article 5 provided: “The present Convention shall come into force on the day of signature.”

6 One possible exception is a treaty by which a cession of territory is made. “It is the practice, and probably by now may be regarded as a binding constitutional convention, that treaties involving the cession of British territory (apart from the Indian Empire) require the approval of Parliament given by statute.” Wade, E. C. S. and Phillips, G. Godfrey, Constitutional Law (London, 1933), p. 206Google Scholar. See McNair, Arnold D., “When Do British Treaties Involve Legislation?,“ B.Y.I.L., Vol. 9 (1928), p. 63Google Scholar. Professor McNair says that “as a matter of strict law” treaties involving cessions of territory do not require legislation, but that “as a matter of constitutional convention a series of modern precedents makes it extremely unlikely that in future any cession will take place without statutory authority.” This subject is discussed at length in Crandall, Samuel B, Treaties; Their Making and Enforcement (New York, 1904), pp. 160–167Google Scholar; ibid. (2d ed., Washington, 1916), p. 292. The practice of consulting Parliament in regard to the cession of territory has varied widely from time to time. However, “the tendency has been undoubtedly in the direction of obtaining the sanction of Parliament more regularly, and not merely by an address to the Crown, or a vote signifying approval, but making the treaty or convention conditional on the approval of Parliament and by the embodiment of the provisions relating to the cession in the schedule of a statute. … There seems, however, to be a consensus of opinion that at the close of a war, and for the purpose of concluding a peace, the prerogative of cession is wider than it would be in the time of peace. … It may now be regarded as settled that cessions of territory should be approved by Parliament, as in the case of the cession to Italy of Jubaland in 1927, and of the transfer of certain areas to Perak in the Dindings Agreement in 1934.” Anson, op. cit., Vol. 2, Pt. 2, pp. 137, 139, 140.

7 The Act of Parliament, the Treaty of Peace Act, 9 & 10 Geo. 5, c. 33, empowering His Majesty to carry into effect the Treaty of Versailles was enacted into law July 31, 1919. The king signed the instrument of ratification of the treaty October 8, 1919.

8 This is quoted from the Canadian order in council of September 12,1919, moving His Majesty to ratify the Treaty of Versailles, printed in Canadian Sessional Papers, 1919, No. 41 j, p. 13. The Dominions were urged by the secretary of state for the colonies to register their approval of the treaties by resolutions of both houses—instead of in the form of a bill on lines of that submitted to Parliament at Westminster—and later enact such legislation on lines of the British act as might be necessary to give effect to the treaties. Resolutions were preferred in order to expedite approval.

9 The Treaty of Peace Act, 1919, 9 & 10 Geo. 5, c. 33, empowers His Majesty to give effect to the Treaty of Versailles in the following manner:

“WHEREAS, at Versailles, on the twenty-eighth day of June, nineteen hundred and nineteen, a Treaty of Peace (including a protocol annexed thereto), a copy of which has been laid before each House of Parliament, was signed on behalf of His Majesty, and it is expedient that His Majesty should have power to do all such things as may be proper and expedient for giving effect to the said Treaty:

“Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

“1.—(1) His Majesty may make such appointments, establish such offices, make such Orders in Council, and do such things as appear to him to be necessary for carrying out the said Treaty, and for giving effect to any of the provisions of the said Treaty. …

“(3) Any expenses incurred in carrying out the said Treaty shall be defrayed out of moneys provided by Parliament.”

The Treaties of Peace (Austria and Bulgaria) Act, 1920, 10 Geo. 5, c. 6, authorizes His Majesty to give effect to the Treaty of St. Germain and the Treaty of Neuilly, and the Treaty of Peace (Hungary) Act, 1921, 11 & 12 Geo. 5, c. 11, empowers His Majesty to carry into effect the Treaty of Trianon—the language in each case being identical with that used in the Treaty of Peace Act, 1919. The Treaty of Peace (Turkey) Act, 1924, 14 Geo. 5, c. 7, was enacted for carrying into effect the Treaty of Lausanne and the conventions, protocols, and declarations (eleven in all) connected with the treaty. The form of the act is identical with the earlier treaty acts.

10 The Anglo-French Treaty of June 28, 1919 (the Treaty of Assistance). United Kingdom, Treaty Series, 1919Google Scholar, No. 6, Cmd. 221, for example, provides in Article 4 that:

“The present Treaty shall before ratification by His Majesty be submitted to Parliament for approval.

“It shall before ratification by the President of the French Republic be submitted to the French Chambers for approval.”

The treaty was approved by Parliament in the Anglo-French Treaty (Defense of France) Act, July 31, 1919, 9 & 10 Geo. 5, c. 34. The treaty was made dependent for its effectiveness upon ratification of an identic text between the United States and France. Article 2 of the instrument reads: “The present Treaty, in similar terms with the Treaty of even date for the same purpose concluded between the French Republic and the United States of America, a copy of which Treaty is annexed hereto, will only come into force when the latter is ratified.” This ratification never took place. Hence the act cited above was merely a dead letter. Mr. Denys P. Myers, in a memorandum to the writer, holds that inasmuch as the Anglo-French treaty is scheduled to the act and the American treaty added as an annex, “the reading of the three documents into each other brings one to the conclusion that the act, though positive in form, was actually conditional.” This treaty is one of the few instances with which the writer is familiar in which ratification by the United Kingdom has depended on parliamentary approval; and the treaty was never ratified. This latter fact further emphasizes the principle that in the United Kingdom the making of treaties is an executive act.

11 In moving, in the House of Commons, the second reading of the bill for giving effect to the treaty of peace with Turkey on April 1, 1924, Mr. A. Ponsonby, undersecretary of state for foreign affairs, made the following statement as to the intentions of the Government of the day “with regard to the important question of the submission of treaties to Parliament”: “It has been the declared policy of the Labour party for some years past to strengthen the control of Parliament over the conclusion of international treaties and agreements, and to allow this House adequate opportunity to discuss the provisions of these instruments before their final ratification. His Majesty's Government desire at the earliest possible moment to inaugurate a new practice which will give effect to this policy. As matters stand, there is no constitutional obligation to compel the Government of the day to submit treaties to this House before ratification except in cases, such as the Treaty of Lausanne which is now under review, where a bill or a financial resolution has to receive parliamentary sanction before ratification. But as a rule formal publication of a treaty does not take place until after ratification unless parliamentary action is necessary with regard to it. I need not weary the House with the many instances of important treaties which have been signed, sealed, and ratified before this House has been afforded an opportunity of discussing their provisions …. I come, therefore, to the inauguration of a change in custom and procedure. … It is the intention of His Majesty's Government to lay on the table of both houses of Parliament every treaty, when signed, for a period of 21 days, after which the treaty will be ratified and published and circulated in the Treaty Series. In case of important treaties, the Government will, of course, take an opportunity of submitting them to the House for discussion within this period. But, as the Government cannot take upon itself to decide what may be considered important or unimportant, if there is formal demand for discussion forwarded through the usual channels from the Opposition or any other party, time will be found for the discussion of the treaty in question. … There are, of course, international conventions of a purely technical character which are not subject to ratification, and there is no reason to alter the procedure with regard to them. But treaties such as those with which I am dealing do not cover the whole ground, and His Majesty's Government desire that Parliament should also exercise supervision over agreements, commitments, and understandings by which the nation may be bound in certain circumstances and which may involve international obligations of a serious character, although no signed and sealed document may exist.” House of Commons, Parliamentary Debates, Vol. 171, 1924Google Scholar, cols. 2002–2006. Upon the return of the Conservatives to power nine months later, it was announced by Sir Austen Chamberlain, secretary of state for foreign affairs, that his government did not consider itself bound by the procedure adopted by the Labor government of laying all treaties on the table for twenty-one days before advising ratification, “which, apart from other considerations, might involve inconvenience in connection with the resolution on the subject adopted by the Imperial Conference, 1923, by which His Majesty's Government consider themselves bound.” Ibid., Vol. 179, 1924–25, col. 565. With the accession of the Labor government to power in 1929, the new secretary of state for foreign affairs, Mr. Arthur Henderson, announced the intention of his government “to restore the practice of 1924 and to lay on the table of the House, prior to ratification, those treaties which must be ratified.” Ibid., Vol. 230, col. 408. This is the practice followed today.

12 Hunter Miller, op. cit., Vol. 1, pp. 18, 19.

13 Foreign Office, Treaty Department, Ratifications of Treaties (unpublished), 1931Google Scholar, No. 4. The alternative clause sometimes used is: “Having been carefully compared, and found to be exactly conformable to each other, the said exchange took place this day in the usual form.” Ibid., 1933, No. 18.

14 See, for example, the ratification of the Agreement between the United Kingdom and Denmark Relative to Trade and Commerce (April 24th, 1933), June 6, 1933. Foreign Office, Treaty Department, Ratifications of Treaties (unpublished), 1933Google Scholar, No. 11; United Kingdom, Treaty Series, 1933Google Scholar, No. 34, Cmd. 4424.

15 Exchange of Notes between the Secretary of State and the French Ambassador to London regarding the Administration of the New Hebrides, January 31, 1935. United Kingdom, Treaty Series, 1935Google Scholar, No. 7, Cmd. 4852. Exchange of Notes between the Secretary of State and the German Ambassador to London regarding the Limitation of Naval Armaments, June 18, 1935. Ibid., 1935, No. 22, Cmd. 4953.

16 Exchange of Notes between His Majesty's Government in the United Kingdom and the Japanese Government regarding the Termination of Perpetual Leases in Tokyo, Japan, March 25, 1937. United Kingdom, Treaty Series, 1937Google Scholar, No. 29, Cmd. 5548.

17 Exchange of Notes regarding Commercial Relations between Palestine and Egypt, August 18, 1936. United Kingdom, Treaty Series, 1937Google Scholar, No. 7, Cmd. 5361.

18 United Kingdom, Treaty Series, 1933Google Scholar, No. 35, Cmd. 4435. The later annexation of Austria to Germany has, of course, upset this agreement.

19 United Kingdom, Treaty Series, 1937Google Scholar, No. 14, Cmd. 5429.

20 Arnold D. McNair, op. cit., pp. 67–68.

21 The right of the crown, by merely making a treaty, to extend to foreigners immunities from the law of the land which would affect the private rights of citizens was raised in the case of The Parliament Beige, L.R., 4 Pro. Div. 154–155 (1879). Sir Robert Phillimore held that the treaty-making prerogative did not extend to this length. Although his decision was reversed by the Court of Appeal, L.R., 5 Pro. Div. 197 (1880), the reversal was on a different ground, and the Court refrained from expressing an opinion on the point. The same question was raised but not settled in Walker v. Baird, 1892, A.C. 491. See United States, Ratification of Treaties, Sen. Doc. No. 26, 66th Cong., 1st Sess., 1919, pp. 10–24Google Scholar.

22 The protocol to the treaty of commerce and navigation, December 2, 1924, between Great Britain and Germany provided: “His Britannic Majesty's Government undertake to recommend to Parliament the necessary legislation for the removal of the disabilities imposed by the legislation specified below affecting German citizens and German companies in the United Kingdom which do not extend to the subjects or citizens or companies of the most favoured foreign country.” Effect is given to the protocol by the Former Enemy Aliens (Disabilities Kemoval) Act, 1925, 15 & 16 Geo. 5, c. 43, by merely repealing the acts enumerated.

23 See, for example, the Austrian Loan Guarantee Act, 1933, 23 Geo. 5, c. 5, which authorizes the Treasury to guarantee the portion of the Austrian loan which His Majesty's Government had undertaken to guarantee in the protocol signed at Geneva, July 15, 1932. See, also, the Trade Facilities and Loans Guarantee Act 1922 (Session 2), 13 Geo. 5, c. 4, authorizing the Treasury to guarantee payment of the Austrian loan in accordance with the protocol signed at Geneva, October 4, 1922.

24 Attorney-General for Canada v. Attorney-General for Ontario, 1937, A.C. 326.

25 The instrument of ratification of the Anglo-Danish trade agreement of April 24, 1933, for example, contains such a provision in the following terms: “Subject to the stipulation, however, that in regard to the duty on yeast the undertaking connoted by Article 2 of the Agreement and the Second Schedule to the latter shall not take effect until legislation necessary for its fulfillment shall have been agreed to by Our Parliament and shall have received Our Royal Assent.” Foreign Office, Treaty Department, Ratifications of Treaties (unpublished), 1933Google Scholar, No. 11; United Kingdom, Treaty Series, 1933Google Scholar, No. 34, Cmd. 4424 of 1933.

26 Similarly, no treaty may be negotiated for or by any of the Dominions without due consideration of its possible effect upon the United Kingdom or other parts of the Empire.

27 Muir, Ramsay, How Britain Is Governed (3d rev. ed., Boston, 1935), pp. 25, 83Google Scholar.

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