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Newfoundland and the League of Nations*

Published online by Cambridge University Press:  09 March 2016

William C. Gilmore
William C. Gilmore*
Affiliation:
The University of Edinburgh
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Extract

In recent years considerable scholarly interest has been shown in the protracted dispute between the Canadian federal government and its counterpart in Newfoundland and Labrador concerning ownership and jurisdiction over the mineral resources of the continental shelf adjacent and geologically appertaining to the Province of Newfoundland. It is to be expected that the promise of commercial deposits of oil and natural gas indicated during the 1980 drilling season, and the much-publicized discussions between the two governments as to the basis for a possible political solution to the question, will stimulate increased study of the pertinent issues in academic as well as governmental circles.

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Type
Notes and Comments
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 18 , 1981 , pp. 201 - 217
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1981

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References

1 See, e.g., Martin, , “Newfoundland’s Case on Offshore Minerals: A Brief Outline,” (1975) 17 Ottawa L. Rev. 34 Google Scholar; Kovach, , “An Assessment of the Merits of Newfoundland’s Claim to Offshore Mineral Resources,” (1975) 23 Chitty’s Law Journal 18 Google Scholar; Swan, , “The Newfoundland Offshore Claims: Interface of Constitutional Federalism and International Law,” (1976) 22 McGill Law Journal 541 Google Scholar; Ippolitio, , “Newfoundland and the Continental Shelf: From Cod to Oil and Gas,” (1976) 15 Columbia J. Transnational L. 138 Google Scholar. See generally, Harrison, , “Jurisdiction Over the Canadian Offshore: A Sea of Confusion,” (1979) 17 Osgoode Hall Law Journal, 469 Google Scholar. See also, Zapata Marine Services Inc., [1980] 2 Can. LRBR 7, and Crosbie Offshore Services, Canada Labour Relations Board Decision of December 30, 1980 (unreported).

2 Particularly in the “Hibernia” field. See, e.g., The Economist (London), January 12, 1980, at p. 48 and October 18, 1980, at pp. 99–102. See also, Canadian Business, March 1980, at pp. 66–78.

3 See correspondence between the Prime Minister and the provincial Premiers released by the Office of the Prime Minister, Ottawa, October 3, 1979. These proposals, made by the former Conservative Government of Mr. Clarke, have not, thus far, found favour with the new Liberal Government of Mr. Trudeau.

4 (1967) S.C.R. 792.

5 (1975) 8 A.L.R. 1.

6 Kidwai, , “International Personality and the British Dominions: Evolution and Accomplishment,” (1975) 9 University of Queensland L. J. 76, at 96.Google Scholar

7 See, e.g., Lewis, , “The International Status of the British Self-Governing Dominions,” (1922–23) 3 Brit. Y. B. Int’l L. 21, at 33Google Scholar; and, Noel Baker, P. J., The Present Juridical Status of the British Dominions in International Law 123–24 (London: Longmans, Green & Co., 1929).Google Scholar

8 As editor of Oppenheim, L., International Law 198, note 4 (4th ed. 1928).Google Scholar

9 See, e.g., Noel Baker, op. cit. supra note 7, at 15.

10 Keith, A. B., The Sovereignty of the British Dominions 8 (London: Macmillan & Co., 1929).Google Scholar

11 Ibid., xviii. However, by virtue of membership of the Imperial Conference, Newfoundland enjoyed the benefit of its resolutions on consultation on inter-national issues. See Keith, A. B., The Constitutional Law of the British Dominions 413 (London: Macmillan & Co., 1933)Google Scholar. Newfoundland was not completely inactive at the international level, although the greatest emphasis was on technical matters. See, e.g., Postal Convention with the United States, (1926), U.S. Statutes at Large, Vol. XLIV, Pt. 3, at 2353–57; Arrangements between the United States, Great Britain, Canada, and Newfoundland Providing for the Prevention of Interference by Ships off the Coasts of these Countries with Radio Broadcasting (1925) U.S.T.S., No. 724–A, and (1929) Canada Treaty Series, No. 6.

12 See Cmd. 2768, at 14. That Newfoundland was covered by the terms of this formulation was recognized by a clearly unenthusiastic Prime Minister in the House of Assembly on May 11, 1927. See (1927) Proceedings of the House of Assembly, 4th Sess., 26th General Assembly, at 17. A similar view was held by Whitehall authorities. See, e.g., “Participation of Newfoundland in Multilateral International Instruments,” May 10, 1930, Public Records Office, London (hereinfater P.R.O.), D.O. 35/164.

13 1931, c. 4, (U.K.). See in particular, s. 1, s. 10, and s. 11 indicating treatment similar to Australia and New Zealand.

14 “Technical Phraseology in Extradition Treaties (with special reference to the Imperial Conference formula for commercial treaties and to the position of Newfoundland),” P.R.O., D.O. 35/175.

15 Ibid.

16 See generally, Gunn, G. E., The Political History of Newfoundland: 1832–1864 (Toronto: University of Toronto Press, 1966).Google Scholar

17 E.g., Newfoundland concluded Postal Conventions with the United States in 1872, 1873, 1876, and 1894. Sir Robert Bond, first as Colonial Secretary and later as Prime Minister, gained considerable de facto freedom of movement in his negotiations with the United States on trade matters in 1890 and 1902 although neither treaty was to enter into force.

18 Roberts-Wray, K., Commonwealth and Colonial Law 252 (London: Stevens & Sons, 1966).Google Scholar

19 See Hall, H. D., The British Commonwealth of Nations 168 (Oxford: Methuen & Co., 1920).Google Scholar

20 Ibid., 169–70.

21 See Keith, A.B., War Government of the British Dominions 27 (Oxford: Clarendon Press, 1921).Google Scholar

22 Secretary of State for the Colonies to Governor of Newfoundland, Telegram 747, December 25, 1916. Newfoundland Provincial Archives, St. John’s (here-inafter N.A.).

23 See The Daily News (St. John’s), December 27, 1916.

24 Supra note 21.

25 Ibid., 28.

26 Supra note 19, at 171.

27 Quoted, ibid., 172.

28 Report of the Imperial War Conference (1917) Cd. 8566, at 4–5.

29 See Ollivier, M. (ed.), The Colonial and Imperial Conferences from 1887 to 1937, Vol. 2, at 202–3 (Ottawa: Queen’s Printer, 1954).Google Scholar

30 Supra note 21, at 36.

31 See, e.g., supra note 29, Vol. II, at 179 and 341–42.

32 See, e.g., Secretary of State for the Colonies to Governor of Newfoundland, Telegram 280, January 21, 1915. N.A.

33 Supra note 21, at 146.

34 P.R.O., CAB 28/5 — Paper 98A.

35 Supra note 19, at 185, and P.R.O., CAB 23/42, IWC 48th Meeting, Item 5.

36 See Documents on Canadian External Relations: The Paris Peace Conference of 1919 at 19 (Ottawa: Govt, of Canada, Dept. of External Affairs, 1969).

37 By necessary implication. See ibid., 20. See also Secretary of State for the Colonies to Governor of Newfoundland, January 8, 1919. N.A.

38 Reproduced in Foreign Relations of the United States: The Paris Peace Conference, Vol. Ill, at 483 (Washington, D.C.: U.S. Govt. Printing Office, 1943).

39 Ibid., 486–87.

40 Ibid., 487.

41 Supra note 36, at 189.

42 Ibid., 26–28.

43 Supra note 38, at 539.

44 Ibid., 532.

45 Ibid.

46 Ibid., 532–33.

47 P.R.O., CAB 28/6, IC 106.

48 Supra note 19, at 185–86.

49 Supra note 36, at 192.

50 P.R.O., CAB 29/28 — BED 3rd Minutes.

51 Ibid.

52 Christie, L. C., “Notes on the Development at the Paris Peace Conference of the Status of Canada as an International Person,” (Ottawa: Confidential Print, Dept. of External Affairs, July 1, 1919), at 4 Google Scholar. Public Archives of Canada, Ottawa (hereinafter PAC) MG30, E15, Vol. 6, File 18.

53 Stewart, R. B., Treaty Relations of the British Commonwealth of Nations 142 (New York: Macmillan Co., 1939).Google Scholar

54 Supra note 52, at 5.

55 For text, see ibid., 13–14.

56 Supra note 36, at 198.

57 Keith, A. B., Dominion Autonomy in Practice 57 (London: Oxford University Press, 1929).Google Scholar

58 Kidwai, supra note 6, at 96.

59 See, e.g., Crawford, J., The Creation of States in International Law (Oxford: Oxford University Press, 1979).Google Scholar

60 See, e.g., Fawcett, J. E. S., The British Commonwealth in International Law 88 (London: Stevens & Sons, 1963)Google Scholar, and O’Connell, D. P., International Law Vol. 1, at 81 (London: Stevens & Sons, 1970).Google Scholar

61 For a classic definition of independence and dependence, see Individual Opinion of Anzilotti, Austro-German Customs Union, P.C.I.J. Ser. A/B, 41, at 57 (1931).

62 Hurst, C. J. B., “The British Empire as a Political Unit,” in Great Britain and the Dominions: Lectures of the Harris Foundation 1927, at 6 (Chicago: University of Chicago Press, 1928).Google Scholar

63 Friedlander, , “The Admission of States to the League of Nations,” (1928) 9 Brit. Y.B. Int’l L. 84, at 85.Google Scholar

64 Supra note 59, at 243. See also supra note 8, at 145, note 2.

65 Supra note 63, at 95.

66 Noel Baker, op. cit. supra note 7, at 15.

67 See First Assembly — Plenary meetings, Annex C, 667.

68 See UNITAR, Small States and Territories: Status and Problems 114–18 (New York: Arno Press, 1971). On the importance of the size factor in the Liechtenstein case, see Gunter, , “Liechtenstein and the League of Nations: A Precedent for the United Nations Ministate Problem?,” (1974) 68 Am. J. Int’l L. 496, at 499.CrossRefGoogle Scholar

69 Hudson, , “Membership of the League of Nations,” (1924) 17 Am. J. Int’l L. 436, at 447, note 81.CrossRefGoogle Scholar

70 P.R.O., F.O.371/14035. For a similar view by a youthful Fitzmaurice, see minute of February 25, 1932, P.R.O., F.O. 371/16252.

71 Supra note 67.

72 Supra note 63, at 98.

73 This is not to deny that “[t]hey thus acquired a distinct legal personality, for all purposes of the League”: supra note 59, at 243.