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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 1 The subjects of international law, Ch.2 International persons, The Commonwealth

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2019

States, independence

The Commonwealth

Stewart, Treaty Relations of the British Commonwealth of Nations (1939) Duncan Hall, The British Commonwealth of Nations in War and Peace (in The British Commonwealth at War, eds Elliott and Duncan Hall, 1943) Mansergh, Documents and Speeches on British Commonwealth Affairs, 1931–52, (2 vols, 1953) Corbett, UTLJ, 3 (1940), pp 348 et seq Scott, AJ, 38 (1944), pp 34–49 Chevallier, Etudes Georges Scelle (vol i, 1950), pp 179–94 Jennings, BY, 30 (1953), pp 320–51 Wheare, The Statute of Westminster and Dominion Status (1953), and Constitutional Structure of the Commonwealth (1960) Sheridan, YB of World Affairs, 11 (1957), pp 236–56 Sir Ivor Jennings, Problems of the New Commonwealth (1958) Mansergh et al, Commonwealth Perspectives (1958) Fawcett, The British Commonwealth in International Law (1963) de Smith, The New Commonwealth and its Constitutions (1964) Roberts-Wray, Commonwealth (p. 257) and Colonial Law (1966) Wilson et al, International Law Standard and the Commonwealth (1966); International and Comparative Law of the Commonwealth (1968); International Law and Contemporary Commonwealth Issues (1971); and AJ, 60 (1966), pp 770–81 Verzijl, International Law in Historical Perspective (vol 2, 1969), pp 207–69 O’Connell and Riordan, Opinions on Imperial Constitutional Law (1971) Ball, The ‘Open’ Commonwealth (1971) Doxey, YB of World Affairs, 27 (1973), pp 90–109 Morvay, Souveränitätsubergang und Rechtskontinuität im Britischen Commonwealth (1974) Rousseau, Droit international public (vol 2, 1974), pp 214–63 Dale, The Modern Commonwealth (1983) Slinn, Commonwealth Law Bulletin, 15 (1989), pp 573–9 The Commonwealth Yearbook (annual volumes published by the Foreign and Commonwealth Office) For works published before 1939 see 8th ed of this vol, p 197.

§ 78  Progress of self-governing dominions towards independence

Prior to the First World War the self-governing dominions,1 Canada, Australia, New Zealand, and South Africa, had no international position, and were, from the point of view of international law, colonial portions of the mother country, even though some of them, as, for example, Canada and Australia, flew as their own flag the modified flag of the mother country, or that they had their own coinage, their own postage stamps, and the like. Nor did they become subjects of international law (although the position was somewhat anomalous) when they were admitted, side by side with the mother country, as parties to administrative unions, such as the Universal Postal Union. Even when they were empowered2 by the mother country to enter into certain treaty arrangements of minor importance with foreign states, they still did not thereby become subjects of international law, but simply exercised for the matters in question the treaty-making power of the mother country which had been to that extent delegated to them.

Between the First and Second World Wars there took place a gradual but pronounced change in the status of the self-governing dominions, in the (p. 258) direction of full statehood in international law.3 The decisive constitutional development was the enactment of the Statute of Westminster 1931.4 This gave expression to the principle of equality of status and the fully autonomous statehood of the dominions by removing any lingering remnants of their formal dependence upon the Imperial Parliament. The Statute of Westminster provided, in particular, that in the future no law or provision made by a Dominion Parliament shall be void or inoperative on the ground of repugnancy to the law of England or an Act of the Imperial Parliament, that a Dominion Parliament shall have power to repeal Imperial legislation insofar as it is in force in the dominion concerned,5 and that in the future no Act of Parliament of the United Kingdom shall extend to a dominion or a part thereof unless the dominion has requested and consented to its enactment.6 The dominions availed themselves in varying degrees of the emancipating provisions of the Statute of Westminster.7

The development since the First World War of the dominions’ internal and external independence was such as to make their status indistinguishable from (p. 259) that of full international persons,8 despite some anomalies at times.9 Their legal right to all the external10 attributes of sovereignty is undisputed, and it is now acknowledged that, for those members of the Commonwealth which retain the Crown as Head of State, in the field of their external affairs the Crown acts on the advice of the Commonwealth government concerned.

(p. 260) With the passing of the doctrines of the indivisibility of the Crown11 and of common allegiance,12 there is no longer13 room for the view that a declaration of war by any member of the Commonwealth would involve in war all other members of the Commonwealth, including the United Kingdom. At the commencement and in the course of the Second World War the various dominions exercised, in principle, their right to declare war separately from the action taken by Great Britain.14 The fact that some of the dominions (and some other states which have become members of the Commonwealth) retained links with the Judicial Committee of the Privy Council as the final court of appeal from their courts in no way affects their independent status;15 the Judicial Committee does not function solely as a court of the United Kingdom, but as an integral part of the constitutional structure of each Commonwealth state which retains the right of appeal to it.

(p. 261) § 79  The Commonwealth since 1945

Much of the former uncertainty about the international status of the dominions arose as a result of the gradual process of evolution through which they progressed to independence. Since 1945 independence has been attained normally as the result of a single act by which dependent status was ended and independence attained. There has consequently been little room for ambiguity as to the fully independent status of those members of the Commonwealth which at the end of the Second World War were still British dependent territories but which have since been granted independence.1

Upon becoming independent, a former British2 dependent territory usually seeks to join the Commonwealth. There is no set formal procedure for admission; the views of existing Commonwealth members are sought and their agreement to the membership of the new member has always been forthcoming. However, a territory becoming independent may not wish to join the Commonwealth, as was the case with Burma in 1947,3 the Southern Cameroons in 1961, (p. 262) and the Southern Arabian Federation in 1967. Similarly, a state which has joined the Commonwealth may cease to be a member, as did the Republic of Ireland,4 South Africa in 1961,5 Pakistan in 1972,6 and Fiji in 1987.7 Although at one time there was some uncertainty, it is now established that, although Queen Elizabeth (p. 263) II is the Head of the Commonwealth, a state may be a member of the Commonwealth notwithstanding that it is a republic.8

The full international personality of the members of the Commonwealth is not inconsistent with the fact that their relations inter se are, in some respects, of a special character. Generally, members of the Commonwealth do not treat other member states as ‘foreign’ states.9 While the members of the Commonwealth send permanent representatives to and receive them from other members of the Commonwealth, they are usually designated as High Commissioners instead of ambassadors. However, these representatives for most purposes now enjoy a status virtually indistinguishable from that of diplomatic representatives of foreign states, although this was not formerly the case.10 Again, although acceptances (p. 264) by members of the Commonwealth of the obligations of the ‘optional clause’ of the Statute of the International Court of Justice used to reserve from its operation disputes which might arise among them, this is not now the invariable practice.11 Similarly, the concept of a common national status12 as ‘British subject’ or ‘Commonwealth citizen’ does not carry with it the full implications of equality of status in all the territories of the Commonwealth,13 although it is (p. 265) still not without significance or direct practical application; nor does that concept now generally prevail in the application of those rules of international law which determine a state’s rights and duties by reference to an individual’s nationality.14 In connection with treaties too, earlier views that inter se agreements were a domestic matter and were not strictly treaties in international law have given way to a general acknowledgement that such agreements can be treaties.15 Although the special legal characteristics of inter se relations are in general diminishing16 and those relations are now more widely accepted as truly international in character, Commonwealth relationships are still characterised by a special and close degree of cooperation.17

§ 80  The legal nature of the Commonwealth

On 1 January 1990, 50 states were members of the Commonwealth.1 While it is clear that they are all fully sovereign states in international law, the question as to the particular category of international persons in which the Commonwealth regarded as a unit should be placed is more difficult to answer;2 it has in any case varied during the course of its development over the last half century. It is apparently sui generis and defies classification. It is not a federal state because there is no organ which has power (p. 266) both over the member states and their citizens. It is not a confederation because there is no treaty which unites the member states and no organ which in fact and, for all material purposes, in law has power over them. The Commonwealth Secretariat, established in 1965,3 is primarily a coordinating body, without legal powers over the member states; the regular meetings of Heads of Governments of member states (and of other ministers) are essentially informal and consultative in character.4 It is unrewarding to enquire whether the Commonwealth resembles a real or personal union since although the Crown is accepted by all members of the Commonwealth (even by those which are republics, or separate monarchies) as the symbol of the free association of its independent member nations and as such the Head of the Commonwealth, the latter is not, as such, based on the concept of a common allegiance to the Crown.5 On the other hand, there must be taken into consideration the legally relevant fact of Commonwealth citizenship and the circumstance that the countries of the Commonwealth do not all consider each other in all respects as foreign countries.6 Moreover, account must be taken of the flexible but regular and effective machinery of consultation and exchange of information.7 The Commonwealth is a community of states in which the absence of a rigid legal basis of association is compensated by the bonds of common origin, history and legal tradition.


It will be noted that the term ‘dominion’ did not appear in the official title of Australia, which is a ‘commonwealth’, or of South Africa, which, when a member of the Commonwealth, was a ‘union’. However, until after the Second World War it was usual to refer to Canada, Australia, New Zealand and South Africa as dominions. India and Pakistan were initially set up on independence as two dominions: Indian Independence Act 1947. The Ceylon Independence Act 1947 did not refer to Ceylon as a dominion; nor has the term been used when other British territories have become independent.

Newfoundland was for a time a dominion, but although a separate member of the League of Nations its international status was not as advanced as that of other dominions. See on this aspect, Gilmore, Can YBIL, 18 (1980), pp 201–17. In 1933 the British Parliament passed the Newfoundland Act suspending the Constitution of Newfoundland and providing for the administration of the dominion by a governor acting on the advice of a Commission of Government. In 1948, as the result of a referendum to that effect in Newfoundland, an agreement was concluded between the two countries according to which Newfoundland united with Canada and became a province in the Canadian Federation. The terms of the Agreement are annexed to the British North America Act 1949 which confirmed and gave effect to the terms of union.

See § 595, n 1.

For a summary of the salient historical facts see 8th ed of this vol, pp 199–203. See also Gilmore, Vir JIL, 22 (1982), pp 481–517.

That Statute was enacted in pursuance of the Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation of 1929 (Cmnd 3479) which, in turn, was summoned in accordance with a resolution of the Conference of 1926. See also the British Commonwealth Merchant Shipping Agreement of 10 December 1931 (1932), Cmnd 3994, removing the restrictions on the dominions with regard to merchant shipping and recognising their full legislative authority over all ships within their territorial waters or engaged in their coasting trade. The Agreement was subsequently registered by the Union of South Africa under Art 18 of the Covenant on 10 May 1932, No 2960.

In Moore and Others v Attorney-General for the Irish Free State and Others [1935] AC 484, the Judicial Committee of the Privy Council held that, in view of the Statute of Westminster, the legislature of the Irish Free State was competent to enact legislation abrogating the Anglo-Irish Treaty of 1921 (which had been incorporated in an Imperial Act of Parliament). No opinion was expressed on the conformity of such action with the ‘contractual’ obligations of the Irish Free State. See also British Coal Corpn v R [1935] AC 500, affirming the rights of Canada, under the provisions of the Statute of Westminster, to abolish appeals to the Judicial Committee of the Privy Council in criminal matters: see Jennings, LQR, 52 (1936), pp 173–88. See similarly Ibralebbe v R [1964] AC 900, 924–5, as regards Ceylon’s legislative powers after independence. See n 15 as to appeals to the Judicial Committee.

See Mahaffy, The Statute of Westminster 1931 (1932); Wheare, The Statute of Westminster and Dominion Status (5th ed, 1954); Kennedy, LQR, 48 (1932), pp 191–216; Ewart, Can Bar Rev, 10 (1932), pp 111–22; Hudson, HLR, 46 (1932–33), pp 261–89; Loren, JCL, 3rd series, 15 (1933), pp 47–53; Chevallier, RI (Paris), 17 (1936), pp 413–41.

According to s 10 of the Statute of Westminster, its principal provisions were not applicable to Australia and New Zealand until adopted by the Parliaments of these dominions. Australia adopted the Statute of Westminster only in 1942 and New Zealand in 1947. See also the New Zealand cases, Woolworths (New Zealand) Ltd v Wynne, ILR, 19 (1952), No 16, and R v Fineberg (1967), ILR, 45, p 4.

Thus in 1934 South Africa re-enacted the Statute of Westminster so as to make it also a South African statute and to make South Africa, according to its law, fully independent of the Imperial Parliament (Status of the Union Act 1934). The same Act proclaimed the status of South Africa as a ‘sovereign independent State’.

The Irish Free State went much further. The Constitution Act 1936 removed the Crown from all the internal activities of the Free State. The Executive Authority (External Relations) Act 1936, in empowering the Executive Council to appoint diplomatic and consular representatives and to conclude international agreements, ‘authorised’ the King to act on behalf of Ireland in these matters as and when advised by the Executive Council to do so. The Constitution of 1937 described Ireland as a sovereign and independent state.

By 1945 Canada, Australia, New Zealand, South Africa and Ireland were all sending diplomatic and, some of them, consular representatives to various countries. Some of them, by acquiring the Great Seal and thus making it possible to dispense with the royal signature, secured machinery for the more expeditious exercise of their undisputed power of concluding treaties. Canada and South Africa acquired a Great Seal in 1932; Australia did the same, though for more limited purposes, in 1939.

As to the developments in Australia’s position see Latham, The Law and the Commonwealth (1949); O’Connell, International Law in Australia (1965), pp 1–33; Sawer in ibid, pp 35–51.

Much of the history of Canada’s constitutional development was judicially considered in detail in the litigation accompanying the ‘patriation’ of the Canadian constitution in 1982: see R v Secretary of State for Foreign and Commonwealth Affairs, ex parte India Association of Alberta [1982] QB 892, on which see Crawford, BY, 53 (1982), pp 253–9. See also Manuel v Attorney-General, Noltcho v Attorney-General [1983] 1 Ch 77; and § 22, n 7. See also the First, Second and Third Reports of the House of Commons Foreign Affairs Committee in 1980 and 1981 on the British North America Acts (HC (1980–81) 42; HC (1980–81) 295; HC (1981–82) 128), and the observations by the Secretary of State for Foreign and Commonwealth Affairs on the First Report (Cmnd 8450). For earlier consideration of Canada’s position see Corbett and Smith, Canada and World Politics (1928); Ollivier, Problems of Canadian Sovereignty (1945); Ewart, Canadian Historical Review, 9 (1928), pp 194–205; Russell, AS Proceedings (1928), pp 19–26; Rowell, Can Bar Rev, 8 (1930), pp 570–86; Round Table, 25 (1934–35), pp 100–12; Scott, Foreign Affairs (USA), April 1937, pp 429–42; Elkin, RG, 45 (1938), pp 658–93. On Canada’s power to perform treaty obligations see MacDonald, Can Bar Rev, 11 (1933), pp 581–99, 664–80.

It was stated in the British Parliament on 7 May 1986 that South Africa was ‘in practice’ independent and sovereign by 1920, and was recognised formally as such in 1926: Parliamentary Debates (Lords), vol 474, col 805.

The position of India as a subject of international law was for a time anomalous. India became a member of the League of Nations; was invited to the San Francisco Conference of the UN in April 1945; exercised the treaty-making power in its own right. However, so long as the control of India’s internal and external relations rested ultimately with the British Government and Parliament, it could not be regarded as a sovereign state and as a normal subject of international law. By the Indian Independence Act 1947, which provided for the setting up of ‘two independent Dominions … to be known respectively as India and Pakistan’, India became a fully self-governing dominion and an independent state. See also T P Sankara Rao v Municipal Council of Masulipatam, ILR, 26 (1958-II), p 104. As to India’s position prior to that date, see Sen, The Indian States, their Status, Rights, and Obligations (1930); Palmer, Sovereignty and Paramountcy in India (1930); Holdsworth, The Indian States and India (1930); Jennings, RI, 3rd series, 10 (1929), pp 480–91; Sundaram, International Affairs, 9 (1930), pp 452–66, and Grotius Society, 17 (1931), pp 35–51; Sethi, Can Bar Rev, 14 (1936), pp 36–49; The British Empire (Report by Study Group of Royal Institute of International Affairs (1937)), pp 108–32; Whiteman, Digest, 1, pp 489–509; Poulose, BY, 44 (1970), pp 201–12.

As to the states which arose on what was formerly Indian territory see O’Connell, BY, 26 (1949), pp 454–63; and see § 62, nn 2–4. As to the Indian vassal states see § 81, n 3.

10  In the internal sphere the Statute of Westminster did not do away altogether with the right of and necessity for Imperial legislation. Thus legislation by Parliament at Westminster was until recently necessary for any amendment to the Constitution of Canada, and probably some aspects of New Zealand’s constitution, and the Australian states were still subject to legislative and executive powers vested in the UK (but see Bistricic v Rokov (1976), ILR, 69, p 11). These various residual rights and powers were brought to an end by, respectively, the Canada Act 1982 (enacted at Westminster), the Constitution Act 1987 (enacted in New Zealand), and the Australia Act 1986 (identically named Acts being enacted at Westminster and in Australia: see § 34, n 9 (para 3). As to the position in South Africa in connection with the amendment of the entrenchment clauses in the South Africa Act, see the Judgment of the Supreme Court of South Africa on the Validity of the Separate Representation of Voters Act (1951), South African Law Reports, 2, p 428, and Mansergh, op cit in bibliography preceding § 78, vol i, p 97; Harris v Minister of the Interior, ILR, 19 (1952), No 15.

11  See Communiqué of the Commonwealth Relations Office of 12 November 1952, on the Queen’s Style and Titles (Mansergh, op cit in bibliography preceding § 78, vol ii, p 1293). See Royal Titles Act 1953; de Smith, ICLQ, 2 (1953), pp 263–74. See generally O’Connell, ICLQ, 6 (1957), pp 103–25; Wheare, Constitutional Structure of the Commonwealth (1960), pp 150–69; Fawcett, The British Commonwealth in International Law (1963), pp 79–83; Roberts-Wray, Commonwealth and Colonial Law (1966), pp 84–6; Dale, The Modem Commonwealth (1983), pp 35–9. See also R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta [1982] 2 All ER 118, at pp 123 and 127–8 (per Lord Denning MR), 131–2 (per Kerr LJ), and 136 (per May LJ).

12  Since the British Nationality Act 1948 allegiance has not been a source of British nationality but rather a consequence thereof. Although according to that Act, and its successor the British Nationality Act 1981, citizenship in any other part of the Commonwealth results in the possession of a special status of ‘Commonwealth citizenship’, the incidence and even existence of such a special status throughout the Commonwealth are not uniform: see § 79, nn 12 and 13. The emergence of the Crown as no longer a single Crown for all Commonwealth countries but rather as a plural Crown with a separate existence in right of each Commonwealth Realm precludes the existence of a common (in the sense of a single) allegiance; and in any event there can be no question of allegiance to the Crown on the part of persons who are only citizens of those members of the Commonwealth which are republics.

13  For an indication of earlier doubts on the matter see 8th ed of this vol, p 206, n 3.

14  In 1939 Australia and New Zealand did not declare war separately on Germany. But in 1941 and 1942 Australia declared war separately on Finland, Romania, Hungary and Japan. Thus the state of war against Japan was declared on 9 December 1941, by the Governor-General of Australia to whom the King, acting on the direct advice of the Australian Government, assigned the power to declare war. In establishing this precedent importance was attached to acting on the practice that in all matters affecting Australia the King and his representatives act exclusively on the advice of the Government of Australia. It appears that Canada and South Africa declared war separately in all cases. The Irish Free State was the only Dominion which in 1939 declared its neutrality. The United States Neutrality Act of 5 September 1939 was not made applicable to South Africa and Canada till 8 and 10 September respectively, after they had declared war on Germany. For a detailed account see Mansergh, Survey of British Commonwealth Affairs. Problems of External Policy 1931–39 (1952), pp 365–414.

15  Appeals to the Judicial Committee of the Privy Council were barred by Canada in 1933 in criminal cases: see Nadan v The King [1926] AC 482; British Coal Corp v R [1935] AC 500. In 1949 Canada abolished altogether appeals to the Judicial Committee. Previously, in Attorney-General of Ontario v Attorney-General of Canada [1947] AC 127 it was held that, having regard to the Statute of Westminster, Canada was entitled to do so. India passed in 1949 the Abolition of Privy Council Jurisdiction Act and conferred the corresponding jurisdiction upon the Federal Court of India. The relevant Acts and some official comments thereon, are reproduced in Mansergh, op cit in bibliography preceding § 78, vol i, pp 36–68. In Ibralebbe v R [1964] AC 900 it was held that the attainment of independence by Ceylon did not automatically terminate the right of appeal to the Judicial Committee. Australia partly abolished appeals to the Judicial Committee in 1968, and effectively completely abolished them in 1975, although final abolition was not formally completed until the Australia Act 1986, s 11 (see Watts, ICLQ, 36 (1987), at p 137, n 25). Many members of the Commonwealth no longer allow appeals to the Privy Council.

See generally Wheare, Constitutional Structure of the Commonwealth (1960), pp 45–54; Roberts-Wray, Commonwealth and Colonial Law (1966), pp 433–63; Jackson, CLJ, 28 (1970), pp 271 ff; Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council 1833–1986 (1987). For a survey of the activities of the Judicial Committee of the Privy Council in the field of international law, see Fawcett, BY, 42 (1967), pp 229–63.

As to Cyprus, see § 40, n 4. The admission of Ceylon (now Sri Lanka) to the UN raised the question of the extent to which the UK-Ceylon defence agreement of 1947 constituted a limitation upon Ceylon’s sovereignty and independence: see Fawcett, The British Commonwealth in International Law (1963), pp 102–3. The Ceylon Independence Act 1947 had provided that as from the appointed day — subsequently fixed by Order in Council as 4 February 1948 — ‘His Majesty’s Government in the United Kingdom shall have no responsibility for the Government of Ceylon’. On 22 October 1948 representatives of all other Commonwealth Governments represented at the meeting of the Commonwealth Prime Ministers placed on record ‘their recognition of Ceylon’s independence’ and affirmed that ‘Ceylon enjoys the same sovereign independent status as the other self-governing countries of the Commonwealth which are members of the United Nations’ (see Mansergh, op cit in bibliography preceding § 78, vol ii, p 759).

As to state succession within the Commonwealth after the Second World War, see § 66, n 5.

Including dependent territories of other Commonwealth states: thus Western Samoa, a trust territory administered by New Zealand, joined the Commonwealth in 1970 (having become independent in 1962); as did the former mandated territory of Namibia in 1989 (see generally § 88.

In the Treaty of 7 October 1947, between the Government of the UK and the Provisional Government of Burma the former agreed to recognise the Republic of the Union of Burma as a fully independent state (Cmd 7360). The Burma Independence Act 1947 was passed in December of that year. It provided that ‘on the appointed day, Burma shall become an independent country, neither forming part of His Majesty’s dominions nor entitled to His Majesty’s protection’.

See also the previous note as to Western Samoa’s delay in becoming a member of the Commonwealth; similarly Cyprus became independent in 1960, but did not become a member of the Commonwealth until 1961.

In 1948 Eire, in proclaiming the Republic of Ireland Act, became a republic; it considered itself and was considered as having seceded from the Commonwealth. Nevertheless, the UK took the position that, in view of the actual ties between the two countries, it would not regard the new Irish legislation as placing Eire in the category of foreign countries or Eire citizens in the category of foreigners. These two principles were embodied in the Ireland Act 1949, which recognised and declared that Eire had ceased to be part of His Majesty’s Dominions. The British Nationality Act 1948 gave effect to the latter principle. Thus as the result of s 3(2) of that Act an Eire citizen in the UK would receive the same treatment under existing law as if he were a British subject. If resident in the UK he could vote. He would also be liable to military service, but only if he resided in Great Britain for at least two years; if unwilling to perform military service, he would be given the opportunity to return to Eire. In Murray v Parkes it was held that a citizen of the Irish Free State who was ordinarily a resident in Great Britain when the National Service (Armed Forces) Act 1939 was passed was liable to be called up under that Act: [1942] 2 KB 123. The Court held that Irish citizenship was supplementary to, and not inconsistent with, the wider British nationality. Similarly it was held in Bicknell v Brosnan [1953] 1 All ER 1126 that under the National Service Act 1948, Irish citizens are to be treated, with regard to military service, exactly in the same way as British subjects. However, this applies only to Irish citizens ‘ordinarily resident’ (ie for a period longer than two years) in the UK. See also Hume Pipe & Concrete Construction Co Ltd v Moracrete Ltd [1942] 1 KB 189.

Moreover, s 2(1) of the British Nationality Act enabled an Eire citizen to receive, on application, the status of a British subject (as distinguished from treatment as such); and s 6 enabled him to become registered, on application, as a ‘citizen of the United Kingdom and Colonies’. Section 31 of the British Nationality Act 1981 provides for the continuance as British subjects of certain citizens of Eire; in that Act, unless the context otherwise requires, ‘alien’ does not include a citizen of the Republic of Ireland, and ‘foreign country’ does not include the Republic of Ireland (s 50(1)). By virtue of s 37(1) a citizen of Eire who under the Act is a British subject (ie pursuant to s 31) has the status of a Commonwealth citizen: see also s 51. Some other members of the Commonwealth have adopted a similar attitude. Thus, for instance, the New Zealand Republic of Ireland Act 1950 declared: (1) that notwithstanding that the Republic of Ireland is not part of His Majesty’s Dominions, that republic is not a foreign country for the purpose of any New Zealand law; (2) that New Zealand law, including the British Nationality and New Zealand Citizenship Act 1948, shall not be affected by the circumstance that the Republic of Ireland had ceased to be part of His Majesty’s dominions. That Act was repealed by the Commonwealth Countries Act 1977, s 4 of which provides for New Zealand law to ‘operate with respect to the Republic of Ireland as if it were a Commonwealth country and not a foreign country’. As to the status of Ireland prior to these developments, see Faucon, Le Statut de l’Etat Libre d’Irlande (1929); Rynne, Die völkerrechtliche Stellung Irlands (1930); Kohn, The Constitution of the Irish Free State (1932); Phelan, The British Empire and the World Community (1932); Williams, ‘Great Britain and the Irish Free State’, Foreign Policy Reports, 8 (1932); Jacquemard, RI (Paris), 6 (1930), pp 204–24; Jennings, RI, 3rd series, 13 (1932), pp 473–523; Round Table, 25 (1934–35), pp 21–43.

As an instance of the view that the Republic of Ireland is not a foreign country in relation to the UK, see the Diplomatic Immunities (Conferences with Commonwealth Countries and Republic of Ireland) Act 1961, which conferred upon the representatives of members of the Commonwealth and of the Republic of Ireland when attending conferences in the UK immunities enjoyed by an envoy of a foreign sovereign power; and the provisions of the British Nationality Act 1981 cited above.

See Wilson, AJ, 55 (1961), at pp 442–4.

Pakistan rejoined the Commonwealth in 1989.

After a coup d’état in Fiji, and a change in 1987 from being one of the Queen’s Realms to being a republic, Fiji’s membership of the Commonwealth lapsed: see the Commonwealth Statement on Fiji adopted at the Commonwealth Heads of Government Meeting in October 1987, Commonwealth Year Book (1989), p 39. Notwithstanding this, Fiji was held to be still a member of the Commonwealth in 1988, for purposes of the application of the Fugitive Offenders Act: R v Brixton Prison Governor, ex parte Kahan [1989] 2 All ER 368.

For republics which are members of the Commonwealth, see § 80, n 1. The issue first arose in 1949 when India, while remaining a member of the Commonwealth, became a republic. The India (Consequential Provisions) Act 1949 was passed to cover the resulting situation. When its new constitution came into force on 26 January 1950, India became a ‘sovereign democratic Republic’. The Government of India had previously informed other countries of the Commonwealth of the impending change. The meeting of the Commonwealth Prime Ministers in April 1949 took note of the proposed new Constitution of India. At the same time the Government of India ‘declared and affirmed India’s desire to continue her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of the free association of its independent member nations and as such the Head of the Commonwealth’. The governments of the other countries of the Commonwealth accepted and recognised the continued membership of India in accordance with the terms of the above declaration. At the same time they affirmed that the basis of their own membership, namely the common allegiance to the Crown, had not changed as the result: Final communiqué of the Meeting of the Commonwealth Ministers, 27 April 1949 (as printed in Mansergh, op cit in bibliography preceding § 78, vol ii, p 846). See also Kemal, Indian Year Book of International Affairs, 6 (1957), pp 143–71. It is now the established convention that if a Commonwealth country is about to change from a monarchy to a republic and wishes to continue thereafter to be a member, it informs the Secretary-General of the Commonwealth so that he can initiate the necessary consultations with all member governments, the unanimous concurrence of those members being required for continued membership: see Press Release from the Commonwealth Secretariat, 30 September 1987, in the context of possible constitutional changes in Fiji.

See British Nationality Act 1981, s 50(1) as to the meaning of ‘foreign country℉, and the same section and s 51 (4) as to the meaning of ‘alien’. See also eg the Indian Constitutional Order, No 2, 1950, issued in connection with Part II of the Constitution of 1949 relating to citizenship and laying down that ‘every country within the Commonwealth is hereby declared not to be a foreign state for the purposes of the Constitution’. But for purposes other than those of the constitution itself, another member state of the Commonwealth may still be regarded as ‘foreign’: see Naziranbai v The State, ILR, 24 (1957), p 429, and Jagan Nath Sathu v Union of India (1950), ILR, 53, p 95. But it may be noted that Eire, which is not a member of the Commonwealth, is also regarded by many of its members as not being a foreign country (see § 79, n 4). In general, the international implications of the statement that a country is not regarded as a foreign country are not clear. This applies in particular to the operation of most-favoured-nation clause treaties (see § 669).

10  Their privileges and immunities are now regulated in the UK primarily by the Diplomatic Relations Act 1964, which applies equally to ambassadors of foreign states. See generally Fawcett, The British Commonwealth in International Law (1963), pp 197–201; Wilson, AJ, 51 (1957), at pp 614–17 (and note the incident there referred to, p 617, n 22, concerning the Letters of Credence of the Australian Ambassador to Ireland in 1954, which, being signed by the Queen in her capacity of Queen of Australia, were thought might involve undesirable consequences for her as Queen of the United Kingdom); Wilson, The International Law Standard and Commonwealth Developments (1966), pp 40–65.

In the UK matters arising between the UK and Commonwealth countries used to be dealt with through a separate Ministry, finally called the Commonwealth Relations Office. In 1968 that Ministry was merged with the Foreign Office so as to constitute the Foreign and Commonwealth Office, through which relations with both foreign and Commonwealth countries are now conducted.

11  See vol II of this work (7th ed), p 60. See also Jennings, BY, 30 (1953), pp 326–30; Fawcett, The British Commonwealth in International Law (1963), pp 153–4, 202–8; Wilson, AJ, 51 (1957), at pp 612–14. The UK dropped this particular reservation when depositing a new acceptance of the ‘optional clause’ in 1969, although preserving much of its effect in the past by continuing to maintain a reservation for disputes with members of the Commonwealth with regard to situations or facts existing before 1 January 1969. Other Commonwealth states whose acceptances of the ‘optional clause’ were, on 31 July 1989, accompanied by a reservation as to inter-Commonwealth disputes were Barbados, Canada, The Gambia, India, Kenya, Malta and Mauritius. Commonwealth states whose acceptances of the ‘optional clause’ were at that time not accompanied by any reservation as to inter-Commonwealth disputes were Australia, Botswana, Cyprus, Malawi, Nauru, New Zealand, Nigeria, Pakistan, Swaziland and Uganda. Pakistan’s acceptance of 1960 did not contain such a reservation, although Pakistan only ceased to be a member of the Commonwealth in 1972. Ireland’s acceptance has never contained such a reservation. Apart from jurisdiction of the ICJ based on acceptances of the ‘optional clause’, various treaties in force between member states of the Commonwealth provide for disputes between parties to be submitted to the ICJ.

12  The British Nationality Acts, beginning with the Act of 1914, and the corresponding Acts passed in other Commonwealth countries have generally recognised a common status throughout the Commonwealth. However, the Citizenship Act of Ceylon 1948 did not adopt the concept of common nationality status for Commonwealth citizens. See generally Parry, Nationality and Citizenship (1957), especially pp 92–113 as regards Commonwealth citizenship, and ibid (vol 2, 1960).

The Irish Nationality and Citizenship Act of 1935 abolished for its citizens the status of British subject (s 33(3)) — a provision contrary to the British Nationality and Status of Aliens Act then in force. While it is now clearly established that since the Statute of Westminster an independent member of the Commonwealth is for the purposes of its own law entitled to pass Acts repugnant to an Imperial Act — Moore and Others v Attorney-General of the Irish Free State [1935] AC 484 — it has been judicially stated with regard to the above-mentioned provision of the Irish Act of 1935 that such an Act is not necessarily operative outside the State enacting it: Murray v Parkes [1942] 2 KB 123. See also n 4.

13  It appears that only in the UK were British subjects, in the wider sense, from other parts of the Commonwealth treated on a similar, though not the same, footing as persons born in the UK. In 1962 the Commonwealth Immigrants Act was passed, followed by the Commonwealth Immigrants Act 1968 and the Immigration Act 1971: their effect was to restrict the freedom of immigration into the UK of British subjects who did not have certain specified close connections with the UK.

Other members of the Commonwealth do not, in most cases, admit equality of treatment in such matters as immigration and political franchise. For the affirmation of the rule that a British subject does not, as such, have the right to enter or stay in any part of the Commonwealth, see De Merigny v Langlais, decided by the Supreme Court of Canada: AD, 14 (1947), No 63. See also Musson and Musson v Rodriguez (1952), ILR, 22 (1955), p 61; Mohd Abdul Ghani v The State, ILR, 24 (1957), p 56; Naziranbai v The State, ILR, 24 (1957), p 429.

14  For the position regarding the appointment of national judges to the PCIJ, see Fawcett, The British Commonwealth in International Law (1963), pp 151–3; the ICJ has often included judges from more than one Commonwealth state. As regards diplomatic protection by one Commonwealth country of a citizen of another, see ibid, pp 185–6, and Parry, Nationality and Citizenship (1957), pp 114–23. In the Pugh Claim the UK presented a claim against Panama in respect of a national of the Irish Free State: AD, 7 (1933–34), No 97. See also § 411, n 1. For a detailed study of the application of the general rules of international law regarding international claims to disputes involving nationals of Commonwealth countries, see Joseph, Nationality and Diplomatic Protection (1969).

15  See § 595, n 1.

16  Thus, in addition to matters mentioned in the text, a member of the Commonwealth may enjoy sovereign immunity from the jurisdiction of the courts of another (Kahan v Pakistan Federation [1951] 2 KB 1003), and the rule preventing enforcement in one state of a foreign state’s revenue laws has been held to apply equally to such laws of a Commonwealth country (Govt of India, Ministry of Finance (Revenue Division) v Taylor, ILR, 22 (1955), p 286.

17  See § 669, n 39, as to Commonwealth preference; § 417, nn 9, 10, as to the return of fugitive offenders.

In 17 of these Queen Elizabeth II is Head of State: they are Antigua and Barbuda, Australia, Bahamas, Barbados, Belize, Canada, Grenada, Jamaica, Mauritius, New Zealand, Papua New Guinea, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines, Solomon Islands, Tuvalu and the UK. Six other member states are monarchies with their own sovereigns: Brunei, Lesotho, Malaysia, Swaziland, Tonga and Western Samoa. The remaining 27 are republics: Bangladesh, Botswana, Cyprus, Dominica, the Gambia, Ghana, Guyana, India, Kenya, Kiribati, Malawi, Maldives, Malta, Namibia, Nauru, Nigeria, Pakistan, Seychelles, Sierra Leone, Singapore, Sri Lanka, Tanzania, Trinidad and Tobago, Uganda, Vanuatu, Zambia and Zimbabwe. All recognise the Queen as Head of the Commonwealth. Nauru’s and Tuvalu’s membership of the Commonwealth is in some respects limited, and they do not for example attend meetings of Commonwealth Heads of Government.

A foreign observer described it in 1927 as ‘a true League of Nations of sovereign States of British race’: Löwenstein Archiv des öffentlichen Rechts, New Series, 12 (1927), at p 272. Kunz, Staatenverbindungen (1929), pp 796 et seq, regarded it as a quasicomposite state approximating most nearly to a real union. See for a full discussion of earlier views, Baker, The Present Juridical Status of the British Dominions in International Law (1920), especially pp 130–342.

See Agreed Memorandum on the Commonwealth Secretariat, July 1965 (Cmnd 2713); see also ICLQ, 15 (1966), pp 577–8, and Doxey, YB of World Affairs, 30 (1976), pp 69–96. The Commonwealth Secretariat Act 1966 conferred certain privileges and immunities on the Secretariat. In 1976 the Commonwealth Secretariat was granted observer status at the UN: GA Res 31/3. As to the Commonwealth Legal Advisory Service, see Marshall, ICLQ, 21 (1972), pp 435–51. For consideration of the Commonwealth as an international organisation see Dale, ICLQ, 31 (1982), pp 451–73.

Periodic high-level meetings of Commonwealth leaders began (after the earlier Colonial Conferences) with the Imperial Conferences held between 1911 and 1937; after the Second World War these were resumed, from 1945 to 1965, as Commonwealth Prime Ministers’ Meetings. They have subsequently been known as Commonwealth Heads of Government Meetings: the first to be so titled was held in 1966 and since 1969 they have been held every two years.

See § 78, n 12.

See § 79, n 9.

In 1946 the meeting of the Commonwealth Prime Ministers put on record their conviction that the existing methods were ‘preferable to any existing arbitral machinery’ which ‘would not facilitate, and might even hamper, the combination of autonomy and unity which is characteristic of the British Commonwealth and is one of their great achievements’. Parliamentary Debates (Lords), vol 153, cols 1154–8 (17 February 1948). See Harvey, Consultation and Cooperation in the Commonwealth (1952). See also the same author in International Conciliation, Pamphlet No 487 (1953). As to the members of the Commonwealth in the UN, see Carter in International Organisation, 4 (1950), pp 247–60. As to the results of the Commonwealth Conference of 1949, see Ivor Jennings, BY, 25 (1948), pp 414–20.