611.45C4/9–2453: Airgram
The Secretary of State to the Consulate General at Salisbury 1
Subject:
- Possibility of the United States Negotiating an Agreement of Friendship, Commerce and Navigation with the Federation of Rhodesia and Nyasaland.
A–21. Reference is made to the Consulate General’s despatch no. 39 of September 24, 1953,2 concerning the possibility of the United States negotiating an Agreement of Friendship, Commerce and Navigation with the Federation of Rhodesia and Nyasaland.
Information presently available in the Department relating to the establishment of the Federation indicates that the Act of Federation makes no change in the prior legal status of Southern Rhodesia as a self-governing colony or of Northern Rhodesia and Nyasaland as protectorates. It is traditional in international affairs that territories having these relationships to the superior power do not have the authority to independently conduct their external relations. It is also necessary to recall that the authority for the present advancement of the relationships between these territories under the scheme of Federation is accomplished only by virtue of authority granted by the United Kingdom. Thus, it must be assumed that all powers not specifically granted to the Federation continue to rest within the authority of the Government of the United Kingdom. An examination of the Federal Constitution and of the British Command Papers relating to the Federal Scheme which preceded the drawing up of the Constitution reveal no grant of specific authority to the Federation to negotiate treaties or, in general, to conduct external affairs without the consent of the United Kingdom.
As a matter of fact, the language of the Constitution clearly indicates the absence of such authority. Article 29 authorizes the Federal Legislature to make laws with respect to any matter included in the second schedule annexed to the Constitution. That schedule includes “external affairs” but defines them as (1) such external relations as may be entrusted to the Federation by the Government of the United Kingdom, and (2) the implementation of treaties, conventions, and agreements, with certain other limitations. The “implementation of agreements” is not the negotiation and signing thereof. As to other matters in this field, the authority must be entrusted to the Federation before it may act.
[Page 338]The documents preceding final approval of the Constitution are in agreement with the interpretation that independent constitutional authority does not exist for the general conduct of international relations by the Federation. No where is there an indication that this power was to be included in the grant of additional authority under the Federation Scheme. In addition, much the same language as appears in the Constitution is found in the preliminary documents. The “implementation” of treaties, conventions, and agreements, is referred to in Command Paper 8754, page 7, and the same appears in the list of exclusive Federal legislative functions found on page 10 thereof. At page 22 of Command Paper 8754, it is stated that the Queen of England must sign any Federal bill appearing inconsistent with international agreements of the United Kingdom. The only possible exception to the conclusion of the lack of Federal authority regarding these matters is in connection with the negotiation of tariff rates with the Union of South Africa, mention of which is made in Command Paper 8672, pages 22–23.
No additional authority for such action rests in the Executive Branch of the Government, since under Article 36 (2) of the Constitution the executive authority extends only to execution and maintenance of the Constitution, and to all matters with respect to which the Federal Legislature has the power to make laws.
The above would seem to be confirmed by the reply of the British Foreign Office to the informal request of the Department regarding the establishment of a diplomatic post at Salisbury to the effect that external affairs of the Federation would continue to be handled by the United Kingdom Government. In this connection, the Consulate General is referred to the memorandum of conversation of August 27, 1953,3 in which the matter was discussed by Mr. Marshall of the British Embassy and Mr. Cyr of the Office of African Affairs. Therefore, on the basis of the information available, it is the opinion of the Department that the Federation of Rhodesia and Nyasaland does not have the constitutional authority to negotiate and sign a Treaty of Friendship, Commerce, and Navigation with the United States without prior authority being granted by the United Kingdom Government, generally or specifically, to negotiate international agreements.
The Department would be glad to give the matter further consideration if the Consulate General is in a position to supply it with any information which appears to be at variance with the above.