WHEREAS Ceylon has reached the stage in Constitutional development at which she is ready to assume the status of a fully responsible member of the British Commonwealth of Nations, in no way subordinate in any aspect of domestic or external affairs, freely associated and united by common allegiance to the Crown;
AND WHEREAS it is in the mutual interest of Ceylon and the United Kingdom of Great Britain and Northern Ireland that the necessary measures should be taken for the effectual protection and defence of the territories of both and that the necessary facilities should be afforded for this purpose;
THEREFORE the Government of the United Kingdom and the Government of Ceylon have agreed as follows:
Comment by Sir Ivor Jennings Q.C - The principles of this Agreement were negotiated in July 1947 after the Government of the United Kingdom had agreed to confer Dominion Status, though the draft was not available until the new Ceylon Cabinet was in office in October 1947, when it was approved.
The first paragraph of the preamble contains a slight modification of the phrase 'fully responsible status' which had been approved by the United Kingdom Cabinet; but it goes on summarize the Balfour Declaration of 1926 in which Dominion Status had been defined. That is, it does its best to say that that the status is Dominion Status without actually using those words.
The Agreement belongs to the class of instruments known Agreements between Governments. They are distinguished from treaties by the fact that the latter are in the name of Heads States. Since the King is the Head of each of the nations of the Commonwealth it is not customary to have treaties within the Commonwealth, except international conventions to which other countries are parties. There is, however, nothing constitutionally objectionable in a treaty between 'the King on behalf of the United Kingdom' and 'the King on behalf of Ceylon'.
The Agreement is for an indefinite period, so that steps may be taken at any time for its modification by agreement.
1. The Government of the United Kingdom and the Government of Ceylon will give to each other such military assistance for the security of their territories, for defence against external aggression and for the protection of essential communications as it may be in their mutual interest to provide. The Government of the United Kingdom may base such naval and air forces and maintain such land forces in Ceylon as may be required for these purposes, and as may be mutually agreed.
Comment by Sir Ivor Jennings Q.C - Military assistance ' clearly includes naval and air assistance, since the forces referred to in the second sentence and required for these purposes are of all three types. The first sentence leaves each Government free to decide whether it will give military assistance and if so, what assistance it will give. In the second sentence the phrase as may be mutually agreed seems to involve continuous agreement. Two conditions have to be satisfied: (i) The forces must be required for the purpose mentioned in the first sentence ; and (ii) Such forces must be mutually agreed.
2. The Government of Ceylon will grant to the Government of the United Kingdom all the necessary facilities for the objects mentioned in Article I as may be mutually agreed. These facilities will include the use of naval and air bases and ports and military establishments and the use of telecommunication facilities, and the right of service courts and authorities to exercise such control and jurisdiction over members of the said forces as they exercise at present.
Comment by Sir Ivor Jennings Q.C - The naval and air bases, ports, military establishments and telecommunication facilities are to be provided by Ceylon but used by the United Kingdom forces.
3. The Government of the United Kingdom will furnish the Government of Ceylon with such military assistance as may from time to time be required towards the training and development of Ceylonese armed forces.
4. The two Governments will establish such administrative machinery as they may agree to he desirable For the purpose of co-operation in regard to defence matters, and to co-ordinate and determine the defence requirements of both Governments.
5. This Agreement will take effect on the day when the constitutional measures necessary for conferring on Ceylon fully responsible status within the British Commonwealth of Nations shall come into force.
Done in duplicate, at Colombo, this eleventh day of November 1947.
Signed on behalf of the Government of the United Kingdom
of Great Britain and Northern Ireland
HENRY MOORE
Signed on behalf of the Government of Ceylon
D. S. SENANAYAKE
The date was 4 February 1948.
Exchange of Letters between UK and Australia
concerning Defence Agreement between UK and Ceylon
Strahan to Garnett Letter
CANBERRA, 28 July 1947
TOP SECRET PERSONAL
I am directed by the Prime Minister to refer to your letter of 22nd July on the subject of the future constitutional position of Ceylon. [1] In general, the Australian Government agrees that a country, before admission to the British Commonwealth, should undertake certain obligations. Among the questions which have been considered by the Government are first, whether such obligations should be stated in contractual form and second, whether, particularly where the obligations involve the Commonwealth as a whole, they should be discussed at a Commonwealth meeting rather than negotiated solely between the Governments of the United Kingdom and Ceylon.
The Australian Government agrees that the Defence obligations to be undertaken by the Government of Ceylon should be stated in the form of an Agreement. While such an Agreement is a matter for concern to the Dominions, it is appropriate, since the United Kingdom Government is undertaking full responsibility in the matter, that this Agreement should be negotiated and signed by the Governments of the United Kingdom and Ceylon, on completion of the normal intra-Commonwealth consultation.
In regard to the terms of the Draft Agreement on Defence, it is noted that it has been cast in general terms and that military facilities to be granted to the United Kingdom, including the use of naval and air bases, ports, military establishments and telecommunications are to be such 'as may from time to time be agreed'.
In the light of the above, it is considered that, as far as the United Kingdom is concerned, the Agreement is generally in accord with the strategic requirements of Australia.
It is noted that the question whether the draft Agreement should contain a time limit or whether it should contain a provision whereby it could be terminated by either party on giving some period (e.g. 5 years) of notice is still to be considered by the United Kingdom Government.
It appears desirable that the Agreement should remain in force as long as possible, preferably indefinitely, and that this might best be achieved by omitting all reference to the time factor.
Further, it is assumed that existing defence arrangements in Ceylon would remain in force pending the conclusion of a satisfactory mutual agreement between the United Kingdom and Ceylon Governments regarding the details of future defence arrangements.
The obligations which might be undertaken by the Government of Ceylon in regard to the External Affairs appear different from those in regard to Defence. [2] Whereas the latter do not involve any commitments on the part of other Dominions, the very fact of the admission of Ceylon to the Commonwealth may involve all other Dominions in obligations. In particular, the Dominions may feel obliged to keep the Government of Ceylon informed of their intentions in the field of foreign policy, in accordance with the normal practices now in use, and they may wish to receive similar benefits from that country.
It is noted that the draft Agreement on External Affairs as between the United Kingdom and Ceylon makes no reference to the obligations to be undertaken by Ceylon in regard to the other Dominions and by the other Dominions in regard to Ceylon. Further, in the absence of consultation with other Dominions, the Australian Government is not convinced that such obligations would most suitably be expressed in contractual form.
At this preliminary stage it appears that an appropriate procedure might be for the relations of Ceylon with the United Kingdom and the other Dominions to be discussed at a Commonwealth meeting at which representatives of the new Ceylon Government would be present. Such a meeting could conveniently be held in London, the Dominions being represented by their High Commissioners. The undertakings mutually agreed could be formulated in the type of statement usually issued on conclusion of British Commonwealth meetings.
Should such a procedure be adopted, the points stated in the draft Agreement on External Affairs would, in general, be those which the Australian Government would wish to have discussed. As the Agreement stands at present, its terms do not cover the undertakings which Dominions such as Australia might expect from the Government of Ceylon and those which they in turn would wish to give to the Government of Ceylon. The first five paragraphs would appear to need redrafting to make them applicable within the Commonwealth as a whole.
Consideration has also been given to the fact that should such a procedure be adopted for the admission of Ceylon to the Commonwealth, it should also be adopted for the admission of other countries. The case of India and Pakistan is not however an exact parallel. The Government of India has been in practice regarded as a member of the Commonwealth, and the Australian Government for its part has in general included India in its intra-Commonwealth consultation. It would not therefore expect of India or Pakistan prior undertakings similar to those which might be asked of Ceylon or any other country which is entering the Commonwealth for the first time as a fully self-governing community.
1 The letter referred to the announcement, on 18 June, that Ceylon would be given fully responsible status within the British Commonwealth, subject to the new Ceylon Government entering into agreements on matters of mutual concern. Draft agreements on defence and external affairs were enclosed.
2 The draft agreement on external affairs included a unilateral declaration by Ceylon to conform to resolutions of past Imperial Conferences, and an undertaking by both the United Kingdom and Ceylon to observe existing Commonwealth principles and practice in regard to external affairs generally and in particular to the communication of information and consultation. The United Kingdom undertook to facilitate diplomatic representation between Ceylon and foreign countries and to support applications by Ceylon for membership of the United Nations and ocher international agencies.
Garnett to Strahan Letter
CANBERRA,
4 August 1947
TOP SECRET PERSONAL
I am directed by the High Commissioner to refer to your letter of the 28th July (G.41/1/7) on the subject of the future constitutional position of Ceylon.
2. The views of the Commonwealth Government upon the draft agreement upon external relations and defence which it is proposed to conclude with the new Ceylon Government were communicated to the United Kingdom Government who desire to make the following observations in reply:-
(a) As regards the Australian Government's doubts about setting out obligations of this nature in regard to External Affairs in a contract form, the United Kingdom Government, too, in general feel that matters of the kind are best expressed more informally. The case of Ceylon is, however, a very special one.
As the Australian Government know, the United Kingdom Government are anxious to get substantial agreement on this and other matters before the new Ceylon Government takes office in October and to have reasonable assurance that the necessary safeguards will then be immediately agreed to by the new Ceylon Government as a preliminary to any legislation in the United Kingdom to amend the Ceylon Constitution.
Failing the immediate conclusion of such an agreement between the United Kingdom and the new Ceylon Government, it is doubtful how far progress can be made in the United Kingdom Parliament with any legislative steps to confer on Ceylon full responsibility status within the British Commonwealth.
(b) The procedure suggested by the Australian Government for a London meeting after the new Ceylon Government has been formed would lead to delay and would deprive the United Kingdom Government of the assurance which they hope to obtain in advance from Mr. Senanayake [1] that, if he is returned to power, he will recommend the draft agreements on Defence and External Affairs to his Cabinet for acceptance.
(c) The special procedure suggested by Australian Government for dealing with External Affairs might prejudice the possibility of obtaining advance acquiescence in the terms of the Defence Agreement also to be entered into-Mr. Senanayake might take the line that he would like the latter subject deferred to a conference also.
(d) The draft agreement as between the United Kingdom and Ceylon was purposely so worded as to involve no commitment, expressed or implied, on the part of members of the British Commonwealth other than the United Kingdom as to their relations with Ceylon in the field of external affairs. The United Kingdom Government is at present, and will remain until constitutional change is made, responsible for Ceylon's external affairs, and for this reason the United Kingdom Government feel that a bilateral agreement between the United Kingdom and Ceylon before that responsibility is surrendered is the appropriate method of procedure.
There is no reason to believe, however, that Ceylon would not be ready, if that were the desire, to enter into similar understandings with the other members of the British Commonwealth, and the conclusion of a bilateral agreement would not in the view of the United Kingdom Government preclude a later meeting on the lines and for the purpose suggested by the Australian Government if this should be agreeable to the other Commonwealth Governments concerned.
3. In these circumstances the United Kingdom Government hopes that in the light of the above comments the Australian Government will see no objection to them proceeding with the draft Agreement on external relations.
4. As regards the observations of the Australian Government on the draft Defence Agreement the arguments for the insertion of some time limit or provision for giving notice of termination were that the permanent obligation on the Ceylon Government to permit the United Kingdom Government to base naval, air and land forces in Ceylon might be regarded as some derogation from full independence and that there was a risk that the prospects of agreement might be prejudiced if too much were asked of the Ceylon Government. As against this the inclusion of such provisions might suggest that Ceylon's obligations under the agreement were expected to be brought to an end at some not necessarily too distant date and there were in fact precedents for agreements of the nature proposed e.g. the lease of bases to the United States Government in Bermuda and the West Indies, which were not held to imply any derogation from sovereignty. It was felt by United Kingdom Ministers that these latter considerations had the greater weight and it has therefore been agreed not to insert any time limit or provision for termination in the draft agreement.
5. The High Commissioner has also been asked to inform the Commonwealth Government that the draft agreements have been considered by United Kingdom Ministers and have been agreed subject to the following amendments:-
[matter omitted]
6. As indicated in paragraph 4 of the letter from this office of the 22nd July it is desirable that the Governor [2], who has just left for Ceylon, should be authorised to discuss the drafts in confidence with Mr. Senanayake as soon as possible. The Government of the Union of South Africa has indicated that they have no observations to offer and no comments have been received from the Governments of Canada or New Zealand. The United Kingdom Government is anxious to be able to give the Governor within the next fortnight the necessary authorisation to discuss the terms of the draft agreement with Mr. Senanayake and if the Commonwealth Government has any further comments the United Kingdom Government would be glad to receive them as early as possible within that period.
1 I D.S. Senanayake, leader of Ceylon's United National Party, became Prime Minister of Ceylon following elections in August and September.
2 Sir Henry Monck-Mason Moore.
