Page 163 - The Arabian Gulf States_Neat

THE PRESENT LEGAL POSITION 101
27 February 1884 with Great Britain. The Law Officers of the Crown
were of the opinion that the Treaty of 1896 was invalid. They stated:
‘Although the particular Treaty now in question may not be in itself
of great importance the principle involved is obviously of the utmost
gravity. . . .’l
On the other hand, Lord McNair suggests that where the
dependent State is allowed to conclude treaties subject to the communica­
tion of them to the dominant State and to the latter’s veto within a certain
period, it would seem probable that the former’s treaties are only voidable,
being made subject to a resolutive condition, and are valid until timously
vetoed.3
He mentions as an example of such treaties which were regarded as
voidable rather than void, the Treaty of the Transvaal Republic of
1896, referred to above.
On the question of the nature of the international responsibility of
States contracting with protected States without the knowledge or
consent of the protecting Power, the general principles of law arc
formulated as follows:
According to Hyde,
In the negotiation of treaties with dependent States the burden rests upon
the other contracting parties to ascertain the scope of the agreement-making
power retained by the former, as well as the mode by which it is to be
exercised. Those parties assume the risk of obtaining provisions that a
superior, if alive to its rights and interests, may both regard as voidable and
encounter no difficulty in rendering valueless, at least if recourse be had to
an arbitral forum.3
Similarly, Lord McNair states:
Moreover, it is believed that it is the duty of a State when contracting
with a dependent State to satisfy itself as to the scope of the latter's treaty-
making power and the procedure prescribed for its exercise, and that a
State concluding in ignorance with a dependent State a treaty which is in
excess of the latter's powers has no legal redress against the latter or its
dominant State.1
The views of writers regarding the treaty-making capacity of pro­
tected States arc inconclusive. In the opinion of Hersch Lauterpacht,
the distinction between the view that such treaties are void and the
1 Ibid., p. 140.
2 Ibid., p., 138.
3 Hyde, 2, pp. 1378-9. According to Hyde (who quotes from the A.J.I.L.,
Suppl. No. XXXIX, p. 709), there exists no decision of an international tribunal
’which declares that a treaty is invalid for a lack of capacity of a party which had
previously placed itself under obligation to another State agreeing not to enter
such a treaty'. See ibid., p. 1379, n. (8).
4 McNair, Treaties, p. 145.