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Encyclopedia Britannica - Main :: PRE-PYR |
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PROTECTORATE , in international law, now a common term to describe the relation between two states, one of which exercises control, great or small, direct or indirect, over the other. It is significant of the rare use of the term until recent
establishment
In dealing with dependent nations Rome used terms which veiled subjection (Gairal, Les Protectorats internationaux, p. 26). Thus the relationship of subject or dependent cities to the dominant power was described as that of clientes to the patronus (Marquardt, Romische Staatsverwaltung, 2nd ed., vol. i. p. 8o). Such cities might also be described as civitates foederatae or civitates liberae. Another expression of the same fact was that certain communities had come under the power of the Roman people; in deditionem or in fidem populi romani venire (Marquardt, Romische Staatsverwaltung, i. 73, 81). The kingdoms of Numidia, Macedonia, Syria and Pergamum were examples of protected states, their rulers being termed inservientes. The Romans drew 'a distinction between foedera aequa and foedera iniqua. The latter created a form of protectorate. But the protected state remained free. This is explained in a passage of the Digest 49. 15. 7: " Liber autem populus est is, qui nullius alterius populi potestati est subjectus, sive is foederatus est; item sive aequo foedere in amicitiam venit, sive foedere comprehensum est, ut is populus alterius populi majestatern comiter conservaret. Hoc enim adjicitur, ut intelligatur alterum populum superiorem else: non ut intelligatur alterum non ease liberum " (Marquardt, Romische Staatsverwaltung, 2nd ed., vol. i. p. 46, Mommsen, Romisches Staatsrecht, vol. iii. pt. i, p. 645, and the instances collected by Pufendorf, 8 c. 9. 4). In medieval times this relation existed, and the term " protection " was in use. But the relation of subordination of one state to another was generally expressed in terms of feudal law. One state was deemed the vassal of another; the ruler of one did homage to the ruler of another. In his book De la Republique Bodin treats of ceux qui sont en protection (I. C. 7), or, as the Latin text has it, de patrocinio et clientele. In Bodin's view such states retain their sovereignty (1. c. 8). Discussing the question whether a prince who becomes a cliens of another loses his majestas, he concludes that, unlike the true vassal, the cliens is not deprived of sovereignty: " Nihilominus in foederibus et pacis actionibus, quae inter principes aut populos societate et amicitia conjunctissimos sancientur; earn vim habet ut nec alter alteri pareat, nec imperet: sed ut alter alterius majestatem observare, sine ulla majestatis minutione teneatur. Itaque jus illud clientelare seu protections omnium maximum ac pulcherrimum inter principes censetur " (1 c. 7). Elsewhere Bodin remarks, " le mot de protection est special
Reverting to the distinction in Roman law, Grotius and Pufendorf, with many others, treat protection as an instance of unequal treaties; that is, " when either the promises are unequal, or when either of the parties is obliged to harder conditions (De jure belli et pacis, I C. 13. 2I; De jure naturae, 8. c. 9). The following are some definitions of " protectorate ": " Ptincipis privilegium, quo ne alicui vis inferatur, cavetur, eumque in protectionem suscipit." Du Cange: " La situation d'un et at a regard d'un autre moms puissant auquel it a Definitions promis son appui d'une maniere permanent ' (Gairal, Forms ; a definition applicable only to certain simple orate. forms of this relation. " Pour le protege, une condition de misouverainete substituee a la pleine independance que comporte le regime de simple protection " (p. 58). " La situation respective de deux etats de puissance inegale, dont 1'un contracte l'obligation permanente de defendre 1'autre, at en outre de le diriger " (p. 62). " tinter einem Protektorat versteht man ein Schutzverhfiltniss zwischen zwei Staaten des Inhalts dass der eine Staat, der Oberstaat oder schutzherrliche Staat, zum dauernden Schutze des anderen Staatesdes Schutzstaates oder Unterstaatesverpflichtet ist; wofur ihm ein mehr oder weniger weitgehender Einfluss auf die auswfirtigen Angelegenheiten desselben and theilweise auch auf dessen innere Verhhltnisse eingeraumt ist " (von Stengel, Die deutschen Schutzgebiete, II). " Das Verhhltniss von zwei (oder mehreren) Staaten, das in materieller Beziehung auf dem dauernden Bediirfniss des Schutzes eines schwficheren Staates durch einen starkeren beruht " (Ullmann, s. 26). " The one common element in Protectorates is the prohibition of all foreign relations except those permitted by the protecting state. What the idea of a protectorate excludes, and the idea of annexation, on the other hand, would include, is that absolute ownership which was signified by the word dominium in Roman law, and which, though not quite 'satisfactorily, is sometimes described as ' territorial sovereignty.' The protected country remains, in regard to the protecting state, a foreign country; and this being so, the inhabitants of the protectorate, whether native-born or immigrant settlers, do not by virtue of the relationship between the protecting and the protected state become subjects of the protecting state " (Lord Justice Kennedy, Rex v. Crewe, 1910, 79, L.J., p. 802). " The mark of a protected state or people, whether civilized or uncivilized, is that it cannot maintain political intercourse with foreign powers except through or by permission of the protecting state " ( Hall
The term is used very loosely. Often it designates a relation which it is deemed politic to leave indefinite: a state desires to obtain the reality of conquest without the responsibilities attaching thereto. Protectorate may mean no more than what it says: " One state agrees to protect or guarantee the safety of another." The term is also employed to describe any relation of a political superior to an inferior state. It is also used as the. equivalent of suzerainty. As appears from the article SUZERAINTY, the terms are distinguishable. But both imply a desire to carry out changes without friction and not to break up ancient forms; both proceed on the plan of securing to the stronger state the substance of power while allowing the weaker state a semblance of its old constitution. It is a form of empire or state building which appears when a powerful, expanding state comes in contact with feebler political organizations, or when a state falls into decay, and disintegration sets in. The creation of a protectorate is convenient for the superior and the inferior; it relieves the former from the full responsibilities incident to annexation; it spares to some extent the feelings of the latter. Certain protectorates originate in treaties; others have been imposed by force. Some are accompanied by occupation, in which case it is difficult to distinguish them from annexation. Thus the treaty of May 1881, art. 2, between France and Tunis, provides for the occupation of strategical points by the protecting state (A. Devaulx, Les Protectorats de la France, p. 21). The establishment
Strictly speaking, a protectorate cannot exist over a domain uninhabited or ruled by no organized state; in such cases the elements of the true protectorates are wanting. But the distinction is not adhered to. The difficulty of defining the relations between the protected and the protecting states is greater, because a protectorate may imply a condition of transition: a contractual or limited relation of state to state, more or less rapidly changing into true union. It has been the policy, of the British government in India to establish on the frontiers, as elsewhere, protectorates. The political advantages of the system are pointed out in Sir A. Lyall's Rise and Expansion of the British Dominion in India. It is a system " whereby the great conquering or commercial peoples masked, so to speak, their irresistible advance "; it was much practised by the Romans in Africa and -ndtan ns. Asia; ; it has been chiefly applied in modern times tedorate in India (p. 326). The Indian states are some-times described as " Feudatory States," sometimes " Independent and Protected States ". (Twiss), sometimes " Mediatized States " (Chesney), sometimes "Half-Sovereign," sometimes as in a position of " subordinate alliance " '(Lord Salisbury, Parliamentary Papers, 1897 [c. 87001. 27). The Interpretation Act, 1889 (52 & 53 Vic. C. 63, s. 18), refers to the Indian native princes as under the " suzerainty " of the British Crown. These states are really sui generis,and their precise position. can be understood only by a private examination of the treaties affecting them. The following are the chief
governor -general is empowered to make laws for servants of the British government and European and native Indian subjects of his majesty; (2) British laws are in force in certain parts of the native states e.g. in cantonments; (3) native princes have adopted certain British laws, e.g. the Indian Penal Code; (4) they have no external relations with foreign states; (5) the king is the donor of honours; (6) acts of parliament affect them indirectly bydirectly affecting the British agent; (7) they receive advice, which may be akin to commands. (See also Ilbert's Government of India, 2nd ed. p. 140).Among the chief
There is a group of protectorates near Aden, including the island of Sokotra. There are also the Bahrein Islands in the Persian Gulf. Jurisdiction over these protectorates is, generally speak- Existing ing, exercised under orders in council made under the Foreign Jurisdiction Act 1890 (Burge's Colonial and torates. Foreign Law, 2nd ed., p. 320). There is also the Malay group, consisting of the Malay States in the Borneo peninsula and in Borneo, the protectorates of North Borneo, Brunei and Sarawak. Protectorates also exist in the Western Pacific group of islands (including the Friendly Islands, the Ellice and Gilbert group, and the British Solomon Islands). There is the interesting case of Papua (formerly British New Guinea), over which a protectorate was established in 1884, but which became in 1906 a territory of the Australian Commonwealth. There are also dependencies, or protectorates, attached to India, Baluchistan
France possesses several protectorates, of which the chief are Tunis, Annam and Tongking. Her policy has been until lately to transform them into French territory. Such change has taken place as to Tahiti and Madagascar, and such in effect is the position of the Indo-China protectorates (Devaulx, Les Protectorats de la France; Report by Mr Lister, Parl. Papers 1908, Cd. 3883). The chief German protectorates are South-west Africa, Togoland and Cameroon, German East Africa, Kaiser Wilhelm Land, Bismarck Archipelago, Solomon Islands, and Kiaochowunder lease from China(Zeitschrift fur Kolonialrecht, 1907, p. 311). Russia has the protectorates of Khiva and Bokhara; and China exercises or claims rights as protector of certain dependencies. There are two principal classes of protectorates; the first being those exercised generally by treaty over civilized countries. Of the first, the chief are: (a) that of Cracow, which was re-cognized by the Treaty of Vienna as an independent state, and placed under the protection of Russia: it was incorporated with Austria in 1846; (b) Andorra, protected by Spain and France as successors of the counts of Foix (See ANDORRA); (c) the Ionian Islands, placed under the protection of Great Britain by the Treaty of Paris of 1815. The second class of protectorates consists of those exercised by one civilized state over an uncivilized people, some-times called a " Colonial Protectorate " or " pseudo-protectorate," and usually the preparatory step to annexation. These have become common, especially in Africa, since 1878. The second class may be subdivided into two groups: (a) protectorates exercised over countries with organized governments and under recognized sovereigns, such as the Malay States; and (b) those exercised over countries possessing no stable or definite governments and rulers. The territories of chartered companies, when not within the dominion of the protecting state, may also for some purposes be regarded as, protectorates. Attempts have been made to define the reciprocal rights and duties of protecting and protected states. Sometimes the treaty creating the relation defines the obliga- Rights ana tions. Thus in the treaty with respect to Sarawak Duties of the latter is described as an " independent state Protecting under the protection of Great Britain." " Such and protection shall confer no right on his Majesty's tatescted government to interfere with the internal ad-ministration of that state further than is herein provided." The British consular officers are to receive exequaturs in the name of the government of Sarawak. Foreign relations are to be conducted by that government, and the raja cannot cede or alienate any part of the territory without the consent of the British government (Hertslet, 18. 227). In the treaty creating a protectorate over the territories of the king and chief of Opopo (Hertslet, 17. 130) the sovereign undertakes to extend to them, and to the territory under their authority and jurisdiction, his favour and protection. They promise not to enter into " any correspondence, agreement or treaty with any foreign nation or power, except with the knowledge and sanction of his Majesty's government." Some treaties establishing protectorates provide for direct interference with internal affairs; for example, the treaty of 1847 creating a French protectorate over Tahiti, and that of 1883 as to Tunis. Sometimes the Oberstaatto use a convenient expressionis content to insist upon the presence of a resident, who guides the policy of the native ruler. In the case of protectorates over uncivilized countries it is usual to stipulate against alienation of territory without consent of the Oberstaat. The legal position of protectorates is still somewhat undetermined; there are an old view and also a new view of their Protector- nature. The relation may be one of international ates and law, two states having entered into obligations Inter- by treaty. Or the relation may be one of public national law; one of two states has become subordinate to, Law. and incorporated with, the other. The general rule is that the protected state does not cease to be a sovereign state, if such was its previous status. Its head is still entitled to the immunities and dignity of a sovereign ruler. Further, the establishment of a protectorate does not necessarily rescind treaties made between the protected state and other states, at all events when it is not in reality conquest or cession, or when any modification would be to the injury of third parties (Parl. Papers, Madagascar, 1897 [c. 8700]; Trione, 187). Nor does the new relation make any change as to the nationality of the subjects of the two states, though in some countries facilities are afforded to the subjects of the Unterstaat to transfer their allegiance; and they owe a certain ill-defined degree of obedience to the protecting state. Nor, speaking generally, does the territory of the protected state become part of the territory of the Oberstaat; in this respect is it unlike a colony, which may be regarded as an extension or outlying province of the country. At the same time, the question whether a particular protectorate forms part of the " dominion " or " territory " of the Crown for any purposes or within the meaning of any statute cannot be regarded as wholly free from doubt; its terms and intention must be examined. In Rex v. Crewe (1910, 79, L. J. 874) the Court of Appeal decided that the Bechuanaland Protectorate was not part of the dominion of the Crown, but was foreign territory. Several writers propose this distinctionthe protected country is to be considered a part of the territory as to certain important sovereign rights, and as to other matters not. In one view, for the purpose of municipal law, the territory of a protectorate is not, but for the purposes of international law is, within the territory of the protecting state. In another view, such territory is foreign only in the sense that it is not within the purview of the majority of statutes (see Hall
The older view of the position of a protectorate according to international law is contained in the decision of Dr Lushington in the case of the " Leucade " (8 S.T., N.s., 432), to the effect that, the declaration of war by Great Britain against Russia notwithstanding, the Ionian Islands, which were then under the protectorate of Great Britain, remained neutral. The king of Great Britain had the right of declaring peace and war. " Such a right is inseparable from protection." But the Ionian states did not become necessarily enemies of the state with which Great Britain was at war. According to one view, the protected state is implicated in the wars to which the protecting state is a party only when the latter has acquired a right of military occupation over the territory of the former. " Cette solution a he reconnue par la France en 187o, a propos de la guerre contre I'Allemagne pour les Iles Taiti alors soumises a notre protectorat; elle s'imposerait pour la Tunisie, l'Annam et Tonkin, et pour le Cambodge, on les traits nous conferent le droit d'occupation militaire " (M. Despagnet). In the event of hostilities between the protecting and protected states, such hostilities would be regarded not as of the nature of an insurrection, but as a regular war (Trione, 149). By the General Act of the Berlin Conference it was agreed that the acquisition of a protectorate should be notified to the signatories to the agreement (art. 34), and it has been the practice to give such notice. It was proposed by some of the powersrepresented that effective occupation should be a condition to the creation of a protectorate on the coast of Africa. But this was opposed by England; and was not adopted (Laband, ii. 68o). Many writers adhere to the doctrine that there is no impairment of sovereignty of the weaker state by the establishment of a protectorate. They also allege that it is res inter alios acta, an arrangement which concerns only parties to it. But the trend of recent
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