1911 Encyclopædia Britannica/Protectorate
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 times that the word does not occur in Sir G. C. Lewis’s book on The Government of Dependencies. Yet the relation is very ancient. There have always been states which dominated their neighbours, but which did not think fit to annex them formally. It has always been, politic for powerful states to facilitate and hide schemes of aggrandizement under euphemistic expressions; to cloak subjection or dependence by describing it in words inoffensive or strictly applicable to other relations. A common problem has been how to reduce a state to submission or subordination while ostensibly preserving its independence or existence; to obtain power while escaping responsibility and the expenditure attending the establishment of a regular administration. Engelhardt (Les Protectorats anciens et modernes) and other writers on the subject have collected a large number of instances in antiquity in which a true protectorate existed, even though the name was not used. Thus the Hegemony of Athens as it existed about 467 B.C., .was a form of protectorate; though the subject states were termed allies, the so-called “allies” in all important legal matters had to resort to Athens (Meyer, Geschichte des Alterthums, vol. iii. § 274).
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, Römische Staatsverwaltung, 2nd ed., vol. i. p. 80). 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 deditionern or in fidem populi romani venire (Marquardt, Römische 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 subject us, sive is foederatus est; item sive aequo foedere in amicitiam venit, sive foedere comprehensum est, ut is populus alterius populi majestatem comiter conservaret. Hoc enim adjicitur, ut intelligatur alterum populum superiorern esse: non ut intelligatur alterum non esse liberum” (Marquardt, Römische Staatsverwaltung, and ed., vol. i. p. 46, Mommsen, Römisches 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 République Bodin treats of ceux qui sont en protection (1. 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 principles aut populos societate et amicitia conjunctissimos sancientur; eam 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 protection is omnium maximum ac pulcherrimum inter principles censetur” (1 c. 7). Elsewhere Bodin remarks, “le mot de protection est special et n’emporte aucune subjection de celuy qui est en protection.” He distinguishes the relation of seigneur and vassal from that of protecteur and adherent. As to whether the protected state or prince is sovereign, he remarks, “je tiens qu’il demeure soverain, et n'est point subject.” He makes clear this conception of protection by adding “l’advoué on adherent doit estre exempte de la puissance du protecteur s'il contrevient aux traictes de protection. Voila donc la plus grande seureté de la protection, c'est empescher s'il est possible que les protecteurs ne soyent saisis des fortresses” &c. (p. 549, ed. 1580). Sometimes letters of protection were granted by a prince to a weak state, as e.g. by Louis XIII. in 1641 to the prince of Monaco (Gairal, p. 81).
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, when either of the parties is obliged to harder conditions” (De jure belli et pacis, 1 c. 13. 21; De jure naturae, 8. c. 9).
The following are some definitions of “protectorate”: “Principis
privilegium, quo ne alicui vis inferatur, cavetur, eumque in protectionem
suscipit.” Du Cange: “La situation d'un
état a l’egard d'un autre moins puissant auquel il a
promis son appui d'une maniere permanent” (Gairal,Definitons
of Protectorate.
p. 52); a definition applicable only to certain simple
forms of this relation. “Pour le protégé, une condition de misouveraineté
substitute a la pleine indépendance que comporte le
régime de simple protection” (p. 58). “La situation respective de
deux états de puissance inégale, dont l'un contract l'obligation permanent
de défendre l’autre, et en outre de le diriger” (p. 62).
“Unter einem Protektorat versteht man ein Schutzverhiiltniss
zwischen zwei Staaten des Inhalts dass der eine Staat, der Oberstaat
oder schutzherrliche Staat, zum dauernden Schutze des anderen
Staates—des Schutzstaates oder Unterstaates—verpflichtet ist;
wofiir ihm ein mehr oder weniger weitgehender Einliuss auf die
auswartigen Angelegenheiten desselben und theilweise such auf
dessen innere Verhaltnisse eingeratimt ist" (von Stengel, Die
deutschen Schutzgebiete, 11). “Das Verhältnis von zwei (oder
mehreren) Staaten, das in materieller Beziehung auf dem dauernden
Bedürfniss des Schutzes eines schwächeren Staates durch einen
stärker en 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, Foreign Jurisdiction of the British Crown, p. 218). “A British protectorate is a country which is not within British dominions, but as regards its foreign relations is under the exclusive control of the King, so that its government cannot hold direct communication with any other foreign power, nor a foreign power with that Government” (Jenkyns, British Rule and Jurisdiction beyond the Seas, p. 165; Reinisch, Colonial Government, p. 109; Payne, Colonies and Colonial Federations, p. 194).
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 of a protectorate may be akin to a guarantee. Generally, however, the former implies a closer relation than a guarantee; and the two relations may be widely different, as may be seen by comparing treaties of guarantee with the treaty establishing the protectorate of Tunis. 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”; itIndian Protectorates. was much practised by the Romans in Africa and Asia; it has been chiefly applied in modern times in India (p. 326). The Indian states are sometimes 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 lc. 8700]. § 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 sni generis, and their precise position can be understood only by a private examination of the treaties affecting them. The following are the chief points as to which Indian states are subject to English law: (1) the 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 by directly 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 British protectorates are: The African groups, consisting of the western group—Gambia; Sierra Leone; Ashanti (northern territory); Northern Nigeria; Southern Nigeria (with which is amalgamated Lagos). The southern group—Bechuanaland; Southern Rhodesia; Swaziland. The central group—North-east Rhodesia and North-west Rhodesia; Nyasaland. The eastern group—British East Africa; Uganda; Zanzibar and Pemba (sometimes described as “a sphere of influence”); Somaliland; and the Sudan.
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 speaking, exercised under orders in council made under the Foreign Jurisdiction Act 1890 (Burge’s Colonial andExisting Protectorates. 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, Sikkim and Andaman Islands.
France possesses several protectorates, of which the chief are Tunis, Annam and Tongkin. 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, Part. 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 Kiaochow-under lease from China—(Zeitschrift für Kolonialrecht, 1907, 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 recognized 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, sometimes 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 obligations.
Thus is the treaty with respect to Sarawak
the latter is described as an “independent stateRights and
Duties of
Protecting
and
Protected
States.
under the protection of Great Britain.” “Such
protection shall confer no right on his Majesty’s
government to interfere with the internal administration
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 Oberstaat—to use a convenient expression—is 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 nature. The relation may be one of international law, two states having entered into obligations by treaty. Or the relation may be one of public law; one of two states has become subordinate to, Protectorates and International 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 distinction the 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’s International Law, 6th ed., 126, Heilborn, 535; Tupper’s Indian Protectorates, 336; Laband, 2, § 70).
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 été reconnue par la France en 1870, a propos de la guerre contre l’Allemagne pour les îles Taiti alors soumises à notre protectorat; elle s’imposerait pour la Tunisie, l’Annam et Tonkin, et pour le Cambodge, où les traités nous conférent le droit 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 powers represented 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. 680).
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 allies acta, an arrangement which concerns only parties to it. But the trend of recent policy and purport of much recent legislation are against this view. The distinct tendency, especially as to protectorates over uncivilized countries, is to treat, for purposes of international law, the territory of a protectorate as if it belonged to the protecting state. If France, for example, permitted in Tunis or other protectorates operations of an unfriendly character to any power, the injured power would no doubt look to France for redress. This View would probably be strongly pressed in the case of protectorates over countries having no well-defined or stable government. The probability is that in such cases governments and courts applying international law would probably be guided not by technical facts—such, to take the case of British possessions, as the fact that an order in council permitted appeals to the Judicial Committeevbut would look to the facts of the case. “Any state which undertakes to protect another assumes towards the rest of the world responsibility for its good behaviour-the more complete protection the more extensive the responsibility-and this responsibility involves a duty to interfere if need be” (Coolidge, United States as a World Power,” p. 167; and to the same effect Liszt, Volkerrecht, p. 31; and Zorn, Völkerrecht, p. 45). The tendency is for protecting states to assert jurisdiction over foreigners within the territories of the protected states (Westlake, 187; Ienkyns, p. 176; Ilbert, and ed., 393, 434). Mr Hall remarks (International Law, 6th ed., p. 126 n.) that “all the states represented at the Berlin Conference of 1884–1885, with the exception of Great Britain, maintained that the normal jurisdiction of a protectorate includes the right of administering justice over the subjects of other civilized states.” The General Act contemplated measures which are scarcely compatible with the exemption of European traders and adventurers from the local civilized jurisdiction. He points out that Great Britain-which until lately took the View that a protected state possesses only delegated powers, and that an Eastern state cannot grant jurisdiction over persons who are neither its own subjects nor subjects of the country to which the powers are delegated-had by the Pacific Order in Council of 1893 and the South African Orders in Council of 1891–1894 asserted jurisdiction over natives and foreign subjects. “The Orders show a gradual increase of the assumption of internal sovereignty” (Jenkyns, 193). A similar process is observable in the German protectorates, which are treated for some purposes as “inland,” and not foreign territory (Der koloniale Inlands- und Auslands-begriff, Zeitschrift für Kolonialrecht, 1907, p. 311). The fact is that in the case of protectorates over uncivilized or semi-civilized countries a development is inevitable: control quickly hardens into conquest, and international law more and more takes note of this fact.
Authorities.—Bodin, Les Six livres de la République (Lyons, 1580); De republic libri sex (Paris, 1586); Stengel, Die Staats- und völkerrechtliche Stellung der deutschen Kolonien (1886); Heimburger, Der Erwerb der Gebietshoheit (1888); D’Orgeval, Les Protectorats allemands; annales de l’École des Sciences Politiques (1890); Wilhelm, Théorie juridique des protectorats (1890); Despagnet, Essai sur les protectorats (1896); Heilborn, Das völkerrechtliche Protectorat (1891); Hall, The Foreign Jurisdiction of the British Crown (1894); Stengel, Die deutschen Schutzgebiete (1895); Gairal, Les Protectorats internationaux; 'léze, Étude théorique, &c., sur l’occupation, &c. (1896); Trione, Gli stati civili nei loro rapporti giuridici coi popoli barbari e semibarbari (188); Ilbert, The Government of India (1898); Jenkyns, British Rule and Jurisdiction beyond the Seas (1902); Laband, Das Staatsrecht des deutschen Reiches (1876-1882), Revue de droit international, civilises, et barbares, xvii. 1, xviii. 188; Stengel, Die Rechtsverhältnisse der deutschen Schutzgebiete (1901); Devaulx, Les Protectorats de la France (1903) article “Protectorates" in the Encyclopaedia of the Laws of England, 2nd ed., vol. xi.; Baty, International Law (1909); Ullmann, Völkerrecht, § 26 (1908); Rex v. Crewe (1910) 79, L.J. 874; Von Stengel in Zeitschrift fur Kolonialrecht (1909), p. 258; Sir W. Lee-Warner, Protected States of India (1910). (J. M.)