Page:EB1911 - Volume 22.djvu/484

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.
n
469
PROTECTORATE


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 rotected state become subjects of the protecting state " (Lord Tustice 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, . 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; R€iI1SCl'1, 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 o 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 ”; it was much practised by the Romans in Africa and lndiauPro-A . . h b h. fi 1. d . d .

m.t, ,, .ates sia, it as een c ie y app ie in mo ern times in India (p. 326). The Indian states are sometimes described as “ Feudatory States, ” sometimes “ Independent and Protected States ”. (Twiss), sometimes “ Mediatized States ” (Ch€SU€y)y 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 469

directly affecting the British agent; (7) they receive advice, which may be akin to commands. (See also I1bert's Government of India, 2nd ed. p. 140).

Among the chief British protectorates are: The African groups, consisting of the western roup-~Gambia; Sierra Leone; Ashanti (northern territory); Nortiern 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 speak- Exist, ” ing, exercised under orders in council made under the pmt 3 Foreign Jurisdiction Act 1890 (Burge's Colonial and torag; 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 Frencih 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 fnr Kolonialrecht, 1907, 311). Russia has the protectorates of Khiva and Bokhara; and hina 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. 1

The second class of protectorates consists of those exercised by one civilized state over an uncivilized people, sometimes called a “Colonial Protectorate ” or “ pseudo-pr0tectorate, ” 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 isn the treaty with respect to Sarawak

the latter is described as an “independent state Rights and

Duties of

Protecting

under the protection of Great Britain.” "' Such:gt protection shall confer no right on his Majesty's Stuffed 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