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.)
