Online Encyclopedia
Search over 40,000 articles from the original, classic Encyclopedia Britannica, 11th Edition.
PROTECTORATE
Online EncyclopediaEncyclopedia Home :: PRE-PYR
del.icio.us it!
|
PROTECTORATE , in See also:international See also:law, now a See also:common See also:term to describe the relation between two states, one of which exercises See also:control, See also:great or small, See also:direct or indirect, over the other. It is significant of the rare use of the term until See also:recent times that the word does not occur in See also:Sir G. C. See also:Lewis's See also:book on The See also:Government of Dependencies. Yet the relation is very See also:ancient. There have always been states which dominated their neighbours, but which did not think See also: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 in-offensive or strictly applicable to other relations. A common problem has been how to reduce a See also:state to submission or sub-ordination while ostensibly preserving its See also:independence or existence; to obtain See also:power while escaping responsibility and the See also:expenditure attending the See also:establishment of a See also:regular See also:administration. See also:Engelhardt (See also: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 See also:Hegemony of See also:Athens as it existed about 467 B.C.,.was a See also:form of protectorate; though the subject states were termed See also:allies, the so-called " allies " in all important legal matters had to resort to Athens (See also:Meyer, Geschichte See also:des Alterthums, vol. iii. § 274). In dealing with dependent nations See also: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 (See also: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 See also:Roman See also:people; in deditionem or in fidem populi romani venire (Marquardt, Romische Staatsverwaltung, i. 73, 81). The kingdoms of See also:Numidia, See also:Macedonia, See also:Syria and See also:Pergamum were examples of protected states, their rulers being termed inservientes. The See also:Romans See also:drew 'a distinction between foedera aequa and foedera iniqua. The latter created a form of protectorate. But the protected state remained See also:free. This is explained in a passage of the See also:Digest 49. 15. 7: " See also:Liber autem populus est is, qui nullius alterius populi potestati est subjectus, sive is foederatus est; See also: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, See also:Mommsen, Romisches Staatsrecht, vol. iii. pt. i, p. 645, and the instances collected by See also:Pufendorf, 8 c. 9. 4). In See also:medieval times this relation existed, and the term " See also: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 See also:vassal of another; the ruler of one did See also:homage to the ruler of another. In his book De la Republique See also:Bodin treats of ceux qui sont en protection (I. C. 7), or, as the Latin See also:text has it, de patrocinio et clientele. In Bodin's view such states retain their See also:sovereignty (1. c. 8). Discussing the question whether a See also: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 See also:aut populos societate et amicitia conjunctissimos sancientur; See also:earn vim habet ut nec alter alteri pareat, nec imperet: sed ut alter alterius majestatem observare, sine ulla majestatis minutione teneatur. Itaque See also:jus illud clientelare seu protections omnium maximum ac pulcherrimum inter principes censetur " (1 c. 7). Elsewhere Bodin remarks, " le mot de protection est See also: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 See also:sovereign, he remarks, " je tiens qu'il demeure soverain, et n'est point subject." He makes clear this conception of protection by adding " 1'advoue ou adherent doit estre exempte de la puissance du protecteur s'il contrevient aux traictes de protection. Voila done la plus grande seurete de la protection, c'est empescher s'il est possible que See also:lea protecteurs ne soyent saisis des fortresses " &c. (p. 549, ed. i58o). Sometimes letters of protection were granted by a prince to a weak state, as e.g. by See also: Reverting to the distinction in Roman law, See also:Grotius and Pufendorf, with many others, treat protection as an instance of unequal See also:treaties; that is, " when either the promises are unequal, or when either of the parties is obliged to harder conditions (De jure See also:belli et pacis, I C. 13. 2I; De jure naturae, 8. c. 9). The following are some See also: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 See also:definition applicable only to certain See also:simple orate. forms of this relation. " Pour le protege, une See also: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'See also:obligation permanente de defendre 1'autre, at en outre de le diriger " (p. 62). " tinter einem Protektorat versteht See also:man ein Schutzverhfiltniss zwischen zwei Staaten des Inhalts See also:dass der eine Staat, der Oberstaat See also:oder schutzherrliche Staat, zum dauernden Schutze des anderen Staates—des Schutzstaates oder Unterstaates—verpflichtet ist; wofur ihm ein mehr oder weniger weitgehender Einfluss auf See also:die auswfirtigen Angelegenheiten desselben and theilweise See also: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 " (See also:Ullmann, s. 26). " The one common See also:element in Protectorates is the See also:prohibition of all See also:foreign relations except those permitted by the protecting state. What the See also:idea of a protectorate excludes, and the idea of See also:annexation, on the other See also:hand, would include, is that See also: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 See also:country remains, in regard to the protecting state, a foreign country; and
this being so, the inhabitants of the protectorate, whether native-See also:born or immigrant settlers, do not by virtue of the relationship between the protecting and the protected state become subjects of the protecting state " (See also:Lord See also:Justice See also:Kennedy, Rex v. See also:Crewe, 1910, 79, L.J., p. 802). " The See also:mark of a protected state or people, whether civilized or uncivilized, is that it cannot maintain See also:political intercourse with foreign See also:powers except through or by permission of the protecting state " (See also: Protectorate may mean no more than what it says: " One state agrees to protect or See also:guarantee the safety of another." The term is also employed to describe any relation of a political See also:superior to an inferior state. It is also used as the. See also:equivalent of See also:suzerainty. As appears from the See also:article SUZERAINTY, the terms are distinguishable. But both imply a See also:desire to carry out changes without See also:friction and not to break up ancient forms; both proceed on the See also: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 See also:empire or state See also: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 See also:case it is difficult to distinguish them from annexation. Thus the treaty of May 1881, See also:art. 2, between See also:France and See also: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 See also:union. It has been the policy, of the British government in See also:India to establish on the frontiers, as elsewhere, protectorates. The political advantages of the See also:system are pointed out in Sir A. See also: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 See also:Africa and -ndtan ns. See also:Asia; ; it has been chiefly applied in See also:modern times tedorate in India (p. 326). The See also:Indian states are some-times described as " Feudatory States," sometimes " See also:Independent and Protected States ". (See also:Twiss), sometimes " Mediatized States " (See also:Chesney), sometimes "See also:Half-Sovereign," sometimes as in a position of " subordinate See also:alliance " '(Lord See also:Salisbury, See also:Parliamentary Papers, 1897 [c. 87001. § 27). The See also:Interpretation See also: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 See also:chief points as to which Indian states are subject to See also:English law: (r) the See also:governor-See also:general is empowered to make See also:laws for servants of the British government and See also:European and native Indian subjects of his See also: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 See also:Code; (4) they have no See also:external relations with foreign states; (5) the king is the donor of honours; (6) acts of See also:parliament affect them indirectly bydirectly affecting the British See also:agent; (7) they receive See also: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 See also:African See also:groups, consisting of the western See also:group—See also:Gambia; Sierra Leone; See also:Ashanti (See also:northern territory); Northern See also:Nigeria; See also:Southern Nigeria (with which is amalgamated See also:Lagos). The southern group—See also:Bechuanaland ; Southern See also:Rhodesia; See also:Swaziland. The central group—See also:North-See also:east Rhodesia and North-See also:west Rhodesia; Nyasaland. The eastern group —British East Africa; See also:Uganda; See also:Zanzibar and See also:Pemba (sometimes described as " a See also:sphere of See also:influence ") ; See also:Somaliland; and the See also:Sudan.
There is a group of protectorates near See also:Aden, including the See also:island of See also:Sokotra. There are also the Bahrein Islands in the See also:Persian Gulf. Jurisdiction over these protectorates is, generally speak- Existing
See also:ing, exercised under orders in See also:council made under the Foreign Jurisdiction Act 1890 (Burge's Colonial and torates. Foreign Law, 2nd ed., p. 320). There is also the See also:Malay
group, consisting of the Malay States in the See also:Borneo See also:peninsula and in Borneo, the protectorates of North Borneo, See also:Brunei and See also:Sarawak. Protectorates also exist in the Western Pacific group of islands (including the Friendly Islands, the See also:Ellice and See also: France possesses several protectorates, of which the chief are Tunis, See also:Annam and See also:Tongking. Her policy has been until lately to transform them into See also:French territory. Such See also:change has taken See also:place as to See also:Tahiti and See also:Madagascar, and such in effect is the position of the Indo-See also:China protectorates (Devaulx, Les Protectorats de la France; See also:Report by Mr See also:Lister, Parl. Papers 1908, Cd. 3883). The chief See also:German protectorates are See also:South-west Africa, See also:Togoland and Cameroon, German East Africa, Kaiser Wilhelm See also:Land, See also:Bismarck See also:Archipelago, Solomon Islands, and Kiaochow—under See also:lease from China—(Zeitschrift See also:fur Kolonialrecht, 1907, p. 311). See also:Russia has the protectorates of See also:Khiva and See also:Bokhara; and China exercises or claims rights as See also:protector of certain dependencies. There are two See also:principal classes of protectorates; the first being those exercised generally by treaty over civilized countries. Of the first, the chief are: (a) that of See also:Cracow, which was re-cognized by the Treaty of See also:Vienna as an independent state, and placed under the protection of Russia: it was incorporated with See also:Austria in 1846; (b) See also:Andorra, protected by See also:Spain and France as successors of the See also:counts of See also:Foix (See ANDORRA); (c) the Ionian Islands, placed under the protection of Great See also:Britain by the Treaty of See also: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 See also: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 See also: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 See also:internal ad-ministration of that state further than is herein provided." The British consular See also:officers are to receive exequaturs in the name of the government of Sarawak. Foreign relations are to be conducted by that government, and the See also:raja cannot cede or alienate any See also: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 See also:correspondence, agreement or treaty with any foreign nation or power, except with the knowledge and See also: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 See also:resident, who guides the policy of the native ruler. In the case of protectorates over uncivilized countries it is usual to stipulate against See also: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 See also: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 See also: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 See also:nationality of the subjects of the two states, though in some countries facilities are afforded to the subjects of the Unterstaat to See also:transfer their See also:allegiance; and they owe a certain See also: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 See also:colony, which may be regarded as an See also:extension or outlying See also:province of the country. At the same See also: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 See also: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 See also:Court of See also: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 See also:majority of statutes (see Hall's International Law, 6th ed., 126, Heilborn, 535; See also: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 See also:declaration of See also: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 See also: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 See also: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. " See also:Cette See also:solution a he reconnue See also: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 See also: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 See also:Berlin See also: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 See also:notice. It was proposed by some of the powersrepresented that effective occupation should be a condition to the creation of a protectorate on the See also:coast of Africa. But this was opposed by See also:England; and was not adopted (Laband, ii. 68o). Many writers adhere to the See also: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 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 See also: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 See also: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 See also:order in council permitted appeals to the Judicial See also:Committee—but would look to the facts of the case. " Any state which undertakes to protect another assumes towards the See also:rest of the See also:world responsibility for its See also:good behaviour—the more See also:complete protection the more extensive the responsibility—and this responsibility involves a ,See also:duty to interfere if need be " (Coolidge, See also:United States as a World Power," p. 167; and to the same effect See also:Liszt, Volkerrecht, p. 31; and Zorn, Volkerrecht, p. 45). The tendency is for protecting states to assert jurisdiction over foreigners within the territories of the protected states (Westlake, 187; Jenkyns, p. 176; Ilbert; 2nd 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 protector-See also:ate includes the right of administering justice over the subjects of other civilized states." The General Act contemplated See also:measures which are scarcely compatible with the exemption of European traders and adventurers from the See also: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 See also: 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 See also:note of this fact. Additional information and CommentsThere are no comments yet for this article.
» Add information or comments to this article.
Please link directly to this article:
Highlight the code below, right click, and select "copy." Then paste it into your website, email, or other HTML. Site content, images, and layout Copyright © 2006 - Net Industries, worldwide. |
|
|
[back] PROTECTOR |
[next] PROTEOMYRA |