Volume I Part 16 (1/2)

-- 92. Legally and materially different from suzerainty is the relation of protectorate between two States. It happens that a weak State surrenders itself by treaty into the protection of a strong and mighty State in such a way that it transfers the management[144] of all its more important[145] international affairs to the protecting State.

Through such treaty an international union is called into existence between the two States, and the relation between them is called protectorate. The protecting State is internationally the superior of the protected State, the latter has with the loss of the management of its more important international affairs lost its full sovereignty and is henceforth only a half-Sovereign State. Protectorate is, however, a conception which, just like suzerainty, lacks exact juristic precision,[146] as its real meaning depends very much upon the special case. Generally speaking, protectorate may, again like suzerainty, be called _a kind of international guardians.h.i.+p_.

[Footnote 144: A treaty of protectorate must not be confounded with a treaty of protection in which one or more strong States promise to protect a weak State without absorbing the international relations of the latter.]

[Footnote 145: That the admittance of Consuls belongs to these affairs became apparent in 1906, when Russia, after some hesitation, finally agreed upon j.a.pan, and not Korea, granting the _exequatur_ to the Consul-general appointed by Russia for Korea, which was then a State under j.a.panese protectorate. See below, -- 427.]

[Footnote 146: It is therefore of great importance that the parties should make quite clear the meaning of a clause which is supposed to stipulate a protectorate. Thus art. 17 of the Treaty of Friends.h.i.+p and Commerce between Italy and Abyssinia, signed at Uccialli on May 2, 1889--see Martens, N.R.G. 2nd Ser. XVIII. p. 697--was interpreted by Italy as establis.h.i.+ng a protectorate over Abyssinia, but the latter refused to recognise it.]

[Sidenote: International position of States under Protectorate.]

-- 93. The position of a State under protectorate within the Family of Nations cannot be defined by a general rule, since it is the treaty of protectorate which indirectly specialises it by enumerating the reciprocal rights and duties of the protecting and the protected State.

Each case must therefore be treated according to its own merits. Thus the question whether the protected State can conclude certain international treaties and can send and receive diplomatic envoys, as well as other questions, must be decided according to the terms of the individual treaty of protectorate. In any case, recognition of the protectorate on the part of third States is necessary to enable the superior State to represent the protected State internationally. But it is characteristic of the protectorate, in contradistinction to suzerainty, that the protected State always has and retains for some parts a position of its own within the Family of Nations, and that it is always for some parts an International Person and a subject of International Law. It is never in any respect considered a mere portion of the superior State. It is, therefore, not necessarily a party in a war[147] of the superior State against a third, and treaties concluded by the superior State are not _ipso facto_ concluded for the protected State. And, lastly, it can at the same time be under the protectorate of two different States, which, of course, must exercise the protectorate conjointly.

[Footnote 147: This was recognised by the English Prize Courts during the Crimean War with regard to the Ionian Islands, which were then still under British protectorate; see the case of the Ionian s.h.i.+ps, 2 Spinks 212, and Phillimore, I. -- 77.]

In Europe there are at present only two very small States under protectorate--namely, the republic of Andorra, under the joint protectorate of France and Spain,[148] and the republic of San Marino, an enclosure of Italy, which was formerly under the protectorate of the Papal States and is now under that of Italy. The Princ.i.p.ality of Monaco, which was under the protectorate, first of Spain until 1693, afterwards of France until 1815, and then of Sardinia, has now, through custom, become a full-Sovereign State, since Italy has never[149] exercised the protectorate. The Ionian Islands, which were under British protectorate from 1815, merged into the Kingdom of Greece in 1863.

[Footnote 148: This protectorate is exercised for Spain by the Bishop of Urgel. As regards the international position of Andorra, see Vilar, ”L'Andorre” (1905).]

[Footnote 149: This is a clear case of _desuetudo_.]

[Sidenote: Protectorates outside the Family of Nations.]

-- 94. Outside Europe there are numerous States under the protectorate of European States, but all of them are non-Christian States of such a civilisation as would not admit them to full members.h.i.+p of the Family of Nations, apart from the protectorate under which they are now. And it may therefore be questioned whether they have any real position within the Family of Nations at all. As the protectorate over them is recognised by third States, the latter are legally prevented from exercising any political influence in these protected States, and, failing special treaty rights, they have no right to interfere if the protecting State annexes the protected State and makes it a mere colony of its own, as, for instance, France did with Madagascar in 1896.

Protectorates of this kind are actually nothing else than the first step to annexation.[150] Since they are based on treaties with real States, they cannot in every way be compared with the so-called protectorates over African tribes which European States acquire through a treaty with the chiefs of these tribes, and by which the respective territory is preserved for future occupation on the part of the so-called protector.[151] But actually they always lead to annexation, if the protected State does not succeed in shaking off by force the protectorate, as Abyssinia did in 1896 when she shook off the pretended Italian protectorate.

[Footnote 150: Examples of such non-Christian States under protectorate are Zanzibar under Great Britain and Tunis under France.]

[Footnote 151: See below, -- 226, and Perrinjaquet in R.G. XVI. (1909), pp. 316-367.]

VIII

NEUTRALISED STATES

Westlake, I. pp. 27-30--Lawrence, ---- 43 and 225--Taylor, -- 133--Moore, I. -- 12--Bluntschli, -- 745--Heffter, -- 145--Holtzendorff in Holtzendorff, II. pp. 643-646--Gareis, -- 15--Liszt, -- 6--Ullmann, -- 27--Bonfils, Nos. 348-369--Despagnet, Nos. 137-146--Merignhac, II. pp. 56-65--Pradier-Fodere, II. Nos.

1001-1015--Nys, I. pp. 379-398--Rivier, I. -- 7--Calvo, IV. ---- 2596-2610--Piccioni's ”Essai sur la neutralite perpetuelle” (2nd ed. 1902)--Regnault, ”Des effets de la neutralite perpetuelle”

(1898)--Tswettcoff, ”De la situation juridique des etats neutralises” (1895)--Morand in R.G. I. (1894), pp.

522-537--Hagerup in R.G. XII. (1909), pp. 577-602--Nys in R.I. 2nd Ser. II. (1900), pp. 468-583, III. (1901), p. 15--Westlake in R.I.

2nd Ser. III. (1901), pp. 389-397--Winslow in A.J. II. (1908), pp.

366-386--Wicker in A.J. V. (1911), pp. 639-654.

[Sidenote: Conception of Neutralised States.]

-- 95. A neutralised State is a State whose independence and integrity are for all the future guaranteed by an international convention of the Powers, under the condition that such State binds itself never to take up arms against any other State except for defence against attack, and never to enter into such international obligations as could indirectly drag it into war. The reason why a State asks or consents to become neutralised is that it is a weak State and does not want an active part in international politics, being exclusively devoted to peaceable developments of welfare. The reason why the Powers neutralise a weak State may be a different one in different cases. The chief reasons have been hitherto the balance of power in Europe and the interest in keeping up a weak State as a so-called Buffer-State between the territories of Great Powers.

Not to be confounded with neutralisation of States is neutralisation of parts of States,[152] of rivers, ca.n.a.ls, and the like, which has the effect that war cannot there be made and prepared.