John Macdonell

“ Now the state or government comes at a certain stage of organization: small groups are drawn together; powerful corporations fall into line; a national feeling develops; eventually the state as we know it is formed. Sovereignty is a resultant of many forces. ”

“ 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. ”

“ A further proposition often stated with respect to sovereignty is that it is unlimited: a proposition which is not true of the legal or political sovereign. In all states are limits, more or less definite, to such powers, according to the character of the subjects and the relations of the state to foreign powers. ”

“ 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. ”

“ 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. ”

“ Sometimes sovereignty is defined as the organized or general will of the community (Combothecra, Conception juridique de l'etat, p. 96) . “Sovereignty is the organized will of an organized independent community. . . . The kings and parliaments who serve, as its vehicles.“ ”Sovereignty resides in the community” (Woodrow Wilson, p. 1448) . The same theory is often expressed by saying that the majority in a community, or a particular group, in fact, rules (Guizot, Representative Government, i. 167) . ”

“ Comte, Spencer, Bagehot, Durkheim and Giddings, for example, refer to it, if at all, only briefly and incidentally; they conceive society as an organism, or at all events as a growing whole, no one part or force being the cause of all others, and all interacting; society is not the product of any agreement or of force alone, but of a vast variety of interests, desires and needs. ”

“ 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) . ”

“ It is sometimes said that a protected state, unlike a vassal state, has the right of sending representatives to foreign states. But such distinctions are of doubtful value: the facts of each case must be considered (Ullmann, § 26) .
There is one practical difference between the two relations: while the protecting and protected states tend to draw nearer, the reverse is true of the suzerain and vassal states; a protectorate is generally the preliminary to incorporation, suzerainty to separation. ”

“ 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.” ”

“ In his view the distinctive mark of the state is not so much sovereignty (7. 4) as self-sufficiency; a state is not a mere aggregate of persons; it is a union of them sufficient for the purposes of life (7. 8) ; sufficiency being “to have all things and to want nothing” (7. 5. 1) . The Roman jurists say little, and only incidentally, as to sovereignty. ”

“ Sometimes a treaty defining spheres of influence declares that such and such territory shall be neutral.
In the treaty of delimitation between France and Germany of the 15th of March 1894, the line of demarcation of the zones of influence of the two states in the region of Lake Chad is drawn, and they agree to exercise no political influence in such spheres. Each of the states agrees (art. 2) to acquire no territory, to conclude no treaties, to accept no rights of sovereignty, or protectorate, and not “gêner ou de contester l’influence de l’autre Puissance dans la zone qui lui est reservée.” ”

“ 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. ”

“ When the power of the emperor was weakened, and the idea of a universal ruler was gone, a new test of sovereignty was applied—that of external independence; the true sovereign states were universitates superiorem non recognoscentes. There were times and countries in the middle ages in which the collective power of the community was small: many of the great corporations were virtually autonomous ”

“ In point of fact, there are fields of action in which A is sovereign, others in which B is sovereign, and certain others in which A and B are jointly or alternately sovereign. To take the American constitution, for example, the states are sovereign as to some matters, the Federal government as to others. ”

“ In the middle ages the question was often mooted whether states subject to feudal superiors, or the states forming the empire, were sove- reign. According to one common definition they were not: a true sovereign state was universitas quae non superiorem recognoscit. “Celui est absolument souverain qui ne rien tient après Dieu que de l'espée. S'il tient d'autrui il n'est plus souverain.” The prevalent opinion, however, was that sovereignty was compatible with rights such as were possessed by the Reich over the princes of Germany; that there might be fiefs held in full sovereignty ”

“ States.are more or less under the influence of others. There are also states which have certain of the attributes of sovereignty, but are subject to servitudes or burthens imposed by treaty, usage,
or force. Feudalism had a phraseology to express the varieties of fiefs which existed under it; modern international law has no generally-accepted terminology for the still greater variety of states which now exist. These varieties tend to multiply, and it is difficult to reduce them all to a few types. The theory that states are equal, and possess all the attributes of sovereignty, was never true. ”

“ The autonomy of these vassal states has been fully recognized by the Treaty of Berlin of 1878 (art. 1) . In the Interpretation Act, 1889, s. 18 (5) , " suzerainty " is used to describe the authority of the sovereign over native princes.
The word suzerain is used in the Pretoria convention of the 3rd of August 1881 between the British government and the late South African Republic. The convention (by its preamble) granted to the inhabitants complete self-government, " subject to the suzerainty of her Majesty," and this suzerainty was reaffirmed in the articles. ”

“ Great Britain considers that it has been admitted in principle by all the parties to the act of Berlin that a claim of sovereignty in Africa can only be maintained by real occupation of the territory claimed ”

“ 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. ”

“ Thus there is no sovereignty among wandering groups of Australian savages: each family is isolated, each horde is a loose and unstable History. collection. When the horde has become a tribe there may exist no definite sovereign. Distinct in time of war, the power of the chief may be fluctuating and faint in time of peace; even in time of war it may be subject to the authority of a council. Tribes of the same ethnic stock may form a sort of federation, permanent or temporary. ”

“ This doctrine is recognized in articles 34 and 35 of the General Act of Berlin, the former of which states that " any Power which henceforth takes possession of a tract of land on the coast of the African continent outside its possessions, or which being hitherto without such possessions shall acquire them, as well as the Power which assumes a protectorate, shall accompany the respective act with a notification thereof, addressed to the other Signatory Powers of the present act, in order to enable them, if need be, to make good any claim of their own." ”

“ The term ' sphere of influence ' implies an engagement between two states that one of them will abstain from interfering or exercising influences within certain territories which, as between the contracting parties, are reserved for the operation of the other " (Ilbert, Government of India, 2nd ed., p. 370) . " ”

“ 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. ”

“ 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. ”

“ Another form of the word is souseran (F. Godefroy, De l’Ancienne langue française) . Suzerain has been defined as “Qui possède un fief dont d'autres fiefs relèvent” (Littrê and Dictionnaire de l'académie française) . ”

“ No doubt, however, the tendency is for spheres of influence to become protectorates. It may be mentioned that Germany and Holland have concluded a treaty (Dec. 21, 1897) by which the latter agrees to extradite German criminals in spheres of influence. By an agreement of the 12th of May 1894 between Great Britain and the Congo State, the former granted to the latter a lease of territories comprised within the sphere of influence laid down in the Anglo-German agreement of the 1st of July 1890 (19 Hertslet, p. 179) . ”

“ The same theory assumes a more subtle form, especially in the writings of Hegelians. Sovereignty is with them a term descriptive of the real will of the community, which is not necessarily that of the majority. “If the sovereign power is to be understood in this fuller, less abstract sense, if we mean by it the real determinant of the habitual obedience of the people, we must look for its sources much more widely and deeply than the analytical jurists do ”

“ In recent times the old doctrine that discovery without occupation confers an independent right to the land so discovered of any extent is discredited. The tendency is to insist on actual occupation as a condition of legitimate possession or sovereignty (see correspondence between Great Britain and Portugal, State Papers 79, p. 1062) , and to treat the discoverer's right as merely inchoate. Thus, in opening the conference at Berlin in 1884, Prince Bismarck said: " Pour qu'une occupation soit consideree comme effective, il est, de plus, a. ”

“ Portugal engages that the territory of which the limits are defined in article 3 shall not, without the consent of Great Britain, be transferred to any other power. In the treaty between the same powers of the 14th of November 1890 it is stipulated that neither power will make, tender, accept protectorates, or exercise any act of sovereignty, &c. ”

“ 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. ”

“ Great Britain and France as to Siam, January 15, 1896. The two governments engage to one another " that neither of them will, without the consent of the other in any case or under any pretext, advance their armed forces into the regions, &c." They also engage not to acquire within this region any special privilege or advantage which shall not be enjoyed in common, or equally open to Great Britain and France or their nationals and dependants. Great Britain and Italy as to Africa, April 15, 1891; May 5, 1894, as to region of the Gulf of Aden. ”