A. Notion
1 Both the term ‘protectorate’ and the term ‘protected State’ refer to a relatively powerful State’s promise to protect a weaker State from external aggression or internal disturbance, in return for which the protected entity yields certain powers to the protector. Typically, the legal basis for a regime of protection is a treaty by which the protecting State acquires full control over the external affairs of another State or territory, while the latter continues to have command over its internal affairs. The dependant entity is not annexed (Annexation) or formally incorporated into the territory of the protector (Territory, Acquisition). However, the protected entity will typically be prevented from communicating with third States without the consent of the protector. Since the loss of control over foreign affairs involves a loss of independence to some extent, a regime of protection always results in a split of sovereignty. In the case of a protected State, the dependant entity preserves its legal independence and status as a State, whereas a protectorate continues to have separate international status and personality, but does not meet the threshold for sovereign or independent statehood.
2 The terms ‘protectorate’ and ‘protected State’ cover a wide variety of relationships with a varying degree of dependency, existing over a period of time ranging from a few years to several decades. In fact, the terms are simply abstractions, derived from historical facts, since there was never a theoretical notion of a protectorate or a protected State conceived independently of the actual phenomena. Overall, given the large variety of forms of subordination of one State to another, it is extremely difficult to draw a clear distinction between protectorates/protected States and other types of non-fully sovereign entities. The fact that doctrinal references to the different categories of regimes of protection are not uniform adds to these difficulties.
B. Historical Development and Context
3 Arrangements of protection by one State over another are one of the oldest features of international relations, known to have existed in Greek and Roman history. However, the earliest identifiable protectorates go back to the 13th century, though the conception of protection was quite different then, as it usually implied little or nothing more than a form of guarantee without affecting in any degree the sovereignty of the protected entity. Rather, a purely contractual arrangement in the form of a quid pro quo was established: a promise of protection in exchange for due consideration of the protector’s interests in policy matters.
4 Coinciding with the rise of modern nation States, the 19th century witnessed small, autonomous entities accepting protection by a more powerful State. An example is Trieste, which placed itself under the protection of Austria in 1832. As a consequence of this development, the conclusion of protection regimes became popular as an instrument for European States to acquire control over non-European States without formally exercising sovereign power over those States. What ensued can be described as the international protectorate of the modern type. While allegedly serving to protect a vulnerable State from ‘Great Power politics’, the establishment of these protectorates was actually meant to allow European States to have access to foreign markets and territory and to gain power over another State vis-à-vis third nations, while avoiding the administrative and financial burden associated with the internal administration of that State.
5 Many of the protectorates of this type relied on the protection of the colonial empires of Great Britain and France. The protectorate exercised by Great Britain over the Ionian Islands from 1815 to 1864 is often cited as a standard instance of the classic protectorate. While the external sovereignty of the Ionian Islands was transferred to Great Britain, it was not exercised in the name of Great Britain, but always as on behalf of another, distinct State. Madagascar (1885–1896) and Morocco (1912–1956) are well-known examples of international protectorates under the protection of France. Historically, the term ‘protectorate’ was also used for States under protection that would later be considered as protected States, the difference between the two being one of degree (see paras 13–16 below).
6 A later type of protectorate, often referred to as a ‘colonial protectorate’ was mainly restricted to sub-Saharan Africa and was understood as a means for a powerful State to acquire control over a territory until it was ready to formally annex it. Such treaties of protection were generally concluded with tribal entities that did not have the status of States and were essentially intended to lead to the protected region being incorporated into the territorial dominion of its protector. As a consequence of this development, these relationships were no longer governed by public international law.
7 Whereas some treaties giving rise to a protected State arguably still exist (as in the case of San Marino vis-à-vis Italy and Monaco vis-à-vis France), no State today formally possesses the status of a protectorate. While often referred to as an ‘international protectorate’, Kosovo was, in fact, put under the United Nations trusteeship system as a form of international administration of territories. Other forms of administration of foreign territory which need to be distinguished from the protectorate and protected State are the mandates of the League of Nations and the condominium and coimperium.
C. Conditions and Limits
8 Owing to the diversity of the types of regimes of protection, a description of the conditions and limits of protectorates and protected States can only rely on certain common traits of these relationships. Protectorates and protected States do not constitute pre-defined international relationships which conform themselves to a uniform legal standard. Rather, the legal content of each individual relationship between protecting State and protected entity must be determined on the basis of the treaty concerned. As the
Permanent Court of International Justice (PCIJ) expressed in its Advisory Opinion on
Nationality Decrees Issued in Tunis and Morocco:
9 Furthermore, a State’s status as a protectorate or a protected State cannot solely be inferred from the terminology used in international relations or for internal or constitutional purposes. In some cases, territories were said to be protectorates without featuring the common characteristics explained herein (such as Iceland and Cuba), while in other instances, scholars disagree about whether a territory was rightly or wrongly labelled as a protectorate (as in the case of the Free City of Danzig [Danzig, Free City of]).
1. Legal Basis
10 The first and foremost commonality of regimes of protection is that the legal title upon which it is based is a consensual international transaction, most usually a treaty, between two subjects of international law. Protectorates and protected States are thus essentially contractual arrangements. Other types of titles were uncommon (for example, Egypt was proclaimed a British protectorate [1914–1922] by a unilateral British declaration).
11 The treaty sets out the reciprocal rights and duties of the protector and the protégé and thereby creates an international union between the two States. Questions such as whether the protected entity is capable of entering into international agreements and sending or receiving diplomatic representatives depend on the specific terms of the treaty establishing the regime of protection.
2. Loss of Control over Foreign Relations
12 The one defining characteristic of a treaty of protection is the transfer of the management of some or all of the international affairs to the protecting State. The extent of powers delegated to the protecting State may, however, vary. In the case of a protected State, this may simply amount to considering the advice of the protecting State or to submit its decisions in this field to the consent of the protector. As a general rule, a protected State will remain in command over its internal affairs—including the execution of international obligations internally—while delegating a certain degree of control over its external affairs. The treaty of protection therefore does not abolish the protected State’s ability to carry out juridical acts of an international nature. In the case of a protectorate, on the other hand, the conduct of the protected entity’s foreign affairs and treaty-making powers is usually entirely absorbed by the protector. The treaty of protection hence eliminates the protectorate’s capacity to act internationally on its own behalf.
3. International Status of States under Protection
13 Treaties of protection do not generally explicitly deprive the State under protection of formal independence. However, the more extensive the delegation of powers over foreign affairs to the protector, the more the protégé loses some of its actual independence and its status therefore departs from that of independent statehood.
(a) Protected States
14 As previously noted, protected States retain some degree of influence over the conduct of their foreign affairs as well as full control over their internal affairs. Under these circumstances, the exercise of delegated powers by the protector is not incompatible with independent statehood. A protected State thus continues to be considered a separate legal personality under international law that is entirely independent from that of the protector. For example, from 1900 to 1970, Tonga was a ‘protected State within the British Commonwealth’ under the Treaty of Friendship concluded with the United Kingdom on 18 May 1900 ([1914] 107 BFSP 521). The external relations of Tonga were entirely conducted by the British government who had to consult with the government of Tonga before entering into an international agreement for or in relation to Tonga.
(b) Protectorates
15 Due to the extensive delegation of powers over foreign affairs to the protector, the independence of protectorates is substantially restricted. As previously noted, protectorates will therefore in some respects lack the qualifications for statehood as defined under international law. However, it is generally acknowledged that they continue to be regarded as States for at least some purposes, for example insofar as treaties concluded before the establishment of the regime of protection remain in force. Also, although they are handled by the protector, the international relations of the protectorate remain formally distinct. A protectorate therefore enjoys personality as a State under international law, though it does not qualify as an independent or a sovereign State. This was confirmed by the International Court of Justice (‘ICJ’) in the United States Nationals in Morocco Case ([1952] ICJ Rep 176). Having placed itself under the protection of France by virtue of the Treaty of Fez (Treaty for the Organisation of the Protectorate [adopted 30 March 1912] [1913] 106 BFSP 1023) the conduct of all international relations of Morocco was forthwith delegated to France. According to the Court, Morocco nevertheless retained substantial international personality. It can thus be said that a protectorate’s lack of capacity to act internationally on its own behalf does not undermine its status as a subject of international law.
16 In sum, both the protected State and the protectorate preserve a certain measure of international personality which can be distinguished from the personality of the protector. However, in the case of a protectorate, international personality does not correspond with independent or sovereign statehood. As a consequence, the term ‘protectorate’ is a residual category for territories having lost their independence as a State but having preserved separate international status. The previously mentioned ‘colonial protectorates’ (see paras 5–6 above), on the other hand, eventually lost their international status through annexation by the protector.
4. Relationship between the Protector and the Protégé
17 As a result of their separate international personality, protected States as well as protectorates do not constitute an integral part of the protecting State. Treaties concluded by the protecting State are therefore not automatically binding on the protégé, and the latter will not necessarily become a party in a war in which the protector is implicated. For example, in the case of the British protectorate over the Ionian Islands (see para. 5 above), the latter was not affected by any international arrangements made by Great Britain, unless expressly provided for, and they were not automatically at war when Great Britain was. Even in instances where a classic protectorate slowly transformed into a colony—meaning that the protecting State had taken steps that eventually led to both internal as well as external affairs being entirely controlled (as in the case of Madagascar which, in 1896, was declared a French colony)—the territory of the State under protection did not legally belong to the protecting power, at least as long as it was not formally annexed.
18 The treaty of protection establishes an international union between the States involved. Hence, the relations between a protecting State and its protégé are matters of international law. As was confirmed in the Nationality Decrees in Tunis and Morocco Case, this principle stands even when the dispute between the two States concerns a matter normally within a State’s domestic jurisdiction (like that of nationality). The question of which State may exercise the powers in regard to this matter is related to protectorate status and can therefore not solely lie within domestic jurisdiction.
5. Relationship with Third States
19 In the United States Nationals in Morocco Case, the ICJ acknowledged that treaties concluded by Morocco before the protectorate were not affected by the regime of protection. Generally speaking, so long as the protected entity retains its international status and is not subject to annexation by the protector, pre-protection treaties that were concluded with third States stay in force and the obligations they produce must be respected, either by the protégé or the protector, as the case may be, according to the terms of the treaty of protection.
20 However, a protectorate would usually be deprived of the power to conclude future external treaties due to the transfer of its foreign relations power to the protector. In the case of a protected State, the treaty may include an undertaking by the protected entity to refrain from the conclusion of treaties with foreign States. For any State under protection, the right to contract by treaty is therefore primarily to be determined by the nature of its relation with the protecting State. The same logic applies to the question of whether or not a protected entity has a right to send or receive diplomatic representatives to other States. If a treaty of protection transfers all diplomatic powers to the protecting State, it is difficult to see how any questions of diplomatic relations can be beyond the protecting power’s control.
21 Classically, protectorate agreements are not effective in relation to third States. In order for the protecting State to act on behalf of the protected entity vis-à-vis third States, the regime of protection must receive recognition on the part of those third States. International practice shows that so long as recognition has not been given, third States remain entirely free on their side to maintain direct diplomatic relations with the State under protection and to demand that existing treaties be observed. The British protectorate over Zanzibar (1890–1963) and the French protectorates over Tunisia (1881–1955/56) and over Morocco all received recognition by foreign powers. In the case of the protectorate of the colonial type, on the other hand, third State recognition was generally dispensable as the entity would be treated as equivalent to annexed territory.
6. International Responsibility
22 Like State sovereignty, State responsibility is split between the protector and the protégé. Protectorates and protected States have separate legal personality and, as a consequence, can bear international obligations separately, but it depends on the treaty of protection whether a breach of those obligations engages their international responsibility. In the case of protected States, some international acts may remain within the exclusive competence of the protected State and it may thus be held responsible for them; otherwise, it is the protecting State who will face international responsibility. Protectorates, on the other hand, will typically have transferred the exercise of all international relations to the protecting State. As a consequence, the latter is internationally responsible not only for its own acts in relation to the protectorate, but also for international wrongs committed by the protectorate.
7. Nationality in Protectorates
23 Since the protected entity does not formally become part of the protecting State, but retains its international status as a State, its nationals neither lose their nationality, nor do they normally obtain the nationality of the protecting State. Rather, unless stipulated otherwise in the treaty of protection, they become protected persons (protégés) of the protecting State which entitles them to diplomatic protection when in foreign countries. They will thus acquire at least some rights traditionally associated with citizenship, secured by virtue of the international status of the protecting State. Meanwhile, their nationality serves municipal purposes only.
8. Termination of the Regime of Protection
24 The process leading to the termination of a regime of protection may vary widely according to the circumstances of each particular regime, but the legal effect will be the same: the State under protection resumes its full sovereign independence, which has been partially in suspense during the protectorate regime. This may happen by way of a gradual takeover of powers by the protected entity, thus reversing the process through which the protecting State originally acquired jurisdiction. Alternatively, the two States may conclude a treaty or a series of treaties re-establishing the full independence of the protégé. In any event, the process is one of consent. Only when a protectorate gradually transformed into a colony, would the termination of the protectorate regime resemble the unilateral act of bestowing independence on colonial territories (Unilateral Acts of States in International Law).
D. Assessment
25 Relationships of dependency of the protectorate type have disappeared in the 20th century. By the end of World War II, they were no longer accepted as a legitimate form of governance because the regime of protection was typically nothing more than a disguise for Western conquest, as was demonstrated by the rise of the protectorate of the colonial type. However, legal problems, particularly in the form of land boundary disputes, may still arise based on what was formerly a protection regime. To this extent, the principles described herein continue to be relevant.
26 Furthermore, there are still instances in which powers over a certain territorial entity are divided or in which a State is represented by other States or by international organizations in certain matters. In fact, it may be said that the post-Cold War era is witnessing the creation of a new form of the old notion of protection. The case of Kosovo being labelled an ‘international protectorate’ is proof that modern forms of territorial administration share some commonalities with the earlier concept of protection. However, the purpose is no longer that of conquest but a response to humanitarian crisis. Material interests of the protecting powers prima facie no longer play a role in protection. As a consequence, modern forms of shared governmental power are capable of operating without the stigma attached to the types of protectorate regimes explained above, notably that of colonization. On the contrary, they are typically of a temporary nature, designed to transition to ultimate independence and subject to some form of international scrutiny.
27 Finally, it must also be noted that international law has developed a less restrictive view of the international personality of States. Limitations to full State sovereignty were formerly regarded as impediments to membership in international organizations (International Organizations or Institutions, Membership), notably to UN membership. Liechtenstein, for example, was refused admission to the League of Nations in 1920 based on the argument that, due to its delegation of sovereign powers to Switzerland, it could not fulfil all of its international obligations under the League of Nations Covenant ([1919] 225 CTS 195). However, Liechtenstein later became a party to the Statute of the ICJ (145 BSP 832) and finally joined the UN in 1990. Likewise, the UN in recent years opened its doors to a number of micro States by granting them UN membership despite some degree of dependency on other States (such as in the case of the Cook Islands and Niue, which are both self-governing entities ‘in free association with New Zealand’). The formal distinction between fully sovereign States and ‘half-sovereign’ or ‘dependant’ States as well as the label of ‘protected State’ have thus become somewhat superfluous.
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