The term is used very loosely. Often it designates a relation which is deemed politic to leave indefinite: a State desires to ob tain 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. It is also used as the equivalent of suzerainty. As appears from the article SUZERAINTY, the terms are distinguishable. But both imply a desire to carry out changes without friction and not to break up ancient forms; both proceed on the plan of securing to the stronger State the substance of power while allowing the weaker State a semblance of its old constitution.
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).
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.
It has been the policy of the British Government in India to establish on the frontiers, as elsewhere, protectorates. The political advantages of the system are pointed out in Sir A. Lyall's Rise and Expansion of the British Dominion in India. It is a system "whereby the great conquering or commer cial peoples masked, so to speak, their irresistible advance"; it was much practised by the Romans in Africa and Asia ; it has been chiefly applied in modern times in India (p. 326). The Indian States are sometimes described as "Feudatory States," sometimes "Independent and Protected States" (Twiss), sometimes "Media tized States" (Chesney), sometimes "Half-Sovereign," sometimes as in a position of "subordinate alliance" (Lord Salisbury, Parlia mentary Papers, 1897 [c. 8700]. s. 27). The Interpretation Act 1889 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. (See Ilbert, Government of India, and the article INDIAN LAW. ) There are two principal classes of protectorates; the first being those exercised generally by treaty over civilized countries. Of the first, Andorra, protected by Spain and France as successors of the counts of Foix, is an example (see ANDORRA) . 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 prepara tory 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 organ ized Governments and under recognized sovereigns, such as the Malay States; and (b) those exercised over countries possessing no stable or definite Governments and rulers. The territories of chartered companies, when not within the dominion of the pro tecting State, may also for some purposes be regarded as protec torates. For details, the specific treaties must be consulted.
The legal position of protectorates is still somewhat undetermined ; there is an old view and also a new view of their nature. The relation may be one of international law, two States having entered into obliga tions by treaty. Or the relation may be one of public law; one of two States has become subordinate to, 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 (see Development Co. v. Kelantan [Government] and A. G.,
A.C. 797). 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 facili ties 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 Ober staat ; 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. (See Hall, International Law, 8th ed., I50; Heilborn, Das volkerrecht liche Protectorat [1891], 535; Tupper, Indian Protectorates, 336; Laband, Das Staatsrecht des deutschen Reiches [1876-82], 2, S. 70 ; Sub Luza II . v. Miller and Swaziland Corporation, 1926, D.C. 518).