Opinion No. 6
PROTECTION OF NATIONALS OUTSIDE CIVILISED JURISDICTIONS
WHETHER DECREE RELATING TO POWERS OF FRENCH COMMISSIONER-GENERAL IN PACIFIC CONFERS JURISDICTION OVER SUBJECTS OF OTHER CIVILISED POWERS
PACIFIC ISLANDERS PROTECTION ACT 1875 (IMP.), s. 7
02 August 1901
This decree purports to be made under the authority of a law of 30 July 1900, authorising the President of the French Republic to assure, by a decree, the protection of French citizens in certain islands and territories of the Pacific Ocean.
Both the decree itself and (it would appear from the recital) the law from which it obtains its validity are limited to the protection of French subjects. The substantive powers of the Commissioner-General are set out in Article 1 of the decree, in the following somewhat vague words: 'He is responsible, in this capacity (i.e. as Commissioner-General) for the protection of Frenchmen residing or trading in those islands of the Pacific Ocean which do not form part of the Colonial possessions of France and are not the property of any other civilised power'. The other articles of the decree define the method in which this power is to be exercised.
It is a well-settled rule of international law that every Government has jurisdiction over its own subjects who may be within territories which are not within the jurisdiction of any civilised State (see Hall, International Law, 4th edn, p. 257). This power is universally recognised as being not only legitimate, but necessary to complete sovereignty.
The protection of French subjects, however, may involve their protection, not merely as against other French subjects, and native islanders, but also against the subjects of the other civilised powers, e.g. against British subjects. No jurisdiction over subjects of other powers in such cases is expressly assumed by the decree, and it may be presumed that no such jurisdiction is contemplated; but it is not expressly negatived.
If jurisdiction were assumed in cases between natives, or between natives and foreigners, or (except by consent) between French subjects and foreigners, this would amount practically to the declaration of a protectorate, with the international responsibilities which flow from that relation.
A comparison of the French decree with the Pacific Order in Council, which defines the powers of the British High Commissioner, shows an important difference in form. By the British Order in Council (Article 5) the assumption of jurisdiction over other than British subjects in places which are not British settlements or protectorates, is expressly negatived (except by consent: see Article 109). And section 7 of the Pacific Islanders Protection Act 1875 would invalidate any provision in the Order in Council which amounted to a claim to dominion or sovereignty.
Assuming however that the French decree is to be read subject to the well-recognised rule of international law, there does not seem to be any difference in substance between the powers of the French Commissioner-General and the British High Commissioner.
The position may be summarised as follows:
- The French decree does not expressly assume any jurisdiction unwarranted by international law.
- As compared with the Pacific Order in Council, it does not so carefully guard against the possibility of an unauthorised extension of jurisdiction.
[Vol. l, p. 32]