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the present legal position 95
independent States. Therefore, they cannot, probably, be invoked as a
basis for determining the position of treaties between protecting and
protected States. Consequently, it may seem difficult to say whether
the doctrine rebus sic stantibus, doubtful as it is, can safely be in­
voked as a basis for terminating the treaties of the Shaikhdoms.
Moreover, occasions have not arisen where a protected State has
abrogated its treaties with the protecting Power without the concur-
re nee of the latter. It appears, therefore, that a renunciation on the
part of the protecting Power of its protectorate rights over the pro­
tected State is a necessary step for the independence of the latter.1
But this is not always the case. While it seems that normally a recogni­
tion by the protecting Power of the independence of the protected
State is a basic step for paving the way for other States to recognise
the independence of the protected State, that recognition is, however,
not the sole basis for the independence of this State. The indepen­
dence of the protected State lies basically in its existence as a State
and in the effective establishment of its independence and the extent
of its ability to defend that independence, if necessary against the
protecting State. The protected State exists as a State from the time it
separates itself from the ‘community’ upon which it is dependent.
‘The existence of the State de facto\ says Wheaton, ‘is sufficient, in
this respect, to establish its sovereignty de jure. It is a State because it
exists.’2 However, once this independence is established, it becomes a
question of recognition on the part of third States of the protected
State’s independence. Accordingly, if third States are prepared to
recognise the latter’s independence, the protecting State’s objection
to this independence becomes of no legal value.3
(b) Disregard of treaty obligation: remedies for breaches
The question to be considered here is whether there are legal remedies
for breaches of these treaties by cither the Rulers or the United
Kingdom. What happens, for example, if the Rulers correspond with
a foreign State, apply for membership in the Arab League, or decide
to join a federal Arab Union4 without obtaining the sanctions of the
1 For Britain's renunciation of her protectorate in Egypt, sec above, p. 65, n. 3.
For France’s declarations of the independence of Tunisia and Morocco, sec U.N.,
Everyman's United Nations (1959) pp. 156-7. Reference should also be made to
the British-Kuwaiti Treaty of 1961 which implies Britain’s renunciation of her
protectorate rights over Kuwait.
5 Wheaton, H., Elements of International Law, 6th ed., vol. I (1929), pp. 42-3.
3 Lauterpacht, pp. 9, 26-30.
4 It was rumoured in 1959, nearly two years before Kuwait’s independence,
that she was going to join the Arab League as a member. But this rumour was
later denied by a British Foreign Office spokesman. It was true, however, that the
Secretary of the Arab League visited Kuwait and discussed the possibility of
Kuwait joining the League. See The Times, 30 September, 2 October 1959. It is to
be noted, in this respect, that Article 1 of The Pact of the Arab League of 22 March