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THE PRESENT LEGAL POSITION 99

(ii) Treaty-making capacity of the Shaikhdoms
It appears from the provisions of the treaties of the Shaikhdoms
with the United Kingdom that the Rulers deprived themselves of the
right to enter into treaties or international agreements with foreign
States without first obtaining the consent and approval of the British
Government.1 This, however, does not mean that these Shaikhdoms
have lost their treaty-making capacity in to to, but that their power
to conclude treaties has been conditioned by the consent of the British
Government.2 This limitation on the treaty-making power of the
Shaikhdoms presents the following question: What are the effects of
treaties concluded by these Shaikhdoms with foreign States without
the consent of the United Kingdom Government? Can such treaties
be considered as internationally binding?
The general principles of international law on this question are as
follows:
As regards treaties concluded by protected States in disregard of
their treaties of protection, Oppenheim states:
Protected States may conclude treaties if so authorised by the protecting
State or the treaty establishing the protectorate. An instrument is void as a
treaty if concluded in disregard of the international limitations upon the
capacity of the parties to conclude treaties.3
On the question whether treaties concluded by protected States in
excess of their power are void or merely voidable, there are differences
of views among writers. Thus, according to Hyde,
. . . such a limitation does not necessarily imply that treaties at variance

1 See Chapters 2-5. As already mentioned, this discussion deals with the former
status of Kuwait as a British protected State. Now, after her independence on
19 June 1961, Kuwait possesses full treaty-making capacity.
2 Examples of cases where treaty-making capacity has been lost completely can
be found in Hertslct, Mop of Africa by Treaty, op. cit., pp. 290 et seq. By virtue
of these treaties the African tribal chiefs placed themselves and their territories
under the sovereignty of the Crown. See also for a description of these treaties.
Snow, op. cit., p. 126, where he states: *. . . treaties with aboriginal tribes, instead
of attempting to regulate the relations between the State exercising sovereignty
and the tribe ... are made for the purposes of arranging the terms of guardianship
to be exercised on the tribe.’ These tribes are described as possessing no treaty­
making capacity whatsoever. See ibid., pp. 118-26.
3 Oppenheim, pp. 882-3. On the treaty-making capacity of protected States
Hersch Lauterpacht says: ‘There is an occasional tendency to assume that such
States, “not being members of the international community”, possess no power
to conclude treaties. This statement, which is probably inaccurate, seems to beg
the question. The status of a political entity as a member of the international
community depends on various factors, including the capacity to conclude treaties.
This does not necessarily mean that the capacity to conclude treaties depends on
the status as a member of the international community’. Sec International Law
Commission, 1953, op. cit., p. 144.