Page 180 - The Arabian Gulf States_Neat

118 THE LEGAL STATUS OF THE ARABIAN GULF STATES
peace for the Ionian Islands. Dr Lushington held that the Ionian
Islands were not 'ex necessitate at war’ as a result of the declaration of
war made by Great Britain against Russia.1 However, it is remarkable
that in his judgment, Dr Lushington made it quite clear that had
Great Britain intended to place the Ionian Islands at war with Russia,
she had the power to do so. Accordingly, he said:
I know of no act of the protecting Power to place the lonians in that
predicament. Great Britain may have power to do so, as the protecting
Power is possessed of all the rights of treating with foreign nations, and of
the right to place them in the category of enemies; but she has not thought
proper to do so.2
It is worthy of note that Dr Lushington’s judgment was held to be
‘in direct conflict’ with the view taken by the Law Officers of the
Crown regarding the position of the Ionian Islands during the war
in question.3 These Law Officers, however, although according to
Lord McNair, ‘adhering to their former opinion’ that the Ionian
Islands were not free to remain neutral, submitted on 10 May 1855 a
Report in which they clarified the status of the subjects of the Islands
during the war declared by the Crown as follows:
. . . yet, wc think that the ‘status’ of a native of the Ionian Republic under
the protection of the British Crown is very different from the ‘status’ of a
natural born English subject, and that lonians, being under the protection
of the British Crown, arc not in any degree liable, under the Proclamation,
to be proceeded against for the committal of any of the treasonable acts
therein referred to, but that it will be proper to declare that the protection
of the British Crown will be withdrawn from all lonians in any manner
aiding or abetting Her Majesty’s enemies.4
It may be submitted, in the light of the views expressed above, that
the Ionian Ships case may, perhaps, be regarded as establishing the
principle that a declaration of war on the part of the Crown does not
automatically involve British protected States or protectorates (not
of the colonial type) unless a separate declaration placing them at
war is expressly made on their behalf. This principle was further
approved by the Supreme Court of the Federated Malay States in its
decision in H. C. van Hoogstraten v. Low Lum Seng of 16 October
1939. In that case it was heid that the Federated Malay States were at
war with Germany as a result of the declarations of the British High
Commissioner (representing the Federations’ Executive), which clearly
and unequivocally placed them at war with Germany.5

1 [1855] 2 Spinks 212; And sec Green, L. C., International Law Through the
Cases 2nd ed. (1959), pp. 67-70. 2 Green, op. cit., pp. 67-70.
For an explanation of British diplomatic practice in this connection, sec
Smith, I, pp. 68-76. 4 McNair, Opinions, I, p. 40.
6 Annual Digest, 1938-40, case No. 16.