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{{Short description|Lands with British monarch not in the UK}}
{{Short description|Lands with British monarch not in the UK}}
{{Distinguish|Commonwealth realm|British Overseas Territories|Crown Dependencies}}
{{Distinguish|Commonwealth realm|British Overseas Territories|Crown Dependencies}}

Revision as of 14:50, 23 October 2023

Not to be confused with Commonwealth realm, British Overseas Territories, or Crown Dependencies.

A British possession, as defined by British acts of parliament, is a country or territory outside the United Kingdom whose head of state is the British monarch, including all the British Overseas Territories,[1][2] and the Commonwealth realms, but excluding the United Kingdom itself.[1]: 5 [2]

Definition

Two acts in the Parliament of the United Kingdom define the current status of British possessions: the Interpretation Act 1978[3][4][2] and the Interpretation Act 1889.[5][4] In the reign of Queen Victoria (r. 1837–1901), the Interpretation Act 1889 defined the British possessions in its article 18, section 2:

"British possession" means any part of Her Majesty's dominions outside the United Kingdom; and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature are deemed, for the purposes of this definition, to be one British possession.

— Interpretation Act 1889, 18.2

In the reign of Elizabeth II (r. 1952–2022), the Interpretation Act 1978 defined the British possessions in its schedule 1,[2] with text identical to that in the 1889 act.[2] According to Ian Hendry and Susan Dickson in the 2018 2nd edition of British Overseas Territories Law, "the definition is evidently very wide" and the term is "anomalous as far as independent states covered by it are concerned", while "the term appears in some statutes, its use in modern times is rare".[1][a] According to Michael J. Strauss, "it is not uncommon for countries to use the term "possessions" for territories they control".[9]

The 2017 2nd edition of The Law of Ship Mortgages uses a more restrictive definition of "British possession". The authors list Jersey, Guernsey, the Isle of Man, and the British Overseas Territories.[10]

In earlier legislation, such as the Colonial Laws Validity Act 1865, the term "colonies" had been used to distinguish "all of Her Majesty's Possessions abroad in which there shall exist a Legislature".[11][12] The Colonial Laws Validity Act 1865 specifically excluded the Channel Islands and the Isle of Man from the definition of "colony".[11][12] The Coinage Act 1870 defined the British possessions in its article 2:[13][14]

The term "British possession" means any colony, plantation, island, territory, or settlement within Her Majesty's dominions and not within the United Kingdom

— Coinage Act 1870, 2

According to David Murray Fox and Wolfgang Ernst, this legislation "was relevant internationally since the Queen in Council was authorized to issue proclamations extending its operation" to the British possessions, and "marked the last stage in consolidating the sterling union".[13]

The Extradition Act 1870 defined the British possessions in its article 26:[15][16]

The term "British possession" means any colony, plantation, island, territory, or settlement within Her Majesty's dominions, and not within the United Kingdom, the Channel Islands, and Isle of Man; and all colonies, plantations, islands, territories, and settlements under one legislature, as hereinafter defined, are deemed to be one British possession

— Extradition Act 1870, 26

The British Settlements Act 1887 – which distinguished a particular category of British possession which had been "acquired by settlement" distinct from those "acquired by cession or conquest" – defined the British possessions in its article 6:[17]: 15 [18]

For the purposes of this Act, the expression "British possession" means any part of Her Majesty's possessions out of the United Kingdom, and the expression "British settlement" means any British possession which has not been acquired by cession or conquest, and is not for the time being within the jurisdiction of the Legislature, constituted otherwise than by virtue of this Act or of any Act repealed by this Act, of any British possession.

— British Settlements Act 1887, 6

As British possessions acquired without cession or conquest, Ascension Island, the British Antarctic Territory, the Falkland Islands, the Pitcairn Islands, South Georgia and the South Sandwich Islands, and Tristan da Cunha all take their statutory basis as British possessions and British settlements from the British Settlements Act 1887.[19]: 15 

In the law of India and the law of Pakistan, "British possession" is defined by the General Clauses Act 1897.[20][21][22]

Application

Nationality law

From 1867, Chinese people born in a British possession, together with their children, were one of four categories of people classed as "Anglo-Chinese" and entitled to a degree of British protection by agreement with the Qing dynasty.[23]: 282, note 10 

In the first three decades of the 20th century, naturalization in the British Empire was governed by the Naturalisation Act 1870 and by a report circulated at the 1902 Colonial Conference, which sought to establish a common standard of naturalization to be recognized throughout the empire for both internal and external purposes. The interdepartmental report allowed "a Secretary of State, or the Governor of a British possession, to confer the status of a British subject upon persons who fulfil the requisite conditions in any part of the British Dominions".[24]

Extradition law

In the law of South Africa, the status of the Union of South Africa as a "British possession" was tested in an extradition case disputing jurisdiction between the Union of South Africa and Basutoland.[25] Since the British Fugitive Offenders Act 1881 stated that "Where two British possessions adjoin, a person accused of an offence committed on or within the distance of five hundred yards from the common boundary of such possessions may be apprehended, tried, and punished in either of such possessions", a court in Mohale's Hoek claimed jurisdiction to try the case of defendant whose crime was alleged to have been committed in South Africa, but within 500 yards (460 m) of the Basutoland border. Having been convicted, the defence appealed, arguing that a Basutoland court had no jurisdiction because the Union of South Africa was not a "British possession" under the Status of the Union Act, 1934, which, following the Statute of Westminster 1931, had made South Africa a sovereign state. The court dismissed the appeal on the grounds that the Union of South Africa was indeed a "British possession", and that the Fugitive Offenders Act 1881 applied.[25] In 1937, W. P. M. Kennedy, commenting on this case in the University of Toronto Law Journal, suggested that the Dominion of Canada might have ceased to be a "British possession", writing: "under the Statute of Westminster, Dominions are no longer colonies "notwithstanding anything in the Interpretation Act, 1889", it is submitted that they are no longer "British possession" but admitting that "the point is arguable".[25]

In the law of New Zealand, New Zealand ceased to be a British possession as a result of the New Zealand Constitution Amendment Act 1973, which modified the provisions of the Statute of Westminster Adoption Act 1947.[26][27] This was recognized in court in 1976, when David Lange argued that the country was not a "British possession" under the terms of the British Fugitive Offenders Act 1881.[26][27] While Lange was prime minister of New Zealand, the New Zealand Parliament passed the Constitution Act 1986, which ended the power of the Parliament of the United Kingdom to legislate for New Zealand.[26][27]

Maritime law

Notes

  1. ^ In the 21st century, the term appears in the Sanctions and Anti-Money Laundering Act 2018,[6] the Wreck Removal Convention Act 2011,[7] and the Merchant Shipping (Pollution) Act 2006.[8]

References

  1. ^ a b c Hendry, Ian; Dickson, Susan (2018) [2011]. British Overseas Territories Law (2nd ed.). Hart Publishing. pp. 5, 15. ISBN 978-1-5099-1872-0.
  2. ^ a b c d e Curzon, Leslie Basil; Richards, Paul (2007). The Longman Dictionary of Law (7th ed.). Pearson. ISBN 978-0-582-89426-6.
  3. ^ "Interpretation Act 1978". legislation.gov.uk.
  4. ^ a b Waibel, Michael (2016), Aust, Helmut Philipp; Nolte, Georg (eds.), "Principles of Treaty Interpretation: Developed for and Applied by National Courts?", The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence, Oxford University Press, p. 27, doi:10.1093/acprof:oso/9780198738923.003.0002, ISBN 978-0-19-873892-3
  5. ^ "Interpretation Act 1889". legislation.gov.uk.
  6. ^ "Sanctions and Anti-Money Laundering Act 2018". legislation.gov.uk.
  7. ^ "Wreck Removal Convention Act 2011". legislation.gov.uk.
  8. ^ "Merchant Shipping (Pollution) Act 2006". legislation.gov.uk.
  9. ^ Strauss, Michael J. (2015). Territorial Leasing in Diplomacy and International Law. Brill Publishers. p. 40. ISBN 978-90-04-29362-5.
  10. ^ Osborne, David; Bowtle, Graeme; Buss, Charles (2017) [2002]. The Law of Ship Mortgages (2nd ed.). Taylor & Francis. pp. 26, note 92. ISBN 978-1-317-66043-9.
  11. ^ a b Finley, M. I. (1976). "Colonies: An Attempt at a Typology". Transactions of the Royal Historical Society. 26: 167–188. doi:10.2307/3679077. ISSN 0080-4401.
  12. ^ a b "Colonial Laws Validity Act 1865". legislation.gov.uk.
  13. ^ a b Fox, David Murray; Ernst, Wolfgang (2016). Money in the Western Legal Tradition: Middle Ages to Bretton Woods. Oxford University Press. ISBN 978-0-19-870474-4.
  14. ^ The Public General Statutes. London: Eyre and Spottiswoode. 1870. pp. 153–162.
  15. ^ Chakraborty, Ananya (2019). Extradition Laws in the International and Indian Regime: Focusing on Global Terrorism. Palgrave Macmillan. p. 143. doi:10.1007/978-981-13-6397-9. ISBN 978-981-13-6397-9.
  16. ^ The Public General Statutes. London. Eyre and Spottiswoode. 1870. pp. 288–300.{{cite book}}: CS1 maint: others (link)
  17. ^ Hendry, Ian; Dickson, Susan (2018) [2011]. British Overseas Territories Law (2nd ed.). Hart Publishing. ISBN 978-1-5099-1872-0.
  18. ^ "British Settlements Act 1887". legislation.gov.uk.
  19. ^ Hendry, Ian; Dickson, Susan (2018) [2011]. British Overseas Territories Law (2nd ed.). Hart Publishing. ISBN 978-1-5099-1872-0.
  20. ^ Lakshmanan, A. R. (2009). Wharton's Concise Dictionary: With Exhaustive Reference to Indian Case Law Along with Legal Phrases and Legal Maxims Including Glossary of Unique Words used by Justice V. R. Krishna Iyer Former Judge, Supreme Court of India (15th ed.). New Delhi: Universal Law Publishing. ISBN 978-81-7534-783-0.
  21. ^ "The General Clauses Act, 1897". India Code. Retrieved 2023-10-23.
  22. ^ "The General Clauses Act, 1897". Pakistan Code. Retrieved 2023-10-23.
  23. ^ Lees, Lynn Hollen, ed. (2017), "Multiple Allegiances in a Cosmopolitan Colony", Planting Empire, Cultivating Subjects: British Malaya, 1786–1941, Cambridge: Cambridge University Press, pp. 278–312, doi:10.1017/9781139814867.012, ISBN 978-1-107-03840-0, retrieved 2023-10-23
  24. ^ Karatani, Rieko (2003). Defining British Citizenship: Empire, Commonwealth and Modern Britain. London: Frank Cass. p. 73. ISBN 9780714653365.
  25. ^ a b c Kennedy, W. P. M. (1937). "British Possessions". The University of Toronto Law Journal. 2 (1): 114–116. doi:10.2307/824773. ISSN 0042-0220.
  26. ^ a b c John, Wilson (2007-08-28). "New Zealand sovereignty: 1857, 1907, 1947, or 1987?". New Zealand Parliament. Retrieved 2023-10-22.
  27. ^ a b c Wilson, John (2008). "New Zealand Sovereignty: 1857, 1907, 1947, or 1987?". Political Science. 60 (2): 41–50. doi:10.1177/003231870806000204. ISSN 0032-3187.
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