and the concurrence of the chief Powers of of the 22nd November (4th December), 1897, and Appendix No. 36. the Ottoman Empire. The rights of France in Muscat, as defined by y exten?, 247 Certips, a ལ་ C43 the Treaty of 1844, are limited to the protection By reading the most-favoured-nation clause of the Treaty of 1844 with the terms of the British Treaty of 1891, France may be considered as entitled to include among her protégés in Muscat て 1. Inhabitants of territories in Africa or the vl 4.12'L Indian Seas which are French Protectorates, bond fide domiciled and subject there and to the extent specified in the Treaties, bona fide servants of French subjects, provided that such natives were subjects of the protected States at the time when the Protectorate was established, and were domiciled in these States. 2. Subjects of non-Christian Powers, not having a Consulate in Muscat, who are actually in the service of French citizens in Muscat. To the extent above stated, and no further, do the Treaties derogate from the recognized rule of international law that one State is not entitled to extend its protection over the subjects of another, except 1. In its own territories and territorial waters. 2. Elsewhere, with the assent of the Sovereign of the protected person. The Muscat Treaty of 1844 contains no sur render of the Sultan's right of police over his Spal14. waters, and grants no right to France to exercise 34 844 The qualified grant of extra-territorial rights which is conceded by the Treaty is a concession to e g с میری ما στα 2 the difference between Western and Eastern conceptions of law and justice, and is not in any way intended to enable France to interfere between the Sultan and his own subjects in any case not specifically provided for in the Treaty. And the text of the Treaty has not been supplemented, varied, or enlarged in this respect by any recognized or established usage, permitting France to exercise either concurrent or exclusive jurisdiction over the Sultan's subjects in his terri tories or in his territorial waters. On the 19th May, 1903, the French Ambassador in London stated to Lord Lansdowne "that the Treaty of 1844 was not designed to meet the case of those owners of dhows whose rights, he said, were in many cases anterior to the date of the Treaty that the French flagholders were altogether outside the Treaty, and that protection was claimed for them not under the Treaty, but because they had been given French papers and were entitled to fly the French flag." It is difficult to comprehend the principle upon which such a claim could be based. It involves an assertion of the right of France spontaneously to create as many protégés as it chooses in Muscat by grant of French papers and flags to any foreigner who applies for them, and as it admittedly does not rest on any specific Treaty with Muscat, the claim is equally applicable to the subjects of any European Power in the 4 territories of their natural Sovereign—a contention which no civilised State would for a single moment admit. In truth the contention seems to be based on a confusion of ideas and a mistaken notion that Christian Powers are entitled in Oriental States to create classes of protected Orientals without reference to any Treaty or Capitulation, and to force on the Rulers of those States, with respect to their own subjects, the municipal laws of France. It is not admissible in the case of Muscat to base any claim to French protection on the fact that the protégé has acquired a domicile on French territory, which is not the equivalent of nationality, or that he has acquired immeubles in a French Colony or Protectorate. The maritime laws of France appear not to contemplate the grant of French papers to vessels unless at least half the vessel is owned by French citizens. And Article XXXII of the Brussels Act cannot be interpreted as extending or giving any [1413] F wider scope to these laws. That Article recognizes the principle that it would be an abuse to grant the national flag indiscriminately to native vessels, and operates to restrict internationally the right of Powers which have accepted it to cover by their flag native craft in the Indian Seas, and is obviously aimed at preventing the very mischiet created by the practices detailed on pp. 10-14 of this Case. In other words, the aim of the Article was to insure that no native vessel should fly the flag of a Signatory Power unless it satisfied the conditions laid down in the Article, and that native vessels which were not qualified for registration, by reason of the status of their owners as actual subjects or bona fide protégés of a Signatory Power, should have to resort to the flag of any of the native States to which their owners belonged. The effect of the action of French officials has been to enable Arabs of independent States or tribes not belonging to any French Colony or Protectorate under cover of the French flag to claim the right to escape on the high seas from search eve WV. k under Article XLII of the Brussels Act, and in the waters, or in the territory, of the State to which they belonged, notwithstanding the saving clause in that Article, to claim extra-territoriality and independence of their own lawful Sovereign, and to defeat his efforts to enforce his own laws and Treaty obligations to suppress their nefarious occupation. The saving clause in Article XLII of the Brussels Act expresses the universally established rule of international law as to the jurisdiction of a State within its own territorial waters. It cannot be contended that France, by reserving her assent to the Article, has given herself larger powers of police and surveillance in the waters of other States than would be acquired by those Powers which have accepted Article XLII, and it is to be further noted that Muscat not being a party to the Brussels Act, France cannot, by virtue of these Articles of the Act which she has accepted, claim the exercise of any rights in the dominions or territorial waters of the Sultan, whose obligations, always fully recognized to suppress the Slave Trade, are defined by the Treaties with Great Britain already referred to, and not by the Brussels Act. The terms of the second paragraph of Article XXXII of the Act are inconsistent with the practice of granting permits at French Consulates in foreign 22 55 States because the proof of possession of immeubles there referred to clearly relates to immeubles within the territory and jurisdiction of the French authority granting the permits which cannot exist in foreign States in which the French only have Consulates. Assuming, for the purposes of the present Case, that by the grant of French papers to the Omani owner of an Arab dhow the vessel and the recipient of the papers acquire privileges and incur obligations within French waters, and those rights 100-post depend solely on French municipal law, No such ряд Omaniah Milz/cvit. rights can be recognized in the high seas as a fortiori so soon as the vessel and its owner and crew return within the territorial waters of Muscat there is nothing in the recognized rules of international law or in the Treaties which renders the vessel, entitled to privileges as a French vessel, or its owner, captain, and crew entitled to be treated as French protégés. Where the title of the Omani owner to fly the French flag is questioned by his Sultan, it is not enough for a French official to assert that the man is a protégé, or to show that he or his ship is registered at the Consulate or has French papers. The claim to privilege must be warranted by the facts and brought within the relevant Treaty. The papers of many of these vessels contain a clause permitting the vessel to be manned by foreigners, which has the effect of displacing any presumption which might otherwise have arisen that the crew of such a vessel under the French flag were Frenchmen, and makes it necessary in each case to show that members of the crew were, independently of the titre, either Frenchmen or natives of French Colonies or Protectorates, or in the service of Frenchmen. Great respect is, of course, due to the declaration of a responsible officer of France with respect to persons claimed as French protégés. But subjects of Oman who claim such a privilege or exemption must prove that they are entitled to it under some Treaty, and when the facts of their birth, nationality, residence, and occupation are perfectly well established, it is impossible that such facts can be countervailed by a declaration that they are registered in the French Consulate or have obtained French papers while outside Oman. The only result of such a declaration is to entitle the Sultan to invite France immediately to [1413] F 2 investigate the circumstances under which her officials have permitted unqualified persons to obtain the semblance of being French citizens or protégés, and to have the claimants at once struck off any Consular register on which they appear, and deprived of any French flags or papers which they have wrongfully obtained. In the case of a claim by a native of a country to be a protégé of a foreign Power, the presumption is against such privilege, and the officers of the protecting State, while they may be able to say that they have registered the claimant or done acts purporting to give him protection, must go further, and show in what quality and under what Treaty or principle of international law the claim can be justified. To admit the absolute right of a foreign State to conclude by its declaration the question whether any person was, or was not, its protégé, would enable it to transfer to its protection masses of a foreign population residing in their own country, and to create semi-independent communities within the borders of a friendly State. Indeed, this is precisely what has resulted at Sur from the action of French officials in Muscat, and constitutes a grave attack upon the independence of the Sultan of Muscat. The claim advanced on behalf of the quarantinebreakers-which has directly led to this arbitration is even less justifiable. The men did not arrive at Muscat under the French flag, and did not run away from their quarantine in a vessel flying the French flag. The sole ground of the privilege claimed was that they had at some time sailed in such a vessel or obtained French papers in connection with such a vessel. They were confessedly Suri subjects of the Sultan resident in his dominions. A claim by the subject of a European Power to defy the Quarantine Regulations of his own State on the ground that he owned, or had sailed in, a ship registered in France would at once. be scouted as inconsistent with every principle alike of municipal and international law, and in the absence of a Treaty with Muscat specifically varying the ordinary rules of jurisdiction, the claim has no juridical foundation. Upon the facts and arguments hereinbefore stated, it is submitted on behalf of Great Britain |