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such existing leases shall be imposed in respect of such property. It is, however, understood that the consular authorities mentioned in the same are in all cases to be replaced by the Japanese authorities.

All lands which may previously have been granted by the Japanese Government free of rent for the public purposes of the said settlements shall, subject to the right of eminent domain, be permanently reserved free of all taxes and charges for the public purposes for which they were originally set apart.

19. The stipulations of the present treaty shall be applicable, so far as the laws permit, to all the colonies and foreign possessions of Her Britannic Majesty, excepting to those hereinafter-named, that is to say, except to

India

The Dominion of Canada
Newfoundland

The Cape
Natal

New South Wales

Victoria
Queensland
Tasmania

South Australia
Western Australia
New Zealand

Provided always that the stipulations of the present treaty shall be made applicable to any of the above-named colonies or foreign possessions on whose behalf notice to that effect shall have been given to the Japanese Government by Her Britannic Majesty's representative at Tokio within two years from the date of the exchange of ratifications of the present treaty.

20. The present treaty shall, from the date it comes into force, be substituted in place of the conventions respectively of the 23d day of the 8th month of the 7th year of Kayei, corresponding to the 14th day of October, 1854, and of the 13th day of the 5th month of the 2nd year of Keiou, corresponding to the 25th day of June, 1866, the treaty of the 18th day of the 7th month of the 5th year of Ansei, corresponding to the 26th day of August, 1858, and all arrangements and agreements subsidiary thereto concluded or existing between the high contracting Parties; and from the same date such conventions, treaty, arrangements, and agreements shall cease to be binding, and, in consequence, the jurisdiction then exercised by British courts in Japan, and all the exceptional privileges, exemptions, and immunities then enjoyed by British subjects as a part of or appurtenant to such jurisdiction, shall absolutely and without notice cease and determine, and thereafter all such jurisdiction shall be assumed and exercised by Japanese courts.

Extract from the Treaty of Commerce and Navigation between Germany and Japan, signed at Berlin, April 4, 1896 1

1

18. The contracting Parties have agreed upon the following arrangement:

The several foreign settlements in Japan shall be incorporated with the respective Japanese communes, and shall thenceforth form integral parts of the Japanese communes.

The competent Japanese authorities shall thereupon assume all municipal obligations and duties in respect thereof, and the common funds and property, if any, belonging to such settlements, shall at the same time be transferred to the said Japanese authorities.

When such incorporation takes place the existing leases in perpetuity under which property is now held in the said settlements shall be confirmed, and no conditions whatsoever other than those contained in such existing leases shall be imposed in respect of such property.

The proprietary rights in the lands belonging to these settlements may in the future be granted to natives or foreigners by their proprietors free of charge and without the consent of the consular or Japanese authorities, as has hitherto been required in certain cases.

The functions, however, attached according to the original leases to the consular authorities, shall devolve upon the Japanese authorities.

All lands which may previously have been granted by the Japanese Government free of rent for the public purposes of the said settlements shall, subject to the right of eminent domain, be permanently reserved free of all taxes and charges for the public purposes for which they were originally set apart.

19. The stipulations of the present treaty shall be applicable to the territories which now, or shall in future, form a customs union with one or other of the contracting Parties.

20. The present treaty shall, from the date it comes into force, be substituted in place of the treaty of the 20th February, 1869, and all arrangements and agreements subsidiary thereto concluded or existing between the high contracting Parties. From the same date these earlier conventions shall cease to be binding, and, in consequence, the jurisdiction till then exercised by German courts in Japan, and all the exceptional privileges, exemptions, and immunities then enjoyed by German subjects as a part of or appurtenant to such jurisdiction, shall absolutely and without notice cease and determine. Thereafter all such jurisdiction shall be assumed and exercised by Japanese courts.

'British and Foreign State Papers, vol. 88, p. 588. For the original German text, see Appendix, p. 464.

Extract from the Treaty of Commerce and Navigation between France and Japan, signed at Paris, August 4, 18961

21. The Government of the French Republic, so far as it is concerned, gives its consent to the following arrangement:

The several foreign settlements existing in Japan shall be incorporated in the respective Japanese communes and shall thenceforth form a part of the municipal system of Japan.

The competent Japanese authorities shall thereupon assume all municipal obligations and powers resulting from this new state of affairs, and the municipal funds and property belonging to such settlements shall, at the same time, be transferred to the said Japanese authorities.

When the changes above indicated shall have taken place, the leases in perpetuity, in virtue of which foreigners now possess property in the settlements, shall be confirmed, and property of that character shall not be subject to any duties, taxes, charges, contributions, or conditions whatsoever, other than those expressly stipulated in the leases in question. It is understood, however, that the consular authorities mentioned in the same shall be replaced by Japanese authorities.

Those lands which the Japanese Government may have previously exempted from the payment of rent, in view of the fact that they were used for public purposes, shall, subject to the right of eminent domain, be permanently reserved free of all duties, taxes, and charges; and they shall never be diverted to other uses than those for which they were originally intended.

22. The provisions of the present treaty shall be applicable to Algeria. It is understood that they shall also be applicable to all French colonies for which the French Government shall claim the privilege. The representative of the French Republic at Tokio shall, to this end, notify the Japanese Government of such colonies within a period of ten days, dating from the day of the exchange of ratifications of the present treaty.

23. From the date that the present treaty becomes operative, the treaty of October 9, 1858, the convention of June 25, 1866, and, in general, all the agreements concluded between the high contracting Parties prior to this date shall be abrogated. In consequence, French jurisdiction in Japan, and all privileges, exemptions or immunities enjoyed by French subjects resulting therefrom, shall cease absolutely and without notice from the day that the present treaty becomes operative; and thereafter French subjects shall submit to the jurisdiction of the Japanese tribunals.

1Translation. For the original French text, see Appendix, p. 465.

THE MUSCAT DHOWS CASE

between

FRANCE and GREAT BRITAIN

Decided August 8, 1905

Syllabus

In an adjustment of conflicting interests, Great Britain and France, on March 10, 1862,1 signed a declaration in which they engaged reciprocally to respect the independence of the Sultan of Muscat. Subsequently, France, acting under the treaty of November 17, 1844, with the Sultan, adopted the practice of issuing to certain of his subjects. papers authorizing them to fly the French flag upon dhows or vessels carrying on the coastwise trade in the Indian Ocean, the Red Sea, and the Persian Gulf and also commonly employed in the slave trade from the east coast of Africa. After the signature, on July 2, 1890, of the General Act of Brussels for the repression of the African slave trade, Great Britain protested that the issuance of such authorizations to natives and the privileges and immunities claimed by them thereunder affected the jurisdiction of the Sultan over his subjects in derogation of the engagements entered into by France and Great Britain in the declaration of 1862. Failing a settlement through diplomatic channels, the question was referred by a compromis signed October 13, 1904,* to a tribunal consisting of Heinrich Lammasch of Austria, A. F. de Savornin Lohman of Holland, and Chief Justice Melville W. Fuller of the United States. The sessions began July 25, 1905, and ended August 2, 1905, the decision being rendered on August 8, 1905. The tribunal decided that:

(1) Every sovereign may decide to whom it will accord the right to fly its flag and to prescribe the rules governing its use, and the granting of the right to subjects of another sovereign constitutes no attack upon the latter's independence.

(2) This right of France was, however, limited by Article 32 of the General Act of Brussels, which went into effect on January 2, 1892, under which both France and Great Britain as signatories agreed to grant authority to fly their flags only to native vessels owned or fitted out by their subjects or protégés. The latter term was defined to mean the subjects of a protectorate of the Power in question; the individuals enumerated in the Ottoman law of 1863, which was accepted by the Powers who enjoy the capitulations, and in the treaty between France and Morocco of the same year, acceded to by other Powers

1Post, p. 103. 2Post, p. 103.

For Articles 30 et seq. of this Act, see post, p. 104. 4Post, p. 101.

and confirmed by the convention of Madrid, of 1880; persons recognized as protégés by special treaties; and individuals who were considered and treated as protégés by the Power in question before the creation of new protégés was regulated and limited in 1863.

(3) The restriction on the creation of protégés in Turkey and Morocco applies by analogy to other Oriental States, but, owing to the difference in racial conditions in Turkey and Muscat, the right of inheritance of the status of protégé conceded by Turkey can not be extended by analogy to Muscat.

(4) The French-Muscat treaty of 1844, specially recognizing certain persons as French protégés, applies only to persons bona fide in the service of French subjects, and not to persons who ask for ship's papers simply for the purpose of carrying on commerce under the French flag; but the granting of such papers prior to the ratification of the Act of Brussels was not in violation of any international obligation of France.

Held: That before January 2, 1892, France was entitled to authorize vessels belonging to the subjects of Muscat to fly the French flag, and that such grantees are entitled to retain their authorizations as long as France renews them; but, after the above-mentioned date, France was not entitled to grant such authorizations except when the owners or fitters-out of the vessels had established or could establish the fact that they were considered and treated as French protégés before 1863. Concerning the privileges and immunities of natives in possession of such papers, the tribunal decided that the treaty between France and Muscat of 1844 prohibiting without the authorization of the French consul the entry or search of houses, warehouses and other property possessed or occupied by French citizens or persons in their employ, was comprehensive enough to include the prohibition of the entry of vessels, but Articles 31-41 of the General Act of Brussels limits the grant of the right to fly the national flag to that particular vessel and its owner, and the right is not transferrable to any other person or vessel.

The provision of the treaty of 1844, which accords French protection to persons in the employ of French citizens, does not include the owners, masters and crews of dhows authorized to fly the French flag or the members of their families, and the withdrawal of these persons from the sovereignty and jurisdiction of the Sultan would be a violation of the declaration of 1862.

Held: That dhows of Muscat authorized, as aforesaid, to fly the French flag are entitled in the territorial waters of Muscat to the inviolability provided by the French-Muscat treaty of 1844, but the right can not be transmitted to any other person or dhow, and the owners, masters, and crews of such dhows or members of their families do not enjoy any right of extraterritoriality which exempts them from the jurisdiction of the Sultan of Muscat.

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