'File 35/85 III A 10 French Flag Question' [‎41v] (93/610)

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2. The police powers of territorial Sovereigns in their own waters; and
3. The extent to which a Power can exercise supervision or jurisdiction
over its own vessels in the waters of another Power by permission
of that Power.
The question of the <c droit de visite " has only an incidental bearing upon
the present controversy.. It is well known to all students of international law
r that France, for many years, whether from
Contre-M^moire," p. 54. national sentiment, as suggested in the
« Oontre-Memoire, " or from particular theories of international law, has been
resolutely opposed to granting to any other Power the right to search vessels
carrying the French flag on the high seas,
* KiM error as of 1887 in the and that the naval instructions of 1867*
British Case. mark the Utmost limit of French conces
sions to Great Britain on this point. Other powers which have taken the •
French view have, by adherence to the Brussels Act, assented to the search of
certain vessels under their flag found in the Indian Ocean, and to that extent
have granted the " droit de visite."
It is asserted that British officers have on occasion shown an excess of
zeal or have gone beyond the instructions of 1867. Whether they have done
so is wholly immaterial to the present
"Centre-M^moire,pp. 125-149,160,-163. andHis Majesty's Government do
not think it necessary to discuss each case in detail, and are content to point
out that Article 13 of the instructions indicates the remedy to be pursued.
Not content with a wholly unnecessary elaboration of French policy as to
the" droit de visite," the « Contre-Memoire" under some misunderstanding
puts forward the supposition that Great Britain denies or questions the rights
and privileges of the French flag on the high seas.
As between Great Britain and France, the question of the "droit de
visite" has passed from the stage of international controversy to that of con
vention by the regime agreed on in the Joint Instructions of 1867. As to other
Powers which have acceded to the Brussels Act, " droit de visite " in the Indian
seas is mutually conceded by the Brussels Act. His Majesty's Government
can well conceive that a Power to whose subjects France has granted French
papers and quasirprotection in the manner adopted as to Omanis might claim
as against France to defeat such usurpation by search even on the high seas of
such vessels; but it is not necessary to deal with any such contention in the
present case. Before leaving this subject, it is, however, desirable to explain
to the Tribunal that the desire of Great Britain that there should be a mutual
right of search over native vessels in seas frequented by slavers—a desire
which has been accomplished by the accession of almost every Power except
France to such an arrangement—was to secure an effective international
police of the infested seas instead of the isolated and ineffective national system
which France prefers. Nothing was further from the desire of Great Britain
than, as is suggested in the French ce Contre-Memoire," to destroy the influence
of France in these seas.
In conclusion, His Majesty's Government must protest against the wholly
gratuitous introduction of two documents relating to questions which arose
between great Britain and the United States in 1857 and 1858 as to vessels
suspected of fraudulently using the American flag. The full text of the
correspondence is to be found in the British " State Papers, " volume xlviii,
pp. 1244rl250, and volume xlix, p. 1103, et. seq., and no doubt also
in the American diplomatic correspondence. Great Britain and the United
States were in perfect accord as to the necessity of stopping the oversea traffic
in slaves under the American flag, and as to the accuracy of many, if not all,
of the British statements. The only difference between the two Powers was as
to the nature of the visite which a British vessel might make to a vessel on