'File 35/85 III A 10 French Flag Question' [‎43r] (96/610)

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on views of French national policy or tlis manifest intention (" esprit mani-
feste") of the Treaty, but mainly on allegations of established usa^e, which, in
his view, interpret or supplement the Treaty in a manner harmonizing with the
Erench contentions. The statements of facts and the diplomatic documents to
which he refers relate wholly and solely to Zanzibar, and not a single fact is
stated with reference to the express or tacit admission in Oman of the existence
in favour of Prance of the exclusive right of surveillance over Prench vessels
in Oman waters.
The French Treaty of 1844 applied to Oman and Zanzibar as a single State
for twelve years, until the separation of the two territories into distinct States
in 1856. Thenceforth it was recognized by the Sovereigns of the two States as
applying to each State separately. Nothing that happened between Prence and
Zanzibar between 1866 and 1905 can be construed as binding the Sultan of
Muscat either as matter of usage, concessions, or interpretation of the Treaty.
The earlier Colonies in the Indian Ocean possessed by France were near Zanzi
bar and far from Muscat, and France had to little concern with Oman that it
was not until 189i that she installed a Vice-Consul there, or instituted any
Court in which any person claiming to be her protege could be dealt with
judicially. Nor is there any trace in the French " Memoire" or "Contre-
Memoire" of any grant of French flags to Muscat vessels before 1891, or of any
exercise by France of rights of police in Oman waters before that date.
It is unnecessary to deal in detail with the various controversies which have
arisen between Great Britain and France as to the territory and waters of
Zanzibar, because they have, fortunately, been terminated by the arrangement
evidenced by the letters of the 13th and
Append.! 4,p. lgth May)1904
But His Majesty's Government cannot be considered as admitting that the
contentions of France with respect to Zanzibar were juridically well-founded,
although in a spirit of amity an adjustment has, in the case of Zanzibar, been
effected which satisfies the aspirations of both Powers and meets the needs of
the situation.
M. Benault's arguments as to the effect on the status quo ante of the estab
lishment of a Protectorate relate only to Zanzibar, and in no way affect Oman
which is not a Protectorate.
Before passing from this part of the Case, it is perhaps well again- to point
out that the main point in controversy is not whether France, has any power to
Police in Oman waters vessels admittedly French, but whether France, by per
mitting the use of her flag to persons who are not her subjects nor her proteges,
nor within the immunities given by the Treaty of 1844, can extend to such
persons any immunities she may possess in Oman. Even assuming that France
had acquired some modified rights in Oman waters over vessels admittedly
French, this is a very different thing from the claim of exclusive police in the
Sultan's waters by French officials over any Arab dhow A term adopted by British officials to refer to local sailing vessels in the western Indian Ocean. which flies the French
flag. Still more does it differ from the claim which has hitherto been coupled
with it that the owner and crews of such vessels and their families shall be
exempt when ashore from the Sultan's jurisdiction.
The true international rule on this subject is well stated in the decision of
the United States' Supreme Court, of which an extract is given in Appendix,
p. 5.
THE CAPITULATIONS AND EXTEEEITORIALITY.
A considerable portion of the French Counter-Case (pp. 39 et seq.) is taken
up by arguments that the " regime des Capitulations " applies to Muscat.
These arguments, except so far as they are based on Treaties with the Sultan,
or established usage in his dominions, are an attempt to import into the relations
of France with Oman usages which may exist between France and other
Oriental States.