'File 35/85 III A 10 French Flag Question' [‎40v] (91/610)

Instead of giving this information, it is contended that—
k France ne saurait reconnaltre au Sultan de Mascate 1'exercice d'un contrdle sur
roetroi du pavilion tricolore dans les Colonies
" Contre-M^moire," p. 8. frangaises ; cette pratique etant basee sur le droit
interne de l^JStat fran^ais."
This contention evades the question in dispute. It is not necessary to
inquire as to the municipal law of France with respect to the grant of the
Trench flag to ships, so long as the ships in question remain in French waters.
Nor is it necessary to inquire as to the effect on the high seas or in the waters
of third Powers of the French law as to the grant of the French flag. "What
the Tribunal has to consider is whether France can, under cover of her munici
pal law, give to subjects of another Power in the territories and waters of
that Power an extra-territorial and privileged position and exemption from the
laws of their natural Sovereign. According to the view of His Majesty's Gov
ernment, the contention of France is that the municipal law as to the grant
of flags is to prevail outside her own territory over international law and the
municipal law of other States. And after thus disposing of the claim of the
Sultan to information as to the reasons for withdrawing his subjects from his
jurisdiction, it is further suggested that
« Contre-M^moire, 1 pp. -8. Great Britain is guilty of a, petitio princif
pii in treating as settled a priori in favour of the Sultan the question of the
slatut personnel of all the dhow A term adopted by British officials to refer to local sailing vessels in the western Indian Ocean. -owners who are originaires Oman ou sup
poses tels, and who have obtained French papers, and France not only makes
express reserve against the British view, but also appears to deny any obliga
tion to give any written explanation of ihe grounds on which each titre was
granted.
What, according to the French view, is the sfotut personnel of a Moslem
Arab born and residing in Oman, who has wives in the various ports to which
he takes his ship in the sailing season, and who flies the French flag ?
Is his right to marry, or the transmission of his property, determined by
the " Code Napole on " or by the Koran ? Does he retain his slatut personnel
as an Omani Arab, with a right to decline the jurisdiction of the Court best
competent to determine the appropriate prescriptions of the Mohammedan
law ?
The natural and ordinary.presumption as to a person who is originaire
of a particular State is that he is the subject of the Sovereign of that State.
Where he is not only an originaire, but also ordinarily resident in that State,
the presumption is strengthened. And if any State claims that a person born
and ordinarily resident in another State is a subject or protege 'of the first
State, it is in accordance with all rules of law and justice that the claiming
State should furnish proof of the grounds of its claim. It is true that under
certain conditions in modern times what is termed " double nationality " arises.
For instance, a Frenchman duly naturalized in the United States may, never
theless, continue to be a French citizen if he has not satisfied his obligations
under French military law or other laws. In such a case the United States,
though always ready and constitutionally bound to afford the amplest protection
to its citizens throughout the world, recognizes that a Frenchman naturalized
in America under the conditions indicated has no claim to American protection
in France. The same principle is recognized by the British Naturalization
Act, 1870.
When an originaire of any State is claimed as citizen or protege of another
it is juridically impossible to suppose that the Sovereign is bound to accept the
mere statement of the Agents of the other power that the person claimed is its
subject. In an ordinary European State such a claim would, of course not
have much effect, since the system of exterritoriality is not there recognized *
but in a State in which exterritoriality or immunity from local jurisdiction is
recognized by Treaty or usage, it is essential, to prevent abuse, that the person
claiming immunity from the local authorities, or the owner who claims it for
him should prove that he falls within one of the categories of privileged