'File 35/85 III A 10 French Flag Question' [‎43v] (97/610)

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It is acknowledged that Capitulations and Treaties or Conventions creatin g
exterritoriality are exceptional and contrary to the ordinary rules of public
international law, and that the exceptions arise from particular sanctioning
documents or concessions from the Sovereign of the country to which they apply.
As a general rule, therefore, la order to ascertain what extent the territoriel
Sovereign is excluded from jurisdiction over the subjects or proteges of another
Power, it is necessary to examine the Treaties, and, if need be, the usage in force
between the territorial Sovereign and the other Power concerned, and it is rarely,
if ever, of value to refer to the Capitulations existing with other Powers.
Although, where several Powers have with an Oriental State Treaties giving
exterritorial jurisdiction couched in somewhat different terms, but containing
a most-favoured-nation clause, it may, as in the present case (see onte^ p. 5) be
necessarv to examine all such Treaties in order to determine the exact limits of
the extra-territorial jurisdiction conceded, it is never admissible to contend that
because one Oriental Power has conceded a particular and wide exterritorial
jurisdiction, a similar concession should be read into Capitulations made with
another Oriental Power ; nor can any argument be drawn from usage in the
case of one Oriental Power to establish the existence of any such usage in the
case of another Power.*
The Ottoman Regulations of 1S63 and 1865, referred to both in the British
and the Prench Cases, are relevant only as showing the determination of the
Porte to put an end to the abuses of protection which then existed, and of the
admission of the European Powers that the attitude of the Porte was consistent
both with its territorial sovereignty and with international law, and the fact that
these laws were not made retrospective is of no probative value in the present
case, in which the question is whether certain persons are or are not now pro
perly claimed by Prance as proteges.
It may be observed that, under the Ottoman law of Nationality, a native of
the Ottoman Empire is presumed to be an Ottoman subject unless he can prove to
the c -ntrary, the onus prohandi lying not on the territorial authority, but on
the person claiming the privilege of exemption from its jurisdiction, and ^ the
international Award between Greece and Turkey, set out at p. 91 of the British
Case, is an even stronger and more authorit'itive international recognition of the
limits which should be placed on extra-territorial jurisdiction, in Oriental
States.
As a matter of negotiation, distinct from a question of fact or of inter
national or municipal law, the recognition of the claim of a certain limited
number of persons to be proteges of claiming Power might be conceded as a
means for determining a controversy, but such concession would be the price of
peace, and not an admission of the justice of the claim, and it was as a matter
of negotiation that the Porte made the concession in question, and not in affirm
ation of any rule of international law.
It may be added that in the long history of the Capitulations in Turkey
very many Treaties had been made, and very many usages and abuses had grown
up in the course of centuries ; while as between Muscat and Prance the extra
territorial rights granted to Prance in Oman, whatever they may be, cannot; be
dated back beyond 1844. And while the situation in Turkey was complicated
by the presence of a very large Christian population of numer- us sects (each sect
allowed by the Porte in many matters to be governed by the laws of its Church),
perpetually invoking the sympathy and protection of Prance or Russia or some
other European Power, the population of Qman is in the main Arab and
Moslem, with very few Europeans or Christians, and only a few small communi
ties professing some non-Moslem Eastern religion ; and the persons whom Prance
seeks to protect (unlike the Banians and Louwatias) are Arabs marked off from
the rest of the Arab population of Oman only by the fact of the claim to Prench
protection. The chief reason for the existence of exterritoriality is the difference
• '« En t.h£se genirale, if fant reconnaitre qu'en pareille mature il pent y avoir des questions i?'espfece 8uivant
nature des Protectorats, et, encore, suivant ies engagements des proteges et des protecteurs enveis les autrts uatious."—
M. Bar bey,'*' Contre-Memaire," p. 213.