'File 35/85 III A 10 French Flag Question' [‎118v] (247/610)

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Treaty of 1844, it is perhaps desirable to indicate again the exact nature of
that argument.
It was directed to the opinion of M. Renault, on which France so much
relies. So far as concerns the interpretation of the terms of a written docu
ment, that interpretation must be the same both for Muscat and Zanzibar. But
in so far as M. Renault expressed an opinion that usage or concession had
given to France in Zanzibar waters exclusive right of police over vessels under
the French flag not expressly given by the Treaty, it became necessary to indi
cate that proof of usage or concession by the Sultan of Zanzibar since 1856
was res inter alios acta^ so far as the Sultan of Muscat is concerned, and in no
sense established that the Sultan of Muscat had acquiesced in any such usage, of
made any such concession.
And His Majesty's Government would observe, as to the statements on
p. 23 of the u Conclusions Complementaires, " that the documents already
before the Court do not indicate any exercise of rights of police by France in
Oman waters before 1891, and that since that date disputes have been pending
as to the matters now before the Tribunal for solution, and that there is no sign
of acquiescence by the Sultan in the justice of the French claims.
His Majesty's Government would also say, in conclusion, that they certain-
ly do not accept the French contention
1 Conclusions Complementanes, " p. 23. < , 1 . ^
that the arrangements between France on
the one side,and Great. Britain and Germany on the other side as to jurisdiction
in Zanzibar waters, have any effect whatever in Oman.
CAPITULATIONS AND EXTERRITORIALITY.
His Majesty's Government cannot accept the theory propounded under this
" Conclusions Compl^mentaires," p. 25. he . ad of the " Conclusions Complfoien-
taires, that there is as between Christian
and Mahommedan States any "regime des Capitulations " apart from agreement.
No Power has or can have any jurisdiction within the territory of another Power,
except by the consent of the latter. That consent may be evidenced by formal
Treaties or Capitulations or by long continued usage, but the principal is the
same in both cases. Any such powers can be exercised in the very nature of
things only with the consent of the Government of the country in which they
are claimed.
The extent of the privileges of this nature enjoyed by foreign Powers differs
greatly in different countries. There is no such thing as a general usage as to
a "regime des Capitulations." The " regime des Capitulations" can have refer
ence only to the terms which have been conceded by the Government of each
particular country in which it is claimed.
It is contended in the penultimate paragraph of the ^Conclusions Comple-
Conclusions Compitoentaires," p. 27- nientaires " under this head that reference
may be made to ' usages ^tablis " for the
purpose of ascertaining the rights of exterritoriality enjoyed by an occidental
Power within the dominions of an oriental Power. This is true if it refers to tl^e
usages which have grown up in that particular country in favour of the Power
claiming the immunities; but is absolutely fallacious if it is meant to refer to a
general body of usages capable of application to all such countries.
His Majesty's Government would also remind the Tribunal that France
invokes her theory of Capitulations in order to justify protection not of Chris
tian Europeans, but of Mussulman Cmanis.
The incident with reference to the Portuguese barque the " Aurora, " which
was engaged in carrying contraband into Morocco appears to be quite irrelevant
to the matters under discussion, and it amounts merely to this, that the Go
vernment of Morocco conceded to the Portuguese Government the same treat
ment of its subjects as would have been extended to the subjects of any other
European nation.