'P. 1 733/1904. Muscat Arbitration. (1904-08).' [‎140v] (287/778)

satisfying the conditions prescribed by Article XXXII of this Act was not in
contradiction with any international obligation of France;
For these reasons, decides and pronounces as follows:—
1. Before the 2nd January, 1892, France was entitled to authorize vessels
belonging to subjects of His Highness the Sultan of Muscat to fly the French flag,
only bound by her own legislation and administrative rules ;
2 . Owners of dhows who before 1892 have been authorized by France to fly the
French flag retain this authorization as long as France renews it to the grantee;
3. After the 2nd January, 1892, France was not entitled to authorize vessels
belonging to subjects of His Highness the Sultan of Muscat to fly the French flag,
except on condition that their owners or fitters-out had established, or should establish,
that they had been considered and treated by France as her “proteges” before the
year 1863.
As to the second question :—
Whereas the legal situation of vessels flying foreign flags and of the owners of
such vessels in the territorial waters of an Oriental State is determined by the general
principles of jurisdiction, by the capitulations or other Treaties, and by the practice
resulting therefrom ;
Whereas the terms of the Treaty of Friendship and Commerce between France
and the Iman of Muscat of the 17th .November, 1841, are, particularly in view of the
language of Article III, “ Xul ne pourra, sous aucun pretexte, penetrer dans les
maisons, magasins et autres proprietes, possedes ou occupes par des Fia^ais ou par
des personnes au service des Fran^ais, ni les visiter sans le consentement de Toccupant,
a moins que ce ne soit avec I’intervention du Consul de France,” comprehensive
enough to embrace vessels as well as other property ;
Whereas, although it cannot be denied that by admitting the right of France to
grant under certain circumstances her flag to native vessels, and to have these vessels
‘ exempted from visitation by the authorities of the Sultan or in his name, slave trade
is facilitated, because slave traders may easily abuse the French flag for the purpose
of escaping from search, the possibility of this abuse, which can be entirely suppressed
by the accession of all Powers to Article XLII of the Brussels Convention, cannot
affect the decision of this case, which must only rest on juridical grounds ;
Whereas according to the Articles XXXI—XL! of the Brussels Act, the grant of
the flag to a native vessel is strictly limited to this vessel and its owner, and therefore
not transmissible or transferable to any other person or to any other vessel, even if
belonging to the same owner;
W hereas Article IV of the French-Muscat Treaty of 1844 grants to those subjects
of His Highness the Sultan of Muscat “ qui seront au service des Franyais ” the same
protection as to the French themselves, but whereas the owners, masters, and crews of
dhows authorized to fly the French flag do not belong to that class of persons, and
still less do the members of their families;
W hereas the withdrawal of these persons from the sovereignty, especially from
the jurisdiction of His Highness the Sultan of Muscat, would be in contradiction with
the Declaration of the l()th March, 1862, by which France and Great Britain engaged
themselves reciprocally to respect the independence of this Prince;
For these reasons, decides and pronounces as follows :—
1. Dhows of Muscat authorized as aforesaid to fly the French flag are entitled in
the territorial waters of Muscat to the inviolability provided by the French-Muscat
Treaty of the 17th November, lb4l;
2. The authorization to fly the French flag cannot be transmitted or transferred
to any other person or to any other dhow A term adopted by British officials to refer to local sailing vessels in the western Indian Ocean. , even if belonging to the same owner;
3. Subjectc of the Sultan of Muscat, who are owners or masters of dhows
authorized to fly the French flag, or who are members of the crews of such vessels, or
who belong to their families, do not enjoy in consequence of that fact any right of
exterritoriality which could exempt them from the sovereignty, especially from the
jurisdiction, of His Highness the Sultan of Muscat.
Done at The Hague, in the Permanent Court of Arbitration, August 8, 1905.
(Signed) H. LAMMASCH.
MELVILLE W. FULLER.
A. F. DE SAVORNIN LOHMAN.