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The French flag and the right of visit: a problem of international law

According to international law, ‘while a belligerent right to visit ships was well established by the end of the Napoleonic Wars, it was limited to visiting neutral ships [in times of war] to ascertain whether they were in fact neutrals or simply flying flags of convenience; and searching to ensure that no contraband material was on board’.23 Imposing this right in times of peace involved a legal revolution of practices coded in international law. Except in the 1831 and 1833 conventions, France always refused to grant the Royal Navy the right of visit, search, and seizure of vessels flying her flag. Moreover, in 1831 and 1833, this right was indeed very restricted. If the 1831 convention stated that ‘the reciprocal right of visit would be exercised on board of vessels belonging to one nation or the other’, it was limited to the west coast of Africa, and around Madagascar, Cuba, Puerto Rico as well as the Brazilian coastlines.24 Additionally, the number of vessels entitled to the right of visit was defined by a list issued by each year by both governments. No Mixed-Commissions - bilateral courts designed to judge slave trade cases - were set up and captured vessels had to be handled to the tribunals of the nation they belonged to.25 It was also within those limits that the 1833 convention authorised visit, search, and seizure in stating that ‘the cruisers of both nations [are] allowed to exercise the right of visit and seizure’.26

After the 1840s turmoil surrounding the right of visit, a new convention between France and Britain was signed in 1845. This convention completely excluded the reciprocal right of visit.27 From the British point of view, the aim of this new convention was to stop the abuse of the French flag allegedly used to conceal the slave trade on the west coast of Africa. It was claimed in Britain that slavers had hoisted the French tricolour to escape British patrols. Since the Royal Navy had lost the right to search and seize vessels flying the French flag. This situation was quite similar to the controversy raised by the French flag in the Indian Ocean during the second half of the century as noted in Chapter Two. However, if the 1845 convention excluded the right of visit and search, it nonetheless led to the presence of a more important French anti-slave trade squadron on the west coast of Africa. Forty-six French vessels were for instance mobilised in 1846.28 According to the 1845 convention however, only French ships of war had the right to visit, search, and seize vessels flying the French flag. The Royal Navy could just proceed to the verification of the flag and papers - a visit strictly speaking. This was designed to prevent the abuse of the French flag in illegal slave trading.29

In the Indian Ocean, the legal framework set up in 1845 for the right of visit in the Atlantic - the verification of the flag - remained until the end of the period in which this book is interested, namely 1914. When the 1845 treaty came to an end, new instructions were issued to French and British Navy officers in 1859 and 1867. These instructions developed with more details the procedures to be followed by navy officers. Still, these documents did not change the rules that had been set up in 1845. The 1859 and 1867 instructions are quite similar. The 1867 version is only more specific regarding some procedures to follow during flag verification. Both documents reminded navy officers that ‘in virtue of the independence of national flags, a merchant-vessel navigating the high seas is not subject to any foreign jurisdiction which shall not have been accepted by treaty. A ship can therefore visit, detain, arrest, or seize, only such merchant-vessels as are recognized to belong to her own nation’.’0

The French opposition to the right of visit was also be explained through legal conceptions of international relations at sea. France’s refusal of the right of visit was mainly based upon the concept of the freedom of the seas developed by the influential Dutch jurist, Hugo Grotius. Grotius’ Mare Liberum published in 1609 contributed to establishing ‘the right to freedom of trade and navigation’ in international public law.’1 Grotius elaborated the argument that high seas belonged to all nations and defined it as a ‘res communis’. All nations were entitled to navigate freely upon high seas. No restrictions to this freedom of navigation, as well as commerce, could, therefore, be imposed to any nation.32 Consequently, French and American lawyers use the freedom of the seas to oppose the British right of visit. They described it as an illegal or unlawful limitation of the freedom of the seas.33 The law of nations - ‘ius gentium’ - thus opposed the right of visit and search, Britain’s favourite tool designed for the universal suppression of the slave trade at sea.

To a certain extent, this was quite ironical since Britain had significantly contributed to condemn, in theory, this inhumane traffic in international law thanks to major multilateral conferences such as the Congress of Vienna in 1815 or the Congress of Verona in 1822. Failing however to impose a universal right of visit to suppress the slave trade, Britain found its way around this problem in developing a web of more than 30 bilateral treaties signed between 1816 and 1845. Mainly designed to suppress the slave trade at sea in the Atlantic, these agreements granted the right of visit and search to the Royal Navy.34 Regarding the slave trade in the Red Sea, the Persian Gulf, and the Indian Ocean, numerous bilateral treaties were also contracted by Britain with local powers between 1820 and 1889: twenty-four within the Arabic Peninsula, nine with Mascat and Zanzibar, five with the Comoro islands, and four with Madagascar.35 As note earlier this was the only way since the right of visit and search could be lawful only if two countries agreed to it in a treaty.

Despite Britain’s good intentions, the right of visit was nonetheless perceived as the manifestation of the mare closum doctrine. Defended by John

Selden in 1635 against Grotius’ mare liberum, it argued that some areas of the sea could fell under the authority of one nation when ‘her vessels manifest[d] her pre-eminence’.36 This is exactly how the right of visit was perceived by French authorities in Zanzibar throughout the second half of the nineteenth century. French lawyers and politicians often claimed that ‘abolition of slavery had been an excuse for England; the right of visit a means; naval supremacy the goal’.37 According to this argument, imperialism came concealed under the cloak of humanitarianism. France’s refusal of the mutual right of visit and search was, however, not seen in this light. Throughout the nineteenth century British politicians always claimed that the refusal of the right of visit by France threatened the suppression of the slave trade. They never pointed out that the greatest restrictions were, in truth, imposed by international maritime law. To a certain extent, the French flag became a sort of scapegoat for British abolitionists and politicians alike, allowing them to escape their inability to address the complexities of the legal issues raised by abolition at sea. The opposition between France and Britain over the right of visit was therefore much more judicial and political than it is suggested in most primary sources and the traditional historiography. In the meantime, while France doubted Britain’s motives supposedly hidden behind the right of visit and search, great suspicions were raised over the attitude of French authorities towards the slave trade - in Zanzibar in particular - when the recruitment of indentured labourer was allowed in East of Africa between 1857 and 1861.38 To this accusation, France retorted that slaves ‘rescued’ and ‘freed’ by Royal Navy officers also fell into new forms of slavery only profitable to the British Empire. As we will now see, the right of also raised two major questions for today’s historians as much as nineteenth century abolitionists: labour and freedom.

 
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