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‘French protégés’ and French flags of convenience: the revival of an old controversy

This work has already pointed out how British and French diplomacy strongly opposed each other in Zanzibar throughout the 1860s on the question of the nationality and the protection granted to dhow captains flying the French flag. At the time, Britain had already crafted most of the arguments she later developed in Oman and The Hague at the turn of the century. Britain contested the fact that natives of Oman or Zanzibar could be considered as French subjects since they were not born in territories under French colonial rule. Consequently, Britain rejected the idea that these native dhow owners, captains, or sailors could legally get the authorisation to fly the French flag, and, above all, get the French protection. This protection was crucial because it meant that these men were only subjected to French law and justice.41 On the contrary, the French argued that even if these ‘natives’ sailing under their colours were born in Muscat, Sur, or Zanzibar, they could be considered as French subjects because they possessed properties, businesses, or had established themselves through marriage in one of the French Indian Ocean colonies: namely Comoros, Madagascar, Obock, or Djibouti.42 This was not the first time France and Britain confronted each other over these questions. Indeed, the question of British protégés in Tunisia - along with Italians as well - had been a source of major diplomatic tensions between 1881 and 1884 as it was demonstrated by Mary D. Lewis.43 In the context of ‘New Imperialism’, protected persons could easily become a casus belli since colonial sovereignty was at stake.

In Muscat, much like in Tunisia, the debate focused on the protection, immunities, and privileges granted to ‘protégés’, or people who enjoyed -with their properties - judicial protection. This time however, the question of who could legally be considered as a protected person became central. As stressed in Chapter Two, the legal definition of a French colonial subject allowed almost any interpretation. Charles Brunet-Millon, in his early

The Hague international arbitration 179 1900s defence of French dhows, insisted on the polysemy of the expression ‘French protégés’. According to him, ‘the term of Frenchmen is unequivocal and it applies to French citizens, French subjects from the French colonies, French protégés, that is to say to the natives of a State protected by France or subjects of the Sultan of Muscat who have obtained French protection. This interpretation is based upon the usual rules of capitulation countries. Citizens and French protégés compose the fixed portion of French nationals’.44 In Oman, the debate focused on ‘French protégés’, ‘or subjects of the Sultan of Muscat who have obtained French protection’.45 Their status was most controversial.46 A sort of confusion existed between French protégés who were subjects of the Imam of Muscat in the service of a French citizen in accordance with the French Muscat treaty of 1844 and French protégés, also originally subjects of the Imam, who had become French subjects in obtaining the French flag as they lived, married, or possessed businesses as well as properties in one of France’s Indian Ocean colonies. The French argued that, in virtue of Article 4 of the 1844 treaty, all her subjects enjoyed extraterritorial immunities and privileges.47 This meant that all ‘French protégés’, whether in service of French citizens or not, could only be arrested and tried by French authorities. They escaped both the Sultan and the British jurisdiction. In a colonial context, this was for France, as much as for Oman or Britain, a breach of their national sovereignty. For this reason, it could become a casus belli. Local seamen took advantage of the situation. Omani seafarers certainly liked to be under the power which offered the greatest protection to their freedom and way of living. These sailors had several ‘nationalities’ in the European sense of the word. They belonged to all ‘the nations’ they found along their trading routes. Yet, they remained the subjects of the Sultan of Oman. Dhow captains, sailors, and merchants from Sur, all formed a cosmopolitan population reflecting the monsoon trade and ‘the close family ties that Suris ... enjoyed with littoral people all around the rim of the Indian Ocean’.48 They were people of the sea and lived accordingly.49 In Oman, exactly as Mary D. Lewis demonstrated for the French Tunisian protectorate, ‘locals engaged in their own scramble for power over their everyday life by adroitly recognising the opportunity divided rule [the different legal systems and authorities which coexisted in a colony] provided them’.50

The legal debates over French protégés also had broader implications. Extraterritorial immunities and privileges derived from capitulation treaties. They were an important body of international public law since the fifteenth century.51 Capitulations allowed European nations to exercise extraterritorial jurisdiction over their subjects and provided them with commercial and judicial immunities. Originally capitulations had been designed to protect Christians and enhance European trade within the Ottoman Empire. In the nineteenth century, this body of laws was applied to many different colonial contexts ranging from China to Morocco or Tunisia. At the time, some diplomats and jurists even used capitulations todraw a convenient line between ‘civilised nations’ and ‘barbarous states’ who were the only ones subjected to these laws.52 As Lewis pointed ‘over the course of the nineteenth century, [capitulations] increasingly became the basis for expanding the extraterritorial rights held by European states on behalf of their subjects and protégés’.53 Capitulation laws and protected persons were a central question for the international relations throughout the second half of the nineteenth century. In fact, ‘the Crimean War (1853-1856), after all, had erupted in part over this question since it was to determine which power (France or Russia) had the right to protect Christians in the Ottoman Empire’.54 Anglo-French opposition in Oman must be appreciated in this perspective.

As this book already stressed, the question of the French protégés had long been a problem between France and Britain in the Indian Ocean, most notably in Zanzibar so far. Yet, this issue took a new, and unexpected, turn in Oman at the dawn of the twentieth century. Major late nineteenth century political figures acknowledged that this question had surprisingly dragged both countries too far. In 1902, Paul Cambon, then French Ambassador in London, wrote that this ‘ought never to have been allowed to acquire the importance which has been given to it’.55 In 1905, Lord Lansdowne called this affair ‘a trumpery dispute’ and stated that ‘we were nearer to going to war over it with France than we have been going to war with Germany about other matters’.56 One must, however, note that if the Muscat dhows crisis took both countries to such a dangerous level of tensions it was because ‘most favored nations status and exemption from native justice [capitulation laws] were the pillars of European prestige’ in the age of empire.57

Before it reached its final apogee in 1905, the old crisis ingredients came back to the front scene in the late 1890s. Between May 1897 and January 1898, Sultan Faysal wrote several times to the French Consul in Oman in order to request that the right, granted to Omani dhows, to fly the French flag, as well as the French protection given to their owners and crews, should be removed.58 According to French authorities, this new move had been monitored by the Indian government and the British Consul in Muscat.59 Above all, the French claimed that this question was related to the unsettled business of the slave trade and the right of visit. In the eyes of the French government, it was the 1873 right of visit in Oman’s territorial waters and the pressure exercised by the Indian government over the French flag which constituted not only a violation of rhe Sultan’s independence but also of the 1862 Anglo-French declaration guaranteeing the non-interference of both nations into Zanzibar and Muscat sultanates.60 On the contrary, the British replied to the French accusation of interference in stressing that ‘the French practice [of issuing the French flag and French protection to Omani subjects] as entrenching on the sovereign rights of the Sultan’.61 In their opinion, this was the true breach into the Sultan’s sovereignty and the 1862 Anglo-French declaration as

The Hague international arbitration 181 stated a memorandum sent to the French Minister of Foreign Affairs.62 Indeed, the Anglo-French quarrel had just turned into a very fine dispute of international law. This shows that abolitionism laid at the crossroad of colonial strategies, anti-slavery policies, and international diplomatic confrontations on the limits of imperial sovereignty. This made the question a particularly difficult one to answer. A new series of events contributed to add more and more strains to these issues, bringing the two countries’ relations to their worst state since Fashoda.

In October 1899, Major Percy Cox arrived in Muscat as the new British Consul. Appointed at the age of 35, Cox had been chosen by Lord Curzon to bring back Sultan Faysal under strict British influence. Cox was chosen to make Faysal more compliant with the views of the Indian Office.6"’ While Faysal did not yield to some of the most important British demands, notably on customs reform and the introduction of a new flag for the dhows of his subjects, he nonetheless approached, under Cox’s pressure, the French Consul on the question of the French flag in February and May 1900.64 In June 1900, on board of H.M.S. Sphinx and in the company of Cox, Faysal sailed to Sur. It is worth recalling that during the 1895-1896 revolt which had threatened Faysal’s power in the Sultanate, Sur, and its important merchant community, had been one of the major centres of the rebellion.65 Faysal certainly went to Sur with these memories in mind. On board of the Sphinx, Faysal delivered a clear message to his former opponents: submit or you will be crushed by British cannons. But it could also be seen as a confession of impotence. Faysal needed Her Majesty’s naval power to exercise his sovereignty over his most troublesome subjects. However, as long as his alliance lasted with the paramount imperial power in the Gulf, Faysal not only looked but was strong.

According to Cox, it was on the occasion of the Sultan’s visit in Sur that 45 French dhow owners ‘spontaneously’ renounced the French flag and the privileges attached to it.66 During his stay, the Sultan stressed he ‘neither recognize nor permit that any subject of mine ... should take the so-called protection papers and flag from the French Government or any Government’.67 Additionally, he published, on 15 June 1900, an edict in which he forbade all his subjects to receive any foreign flag or protection without his written permission.68 In removing rhe privilege to take the French flag and French protection from his Suri subjects, Faysal asserted more clearly his power and sovereignty. He regained control over them while pleasing the British who considered the French flag as a serious interference into their imperial sphere. Suri merchants, on the other hand, could conveniently gain the forgiveness of their Sultan in giving up French flags and privileges. This did not cost them much in comparison with the reprisals which Faysal could have inflicted upon them with the help of the Sphinx. The Sultan took advantage of this crisis to reaffirm his sovereignty over Sur and he also strengthened his imperial relationship with Britain. Accusing French dhows to lead the

Western Indian Ocean slave trade allowed Cox and Faysal to reassert their respective imperial powers.

Of course, Paul Ottavi, French Vice-Consul in Muscat between 1894 and 1902, refused to acknowledge the procedure undertaken by the Sultan. He reported home that French interests and French subjects had been attacked in Sur. As a result, Jules Cambon wrote to Lord Salisbury on 25 June 1900-10 days after Faysal’s edict - to protest against the pressure that the presence of the Sphinx had, according to him, exercised upon French dhow owners. In the argument submitted to The Hague, France published the letters of fifteen French protégés who declared to have abandoned their French flags and papers ‘against their will as they feared English vessels-of-war’.69 Cambon requested to Salisbury that flags and papers should be returned to their owners. He renewed his demands in a second letter on 26 June but proposed that ‘in the future, no papers of protection would be given’.70 However, on 17 July, he informed Salisbury that the French navy vessel, the Drôme, ‘was proceeding to Muscat to make final arrangements for the coal shed’ and visit ‘Sur to examine the flag situation’.71 In Oman, Faysal refused to hand back to the French protégés their papers when asked by Ottavi and Martel, the lieutenant commander of the Drôme. In Sur, the French naval demonstration of power managed to convince two French dhow owners to take back their papers and status. In December 1900, the French cruiser, the Catinat sailed to Muscat like the Drôme before her. In the eyes of the British, this was ‘to intimidating the Sultan into returning to the dhow owners the titres already surrendered’.72 Cox reported that Kiesel, the Commander of the Catinat, had stopped in Sur on his way to Muscat. There, ‘Kiesel had told Suri flag holders that they would be able to keep their papers owing to an agreement between the French and the Sultan’.73 Both France and Britain made a demonstration of their naval power to win the dhow community of Sur and integrate her into their respective imperial sphere.

Between 1901 and 1903, this question came temporarily to a standstill and tensions eased. This not only coincided with the arrival of Lord Lansdowne at the Foreign Office as well as the departure of Ottavi from Muscat but also with the shaping of a long awaited Anglo-French diplomatic rapprochement famously known as the ‘Entente Cordiale’.74 In April 1901, Cox’s idea that the Sultan should issue a new edict forbidding his subjects to adopt foreign flags was rejected by Lord Lansdowne. According to the American historian of the Persian Gulf Briton Cooper Busch, this status quo was based upon the British assumption that ‘France would agree that her protection papers did not entitle holders to special treatment in Oman waters and territory’.75 This hope was confirmed by the official exchange of the British and the French Consuls in Oman.76 The French Consul stressed that ‘neither I nor Commander Kiesel intends to subjugate the subjects of Oman to French jurisdiction; we simply claim the right, which was bestowed to us by the Brussels Act, to control and

The Hague international arbitration 183 police the dhows carrying our flag’.77 Furthermore, the Sultan of Oman, Faysal, had earlier promised - on 24 November 1900 - not to ‘molest any French protégés in the future’; or so reported the French authorities.78 Still, this status quo was quickly shattered when one new incident involving French protégés broke out at the beginning of spring 1903. Surprisingly enough, it was not at all related to any slave trafficking under the French flag.

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