Flags of convenience: anti-slavery, international law, and imperial rule
At the beginning of April 1903, five men, ‘all natives and residents of Sur’, were arrested by the Royal Navy and sent to prison for 3 months by the Sultan because they had broken the quarantine laws set in Muscat under British supervision.79 In accordance with quarantine regulations, the Navy had the right ‘to regulate arrivals and departures and to inspect all ships’. However, ‘quarantine was poorly regarded by the Arabs seafarers and evasions ... frequent’.80 These measures meant to tackle a cholera epidemic that had broken out in Muscat in 1900 extended the scope of the navy’s rights of visit and seizure in the Gulf of Oman. As Valeska Huber demonstrated for the Red Sea, these sanitary measures were a form of political control and domination imposed on the mobilities of local populations by Colonial powers.81 In 1903, the arrest of five Suri men for breaking quarantine laws could have gone unnoticed if three of them had not been ‘French protégés’.82 Dorville, the acting French Consul at the time, protested immediately against the fact that these men had been arrested and detained by the Royal Navy instead of being handed over to him in virtue of their status. Even if the French Consul acknowledged that these men ‘had contravened the Quarantine Regulations’, he requested their release in order to place them under French jurisdiction as capitulation laws requested.83
The confrontation between France and Britain through the proxy of Oman’s Sultan was once more looming. Tensions quickly escalated when the French vessel, the Infernet entered Muscat bay on 18 May. The vessel’s commander, Forestier, requested the immediate release of the French protégés and demanded to meet the Sultan at once. All military options, including a bombardment of Oman’s capital, were considered by Forestier to meet France’s demands.84 For a week the Infernet threateningly faced H.M.S. Perseus, Naiad, and Pomona, three vessels-of-war belonging to the British Persian Gulf squadron.85 When he finally met the Sultan, Forestier was told that the protégés could not be released.86 Events in Muscat transformed a trivial incident into an explosive situation. Thanks to the numerous exchanges between Cambon and Lansdowne, an agreement was quickly found on 25 May 1903. The document, signed by the British and the French governments, specified that the question of French protectionand of French flags granted to Omani subjects would be submitted to the arbitration of The Hague international tribunal in order to avoid further conflicts.87 On 28 May, the three ‘French protégés’ were, at last, released and boarded a dhow for Sur. In the age of empires, as Mary D. Lewis showed, ‘local disputes ... had the power to both reveal and exacerbate divisions between European states’.88
Tensions had ultimately eased mainly as both countries engaged the most important diplomatic rapprochement of their history.89 King Edward VII had made his visit to Paris between 1 and 4 May 1903 and his trip was celebrated as the greatest state visits of a British king in France. The King had taken the final and most important steps towards the Entente-Cordiale which was signed on 8 April 1904.90 Both the visit and the treaty were a watershed in the history of Anglo-French diplomacy and international relations.91 If it is well established that major colonial questions, such as the British occupation Egypt or the French subjugation of Morocco, were at the heart of these historic negotiations, less is known on the role played by the Muscat dhows case.92 Because of the Entente Cordiale, the colonial confrontation in Muscat was in fact transformed into a legal dispute through the conciliation of The Hague PCA. The Entente Cordiale perfectly fitted into the new ideal of perpetual peace promoted in Europe by this Court and the two Hague Conferences of 1899 and 1907.93
The Muscat Dhows Case could not have been settled by the PCA if the Entente Cordiale had not been signed in 1904. The two countries’ delegations, along with the two arbiters and the umpire, met at The Hague and officially debated the case for 4 days, respectively on 25 July and between 1 and 3 August 1905.94 Melville W. Fuller, Chief Justice of the United States of America represented Britain while Jonkheer A. F. De Savornin Lohman, former Minister of the Interior in the Netherlands and professor of Law, represented France. H. Lammasch, professor of law at the University of Vienna and member of the Austrian Parliament, was chosen by the King of Italy as umpire since the two arbiters had failed to agree on a name in due time.95 The award issued in August 1905 by the Court was quite a subtle and complex compromise.
The award answered two questions. Firstly, it examined whether France had the right to grant her flag to the subjects of the Sultan of Oman. Secondly, it looked at the lawfulness of the protection granted by France to the dhow captains and crews and their families. Regarding the first question, the award established that any country could choose to grant its flag - following his own regulations - to anyone, only if no other treaties limited that right. Hence, it was declared by the Court that ‘generally speaking it belongs to every Sovereign to decide to whom he will accord the right to fly his flag and to prescribe the rules governing such grants’.96 So doing, the Court reaffirmed the importance of state sovereignty in international relations. This clear and simple principle was to remain the most influential part of the award as far as international law is concerned.
Rodney Carlisle stressed that this, ‘forms the basis of international law for the later practice that continues today of registry of ships under flags of convenience, ranging from Panama and Liberia to those of Vanuatu and the Marshall Islands’.97 To a certain extent, this made Britain the victor of the award. Britain protected her own right to grant her flag to her subjects in the British Empire.
Beyond the Indian Ocean, Britain protected her own colonial fleet of merchant’s vessels. The award, for instance, protected the rights of British Indians flying the Union-Jack on their dhows in Zanzibar or Oman. According to the 1905 Lloyd’s Register, Britain had in her colonies 2,01798 sailing vessels flying the Union Jack. Most of them were built, owned and manned by native subjects of Her Majesty the Queen throughout the empire. It was crucial that the award did not jeopardize their rights and, consequently, British colonial trade. It is worth mentioning that flags of convenience had already been at the heart of a major international crisis by the middle of the nineteenth century. Only this time it was a British flag which had been at the centre of a major casus belli. In 1856, the Chinese customs officers in the port of Guangzhou boarded a vessel known as the Arrow and arrested its crew. The Arrow was a smuggler and a pirate ship legally flying the British flag. It had been registered in Hong Kong, then a British colony. The Arrow had been built in China and was owned by a Chinese subject. This sailing vessel also looked typically Chinese much like its crew, apart from a young Irish captain used as a decoy. The Arrow's registration papers had expired and, in the eyes of Chinese imperial authorities anyway, this vessel and its crew could only be considered British by a fool. To them, much like British diplomats or navy officers looking at Indian Ocean dhows flying the French flag, the Arrow was nothing but a native vessel usurping a European flag. The alleged illegal boarding and seizure of the Arrow, as well as the imprisonment of its crew, was eventually exploited by the British Prime Minister Lord Palmerston as a casus belli to ‘justify’ the launching of the second Opium War also known as the Arrow War (1856-1860). Like the Arrow in the South Chinese Sea, dhows flying the French flag in Oman’s waters were raising important issues for international relations. Dhows questioned the legality of the right of visit, the flags of convenience as well as the judicial protection given to native sailors, captains, and owners flying European colours. In a context of imperial tensions, these questions could serve as a pretext for war.
While preserving British rights to grant her flag throughout her empire, the award also limited France’s ability to grant her flag in the Western Indian Ocean. This was a triumph in the eyes of the British government who had long accused France to foster the slave trade under her tricolour. Sovereignty, after all, had limits and they were to be found international law. The Hague’s Court stated that ‘a Sovereign may be limited by treaties in the exercise of this right’ and then proclaimed that ‘before the 2nd of January 1892 [the date at which the Brussels Act came into force] France was entitled to authorise 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’, whereas ‘after January 2, 1892 France was not entitled to authorise 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 “protégés” before the year 1863; [when a treaty restricting immunities and privileges in capitulation laws was issued in the Ottoman empire as well as Morocco]’.99 In short, this decision meant that dhows which had obtained papers and flags before 1892 could legally keep them. On 2 January 1892 France had in fact ratified the Brussels Act and, accordingly, accepted, through its article XXXII, to limit the possibility of issuing her flags to ‘indigenous vessels’ in the Indian Ocean. The treaty legally restricted her sovereign powers as far as flags of convenience were concerned. This decision dramatically reduced at once the number of dhows which could keep the French tricolour. Issued by the French Consul in Oman in 1904, a list stated that four dhows had been registered before 1892 in Obock, seven in Comoros, and seven as well in Nossi-Bé.10ü This formed a total of only 18 dhows compared with the 56 which had officially been presented to Oman’s Sultan and The Hague’s Court.101 Additionally, the Court decided that ‘the authorisation to fly the French flag cannot be transmitted or transferred to any other person or to any other dhow, even if belonging to the same owner’.102 This meant that dhow owners or captains could not inherit French papers or flags from their fathers as they used to. It also established that when a dhow was old and unseaworthy or just sank, the right to fly the French flag would end with the vessel’s life. Accordingly, the Sultan made a proclamation in January 1908 to forbid the transmission of French flags and papers. Gradually, French flags disappeared either with the dhows or their owners themselves. In 1907, Laronce, still French Consul in Oman, could only count 13 owners with 33 dhows legally flying French flags compared with the 26 owners and their 56 dhows of 1904.103 Britain had reduced France’s interference into her colonial sphere in Oman.
Regarding the question of French protection, the award cleverly protected the vessel at sea from the British right of visit whether in Oman’s territorial waters or on high seas. This constituted a victory for France and made the award acceptable despite Britain’s gains. What France considered as rhe sacred inviolability of the vessels flying her flag was preserved by rhe decision of the Court. France’s national prestige and sovereignty had been saved. It was decided that ‘dhows of Muscat authorised as aforesaid to fly the French flag are entitled in the territorial waters of Muscat to rhe inviolability provided by the French-Muscat Treaty of November 17, 1844’.104 In rhe meantime however, dhow owners, crews, and families lost their French protection because ‘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 March 10, 1862, by which France and Great Britain engaged themselves reciprocally
The Hague international arbitration 187 to respect the independence of this Prince’.105 As a result, the award announced that ‘subjects of the Sultan of Muscat, who are owners or masters of dhows authorised 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 ex-territoriality, which could exempt them from the sovereignty, especially from the jurisdiction of His Highness the Sultan of Muscat’.106 The decision certainly contributed to make the French flag less attractive in the eyes of the Omani tribes wishing to evade and defy the Sultan’s authority or the British navy. It certainly helped to bring on the decrease of the French flag in these waters even though it still protected those flying the tricolour from the British right of visit at sea.
Hence, The Hague’s award had skilfully written down the final chapter of the Anglo-French imperial rivalry focusing on the right of visit and the French flag. Following Charles Bruner-Millon’s words, we can certainly claim that the 1903 crisis, along with the 1905 award, constituted ‘the latest manifestation of the age-old rivalry between France and England in the Indian Ocean’.107 Tensions over dhows flying the French flag had reached their conclusion. The crisis ingredients had a lot in common with what had so often taken place in Zanzibar between 1860 and 1900. The right of visit and French flags had, in a context of high imperial rivalry, questioned the Sultan’s sovereignty and independence. Both jeopardized the limits of French and British imperial realm in the Indian Ocean. If ingredients looked alike, the scale and the nature of the problem were however quite different this time. First, the slave trade under the French flag did not play any part in the final stage of the crisis. Secondly, the problem took the two countries on the verge of a direct naval confrontation whereas it had never been the case before. Finally, tensions eased as quickly as they had escalated because political leaders at the highest level had decided that this should be resolved through international law. The question of dhows flying the French flag had been more or less settled because higher political interests were at stake in Europe. Dhows could not be the pretext of imperial rivalry anymore even though tensions over arms and slaves trafficking under the French flag persisted in the Gulf of Oman and the Red Sea until the late 1930s.108 France and Britain had decided to ease their imperial tensions and start a new chapter in their diplomatic relations. After the Great War, it definitely felt as if frictions due to colonial rivalries and anti-slavery belonged to a bygone age. The Muscat Dhows Case highlights how shifting and complex the relationship between imperial and humanitarian matters was at the twilight of the nineteenth century. A point over which the next and last chapter of this book will finally dwell upon.
Parts of this chapter were published in an earlier form in ‘Le blocus de Zanzibar 1888-1889: entre “intervention d’humanité”, colonisation et droit international’. Outre-Mers, no. 402-403 (2019): 107-126, and ‘The French
Flag in Zanzibar Waters 1860s-1900s: Abolition and Imperial Rivalry in the Western Indian Ocean’. The Journal of Imperial and Commonwealth History, (2020) DOI: 10.1080/03086534.2020.1783115.