## Facts

- Muscat (modern-day Oman) placed five of its subjects in quarantine; the men held French papers connected to local vessels (dhows).
- The five men escaped quarantine and were later recaptured by Great Britain.
- France demanded that the men be released, asserting that their French papers brought them within French protection and affected how they could be treated by other authorities.
- The dispute formed part of a broader controversy over France’s practice of issuing papers to Muscat subjects allowing their dhows to fly the French flag, and over the “privileges and immunities” said to follow from those papers.
- France and Great Britain had previously issued a declaration (1862) committing each to respect the independence of the Sultan of Muscat; Great Britain argued that French papers were being used to reduce the Sultan’s authority over his own subjects.
- Both France and Great Britain had ratified the General Act of the Brussels Conference of 1890 (ratified by them in 1892), an anti–slave-trade instrument that restricted authorizing “non-native” vessels to fly a national flag, in order to prevent abusive flag use linked to slave trading.
- In 1904, France and Great Britain agreed by compromis to submit the dispute to arbitration at The Hague, including questions about the right of certain non-native ships to fly the French flag and the legal effects of French protection claims in Muscat waters.
- An arbitral tribunal was constituted under the Permanent Court of Arbitration process, and it issued its award in 1905.

## Issues

1. Whether, under applicable treaty obligations (including the Brussels Act of 1890), France could lawfully authorize Muscat-owned dhows and other non-native vessels to fly the French flag.
2. Whether French-issued papers and claimed French protection for Muscat subjects were compatible with the 1862 commitment by France and Great Britain to respect the Sultan of Muscat’s independence and jurisdiction over his subjects.
3. What legal effect, if any, French flag papers had on the treatment of Muscat subjects and their vessels in Muscat territory and waters, including in the context of anti–slave-trade measures.

## Decision

- The tribunal recognized as a general proposition that a sovereign state determines who may fly its flag and sets the conditions for that grant, but that this discretion can be limited by treaty commitments.
- Interpreting the Brussels Act of 1890, the tribunal treated the anti–slave-trade flag provisions as binding limits on authorizing non-native vessels to fly a signatory’s flag in the affected region.
- The tribunal rejected the idea that French papers could be used to place Muscat subjects broadly beyond the Sultan’s authority; any claimed protection had to be read narrowly so it did not reduce Muscat’s independence or ordinary territorial jurisdiction except where a treaty clearly required a different result.
- As a result, the award curtailed the effectiveness of the French “flag papers” practice for Muscat dhows where it conflicted with the Brussels Act’s restrictions and the requirement to respect Muscat’s sovereign authority.
- The tribunal’s resolution of the submitted questions denied France a basis to demand treatment of Muscat subjects that depended on an overbroad reading of French protection or on a flag authorization inconsistent with the treaty regime.

## Legal Principles

- A state generally controls the grant of its flag (ship nationality) and may set the conditions for that grant, but treaty rules can restrict that authority.
- Anti–slave-trade treaties may lawfully constrain flag authorizations for non-native vessels when the object is to prevent abusive reliance on foreign flags to avoid enforcement.
- “Protection” claimed through flag papers does not, without clear treaty language, create broad immunity from the territorial sovereign’s jurisdiction over its own subjects.
- Commitments to respect another ruler’s independence limit the legal consequences a protecting state may claim from consular or flag documents within the other ruler’s territory and waters.

## Conclusion

The Muscat Dhows arbitration held that although states ordinarily decide who may fly their flag, France’s issuance of flag-related papers to Muscat subjects could not operate in a way that conflicted with the Brussels Act’s anti–slave-trade limits or that displaced the Sultan of Muscat’s jurisdiction, so French protection claims based on those papers were restricted accordingly.


Case of the Muscat Dhows (Fr. v. Gr. Brit.), The Hague Arbitration Cases 64 (1905)