Freedom of the seas or freedom of all men?
As far as international relations and international law were concerned, the Brussels Conference gave the debate on the right of visit and search a new and decisive turn. The British project contained seven articles. Its first article was devoted to the definition of an international maritime zone ‘affected by the export trade in African slaves’. The zone was defined as follows: ‘commencing from the northward at the Isthmus of Suez, shall extend southward on the African coast to the 25° of south latitude. It shall include the island of Madagascar and all other islands in those seas. It shall also include both coasts of the Red Sea, the coasts of Arabia, and those of the Persian Gulf with the islands situated in those waters’.35 It was within this international maritime zone that the naval operations of visit and search would be conducted as it was proposed by Article Two: ‘The signatory Powers shall within this zone, have the right of supervision, jointly and severally, whether on the high seas or in territorial waters over all sailing vessels of any flag. They shall have the power of detaining any vessels, directly or indirectly suspected of being engaged in the slave trade and of bringing or sending such vessels for judgement ...’.36 This second article of the British project undoubtedly reminded the contemporaries of what Britain and Germany had tried to establish during rhe Zanzibar blockade; namely the setting of an international maritime zone within which a universal right of visit, search and seizure was established. The only difference was that Britain wanted now nothing less than to extend what she had experienced during the Zanzibar blockade to the rest of the Western Indian Ocean. Britain would have beneficiated the most from this measure because she was the paramount imperial power in this part of the world, a position she had partly gained through the repression of the slave trade while imposing a ‘Pax Britannica’ to secure India.37 To a certain extent, Salisbury was trying to give the Royal Navy the unprecedented power of police over the Indian Ocean he failed to grant her during the Zanzibar blockade.38 A universal right of visit and search, far from restraining her sovereignty and power, enabled Britain to give international legitimacy to her naval pre-eminence. Britain’s imperial sovereignty was well served by international law. The usual contradiction between the sovereignty of State and international law did not exist in this case. The question of the right of visit embodied the internationalisation of an important humanitarian question, namely the repression of the slave trade.
But Britain’s humanitarian effort went beyond her ‘narrow’ imperial interests. The second article of the British project established that vessels and people of all nations were liable to detention and trial when suspected of the slave trade. Britain was willing to establish a new form of international justice, following what she had developed through mixed-tribunals between the 1830s and the 1860s in the Atlantic.39 The third article, therefore, proposed to set up ‘mixed tribunals ... at convenient spots within
The 1890 Brussels Conference 159 the zone’ insisting that ‘no tribunal shall be considered as properly constituted unless at least five of the Powers shall have appointed duty qualified representatives’.40 This project certainly was an unprecedented step towards the internationalisation of justice when dealing with humanitarian issues on the eve of the twentieth century. Even if it is difficult to see, like Jenny Martinez, this initiative as an attempt to establish what would later become international human rights courts, it certainly contributed to placing humanitarian questions at the heart of international relations in the late nineteenth century.41 Finally, in Article Seven Britain intended to tackle ‘the abuse of ... [European] flags for slave trade purposes’ with ‘a system of registration of native vessels’ whose ‘registers shall be open at all times to the inspection of naval officers of the Powers qualified to act within this zone’.42 Again, Britain was willing to stage the struggle against the slave trade at an international level in addressing a key aspect of international maritime law: the question of flags of convenience. This issue, reaching its climax during the 1905 Hague International Arbitration, will be examined in the following chapter.
All in all, British proposals were unacceptable to the French delegation which ‘produced a counter-project, designed to render the right of search unnecessary by stringent regulations to prevent the abuse of national flags’ and promote for each nation the police of her own shipping.45 France continued to oppose national sovereignty to the internationalisation of the repression of the slave trade. Article Two of the French project established that ‘any merchant vessel establishing her nationality in flying her colours is normally only subjected to the sole supervision of ships-of-war flying the same flag’.44 France did not change an inch of her foreign policy regarding the right of visit and search. Her project, following the 1867 Anglo-French confidential agreement recently implemented during the Zanzibar blockade, limited the right of visit to a strict verification of papers.45 The fifth paragraph of Article Two banned any possibility of searching the dhow in stating that ‘any search, any raid is absolutely forbidden’.46 This was not surprising at all. The French Ambassador, M. Bouree, had warned the conference that ‘if this issue [the right of visit] is to be discussed, the French representatives were not authorised to take part in the deliberations’.47 Ominously, the French Anti-Slavery Society had declared to the Anti-Slavery Reporter in 1888: ‘we believe it is utterly impossible to obtain the consent of Parliamentary and public opinion in France to the right for English cruisers to search French boats sailing under the national flag’.48 In a context of great imperial rivalry with Britain, France preferred not to abandon any aspect of her national sovereignty at sea even to rescue victims of the slave trade ‘in the name of the humanity’.49 Only a complete pacification of Anglo-French relations could have led to substantial changes on this point as we shall see in the next chapter.
The French Ambassador justified the French refusal because ‘the truly effective measures to suppress the slave trade must first of all focus onthe verification of the flag’.50 France therefore proposed strong measures to check the abuse of national flags; a practice often used to conceal the slave trade and evade the right of visit and search as we saw in Chapter Two. In Article Six, the French delegates proposed to set up International Bureaus in which all information on dhow registration should be gathered and opened to any marine officer of the signatory powers.51 Article Eight, following the British proposal, called the signatory states to take measures against the abuse of their national flag.52 However, the regulations proposed for the attribution of the flag did not differ at all from what already existed in the French colonies of Mayotte, Nossi-Be, and Zanzibar. The definition of ship-owners who could obtain a flag had not changed at all.53 It is, therefore, logical that this question remained a source of tension between France and Britain in the Indian Ocean until it was settled at The Hague in 1905. The Brussels Conference did not bring major changes to this crucial question. It only provided international exposure to this issue.
France not only preferred the surveillance of the flag to the right of visit and search but she also restricted the limits of the slave trade zone proposed by the British. The French proposal excluded the Red Sea and ‘Madagascar with the islands in those seas’; namely Nossi Be and the Comoro islands because they were French colonies.54 The slave trade zone was limited to the Indian Ocean and the Persian Gulf. In short, France wanted to preserve its colonial sphere of influence from any foreign or international interference. While Leopold II or Britain sought to forward their colonial interests through internationalisation, France did rhe exact opposite. The French delegates opposed international measures to preserve their national and colonial interests. This shows that imperial powers could use humanitarian issues to meet his own colonial interests.The French project made France the champion of national sovereignty against the British willingness to establish an international system of police and justice in the name of rhe repression of the slave trade; or ‘humanity’ as we will see in Chapter Nine.55 Even though British and French proposals agreed on some points such as, for instance, the regulations to check the abuse of the flag, the major issue of the right of visit remained as problematic as ever. The question alone actually threatened the outcome of the whole conference. On 6 February 1890, the British plenipotentiaries pointed to the French delegation that ‘rhe Government of Her Majesty learns with regret that the French Government was unable to accept ... the reciprocal right to visit ships sailing in the slave trade zone’.56 Above all, the British delegates insisted that they ‘could not discuss proposals which will derogate ... to the treaties [on the right of visit and search] in which the Queen is a contracting party’.57 In short, Britain would not abandon the right of visit and she was clearly alluding to the French naval inability to check the abuse of her flag. Much like with Zanzibar during the Bartie Frere Mission as seen in Chapter Five, Britain argued that the weakness of national sovereignty justified a supranational intervention to preserve international human rights
The 1890 Brussels Conference 161 principles, namely the freedom of all men and women. Placing humanitarian ideals of no binding force before national sovereignty certainly was a a revolution in terms of public law and international relations as well. In that sense, Brussels was an important judicial step but British and French diplomatic red lines seemed almost irreconcilable as ever.