In making a representation and protest on the subject, I did not see how I
could better do so than by following generally the reasoning and language of
the instruction.
[Inclosure in No. 294.]
Mr. Lambert Tree to
Mr. Edmund Van Eetvelde.
Legation of the United States,
Brussels, January 9,
1888.
Sir: Under instructions from my Government I
have the honor to invite your attention to the second article of the
decree of His Majesty, the soverign of the Independent State of the
Congo, on the subject of the use of flags, bearing date the 30th of
April, 1887, and published in the official bulletin, No. 5 (May,
1887).
[Page 34]
As this article is understood it decrees that every private vessel
navigating the waters of the Independent State of the Congo up the
stream beyond the falls of Leo-poldville, will be required to hoist at
the stern the flag of the State, and that if the vessel possesses ship’s
papers establishing her nationality she may in addition fly the flag of
her country.
By the second article of the general act of the Berlin conference all
flags, without distinction of nationality, are secured in the right to
have free access to all the waters of the Congo and its affluents,
including the lakes, and to all the canals that in the future may be cut
with the object of uniting the water-courses or the lakes confined in
the whole extent of the territories described in article 1 of that
instrument; and while the Government of the United States is not a party
to that convention, yet the peaceful use of the benefits offered by the
Congo Free State to the world at large are shared by their vessels and
their citizens.
The commerce of the Congo Free State being thus freely opened, the
American vessel, viewed as a vehicle of transit, may be either a
registered vessel of the merchant marine of the United States, or an
unregistered vessel owned by citizens of the United States, without
affecting, it is insisted, her enjoyment of the guarantied privilege of
navigation. In either case she has the right to fly the flag of the
United States.
My Government holds it to be a settled principle of international law
that ships not only are entitled to carry wherever they go the flag of
the country of which their owners are citizens, but that it is their
duty, as a rule, to carry such flag.
The principle stated, however, would be directly antagonized by a rule
that vessels navigating the rivers of a particular State when such
rivers are open, as in this case, to foreign navigation, should carry
the flag of that state.
This appears to be the purport of article 2 of the royal decree of the
30th of April, 1887.
Its effect is to substitute the flag of the Congo Free State for the
national flag of the vessel, by requiring the flag of the State to be
displayed at the stern, as it is evident that the flags of the two
nations could not both fly from the same staff, or from the same gaff.
To do this would be under some circumstances, at least, to denote that
the vessel was a prize to the nationality whose colors were
uppermost.
I understand it to be the universal usage that the flag carried on a gaff
at the flagstaff at the stern, is the flag of the vessel’s
nationality.
The last clause of article 2 of the decree of April 30 implies the
assertion of aright on the part of the authorities of the Congo State to
determine the sufficiency of the vessel’s title to fly her national flag
by making it depend on the possession Of papers establishing her
nationality.
It is maintained by my Government that it is the province of each
Government to determine for itself the conditions for the use of its
flag upon its vessels, and the United States rule is, that vessels bona
fide owned by citizens of the United States are entitled when abroad to
carry the flag of the United States, irrespective of the question of the
papers they may have on board.
I am therefore instructed by my Government to protest against the
application of article 2, of the royal decree of April 30, 1887, to
vessels owned by citizens of the United States.
First. In requiring such vessels to fly the flag of the Independent State
of the Congo at the stern. The right to require such vessels to hoist
the flag of any other nationality than their own is denied.
Second. In making the right to carry a national flag on such vessels
dependent upon the possession of papers on board establishing
nationality.
I avail myself, etc.,
