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made by the boundary commissioners in 1899 and by the negotiators of the international acts of 1902 and 1904 when they gave the name of Oe-Sunan to Kabun or Leos, and that, on the contrary, there is reason to admit that it is this very Kabun or Leos that the parties intended to consider as properly to serve as a frontier from point A north. This mutual error of the commissioners of both nations is explained, moreover, when one states that most of the water-courses of that region bear several names or bear the name of the country which they cross and that a region neighboring to Kabun or Leos has the name Sunan the sound of which resembles that of Oe-Sunan.

To admit any other solution, to accept a survey mounting the course of the Noel Bilomi as far as Mount Kinapua, then passing into the basin of another Oe-Sunan which is not an affluent of the Bilomi, and which does not proceed toward Nipani and Kelali, would be contrary to the whole spirit of the negotiation of 1902-1904, and irreconcilable with the map annexed to the convention of 1904.

Portugal could not, at this late time, claim equitably between the Noel Bilomi and the source of the Noel Meto and, in connection with a setting of metes, almost exactly the territory which it renounced expressly in 1902-1904 for compensations deemed sufficient by her or because she wished to avoid an appeal on the part of the Netherlands to arbitration or to more extensive claims in the Oikussi region (see maps annexes V and VI).

In other words, there devolves from what has gone before the conviction that the will of the contracting parties ought to be interpreted in the sense that, starting from point A situate on the Bilomi river, the frontier follows in a northerly direction the thalweg of the river Kabun or Leos as far as the source of this last water-course wrongly called Oe-Sunan in 1899, 1902 and 1904.

The reasoning elucidated above under Number 4 would be superfluous if, as the Government of the Netherlands affirms (second Case, Number VII, page 6), the last reconnaissances made on the premises established that this new Oe-Sunan does not exist and that the water-course to which this name has been given by the Portuguese is in reality called Noel Polan or Poeamesse.

5. We have now but to seek the intention of the parties for that region included between the source of the Kabun or Leos river (wrongly called Oe-Sunan in 1899-1904) and the source of the Noel Meto.

The convention of 1904 is expressed as follows: "The thalweg of the Oe-Sunan, (recognized above under number 4 as rightfully called Kabun or Leos) crosses Nepani and Kelali (Keli) as much as possible, (and) strikes the source of the Noel Meto. * *

The Dutch boundary commissioners and their government propose to connect the sources of the Kabun and Noel Meto rivers by following almost exactly the dividing line of the streams, that is to say, a series of peaks of which the principal ones, from north to south, have the names of Netton, Adjausene, Niseu or Nisene, Wanat or Vanate, Fatu Nipani or Fatoe Nipani, Fatu Kabi (Fatoe Kabi) and Kelali (Keli).

This proposal is contested by the Portuguese Government because it would be contrary to the intention of the parties whose aim was, at the time of the conclusion of the treaties between the two governments, not to divide the native states; now, that line detaches the whole eastern part from Portuguese Ambeno. In its first Case, and especially in the annexes to the second, the Portuguese Government invokes the depositions of numerous native chieftains to prove, in substance, that the whole space which would be attributed to the Netherlands is a part of Ambeno and belongs to the Ambenos. Besides this they invoke a private map edited at Batavia on which the Ambenos are indicated as occupying the territory claimed by the Netherlands. The Portuguese Government is of the opinion that Ambenu-Oikussi was granted incontestably to Portugal by the treaty of 1859, and that the tribe of Ambenos could not be partitioned between two sovereignties.

Once again must the arbitrator seek to reconstitute the will of the parties. Now according to the test of the treaty of 1859 Portugal obtained only the "part" of the state of Ambeno that "has raised the Portuguese flag;" that certain parts of Ambeno were considered, since 1859, as remaining under the sovereignty of the Netherlands, would be nothing anomalous. Further than this, the private map edited at Batavia could not be weighed in value with the two official maps signed by the commissioners or delegates of the two states in 1899 and 1904, and on these two official maps (annexes III and IV) the name of Ambeno does not figure within the disputed territory; both put that name west and outside of the disputed territory. Moreover, it results from the documents at hand that since 1899 the Dutch commissioners produced declarations of the native Tumbaba and Amakano chieftains assuring that this territory belonged to them and was not a part of Ambeno (annex III in the second Dutch Case, declaration made at the

session held at Koepang, February 21, 1899.) Thus we find ourselves in the presence of contradictory assertions of natives. The latter in 1899 had been fighting for more than twenty years (first Portuguese Case, page 22) at the time of the arrival of the boundary commissioners in that region, and the Portuguese Government (in its first Case, page 9) acknowledged it as "certain that the peoples east of Oikussi Ambeno have disputed the contiguous territories for a long time and that these peoples are so intermingled that it is difficult to distinguish what really does belong to them." See also in the second Portuguese Case, page 10, the deposition of the native Ambenos Bene Necat: "The eastern part of Oikussi and Ambeno was inhabited by the Tumbaba people who were driven out of there three generations ago by the Ambenos. * * * Since then that region has been desert, although it has been overrun by both Tumbabas and Ambenos."

* * *

The intention of the parties at the time of the negotiation of 1902 is found documented in the proces-verbal of the session of June 26th (procesverbaux, page 7) during the course of which the first Portuguese delegate himself advised "not to allow one's self to be guided too much in this business by humanitarian motives toward the peoples of the Island of Timor; for petty causes these tribes quit their native soil to set up elsewhere, and several times they have left Dutch territory to establish themselves in Portuguese territory, and vice versa." The next day, proces-verbaux, page 11, the first Dutch delegate observed that his government was making "a great concession" in not claiming the whole of Ambeno, "considering that according to his opinion the convention of 1893 implied the disappearance of the enclave of Oikussi;" he declared that if the two governments were not able to come to an arrangement on the basis of the line A-C proposed by the Netherlands, the latter would consider itself bound to have recourse to arbitration to decide whether Ambeno was an "enclave" that ought to be granted to it entirely, and then, June 28th, the Portuguese delegation accepted line A-C without restriction or reservation as had been claimed by the Dutch delegation.

From all these facts there results the conviction of the arbitrator that in 1902-1904 an agreement was reached without taking into account the chance of detaching such or such a parcel claimed by the Ambenos, the Tumbabas, or the Amakonos, and expressly stating that there would be no preoccupation with the claims, contradictory as they were, of the natives. In other terms, from the proces-verbaux of 1902 there results

the conviction of the arbitrator that Portugal accepted line A-C as it was claimed by the Netherlands, precisely because Portugal preferred to abandon claims of a secondary order to the east, in order to save the big piece, that is to say, in order to save what the treaty of 1859 calls the "enclave" of Ambeno-Okussi. The Government of the Netherlands, in the mind of the arbitrator, also correctly maintains in its second Case, page 2, that nothing in the treaty of 1859 prevented the division of the kingdom of Ambeno, and adds: "Even if the treaty of 1859 did not sanction such a division, the Portuguese Government legitimately could not oppose such a division now. Such objections would come too late, and ought to have been raised before the conclusion of the treaty of 1904."

The arbitrator observes, moreover, on the two official maps of 1899 and 1904 (annexes III and IV) that Nipani is indicated as being very close and slightly to the east of line A-C, a short distance from the source of the Oe-Sunan (recognized at present as rightfully called Kabun or Leos); if the survey now claimed by Portugal were adopted, that survey would pass very far to the east and north of Nipani, and consequently would "cross" that territory still less than the survey proposed by the Netherlands. It is true that the Portuguese Government locates Nipani (see the map annexed under Number VI of the first Dutch Case and the word Nipani written in blue on the map here appended, annex IV) northwest of the disputed territory, but this unilateral Portuguese map could not be weighed in opposition to the two official maps of 1899 and 1904 (annexes III and IV), signed by the delegates of the two states; besides, even on this exclusively Portuguese map, the frontier desired by Portugal seems surveyed to the north of Nipani and does not appear to cross" that territory.

6. The Government of the Portuguese Republic finally objects to this survey of a line almost due north and south between the source of the Kabun or Leos river and the source of the Noel Meto, since it is a land frontier, necessitating the placing of metes, while the eastern line suggested by Portugal is formed essentially by a succession of streams, which is preferable in order to avoid conflicts among the natives. In the mind of the arbitrator, this objection rests on no information resulting from the negotiations of 1899 or 1904. On the southern frontier of Okussi-Ambeno, the frontier adopted in 1904 in not a few points is independent of water-courses and ought to have been or would have been marked on land by metes. The very survey suggested by Portugal

would also admit of being in part on land and necessitating the setting of metes, notably at the southeast angle (in the environs of Mount Kinapua, between the course of the Bilomi river and the river called Oe-Sunan by the Portuguese), and at the northeast angle (between the sources of the river by the Portuguese called Ni Fullan and the source of the Noel Meto).

The survey suggested by the Dutch boundary commissioners would appear to the arbitrator to constitute a frontier sufficiently natural easily to be bounded on land.

It consists of a continuous series of rather high summits, from north to south, bearing the names of Netton, Loamitoe, Adjausene, Niseu, Wanat, Fatoe-Nipani, Kelali or Keli, of which the altitude is indicated as from 500 to 1,000 meters. This range serves as a watershed, and the rivers east of that line run east. Thus it does not seem that it would be difficult technically to proceed to the boundary along that range of elevations, the general direction of which corresponds entirely to the theoretical line A-C adopted by common agreement in 1904.

VII. CONCLUSIONS

The preceding considerations of fact and law lead the arbitrator to the following conclusions:

1. The treaty of 1859 had granted to Portugal in the eastern part of the island of Timor, the Oikussi-Ambeno "enclave," and at that time the Netherlands ceded to Portugal "that part of Ambenu which, for several years, has raised the Portuguese flag."

2. The purpose of the convention of 1893 was "to establish in the clearest and most exact fashion the boundary" of the respective possessions in Timor and "to cause the enclaves now existing" there "to disappear."

3. The convention of 1904 rectified the frontier in the center of the island by granting Portugal the Dutch enclave of Maukatar and other disputed territory, and in the southwestern part of the island the Portuguese enclave of Noemuti to the Netherlands. On the other hand, during the negotiations of 1902 the Netherlands renounced raising the greater question of whether Oikussi-Ambenu was, as the treaty of 1859 indicated it, an "enclave" rightfully reverting to them. This agreement was reached under the condition, expressly accepted by Portugal, of adopting for the eastern frontier of the kingdom of Oikussi (Ambenu) line A-C claimed by the Netherlands during the negotiations of 1902.

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