THE ISLAND OF TIMOR CASE

between

THE NETHERLANDS and PORTUGAL

Decided June 25, 1914

Syllabus

This arbitration grew out of a dispute between the Netherlands and Portugal over the boundaries of their respective possessions in the Island of Timor, which was partitioned between them by a treaty of April 20, 1859. In order to avoid the division of native tribes this treaty had left certain Dutch territory within the boundaries assigned to Portugal and vice versa, but as it later appeared desirable to abolish these so-called "enclaves," a convention was signed on June 10, 1893, for that purpose and for the establishing of the boundary in the clearest manner. A commission acting under this convention reached an agreement upon most of the boundary in 1898-1899, and the disputed points were referred to a conference at The Hague, which on July 3, 1902, agreed upon a solution which was transformed into a diplomatic convention on October 1, 1904. This convention settled the remainder of the boundary with the exception of a part of the Portuguese enclave formerly within Dutch territory. As to this a theoretical line was drawn and a mixed commission appointed to survey and mark it. The commissioners after starting upon their work were unable to agree upon some of the geographical points which had been laid down. for their guidance, and their labors were suspended. After a lengthy diplomatic correspondence between the foreign offices of the respective Governments an agreement was signed at The Hague on April 3, 1913, referring the disputed boundary to the decision of an arbitrator, according to the data to be furnished by the parties and on the basis of the general principles of international law.

Mr. Charles Édouard Lardy, the Swiss Minister to France, was selected as arbitrator. He rendered an award on June 25, 1914, fixing the boundary in accordance with the contentions of the Netherlands. 1Post, p. 390. 3 Post, p. 396.

2Post, p. 393.

Post, p. 387.

AWARD OF THE TRIBUNAL

Arbitral award rendered in execution of the compromis signed at The Hague, April 3, 1913, between the Netherlands and Portugal concerning the boundary of a part of their possessions in the Island of Timor.-Paris, June 25, 1914.1

A dispute having arisen between the Royal Government of the Netherlands and that of the Portuguese Republic concerning the subject of the boundary of a part of their respective possessions in the Island of Timor, the two Governments, by a convention signed at The Hague, April 3, 1913,2 of which ratifications were exchanged in the same city on July 31st following, decided as a last resort to refer its solution to an arbitrator, and accordingly by common accord designated the undersigned.

To understand the sense and scope of the compromis of April 3, 1913, there is need succinctly to explain the negotiations that preceded that compromis.

I. HISTORICAL

The Island of Timor, the farthest east of the continuous series of the Sonde Islands and the nearest to Australia, was discovered by the Portuguese in the sixteenth century; the island measures about 500 kilometers in length from west to east by a maximum width of 100 kilometers. A lofty chain of mountains, certain summits of which reach an altitude of nearly 3,000 meters, divides this island lengthwise into two slopes. The eastern part of the island, with an approximate area of 19,000 square kilometers, and a population of about 300,000 inhabitants, is Portuguese. The western part, with a population estimated in 1907 of 131,000 inhabitants and an area of about 20,000 square kilometers, is under the sovereignty of the Netherlands, with the exception of the "Kingdom of Okussi and Ambeno," situate on the northwest coast and surrounded on all sides by Dutch territory except on the shore.

The name of "kings" given by the Portuguese to the chieftains of tribes is explained by the fact that in the native tongue they are called leorey; the final syllable of this word has been translated into

1American Journal of International Law, vol 9, p. 240. For the original French text, see Appendix, p. 574.

2Post, p. 387.

Portuguese by the word Rey. The Dutch give these chieftains the more modest title of radjahs.

This territorial partition between the Netherlands and Portugal rests on the following agreements:

April 20, 1859,1 a treaty signed at Lisbon and duly ratified in the course of the summer of 1860, had defined the respective frontiers of the middle of the island, but had left existing (Article 2) the Dutch enclave of Maucatar in the midst of Portuguese territory, and the Portuguese enclave of Oikoussi in the midst of Dutch territory in the west of the island. It was stipulated (Article 3) that the enclave of Oikoussi consists of the State of Ambenu wherever the "Portuguese flag is raised, the State of Oikoussi proper and that of Noimuti." See annex A, page 31.1

By another convention signed at Lisbon June 10, 1893, and duly ratified, the two Governments, "desiring to settle on conditions most favorable to the development of civilization and commerce" their relations in the archipelago of Timor, agreed "to establish the boundary of their possessions in the clearest and most exact fashion" in that island and "to cause the enclaves now existing to disappear" (Preamble and Article 1). A commission of experts was to be designated to the end of "formulating a proposition capable of serving as the basis for the conclusion of a further convention fixing the new boundary line in the said island” (Article 2). In case of difficulties the two parties engaged "to submit to the decision of arbitrator" (Article 7). See annex B, page 34.2 This mixed commission repaired to the premises and agreed in 1898-1899 on most of the boundary. Notwithstanding, a considerable number of divergencies persisted as to the principal frontier in the middle of the Island of Timor as well as to the frontier of the Kingdom of Okussi-Ambenu in the western part of the island. The map annexed under No. II indicates the respective claims. A conference was assembled at The Hague from June 23 to July 3, 1902, to attempt their solution. It decreed July 3, 1902, a plan 1 Post, p. 390. 2Post, p. 393. *For annexed maps, see opposite p. 386.

an

which was transformed into a diplomatic convention signed at The Hague, October 1, 1904, and duly ratified. See annex C, page 37.1 A summary of the results of the Convention of 1904 is shown on the transparent map annexed under No. I; the superposition of the transparent map No. I on the map No. II shows what Portugal obtained, in the center of the Island of Timor, the Dutch enclave of Maukatar, and what the Netherlands obtained in the same region, Tahakay, and Tamira Ailala. On the other hand, in the northwest of the Island of Timor and to the south of the territory designated by the treaty of 1859, under the name of Oikussi enclave, the Netherlands obtained Noimuti. Finally, the controverted eastern limit of the territory of Oikussi-Ambeno is fixed theoretically according to a line A-C, which was to be surveyed and indicated on the grounds within the shortest possible delay" (Acts of the conference of 1902, sessions of June 27, pages 10 and 11, and of June 28, page 12; convention of October 1, 1904, Article 4). The line A-C allowed by the conference was fixed in Article 3, No. 10 of the convention of 1904 in the following terms: "From this point" (the confluence of the Noel Bilomi with the Oè-Sunan) "the boundary follows the thalweg of the Oè-Sunan, runs as much as possible across Nipani and Kelali (Keli), strikes the source of the Noèl Meto, and follows the thalweg of that river to its mouth."

All seemed ended, when the boundary commissioners, having arrived at the premises in June 1909, for the work of setting the metes of the eastern frontier of Oikussi-Ambeno could not agree and decided to refer the matter to their Governments. The two Governments were none the more able to agree and decided to have recourse to arbitration. What was this difficulty that the boundary commissioners encountered?

II. THE DIFFICULTY WHICH INSTIGATED THE ARBITRATION

In proceeding to the work of bounding the eastern frontier of Oikussi-Ambeno the commissioners had commenced in the north, on the coast, and ascended in a southerly direction the course of the Noel Meto river, which was to serve as a frontier from its mouth

1 Post, p. 396.

to its source. These operations took place between the 1st and the 10th of June, 1909, and a mete was placed at the source of the Noèl Meto. The source being obstructed by some steep cliffs impossible to cross, the commissioners decided on a general reconnaissance between the northern and southern parts of the country still to be bounded, that is to say, between the source of the Noèl Meto, in the north, and of the Noel Bilomi, in the south.

A disagreement first arose in the north: The map (see annex III) signed in 1904, at the same time as the convention, bore the name Kelali accompanied between parentheses by the word Keli. The Dutch delegates maintained the word Keli meant on the summit of Mount Kelali, a particular point, situated to the west of the Noèl Meto between two "peaked" rocks, and which had been indicated by the natives of Tumbaba (Dutch) as the boundary between them and the natives (Portuguese) of Ambeno; according to the Dutch commissioners this point is a "magnificent" natural boundary which nearly follows the limit described on the map of 1904. The Portuguese commissioners, on the contrary, propose "to follow....some thalwegs in the country to the east of the line proposed by the Dutch delegates, starting from the same mete" placed at the source of the Noel Meto. The commission decided to survey the two lines and to leave the solution to superior authorities.

In the southern part, on the Bilomi river, the commissioners state, in their session of June 17, 1909, that they followed west to east the course of the Nono Nisi (or Nise), then the course of the Noel Bilomi, and that they now "reached the spot (where the commission of 1899 had terminated its work) where the survey must be continuued to the north." That point had been designated in the convention of 1904, Article 3, Nos. 9 and 10, and on the map annexed, as the confluence of the Noèl Bilomi and the Oè Sunan. "The four delegates state that at that place there are two affluents coming from the north, but neither is called the Oè Sunan.”

The Dutch delegates then explain that the country situated between the two affluents is called Sunan, that moreover, they do not recognize any affluent of the Noèl Bilomi bearing the name of Oè Sunan and that none exists; thus they insist the frontier line be