CO885-(15-16) — Page 480

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PUBLIC RECORD OFFICE

Reference :-

TC.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

territory to be used by the German authorities as a base of operations, because of the possibility of trouble being thereby created with their own natives who were nearly connected by ties of race with the rebels in German South-West Africa. That from motives of humanity, however, they had allowed strictly limited amounts of provisions to be sent through for the use of the civil population under permits issued by the officer in command of the Cape Police at the drift. That the limita- tion, moreover, of these stores was not confined merely to quantity, but permission. for their passage was only given from month to month.

That the German authorities accepted these restrictions without demur and applied or allowed their contractors to apply for permits on these terms. That, indeed, up to May, 1905, the German Consul-General at Cape Town was in the habit of certifying that all the supplies imported over the drift in question, were for the use of the civil population in German South-West Africa.

That he was to request us to take the circumstances into our consideration and to favour your Lordship with our views as to:-

(1) Whether the action of the Cape Government in "interning" the refugees from German South-West Africa-such refugees not being belligerents-was in accordance with international law?

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(2) Whether, supposing the answer to this question to be in the affirmative, the Cape Government were under any obligation of international, as distinguished from municipal, law to "intern" the refugees, or were bound to keep them "interned or otherwise to prevent them from returning to German South-West Africa should they wish to do so? and

(3) Whether their action in the matter was legal or not, had the Cape Govern- ment any legal or equitable claim to be refunded their expenses at the hands of the German Government at whose instance and request they incurred these expenses, it being remembered that the German Government had always expressed them- selves as perfectly ready to receive the refugees if asylum in British territory were denied to them and they were forcibly handed over to the German authorities?

That there was a further point on which, though not directly connected with those above set forth, your Lordship would be glad to be furnished with our opinion, viz, the continued occupation by the Germans of the “drift" (i.e., Rahmansdrift) to which allusion has previously been made.

That the German Government admitted that the frontier between the British and German possessions in this neighbourhood was governed by Section 1 of Article III. of the Anglo-German Agreement of 1890, which provided that the line of demarcation should commence at the mouth of the Orange River and ascend the north bank of that river to the point of its intersection by the 20th degree of east longitude. That the German Government raised, indeed, questions as to the exact interpretation of the expression "north bank," but that they did not dispute that the whole bed of the river, as well also, of course, as the south bank, was British.

That all the same, however, they had given to one Sperlich a lease of the ferry at Rahmansdrift which carried with it a landing monopoly on the northern bank of the Orange River extending 10 kilometres on either side of the Rahmansdrift Tanding place, and that, though constant remonstrances had been made to them on the subject, they had paid them no attention.

That, in these circumstances your Lordship would be glad to be favoured with our views as to the steps which the Cape Government should take with a view to re-entering into possession of what appeared undoubtedly to be their property.

We have taken the mattor into our consideration and, in obedience to your Lordship's commands, have the honour to

Report-

That (1) and (2), in our opinion, the principles of international law relating to the duty of a neutral Power in regard to the internment of belligerent forces Nor is the Cape Government cntering its territory do not apply in the present case.

bound to send the refugees back, but if it gives them asylum, and has ground to believe that they propose using the Cape territory as a base for hostile operations against a friendly Power they must take reasonable steps to prevent such a course being adopted. For this purpose, though not bound to intern, the Cape Govern- ment are entitled to do so if they think fit..

expenses (3) The Cape Government have no legal or equitable claim to have their re-imbursed by the German Government, unless they can show some express or clearly implied promise on the part of that Government to do so.

(4) On the construction of Article III. of the Anglo-German Agreement of July, 1890, it would seem that the Orange River is within British territory and that no grant or reservation of the right of navigation is made to Germany. Having regard to this view the Cape Government are entitled to forbid and, if necessary, to prevent the use of the Orange River, as well as of its south shore, by the German ferry.

We should, however, add that the assertion and exercise of such an exclusive right would involve serious questions of policy as well as of law.

The Right Honourable

The Earl of Elgin, K.G.,

&c.,

&c., &c.

We have, &c.,

JOHN L. WALTON, W. S. ROBSON.

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