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34990

No. 54.

PUBLIC RECORD OFFICE

C.O.885

Reference :-

FOREIGN OFFICE to LAW OFFICERS.

[(1) The Uganda-Congo Boundary Question. (2) The British Claim to the Mjumbira

GENTLEMEN,

District.]

Foreign Office,

June 7, 1907. I HAVE the honour, by direction of Secretary Sir Edward Grey, to request that you will take into consideration the papers noted in the accompanying list respecting:-

(1) The Uganda-Congo boundary question; and

(2) The British claim to the Miumbiro district.

1. The boundary between the Uganda Protectorate and the Congo Free State is laid down by Article 1 (a) of the Agreement between Great Britain and the Congo Free State of the 12th May, 1894, as follows: "That the sphere of influence of the Independent Congo State shall be limited to the north of the German sphere in East Africa by a frontier following the 30th meridian cast of Greenwich up to its inter- section by the watershed between the Nile and the Congo, and thence following this - watershed in a northerly and north-westerly direction." (Paper (A.).)

No map was attached to the original signed Treaty, but the map included in the Blue Book (Paper (A)) in which the Treaty was laid Lefore Parliament shows the Later and more position of the line which was supposed to be the 30th meridian. accurate geographical knowledge has now brought to light the fact that the real position of the 30th meridian is considerably to the east of the line shown on the above map.

A memorandum by Mr. Wellesley (Paper (G)) contains maps and plans showing the various positions that have from time to time been assigned to this meridian.

Ilis Majesty's Government are, of course, anxious to claim that the line which was believed to be the 30th meridian at the time of the conclusion of the Treaty of The 1894 should be the boundary between the Congo Free State and Uganda. Congo Government, on the other hand, maintain that the letter of the Treaty must be adhered to, and the true 30th meridian Le fixed as the frontier line.

The Congo Free State may claim that this matter should form the subject of a reference to arbitration under Article 12 of the Act of Berlin, 1885 (Paper (C')), and it would, therefore, be of material assistance to the Secretary of State to have your opinion as to the strength of the British case before deciding what attitude to adopt. The claim of His Majesty's Government could only be established by proving that the intention of the Treaty was that the 'boundary should be, not the real 30th meridian, but the line shown as such on the contemporaneous maps.

It is obvious from the map attached to the Blue Book (Paper (A)) that His Majesty's Government were at that time under the impression that the line of frontier to which they had agreed would give them access to Lake Albert Edward. And it may be observed that, as a matter of fact, the whole object of negotiating the Treaty was to secure that the proposed Cape to Cairo Railway should lie entirely within British territory.

If the truc 30th meridian be adopted as the frontier, Great Britain will be deprived of access to Lake Albert Edward.

In support of the British contention His Majesty's Government can urge the fact that the strip of territory in dispute was actually occupied and administered by the Uganda Protectorate until, on the discovery that the 30th meridian lay farther to the cast, a temporary Agreement was come to between the Congo State and His Majesty's Government to abstain from any act of occupation on the part of either Government until the boundary question had been definitely settled. This fact shows the intention of His Majesty's Government to occupy the country up to the line where the old 30th meridian was supposed to be.

In further evidence of such intention it might, perhaps, be possible to cite the following passage from the Earl of Kimberley's despatch to Mr. Hardinge of the 23rd May, 1894 (see Hertslet's "Map of Africa," p. 1013): -

"In order to secure access to this post, the lease has been obtained of a road passing through the Free State territory, connecting Lake Albert Edward, the castern shore of which is in the British sphere with the leased port."

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On the other hand, Sir E. Grey is not aware of any evidence that can be pro- duced to prove that it was also the intention of the Congo Free State to place the

oundary at the supposed and not at the real position of the 30th meridian.

2. The claim to the Mfumbiro district, though distinct from the Congo-Uganda boundary dispute, may yet, for reasons which will presently appear, be conveniently dealt with at the same time. The Agreement between Great Britain and Germany of the 1st July, 1990, defining the boundary between the British and German. spheres (Paper (B)), provides (Article 1, Mount Mfumbiro):-

“It is, however, understood that, on the west side of the lake, the German sphere does not comprise Mount Mfumbiro; if that mountain shall prove to lie to the south of the selected parallel, the line shall be deflected so as to exclude it, but shal! nevertheless return so as to terminate at the above-named point."

Again:-

"Mount Mfumbiro is included in the British sphere."

At the time when this Treaty was made the exact position of Mfumbiro was not known, but it was claimed by Great Britain and was generally assumed to lie to the south of the 1st parallel of south latitude.

It has now been definitely ascertained that the Mfumbiro district does lie to the south of the 1st parallel south latitude, but a further complication is introduced by the fact that the boundary between the Congo Free State and the German territory is also the subject of dispute, and if the German Government fail to secure the boundary, they claim. Mfumbiro may be finally decided to lie within the Free State territory.

The preamble to the Agreement between Great Britain and the Congo State of the 12th May, 1894, however, contains the following words:-

"IHis Majesty the King of the Belgians, Sovereign of the Independent State of the Congo, having recognized the British sphere of influence as laid down in the Anglo-German Agreement of the 1st July 1890, Great Britain undertakes to give to His Majesty a lease of territories in the western basin of the Nile," &c.

The Congo Government have stated that they are not prepared to recognize any claim on the part of His Majesty's Government to this district if found west of the true 30th meridian, as under the German-Congolese Convention of 1884 this meridian is to form the boundary between the Congo Free State and German East Africa up to 1° 20' south, and as this case may also have to be referred to arbitra- tion, as provided for under Article 12 of the Act of Berlin, 1885, it is important to know the precise effect of this stipulation in the preamble to the Convention.

It is possible for His Majesty's Government to set up a claim to Mfumbiro either against the German Government on the strength of the 1890 Agreement or against the Congo Free State on the strength of the preamble to the 1894 Agree- ment, and Sir E. Grey would be glad of your opinion as to which of these courses it would be safer to adopt.

Account must be taken of the fact that, in case of negotiations_between_the Congo Free State and Germany for the settlement of the Congo-German East African boundary, the latter Power, knowing that if she makes good her claim to Mfumbiro she will have to hand it over to Great Britain, may be disposed to abandon this part of her claim with a view to securing concessions in other portions of the boundary.

Unless you consider, therefore, that His Majesty's Government could argue that. by the Agreement of 1890, Germany guaranteed Mfumbiro to Great Britain, and consequently is bound to obtain it from the Congo Free State, Sir E. Grey has some doubt whether there will be any advantage in putting forward the claim against her. It will be noted that it is the recognition on the part of the Congo Free State of the British sphere, as determined by the 1890 Agreement with Germany, that forms the consideration for the lease of the Nile territories to the King of the Belgians. In the later portion of Article 1 of the 1890 Agreement with Germany, where the British sphere is defined, Mount Mfumbiro is assigned to Great Britain without any reference to the position of lines either of longitude or latitude, and both the Legal Adviser and the Assistant Legal Adviser to this Department have expressed the opinion that the action of the Congo Free State in taking the lease of the Nile territories in return for her recognition of the British sphere makes the British claim to the Mfumbiro district against the Congo Free State stronger than a claim put forward through Germany.

It is difficult to see what consideration the King of the Belgians gave for the

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lease of the Nile territories, if the recognition of the British sphere in the preamble of the 1894 Agreement is to be construed as limited to the recognition of the division between Great Britain and Germany of territory with which the Congo Free State was not concerned, and as falling to the ground so soon as the Congo Free State considers herelf entitled to claim the territory on her own account.

The strength of the German claim to Mfumbiro is possibly also an element that you may consider should be taken into account in deciding what course to pursue. The details of the dispute between the German Government and the Congo set out in Government as to the boundary between their territories are Mr. Wellesley's Memorandum (Paper (G)), so far as they are known to His Majesty's Government.

It may be well to mention that if the German Government adopted the same arguments as to the 30th meridian that His Majesty's Government desire to put forward the actual line claimed by Germany would not be a continuation of the line claimed by Great Britain, as the German claim dates from 1885, whereas the British claim dates from 1894, and the supposed position of the 30th meridian bad altered in the meantime.

You will also observe that as regards the Congo-Uganda boundary lis Majesty's Government claim the old 30th meridian as being the intention of the Treaty irrespective of its actual wording, whereas with regard to Mfumbiro they claim the district under the strict letter of the Treaty, and you will no doubt give due weight to the apparent inconsistency of these contentions in advising the Secretary of State as to the course to be adopted.

Sir Edward Grey would be glad if you will be so good as to furnish him with your opinion on the following points :-

-

1. Whether the contention of His Majesty's Government that the boundary between the Congo Free State and Uganda should coincide with the supposed posi tion of the 30th meridian at the time of the Treaty of 1890 is sufficiently strong to render it reasonably safe to submit the matter to a Court of Arbitration, and, if so, by what line of argument it could be most advantageously supported!

2. Whether Great Britain has a valid claim to the Mfumbiro district, and, if so, whether the claim should be made against the Congo Free State direct or against Germany?

3. Whether the claim to the Mfumbiro district, if any, is strong enough for submission to a Court of Arbitration?

4. Whether, in the event of Germany submitting her boundary dispute with the Congo State to arbitration and the Award going against her, the British claim to Mfumbiro on the strength of the recognition by the Free State of the British sphere as laid down in the Agreement of 1890 would be prejudiced thereby?

Sir Edward Grey would also be glad to receive any observations of a general character which you may be good enough to offer on the foregoing subjects.

As the question whether the British claim to Mfumbiro should be brought up at a proposed Conference on questions relating to the Aka will depend largely on the conclusion at which you may arrive, I am to request that Sir E. Grey may be favoured with your views at your early convenience in order that a reply may be sent to the German Government in regard to their proposal to refer the latter question to arbitration.

I have, &c.,

LIST OF PAPERS.

ERIC BARRINGTON,

(A.) Anglo-Congolese Treaty, May 12, 1894. Spheres of influence in East and

Central Africa. Africa, No. 4 (1894).”

"

(B.) Anglo-German Treaty, July 1, 1890, relating to Africa and Heligoland.

Africa, No. 6 (1890),"

*

(C.) General Act of Berlin, February 26, 1885. “Africa, No. 3 (1886).”

(D) Modus vivendi of April, 1904 (exchange of notes with Congolese Govern- ment), .e., to Sir C. Phipps, No. 39, Africa, March 19, 1904; Sir C.

In Conf. 8614. Phipps, No. 31, Africa, April 3, 1904.

(E.) Memorandum, &c., by Mr. A. W. Clarke. Mr. H. Farnall, and Mr. E. A.

Crowe of March 10, 1904 In Conf. 8614.