File No. 2160.
The Secretary of State to the British Ambassador.
Washington, December 10, 1904.
Excellency: Referring to your inquiry, in the course of our conversation of yesterday morning, touching the question of the status of certain islands near the coast of British North Borneo, I take pleasure in fulfilling my promise to examine the matter and advise you further.
Since the receipt of Mr. Raike’s note of September 7, 1903, I am advised that no steps have been taken toward making good the title of the United States to those islands, neither has any report been made by the American naval or military authorities in the Philippines which would throw additional light on the merits of that title.
Under the convention of November 7, 1900, supplementary to the treaty of peace between the United States and Spain, the latter relinquished in favor of the United States all title and claim of title to all islands belonging to the Philippine Archipelago not specifically included in the metes and bounds described in the treaty of peace and particularly to the islands of Cagayan Sulu and Sibutu, both of which lie outside the mentioned boundaries.
The title of Spain to the Sulu Archipelago, of which Cagayan and Subutu formed part, rests on historical facts and repeated act of submission of the Sulu chiefs to the Crown of Spain, and the territorial limits of Spanish jurisdiction in that quarter are stated in general terms in the protocols signed between Great Britain, Germany, and Spain in 1877, 1885, and 1897, from which it appears that Spain relinquished in favor of Great Britain all claim of sovereignty over the territories of the mainland of Borneo which then belonged or had belonged in the past to the Sultan of Sulu, including therein the neighboring islands of Balambangan, Banguey, and Malawali, “as well as all those islands lying within a zone of 3 marine leagues along the coast, and which form part of the territories administered by the company styled British North Borneo Company,” while as to the rest of the islands pertaining to her under the Suluan capitulations and submissions Spain reserved and was admitted to have sovereignty whether they were effectively occupied by Spain or not.
I am not aware that at any time between the conclusion of the protocols of 1877, 1885, and 1897, and the conveyance by Spain to the United States in 1900., of all title and claim of title in that quarter, any effective tracing of the 3-league water boundary along the North [Page 543] Bornean coasts was made or attempted by Great Britain and Spain. Both countries appear to have rested content with the treaty definition and with the Spanish reservation of sovereignty outside of the line so defined. It is one of the common cases where a conventional description of a boundary line has not been carried into effect by a physical demarcation, and where the coterminus sovereignties may at any time give effect thereto by actually laying down the line as a proper proceeding under their existing treaty rights.
The geographical features of the Bornean coast and the adjacent islands are, however, such as would seem to preclude an exact definition of the treaty line between its land and water territories and those of the Sulu groups, without positive knowledge upon which the two Governments could base an intelligent agreement. A line traced 3 marine leagues seaward from the windings of an irregular coast is necessarily somewhat arbitrary and, all other things being equal, considerations of mutual convenience may be taken into account, as for instance, when an island other than those enumerated in the existing protocols should be cut in two by the 3-league line. Again, the protocols are silent as to the points of the North Bornean coast where the 3-league line begins and ends. As to these matters I see no reason why they should interfere with the settlement of the whole question by a mutually satisfactory agreement.
As a step toward that desirable end the Government of the United States would be willing to come to an understanding with His Majesty’s Government whereby a joint examination of the North Bornean neighborhood shall be made by two experts, one on behalf of each Government, under instructions to agree if possible upon a tentative line which shall conveniently and fairly represent the intention of the parties to the protocol of 1885, making report thereof to their respective Governments with statement of any points upon which they may not be able to agree. Upon receipt of these reports, the two Governments will be in a position to determine upon a definitive settlement of the matter in such way as shall be found appropriate.
If this proposal should be acceptable to His Majesty’s Government your reply to that effect will be regarded as perfecting the agreement by exchange of notes.
I have, etc.,