Las Palmas Case o6z9

Subject of the dispute Points agreed upon

US Netherlands Sovereignty over the Island of Palmas [US] (or Miangas [N])

Artbitrator Zurich

1. The Treaty of Paris and The Special Agreement (referring disputes to arbitration) are the ONLY INTERNATIONAL INSTRUMENTS laid before the arbitrator which refer precisely to the island, by: a. mathematical location, or b. by express and unequivocal mention. 2. There was no dispute before 1906.

Basis of claim

3. The two parties claim the territory as one attached for a very long period to territories relatively close at hand and are incontestably under the sovereignty of one or the other. DISCOVERY 1. Discovery has not been proved, nor any other 1. Visit by Gen. Leonard Wood, Governor of the form of acquisition Moro Province -Counter-Memorandum: 1903 (doubtful) 2. Even if it had a title, this had already been st -Certificate by 1 Lt. Johnson: 1906 lost. 2. Because of this visit, included in the “archipelago known as the PH Islands” delimited in the “Treaty of Paris” (aka “Treaty of Peace” 3. Confirmed by cartographers and authors, and by treaty a. Treaty of Munster (Spain and the Netherlands are parties—through this, the Netherlands gained independence from the Spanish crown) b. Nothing has occurred of a nature, in international law, to cause the acquired title to disappear

On cession

4. Palmas forms a geographical part of the PH archipelago and by virtue of the principle of contiguity it belongs to the power having sovereignty over the PH. Included in the “archipelago known as the PH Islands” delimited in the “Treaty of Paris” (aka “Treaty of Peace”

3. Principle of contiguity contested. 4. The Netherlands, represented by the East India Company, possessed and exercised rights of sovereignty from 1977, or even before 1648, to the present day. -This sovereignty arose from conventions entered into with native princes of the Island of Sangi (main island of the Talautse Isles), establishing the suzerainty (A nation that controls another nation in international affairs but allows it domestic sovereignty) of the Netherlands over the territories of these princes, including Palmas

Spain could not transfer more rights than she possessed. Principle expressly recognized in a letter from the Sec. of State of the US to the Spanish Minister at Washington (issue was whether two

islands lying just outside the limits traced by the treaty were to be considered as included in the cession) -“If any islands within those bounds described in fact belonged to another country, then the US could derive no valid title from its ostensible inclusion in the Spanish cession.” While it may have some bearing on an inchoate title not ed by any actual display of sovereignty, it would be entirely contrary to principles laid down above as to territorial sovereignty to suppose that sovereignty could be affected by mere silence as regards a treaty which seems to dispose of part of his territory.

On the Netherlands’ silence with respect to the delimitation in the Treaty of Paris (as communicated to it by US) On whether the Island was part of SP or NE territory when the Treaty of Paris was concluded and came into force On discovery

Spanish territory; Denies existence of NE sovereignty

NE sovereignty exists!

Communication made by the SP govt to the US govt as to expeditions (Moluccas, Talaos Islands, PAlaos Islands, Marianes)

Probable that it was the same island seen when Palaos was discovered. It was named “Meanguis” and presumed identical with Talaos, but IN REALITY, it LIES MORE TO THE SOUTH, which by error is called by another island’s name. Not ed by details (date of expedition, navigators, circumstances, extracts from original reports, etc.) Reports actually say that the island was “seen”. No mention of landing, or with natives. The fact that it was originally called by a European name (and not, as customarily, by a native name), perhaps shows that there was— a. no landing, or b. the island was uninhabited at the time of discovery.

On the applicable

Juridical fact must be appreciated in the light of the law contemporary with it, not the law in force

law On whether there was a title in favor of the US

at the time when the dispute arose. Mere fact of seeing, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an inchoate title, a jus ad rem, to be completed eventually by an actual and durable taking of possession within a reasonable time

The existence of a right shall follow the conditions required by the conditions required by the evolution of law. th

19 century intl law: Territories without a master were relatively few. Occupation must be effective (must offer certain guarantees to other states and their nationals). It is incompatible with this rule of positive law that there should be regions which are reserved for the exclusive influence of one state but are not under its exclusive sovereignty or without a master. If only an inchoate title existed, it must have been completed within a reasonable period by the effective occupation of the region. In this case, NO ACT OF OCCUPATION (except recently) OR ANY EXERCISE OF SOVEREIGNTY HAS BEEN ALLEGED.

On the Treaty of Munster

Also, even if there is an inchoate title, such could not prevail over the continuous and peaceful display of authority by another state. No frontiers; no definite regions. However, it establishes as a criterion the principle of possession.

Introduction: 1. 2. 3. 4. 5.

Sovereignty signifies independence in the relation between states. It means the right to exercise in a certain portion of the glove, to the exclusion of any other state, the functions of a State. (In exceptional circumstances, this may belong to several States.) Territorial sovereignty is a situation recognized and delimited in space, either by: a. natural frontiers as recognized by -international law, or -by outward signs of delimitation that are undisputed a. legal engagements between interested neighbors, or b. acts of recognition of states within fixed boundaries.

In order to solve disputes as to sovereignty over a particular territory, it is customary to examine which of the claimants possesses a TITLE (through cession, conquest, occupation, etc.) superior to that which the other state mught possibly bring forward against it. H/E, if the contestation is based on the fact that the other party has actually displayed sovereignty, it cannot be sufficient that it be shown that sovereignty was acquired at a certain moment, it must also be shown that it continued to exist at the moment which for the decision of the dispute must be considered as critical. Titles of acquisition of territorial sovereignty are based on— 1. 2. 3.

Effective apprehension (occupation or conquest), or Presuppose that the ceding and cessionary powers (or at least one of them) have the faculty of effectively disposing of the ceded territory. Continuous and peaceful display of territorial sovereignty is as good as a title. a. International law, the structure of which is not based on any super-state organization, cannot be presumed to reduce such a right with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations. b. Concrete manifestation assume different forms, according to the conditions of time and space. Although it should be continuous, it cannot be exercised in fact at every moment on every point of a territory. c. Parties may agree by convention, but continuous and peaceful display is the sound and natural criterion if: i. The line isn’t precise, or ii. There are gaps in frontiers otherwise established, or iii. The line leaves room for doubt, or iv. The question arises whether a title is valid erga omnes (rights and obligations owed toward all), for example, when an island is situated in the high seas.

Facts of the case Palmas (Miangas) is an island of little economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and had a population of about 750 in 1932, when the case was decided. Palmas lies between Mindanao, the southernmost part of the Philippines, and the Nanusa Islands, the northernmost part of Indonesia other than Palmas. In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas aly within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration. On 23 January 1925, the two government signed an agreement to that effect. Ratifications were exchanged in Washington on 1 April 1925. The agreement [1] was ed in League of Nations Treaty Series on 19 May 1925. The arbitrator in the case was Max Huber, a Swiss lawyer. The question before the arbitrator was whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands. The legal issue presented was whether a territory belongs to the first discoverer, even if they do not exercise authority over the territory, or whether it belongs to the state which actually exercises sovereignty over it. [edit]The Arbitrator's decision Arbitrator Max Huber ruled in favor of the Netherlands’ position and stated that the Netherlands held actual title to Palmas: For these reasons The Arbitrator in conformity with Article I of the Special Agreement of January 23rd, 1925 DECIDES that : THE ISLAND OF PALMAS (or MIANGAS) forms in its entirety a part of the Netherlands territory. done at The Hague, this fourth day of April 1928. Max Huber, Arbitrator Michiels van Verduynen, Secretary-General.

[2]

[edit]Right by discovery In the first of its two arguments, the United States argued that it held the island because it had received actual title through legitimate treaties from the original "discoverer" of the island, Spain. The United States argued that Spain acquired title to Palmas when Spain discovered the island and the island was terra nullius. Spain's title to the island, because it was a part of the Philippines, was then ceded to the United States in the Treaty of Paris (1898) after Spain's defeat in the Spanish-American War. The arbitrator noted that no new international law invalidated the legal transfer of territory via cession. However, the arbitrator noted that Spain could not legally grant what it did not hold and the Treaty of Paris could not grant Palmas to the United States if Spain had no actual title to it. The arbitrator concluded that Spain held an inchoate title when Spain “discovered” Palmas. However, for a sovereign to maintain its initial title via discovery, the arbitrator said that the discoverer had to actually exercise authority, even if it were as simple an act as planting a flag on the beach. In this case, Spain did not exercise authority over the island after making an initial claim after discovery and so the American claim was based on relatively weak grounds. [edit]Contiguity The United States also argued that Palmas was American territory because the island was closer to the Philippines than to the Netherlands East Indies. The arbitrator said there was no positive international law which favored the United States approach of terra firma, where the nearest continent or island of considerable size gives title to the land in dispute. The arbitrator held that mere proximity was not an adequate claim to land noted that if the international community followed the proposed American approach, it would lead to arbitrary results. [edit]Continuous and peaceful display of sovereignty

The Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The arbitrator noted that the United States had failed to show documentation proving Spanish sovereignty on the island except those documents that specifically mentioned the island's discovery. Additionally, there was no evidence that Palmas was a part of the judicial or istrative organization of the Spanish government of the Philippines. However, the Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, than there would have been conflicts between the two countries but none are provided in the evidence. [edit]Conclusion Under the Palmas decision, three important rules for resolving island territorial disputes were decided:

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Firstly, title based on contiguity has no standing in international law.

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Secondly, title by discovery is only an inchoate title.

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Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and the arbitrator required that the claim had to be open and public and with good title), and the discoverer does not contest this claim, the claim by the sovereign that exercises authority is greater than a title based on mere discovery.