Islands Of Palmas Case (1928).docx

Modes of Acquiring Territory Island of Palmas Case (United States v. Netherlands) Arbitrator: Max Huber A dispute arose as to who has sovereign powers over Palmas, a tiny island straddling the halfway point between the southern reaches of the Philippine Islands, an American territory, and Nanoesa Island, then part of the Dutch East Indies. The Americans claim that they have acquired sovereignty over Palmas through cession, i.e., when Spain ceded control of the Philippine Islands to the US. The Americans argue that Spain, in turn, had acquired sovereignty over Palmas Island by discovery and by treaty. The Dutch, on the other hand, bases its claim on agreements entered into by the Dutch East India Company with the princes of the islands of the Celebes Sea, which include Palmas. The Permanent Court of Arbitration found that there is no evidence showing Spain had continuously exercised sovereignty over Palmas, nor was there any evidence that it had exercised sovereignty at all. On the other hand, Dutch control over the princely powers of the region reveal the Netherlands’ continuous exercise of sovereignty. In conclusion, the PCA found that no sovereign rights were acquired by the US though cession since no rights over the Island were to be ceded in the first place. On the contrary, the Netherlands has sufficiently proven its claim.

FACTS 1. The United States and the Netherlands brought the issue of sovereignty over the Palmas (or referred to as Miangas by the Dutch) Island to the Permanent Court. 2. Palmas Island is situated halfway between Mindanao Island, part of the Philippine Islands, an American colony, and Nanoesa Island, part of the Dutch East Indies (now Indonesia). 3. The US based its sovereignty over the islands, by way of cession by Spain, on the Treaty of Munster of 1648 and the Treaty of Paris of 1898. a. The Treaty of Munster, which recognized the independence of the Netherlands from Spain, made a general determination of territories that pertain to each Power. b. The US claimed that the title acquired by Spain over the island remained intact until the Treaty of Paris, when sovereignty over Spanish possessions in southeast Asia (i.e., the Philippines), the Pacific and the Caribbean were turned over to the United States. The bounds set by the Treaty put Palmas Island within the area ceded by Spain to the US. c. The US also claimed that Palmas Island is geographically part of the Philippine Islands, over which the US maintained sovereignty. d. It must be noted that the Americans first landed on Palmas Island only in 1906. 4. Netherlands, on the other hand, relied on the contracts entered into between the Dutch East India Company, which exercised sovereignty on behalf of the Netherlands, and the princes of the islands of the Celebes Sea whose territories included the island in question. The contracts, the Dutch argued, established the suzerainty of Netherlands over the princes’ territories. GENERAL REMARKS FROM THE ARBITRATOR Underlined entry relates directly to the topic the case falls under in the syllabus. 1. Sovereignty, in relation to a portion of the surface of the globe, is the legal condition necessary for the inclusion of such portion in the territory of any particular State.

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Considering the relation between States, sovereignty signifies independence. i. Independence is the right to exercise the functions of a State within a portion of the globe to the exclusion of other States. Territorial sovereignty is such situation (see no. 1) as recognized and delimited in space, either by natural frontiers or by outward signs of undisputed delimitations, such as those formed by frontier conventions or by acts of recognition of States within fixed boundaries. If a dispute arises between States claiming sovereignty over a portion of territory, it is customary to examine which of the States claiming sovereignty possesses a title superior to that of the other State. a. Title is acquired through cession, conquest, occupation, etc. However, if the other State has actually displayed sovereignty over the disputed territory, it is not enough that the title of one State is proven; it is also necessary that a State’s territorial sovereignty has continued to exist and did exist at the moment, which for the decision of the dispute must be considered as critical. a. Continuous and peaceful display of territorial sovereignty is as good as a title. It has been defined that sovereignty involves the right to exercise the functions and activities of a State to the exclusion of others. That right has as corollary a duty: the obligation to protect within their territory the rights of other States (e.g., rights which a State may claim for its nationals in a foreign territory.) International law cannot reduce a right such as territorial sovereignty, with which almost all international relations are bound up. The principle that continuous and peaceful display of the functions of the State within a given region is a constituent element of territorial sovereignty is not only based on the conditions of the formation of Independent State and their boundaries, the principle has been further recognized in cases where one federal state exercises sovereignty over other states. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. Sovereignty is maintained over territories though it can only be exercised intermittently, as over inhabited regions or regions enclosed within incontestable territories or those surrounded by the high seas. If there are no frontiers to delineate such territory, or when doubt attaches to its borders, the question arises whether a State’s title to it is valid erga omnes. In such case, the actual continuous and peaceful display of State functions is the sound and natural criterium to determine territorial sovereignty.

APPLICATION OF GENERAL REMARKS TO THE CASE *Underlined terms pertain to the different modes of acquiring title. Claimant: United States Mode in Acquiring Sovereignty: Cession 1. The title alleged by the US as constituting the immediate foundation of its claim is cession. a. The US derives its title from Spain, which the US claims had sovereignty over the Palmas Island. Title was then acquired by the US from Spain through the Treaty of Paris. b. The US claims that Spain, in turn, had acquired sovereignty over the island either by discovery or by treaty. Court:

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There is no evidence that supports a claim that Spain had ‘discovered’ the island. If, however, Spain did discover the Island, there was no proof that Spain had continuously exercised sovereignty over it as to vest title in it. At best, if it were indeed discovered, Spain would only have an inchoate right, a right which may be defeated by a title of a State actually practicing sovereignty over Palmas Island. ii. Neither can any support be found in the treaties invoked by the United States. The Treaty of Munster prescribed no frontier and prescribed no definite regions as belonging to Spain or the Netherlands. What it provides, however, is a criterion: the principle of possession. The principle states that while a certain Power may have discovered a region, no sovereignty is established if the region was not actually possessed by that Power. Clearly, Spain did not acquire a title to sovereignty over the Palmas Island through the Treaty of Munster. The treaty even rejected mere discovery as a means of acquiring title to sovereignty. iii. The United States adduced a handful of evidence: a letter from the Spanish government on its opinion on the title over the Island (It did not say that Spain actually had sovereignty over the Island), correspondence between Franciscan friars and the Spanish government (where there was only mere speculation on the status of the island), and proof tending to show that the island’s natives spoke Spanish (This is not conclusive proof of Spain having title). iv. Concededly, sovereignty cannot be maintained continuously when there are necessarily gaps, such as the intermittence in time and discontinuity in space (see General Remarks, #8). However, it has been observed that jurisprudence tend to attribute greater weight to acts of display of sovereignty than a mere principle of continuity of territory without the exercise of sovereign powers. Again, no evidence of such acts can be attributed to Spain tending to show exercise of sovereignty over the Island. Besides, it’s not like the island is uninhabited for Spain to have an excuse not to exercise any act of administration. As a last ditch effort, the United States claims that it has title over the island by way of title arising out of contiguity, i.e. that Palmas Island is a contiguous part of the nearest landmass, which is Mindanao. Court: i. This concept, however, finds no legal support. It has no precedents and lacks in precision and may lead to arbitrary results.

Claimant: Netherlands Mode in Acquiring Sovereignty: Convention 1. The Netherlands claims that Dutch sovereignty over the Island was established through contracts it entered, through the Dutch East India Company, with princes, rajas and kings of Tabukan, Tarina and Kandahar, islands of the Celebes Sea, whose territories include the island in question. Court: a.

The 17th century contracts were clear to the effect that the princes derive their princely powers from the Netherlands, which they recognize as sovereign (suzerain).

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This view is further supported by supplemental agreements forged between the Netherlands and the princes in 1771, 1779 and 1782, which laid out the obligations of vassals in the event of war. The most recent agreement was signed in 1885, where it was agreed that the foreign affairs of the princely regions were to be managed by the Netherlands, that the Dutch shall exercise sole powers on economic matters (which also included a stipulation that the currency of the Dutch Indies shall be legal tender), and that the vassals are obligated to suppress slavery and piracy. The authenticity of the contracts is not questioned, as documentary proof has been presented by the Dutch government. If indeed Spain, at the time, had been displaying acts of sovereignty over Palmas Island, collisions between it and the Netherlands must certainly have occurred. No such collisions occurred, however. Facts have shown that the Netherlands, since first entering into a contract with the princely powers of the Celebes Sea, has been continuously and peacefully exercising sovereignty over Palmas Island. i. The Dutch East India Company was entitled by the Treaty of Munster to create situations recognized by international law. ii. Contracts between the Company and the princely powers may not be recognized as treaties under international law, but they constitute facts that law must take into account. 1. This system of contracts between colonial powers and native princes is recognized in the Treaty of Munster. 2. Furthermore, the US also recognizes this principle, as when it argued that Spain exercised its claim over certain islands (unrelated to this case) through the Sultan of Sulu. iii. The agreements entered into by the Company manifests a form of internal organization of a colonial territory. iv. Maps from different era tend to show that the Island is indeed part of the territory contemplated in the contracts entered into between the Netherlands (through the Company) and the princes. v. Numerous accounts by Dutch ships tend to support the conclusion of Dutch sovereignty over the Island. The flag of the Dutch East India Company was seen being waved by the island’s natives. Even General Leonard Wood, American governor of the Moro Province of the Philippines, found a Dutch flag waving in Palmas when he set foot on the island in 1906. Natives confided to him that the flag had been there at least 15 years prior to his arrival. vi. Though there are considerable gaps in documentary evidence that might show an interruption in the exercise of Dutch sovereignty over Palmas, evidence from the practice of the natives of the Island tend to show the continuance of Dutch sovereignty, albeit indirectly. Evidence was adduced that the natives continue to send taxes and tributes to the prince of Tabukan, who in turn derives his power only from the Dutch.

DISPOSITIVE PORTION The Island of Palmas forms in its entirety a part of Netherlands territory.

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DIGESTER: Horace

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