Last Palmas/Miangas Island Case Digest

Full title: The Island of Las Palmas/Miangas Case (Netherlands v. United States), Arbitral Award of 1928 [on sovereignty over land]

Facts

• Palmas is a small island with a population of about 750 located between Mindanao and Nanusa under the Netherlands Indies. (100 miles East/South East of General Santos City) and the Dutch East Indies (Indonesia).
• When Spain ceded the Philippines to the US in 1898, the island was within the boundaries. 
• In 1906, Gen. Leonard Wood, Governor of the Moro Province, paid a visit to the island. This led to the US statement that the Island of Palmas, undoubtedly included in the “archipelago known as the Philippine Islands,” as delimited by Article III of the Treaty of Paris.
• Both the US and The Dutch Government claimed sovereignty over the island. 
• They could not reach an agreement and in January 23, 1925, the Parties agreed to submit the claims to The Permanent Court of Arbitration with The Swiss jurist, Max Huber, selected as the arbitrator.

• Arguments of the US 
  1. “first place on discovery” and was confirmed by the Treaty of Munster of 1648 where Spain and Netherlands were contract Parties. The US argues that the title was intact when Spain ceded the Philippines to the US. Therefore, the actual display of sovereignty on Palmas Island; 
  2. That Palmas belongs to the Philippines by virtue of contiguity.
  3. The silence or non-contestation of the Netherlands when the US communicated the Treaty of Paris 

Issue

Whether Palmas belongs to the US or the Netherlands

Ruling

The Netherlands because of its sovereignty over the land.

The arbitrator Max Huber’s reasons:

1. As to US argument 1: “first place on discovery” and was confirmed by the Treaty of Munster of 1648 where Spain and Netherlands were contract Parties.
   • The US argues that the title was intact when Spain ceded the Philippines to the US. Therefore, the actual display of sovereignty on Palmas Island; 
   • The US argues that the title was intact when Spain ceded the Philippines to the US. Therefore, the actual display of sovereignty on Palmas Island; 
   • According to the PCA, discovery must go hand in hand with effective control and must accompany with the exercise of an occupying power.
   • Spiritual/Inchoate right, meaning you still have to perform certain acts to acquire title over the discovery of terra nullius. The treaties between Spain and Netherlands only conferred inchoate titles and cannot prevail over CPDS (Continuous and Peaceful Display of Sovereignty)
   • In International law in the 19th Century, for an occupation to constitute a claim to territorial sovereignty, it must be effective or must go with effective control. That is, it must offer certain guarantees to other states and their nationals.
   • The discovery as a basis of title (Spain/US/Philippines) is of limited significance compared to the peaceful and continuous display of state authority over a territory (Netherlands/Indonesia)
   • discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty.
   • This is a degree of development in international law where the importance of maintaining the state of things ought now to be considered as prevailing over a discovery claim in very distant times.
   • Sovereignty is the right to exercise the functions of a State to the exclusion of any other States; – Max Huber
   • Sovereignty is not only a display of control for a certain moment but a continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) which is as good as a title. It does not only mean acquisition but the maintenance of the right.
   • Here, Netherlands has a better right because Netherlands is already exercising sovereignty.
   • The exclusive right to display the activities of a state. The obligation to protect within the territory the rights of other states in particular during peace or war; and the rights of its own nationals in foreign states.
   • Sovereignty may be exercised in varying degrees and maybe scarce in some areas within the jurisdiction.
   • If the US argument is accepted, the mere fact of seeing land, without any act, even symbolical, of taking possession, would be territorial sovereignty and not merely “inchoate title.” This would be problematic.
   • Pieces of evidence where Netherlands established effective control:
     • Agreements of Suzerainty – the people of the Islands were subject to the protection of the East Indies. They have no capacity to enter into foreign relations, but are subject under the Netherlands.
   • Although it was Spain that discovered the island, it is Netherlands that perfected the claim over the island.
2. As to US argument 2: contiguity

• Title on the basis of contiguity is used by States but no positive law proves that islands outside territorial waters belong to terra firma. It has no foundation in international law.
• International arbitral jurisprudence in disputes on territorial sovereignty attribute greater weight to acts of display of sovereignty than to continuity of territory.
• Professor: Why is it problematic if we follow this doctrine in the modern day?
  1. Because countries of smaller in size (smaller terra firma) will be overpowered by bigger terra firmas. For example: China and Japan, China will have a majority claim on contiguous islands. 
  2. That’s why we have to go back to the principle of effective control, the perfection of occupation or discovery.

3. As to US argument 3: “The silence or non-contestation of the Netherlands when the US communicated the Treaty of Paris”

1. This has bearing on an inchoate title not supported by any actual display of sovereignty but it would be entirely contrary to the principle of territorial sovereignty to suppose that the mere silence of the territorial sovereign will result to losing a part of its territory.
2. “Inchoate” – can also refer to a legal right or entitlement such as title to an item of property that is as yet only partial and incomplete; unfinished and imperfect. (Duhaime.org – legal dictionary)
3. Principle of nemo dat quod non habet in relation to treaties of cession. It means, “no one can give what they do not have.” Hence, when Spain ceded its territories to the US, it cannot give Las Palmas because Spain does not have it in the first place.

Even if Spain ceded its inchoate title to the US, it could not modify the inchoate title of the Netherlands at least as long as no dispute on the matter had risen. By the time a dispute had arise, in 1906, the Dutch had already reached the objective criterion of effective occupation. This means that a state must demonstrate that it has effectively occupied and administered a piece of land in order to claim sovereignty over it.

Why the Netherlands has established sovereignty as to the opinion of the Arbitrator:

1. The island is part of two native States;
2. These native States were connected with the East India Company 
3. Acts of State authority have been established by the vassal State or suzerain
4. No evidence that Span displayed acts of sovereignty that have counterbalanced or annihilated the manifestation of Netherlands.

Evidence of contracts made by the East India Company and the Netherlands was examined by the arbitrator. The claims made by the Netherlands were also based on the premise of the convention it had with the princes and native chieftains of the islands.