PALMAS ISLAND CASE (PERMANENT COURT OF ARBITRATION)

SURPRISE!

On January 21st, 1906, Major-General Wood of the United States Army and Governor of the
Moro Province in the Philippines, approached an island he knew as the Island of Palmas,
today known as Miangas. It is located just 50 miles south-east of the coast of the large
Philippine island of Mindanao, and is just 1.22 square miles (or 3.15 km2). General Wood was
under the assumption that it was part of the U.S. territory. Spain, as colonizing power, had
ceded the Philippines to the US under the Treaty of Paris of 1898. However, upon arrival at
the island Wood saw the flag of the Netherlands flying over the island and on the boat that
came to meet him. It appeared that the Netherlands via the Dutch East India Company had
been claiming and exercising sovereignty over the island for centuries. Two months later a
diplomatic correspondence started, but after several years of disagreement the case between
the United States and the Netherlands was brought before an arbitration tribunal in 1925
under the auspices of the Permanent Court of Arbitration. The prominent Swiss lawyer Max
Huber was the sole arbitrator.
MAX HUBER

Acting as the sole arbitrator was the way Max Huber liked it. In 1925, Huber was also
President of the Permanent Court of International Justice. Yet, he lamented the lack of
collegiality and expertise among his fellow judges. With the exception of the Lotus-case, he
regretted that the Court did not deal with more fundamental questions of international law.
He shied away from the public attention and had to miss his wife for most of the time, due to
her illness. Operating alone, Huber could fully deploy his historical and sociological method of
research and settling disputes on the basis of international law. Huber was convinced that
states were at the center of the international legal system, but that historical developments
and the power distribution among states greatly influenced the development of international
law.
GOING BACK CENTURIES

Although we generally treat the 1648 Westphalian peace treaties as the abstract birth of
sovereignty, they functioned as concrete legal instruments in this case. In order to determine
the main question – which country has sovereignty over the Island of Palmas? – Huber had to
reach back centuries. Did Spain ever have a legal title to the island? Because Spain could not
give a right to the US that it never had. Next to the Westphalian treaties Huber also examined
language in treaties from the 18th century and treaties with so-called native states. He
examined centuries-old maps to make sure that see how each had designated the island in
the past, including what names they gave it. Huber also had to quickly determine the nature
and the powers of the Dutch East India Company as the sole representative of the
Netherlands. You can just picture Huber sitting in his study pouring over these old maps.
THE ARGUMENTS

The United States argued that it could claim sovereignty based on the fact that Spain had
ceded its title to the US. Spain could do so because Spain’s title to the island was based on
either the discovery of the island, the 1648 Treaty of Munster, or the geographical unity with
other islands (contiguity). The Netherlands argued that it had possessed and exercised
sovereignty even before 1648, and which was reinforced by subsequent treaties. These
treaties included treaties with native states that established Dutch suzerainty over them.
TERRITORIAL SOVEREIGNTY

But Huber started with general observations about sovereignty over territory that already
spelled doom for the American arguments. Many of the terms he used and criteria he
formulated can now be found every textbook on international law. If a state has a title to
territory, such a through cession in the present case, that title can be challenged under
certain circumstances. Huber reasoned that since the middle of the 18th century,
effectiveness in maintaining that title is required. So, if another state can show ’continuous
and peaceful display of territorial sovereignty’, that display is as good as a title. Discovery is
not enough; it is at most an ’inchoate’, or incomplete title. A state must actually exercise
sovereignty over that discovered territory.

THE DECISION

Max Huber essentially wiped away all arguments by the United States. He even questioned
whether Spain ever had a title based on discovery. No treaty recognized Spain’s title to the
Island. But more importantly, the Netherlands had for centuries been present in the region
and dealt with the island. The Island of Palmas was part of the native state of Tabukan and
the Dutch East India Company had concluded a treaty with that native state. It had
administered the island and levied taxes over its population. Outward signs such as flags
were present, and the inhabitants themselves were aware of their status. Any state could
have seen and be aware of the Dutch control over the territory. The Netherlands, concluded
Huber, had acquired title of sovereignty ’by continuous and peaceful display of State
authority during a long period of time going probably back beyond the year 1700′.

Even though this case was decided in 1928, the dispute over the Island of Miangas as it is
now known, has not disappeared entirely. It briefly lit up in 2009 when a Philippine tourism
bureau issued a map showing Palmas/Miangas as part of the Philippines. Indonesia, as
successor the Netherlands, protested, but the small incident showed slumbering
disagreement about the island and the waters surrounding it. States have long memories….
 Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory
By resolution ES-10/14, adopted on 8 December 2003 at its Tenth Emergency Special Session, the
General Assembly decided to request the Court for an advisory opinion on the following question:

“What are the legal consequences arising from the construction of the wall being built by Israel,
the occupying Power, in the Occupied Palestinian Territory, including in and around East
Jerusalem, as described in the Report of the Secretary-General, considering the rules and
principles of international law, including the Fourth Geneva Convention of 1949, and relevant
Security Council and General Assembly resolutions?”

The resolution requested the Court to render its opinion “urgently”. The Court decided that all
States entitled to appear before it, as well as Palestine, the United Nations and subsequently, at
their request, the League of Arab States and the Organization of the Islamic Conference, were
likely to be able to furnish information on the question in accordance with Article 66, paragraphs
2 and 3, of the Statute. Written statements were submitted by 45 States and four international
organizations, including the European Union. At the oral proceedings, which were held from 23 to
25 February 2004, 12 States, Palestine and two international organizations made oral submissions.
The Court rendered its Advisory Opinion on 9 July 2004.

The Court began by finding that the General Assembly, which had requested the advisory opinion,
was authorized to do so under Article 96, paragraph 1, of the Charter. It further found that the
question asked of it fell within the competence of the General Assembly pursuant to Articles 10,
paragraph 2, and 11 of the Charter. Moreover, in requesting an opinion of the Court, the General
Assembly had not exceeded its competence, as qualified by Article 12, paragraph 1, of the Charter,
which provides that while the Security Council is exercising its functions in respect of any dispute
or situation the Assembly must not make any recommendation with regard thereto unless the
Security Council so requests. The Court further observed that the General Assembly had adopted
resolution ES-10/14 during its Tenth Emergency Special Session, convened pursuant to resolution
377 A (V), whereby, in the event that the Security Council has failed to exercise its primary
responsibility for the maintenance of international peace and security, the General Assembly may
consider the matter immediately with a view to making recommendations to Member States.
Rejecting a number of procedural objections, the Court found that the conditions laid down by that
resolution had been met when the Tenth Emergency Special Session was convened, and in
particular when the General Assembly decided to request the opinion, as the Security Council had
at that time been unable to adopt a resolution concerning the construction of the wall as a result
of the negative vote of a permanent member. Lastly, the Court rejected the argument that an
opinion could not be given in the present case on the ground that the question posed was not a
legal one, or that it was of an abstract or political nature.

Having established its jurisdiction, the Court then considered the propriety of giving the requested
opinion. It recalled that lack of consent by a State to its contentious jurisdiction had no bearing
on its advisory jurisdiction, and that the giving of an opinion in the present case would not have
the effect of circumventing the principle of consent to judicial settlement, since the subject-
matter of the request was located in a much broader frame of reference than that of the bilateral
dispute between Israel and Palestine, and was of direct concern to the United Nations. Nor did the
Court accept the contention that it should decline to give the advisory opinion requested because
its opinion could impede a political, negotiated settlement to the Israeli-Palestinian conflict. It
further found that it had before it sufficient information and evidence to enable it to give its
opinion, and empha- sized that it was for the General Assembly to assess the opinion’s usefulness.
The Court accordingly concluded that there was no compelling reason precluding it from giving
the requested opinion.

Turning to the question of the legality under international law of the construction of the wall by
Israel in the Occupied Palestinian Territory, the Court first determined the rules and principles of
international law relevant to the question posed by the General Assembly. After recalling the
customary principles laid down in Article 2, paragraph 4, of the United Nations Charter and in
General Assembly resolution 2625 (XXV), which prohibit the threat or use of force and emphasize
the illegality of any territorial acquisition by such means, the Court further cited the principle of
self-determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625
(XXV). In relation to international humanitarian law, the Court then referred to the provisions of
the Hague Regulations of 1907, which it found to have become part of customary law, as well as to
the Fourth Geneva Convention of 1949, holding that these were applicable in those Palestinian
territories which, before the armed conflict of 1967, lay to the east of the 1949 Armistice
demarcation line (or “Green Line”) and were occupied by Israel during that conflict. The Court
further established that certain human rights instruments (International Covenant on Civil and
Political Rights, International Covenant on Economic, Social and Cultural Rights, United Nations
Convention on the Rights of the Child) were applicable in the Occupied Palestinian Territory.

The Court then sought to ascertain whether the construction of the wall had violated the above-
mentioned rules and principles. Noting that the route of the wall encompassed some 80 per cent
of the settlers living in the Occupied Palestinian Territory, the Court, citing statements by the
Security Council in that regard in relation to the Fourth Geneva Convention, recalled that those
settlements had been established in breach of international law. After considering certain fears
expressed to it that the route of the wall would prejudge the future frontier between Israel and
Palestine, the Court observed that the construction of the wall and its associated régime created
a “fait accompli” on the ground that could well become permanent, and hence tantamount to a de
facto annexation. Noting further that the route chosen for the wall gave expression in loco to the
illegal measures taken by Israel with regard to Jerusalem and the settlements and entailed
further alterations to the demographic composition of the Occupied Palestinian Territory, the
Court concluded that the construction of the wall, along with measures taken previously, severely
impeded the exercise by the Palestinian people of its right to self-determination and was thus a
breach of Israel’s obligation to respect that right.

The Court then went on to consider the impact of the construction of the wall on the daily life of
the inhabitants of the Occupied Palestinian Territory, finding that the construction of the wall and
its associated régime were contrary to the relevant provisions of the Hague Regulations of 1907
and of the Fourth Geneva Convention and that they impeded the liberty of movement of the
inhabitants of the territory as guaranteed by the International Covenant on Civil and Political
Rights, as well as their exercise of the right to work, to health, to education and to an adequate
standard of living as proclaimed in the International Covenant on Economic, Social and Cultural
Rights and in the Convention on the Rights of the Child. The Court further found that, coupled with
the establishment of settlements, the construction of the wall and its associated régime were
tending to alter the demographic composition of the Occupied Palestinian Territory, thereby
contravening the Fourth Geneva Convention and the relevant Security Council resolutions. The
Court then considered the qualifying clauses or provisions for derogation contained in certain
humanitarian law and human rights instruments, which might be invoked inter alia where military
exigencies or the needs of national security or public order so required. The Court found that such
clauses were not applicable in the present case, stating that it was not convinced that the
specific course Israel had chosen for the wall was necessary to attain its security objectives, and
that accordingly the construction of the wall constituted a breach by Israel of certain of its
obligations under humanitarian and human rights law. Lastly, the Court concluded that Israel
could not rely on a right of self-defence or on a state of necessity in order to preclude the
wrongfulness of the construction of the wall, and that such construction and its associated
régime were accordingly contrary to international law.

The Court went on to consider the consequences of these violations, recalling Israel’s obligation
to respect the right of the Palestinian people to self-determination and its obligations under
humanitarian and human rights law. The Court stated that Israel must put an immediate end to the
violation of its international obligations by ceasing the works of construction of the wall and
dismantling those parts of that structure situated within Occupied Palestinian Territory and
repealing or rendering ineffective all legislative and regulatory acts adopted with a view to
construction of the wall and establishment of its associated régime. The Court further made it
clear that Israel must make reparation for all damage suffered by all natural or legal persons
affected by the wall’s construction. As regards the legal consequences for other States, the Court
held that all States were under an obligation not to recognize the illegal situation resulting from
the construction of the wall and not to render aid or assistance in maintaining the situation
created by such construction. It further stated that it was for all States, while respecting the
United Nations Charter and international law, to see to it that any impediment, resulting from the
construction of the wall, to the exercise by the Palestinian people of its right to self-determination
be brought to an end. In addition, the Court pointed out that all States parties to the Fourth
Geneva Convention were under an obligation, while respecting the Charter and international law,
to ensure compliance by Israel with international humanitarian law as embodied in that
Convention. Finally, in regard to the United Nations, and especially the General Assembly and the
Security Council, the Court indicated that they should consider what further action was required
to bring to an end the illegal situation in question, taking due account of the present Advisory
Opinion.

The Court concluded by observing that the construction of the wall must be placed in a more
general context, noting the obligation on Israel and Palestine to comply with international
humanitarian law, as well as the need for implementation in good faith of all relevant Security
Council resolutions, and drawing the attention of the General Assembly to the need for efforts to
be encouraged with a view to achieving a negotiated solution to the outstanding problems on the
basis of international law and the establishment of a Palestinian State.
 PHILIPPINES V. CHINA
PRELIMINARIES
The disputes about islands and maritime zones in the South China Sea have been causing rising
tensions for a number of years now. In 2013, the Philippines instituted legal proceedings under
the United Nations Convention on the Law of the Sea, or UNCLOS. States that are party to that treaty
have agreed to a complex but compulsory system of dispute settlement. The system is complex
because states can choose which methods of settlement they accept and – up to a limit – exclude
certain kinds of disputes. China had made a declaration to that effect, so the Philippines had to work
around China’s list of exclusions from dispute settlement. But China opted not to participate in the
proceedings at all. China claimed that the tribunal did not have jurisdiction because this was not
about maritime issues, but rather about sovereignty over certain ’features’ (islands, rocks) in the
area. However, the Philippines carefully crafted its submissions to the arbitration tribunal in an
attempt to circumvent that issue. In the end, the tribunal decided that it had jurisdiction over some of
the submissions, while postponing other jurisdictional issues to the next phase of the proceedings.

THE NINE-DASH LINE IS THROWN OUT

Perhaps the most eye-catching decision by the tribunal is the dismissal of so-called Nine-dash line.
China always claimed ’historic rights’ to waters that were not connected so to speak to any land
claim. While there is leeway in UNCLOS to claim historic title to a body of water, such claims must
assert sovereignty over such waters. The Tribunal used China’s own arguments and policies regarding
such waters, in the sense that China had always argued that it didn’t claim sovereignty over these
unconnected waters. So first, the tribunal argued, China’s claims do not fall under UNCLOS, not under
China’s list of exclusions, and the tribunal has therefore jurisdiction. And second, UNCLOS superseded
any such claims when China became party to UNCLOS. Any claims based on the Nine-dashline that
extended beyond any claim based on a land feature are contrary to UNCLOS and without lawful effect.
Boom.

IS IT AN ISLAND, A ROCK OR LOW-TIDE ELEVATION?

The tribunal put China’s feet and the remainder of its claims firmly back on UNCLOS ground by
dismissing the Nine-dash line. The ’only’ issues left were the different land features in the disputed
area of the South China Sea, and thereby shrinking that area. And the Philippines had not asked the
sovereignty question, but rather asked the tribunal the status of some of these features in the South
China Sea. Why? Under UNCLOS, such features must be qualified as being islands, rocks or low-tide
elevations (submerged rocks at high-tide). Each legal qualification brings certain legal consequences
with it. A low-tide elevation cannot be ’appropriated’- taken as a sovereign territory; and rocks cannot
have certain maritime zones around. Like an exclusive economic zone (EEZ) or continental shelf, in
which the coastal state has certain exclusive rights. So this is important not just in terms of control
over an area, but also in terms of the exclusive right to exploit the natural resources in these two
maritime zones.

FISHING AND ARTIFICIAL ISLANDS

For example, the tribunal found that two such features such as the Mischief Reef and Second Thomas
Shoal are low-tide elevations. Consequently, these cannot be appropriated by China and do not entitle
either China or the Philippines to any maritime zone surrounding them. But given the geographical
location, these rocks do fall within the Philippines’ EEZ. Under UNCLOS, the Philippines have exclusive
rights in that zone. That is why some Chinese activities on and around these rocks were illegal under
UNCLOS according to the Tribunal. Chinese vessels had prevented Philippine fishermen from fishing in
the Philippines EEZ; China had constructed artificial islands and installations on a number of reefs,
also in violation of the exclusive rights of the Philippines in its EEZ. China’s assertive actions are at
least on paper curtailed by international law.

MARINE ENVIRONMENT
Another sweeping pronouncement by the Tribunal concerns the environmental impact of China’s
activities in the area. And the Tribunal doesn’t mince words. It found that China has caused severe
and irreparable harm to several reef ecosystems in the South China Sea, and continues to do so. The
Philippines had asked the tribunal to declare that China had forsaken its duty to protect and preserve
the marine environment as UNCLOS demands. China didn’t get the memo apparently.

CONSEQUENCES
The cynic will say that China will not abide by the ruling, because it is, well, China. But let’s humor the
law for a bit. What are the legal consequences of the Tribunal’s decisions? China’s Nine-dash line is
legally discredited, but in practical terms only time will tell what happens to this claim. It must allow
Philippine fishermen to fish in the Philippine EEZ. It must vacate and possibly dismantle all the
artificial islands in the Philippine’s EEZ. With respect to the Spratley Islands, an interesting picture
emerges. The Tribunal decided that the high-tide features of the Spratley Islands area cannot sustain
‘human habitation or economic life of their own’. They are not islands, but rocks and can only have a
territorial sea of 12 nautical miles. The sovereignty issue is not resolved. The Scarborough Shoal is not
within the Philippines’ EEZ, so Chinese occupation and building of installations could continue.
However, according to the Tribunal, China must allow Philippine fishermen to fish there based on
traditional rights under customary international law.

THE WAY FORWARD

But the proof of the pudding is in the eating. China has made its position on the tribunal and the
award clear, even before the award was given. And to put it mildly, no one expects China to put an
evacuation plan in effect just yet for the South China Sea. My guess is that it will encourage states in
the region to adopt a firmer stance towards China. The danger is, however, that it pits them also
against each other. Or is this perhaps an opening for these states to start settling their rival claims via
legal means, in order to pressure China even more? And what will the US do? The question is whether
cooler heads prevail so that new diplomatic efforts can take hold based on today’s monumental
decision by five lawyers in The Hague.