INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA, IIUM

LAWS 3350

INTRODUCTION TO PUBLIC INT. LAW

SECTION 2
TUTO SLOT: MONDAY 2 - 3

WRITTEN ASSIGNMENT

ASSIGNMENT 8 (WEEK 11)

LECTURER NAME: ABDUL GHAFUR HAMID @ KHIN MAUNG SEIN

NO NAME MATRIC NUMBER

1. MUHAMMAD MIKHAIL BIN MUHAMMAD 2113007

MUSTAFA
Question

In 1673, Vann Clapp, a Naval Admiral employed by the Government of Fudgia to explore new
territories, discovered an uninhabited island in the center of an international seaway. He lowered
a boat, headed for the island and, by raising the Fudgian flag and saying a solemn prayer,
claimed the island on behalf of his sovereign. He then notified the Government of Fudgia, which
published the declaration of Fudgian sovereignty over Vann Clapp Island (named after him) in a
local journal. Since then until 1935, Fudgia had sent a naval vessel every six months to visit the
island and take care of things.

In 1860, a religious group, the Seekers, who had fled from persecution in their native land,
Flavia, settled in the island. Due to well organized social structure and good leaders, they
prospered and their population increased.

In 1935, Fudgia suffered defeat in a major conflict with its neighbour Contona. In the Peace
Treaty that Fudgia signed, it is stated:
“We hereby declare all territories formally under the rule of Fudgian Crown, including
Van Clapp Island, Contonian. Fudgia disclaims any right to these territories in the
future.”
The inhabitants of Vann Clapp Island have been unhappy with the situation that they are under
Contona, who’s cultural and social backgrounds are different from theirs’. They finally approach
Flavia to represent them and take up their case. The Government of Flavia now claims that the
inhabitants of Vann Clapp Island have the right to determine their own future in accordance with
the right to self-determination. Flavia officially declares that, on behalf of the inhabitants of Vann
Clapp Island, they are initiating an international claim against Contona to allow referendum for
the people to determine their own future to establish a new State or to merge with any State of
their own choice.

Contona counterclaims that Vann Clapp Island is legally theirs and that Flavia has no locus
standi to make an international claim against it as the latter is not an injured State.

Discuss the legal position.

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RESPONDENTS ARGUMENTS

The first Issue that the respondents would like to raise is that Van Clapp Island legally
belongs Contona. There are many ways a state may acquire a territory which are occupation,
prescription, conquest, accretion and cession. In our current scenario Contona had obtained Van
Clap Island by way of cession and cession is defined as the transfer of territory, usually by way
of treaty from one State to Another. The legal maxim “nemo dat quad non habet” (nobody gives
what he does not have) is to be applied when determining the validity of the transfer and that
raises the 1st issue of whether Van Clapp can be considered a territory that belonged to Fudgia
by way of occupation. In proving occupation there are two basic requirements that need to be
proven which firstly is that the territory in question must be terra nulius which means that it is a
territory belonging to no one at the time of the act alleged to constitute occupation.1

A case that can illustrate on whether Van Clapp was terra nullius is the case of Western
Sahara where in this case Western Sahara was colonised by Spain in 1884 and remained a
Spanish colony until 1976. On the basis of the right to self-determination, a referendum was held
to decolonise the territory and an advisory opinion of the Court was requested by the General
Assembly. The court held that since Western Sahara was inhabited by people who were socially
and politically organised and the chiefs were competent to represent them, at the time of Spanish
colonisation it could not be regarded as terra nullius.

Applying this case to our current scenario, it can be seen that when Van Clapp (the
captain) had discovered the Island and claimed it to be Fudgia’s territory. The Island at that point
was totally uninhabited and it was not claimed by any other states unlike in the case of Western
Sahara where the territory was actually inhabited by people who were socially and politcally
organised which is why the court decided it was not terra nullius. Since the Island was totally
void of people and only until 1860 was there people on the Island, Van Clapp Island can be
considered terra nullius at time of occupation.

1
1. “Terra Nullius,” Legal Information Institute, April 2022,
https://www.law.cornell.edu/wex/terra_nullius#:~:text=Terra%20nullius%20is%20a%20term,is%20not%20
owned%20by%20anyone.

2
 The second requirement is that the occupation must be “effective” where there must be an
intention to occupy and it must be followed by a peaceful continuous exercise of sovereign
activities over the territory. The intention to occupy can be referred to in the case of Clipperton
Island arbitration where a state can make its sovereign intentions clear by other means such as by
way of publication of notices of sovereignty in a newspaper2. Applying this case to our current
scenario, the act of Fudgia declaring sovereignty on Van Clapp Island by publishing it in a local
journal is enough proof to show their intention to act as a sovereign and occupy the Island. As
for the peaceful continuous exercise of sovereign activities, we can refer to the Palmas Island
Case where the judge held that “Discovery alone, without any subsequent act, cannot, at the
present time, suffice to prove sovereignty over the island. Exercise or display of sovereign
activities must be peaceful and continuous in the period before the critical date, and that it has to
be governed by inter- temporal law.”3 Applying the above decision into our current scenario, the
act of Fudgia sending a naval ship every 6 months to Van Clapp Island to take care of things can
constitute as a sovereign activity and it can be constitute as continuous as they sent the naval ship
even up until the critical date of 1935 where the territories were then transferred to Contona.
Since both requirements of occupation are proven in this scenario, it can be said that Fudgia’s
occupation on Van Clapp Island is valid.

The second issue that arises in this case is whether the peace treaty between Fudgia and
Contona which states that “We hereby declare all territories formally under the rule of Fudgian
Crown, including Van Clapp Island, Contonian. Fudgia disclaims any right to these territories in
the future.” can be regarded as valid. The main argument that can be brought up by the appellant
is Article 52 of the Vienna Convention on the Law of Treaties 1969 which states that “ A treaty
is void if its conclusion has been procured by the threat or use of force in violation of the
principles of international law embodied in the Charter of United Nations”. The general rule for
this is that a treaty between 2 states at war of which there is a victorious state and defeated state,
whereby the former obtains title to some or all the defeated state’s territory is not effective to
transfer title as it is to prevent a conquest disguised as a cession.

2
(France v Mexico) (1932) 26 AJIL 390
3
Palmas Island case (1928) 2 RIAA 829

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 To debunk this argument, the concept of Inter Temporal Law can be applied and to
understand what Inter Temporal Law is we can refer to Sir Gerald Fitzmaurice where he stated
that “It can now be regarded as an established principle of international law that in such cases the
situation in question must be appraised, and the treaty interpreted, in light of the rules of
international law as they existed at the time, and not as they exist today”4.

Applying what has been mentioned above, the peace treaty between Fudgia and Contona
is valid. The reason being that although the treaty goes against the provisions stated in Article 52
of the Vienna Convention on the Law of Treaties 1969, the treaty was made in 1935 and
applying the Inter Temporal Law, the treaty should be interpreted in light of the international law
as they existed at the time meaning that Article 52 cannot be applied in this situation hence the
treaty between Fudgia and Contona being made before the implementation of Article 52
indicates the treaties validity.

In conclusion, Fudgia validly owns Van Clapp Island by way of occupation and since the
treaty between Fudgia and Contona is counted as valid, Contona legally owns Van Clapp Island
and all the other territories as stated in the peace treaty.

The second point of submission is that the People of Van Clapp only have a right to
internal self-determination and not external self-determination. Self-determination means “the
right to determine freely by themselves their political and legal status as a seperate entity, the
form of government of their choice and the form of their economic, social and cultural system.
This right is a collective right of a “people” and it can only be claimed by “people, not
individual”5. The right to self determination is also to be regarded as jus cogens meaning that it is
right from which no exemption is permitted. Although everyone has the right to self
determination, everyone has the right to internal self-determination and not everyone has the

4
Abdul Ghafur Hamid @ Khin Maung Sein, Public International Law “ A practical approach” (5th
Edition,2023), p115
5
Abdul Ghafur Hamid @ Khin Maung Sein, Public International Law “ A practical approach” (5th
Edition,2023), p96

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right to external self-determination as there are requirements that need to be fulfilled before
external self-determination can be granted.

A case to illustrate the difference between internal and external self-determination is the
case of Aaland Island dispute and in this case the Aaland Islands were part of the Kingdom of
Sweden and the Islanders were mostly Swedish. The Islands were later conquered by Russia and
together were incorporated with Finland into the Russian Empire. After independence was
regained, the Islanders wanted to secede from Finland and claim for self-determination which
they argued was because they wanted to protect their Swedish Culture and Language. The
commission then investigated and made a decision that the Aaland Island had no right of
secession due to them not being oppressed by Finland. Finland was willing to grant the Islanders
guarantees of protection for their culture and language hence their right to internal
self-determination was not being oppressed which in turn secession cannot be granted as
secession is considered only to be a last resort.6 In applying the aforementioned case, it can be
seen that the Islanders right to culture and language is considered a valid self-determination but
this is only considered an internal self-determination. The Islanders attempt to secede from
Finland which is considered external self-determination was not granted as they were not entitled
to external self-determination as they were not oppressed in this situation.

Now we have distinguished the differences between internal and external

self-determination. The 3rd issue of whether the Van Clapp Islanders have right to external
self-determination can only be proven if the Islanders fall under either one of these 2
circumstances. The first being if the people were under colonial rule or second being if people
were under foreign domination or occupation. Contona cannot be considered a colonial rule as
Contona’s objective was never to colonise Fudgia, Contona had never socially or physically
displace the people of Fudgia and instead the territories were given to them through peace
treaties signifying that Contona is not a coloniser. Now, the only option is whether Contona can
be considered a foreign domination or occupation. We can refer to the case of East Timor Case

6
Haakon Ikonomou, “The Åland Islands Question – a League Success Story,” The Åland Islands
Question – A League Success Story, May 2, 2018,
https://projects.au.dk/inventingbureaucracy/blog/show/artikel/the-aaland-islands-question-a-league-succe
ss-story.

5
where in this case East Timor was colonised by the portuguese up until 1975 which was then
occupied by Indonesia for 24 years from 1976 to 1999 and in that period, genocide had taken
place where there was an estimated death total of 180,000 people. Due to overwhelming pressure
from countries around the world, on August 30 1999 in a UN sponsored referendum was made
for the people of East Timor to vote and the people of East Timor rejected the Indonesian offer of
“Special autonomy” in favour of an independent statehood which they finally achieved on 20th
May 2002.7 This case clearly illustrates external self-determination by people who were under
foreign domination and occupation.

Applying all the aforementioned case above, it can be seen that Vann Clap Islanders do
not have the right to external self-determination. In the case Aaland Islands, the reason why they
wanted to secede from Finland was because they wanted to protect their culture and language,
they failed to secede as there was no signs of oppression on behalf of Finland's government
which is the same as in our case where the Islanders claim that Contona’s cultural and social
backgrounds are different from theirs hence why they want to secede from Contona is not a valid
argument as that does not clearly show oppression being shown towards Vann Clapp Islanders.
The government of Contona has never shown any sign of hostility or discrimination towards the
Islanders even if they have different sets of cultural and social background showing that their
Internal self-determination were never disturbed. Since no oppression has been established, do
Vann Clap Islanders fall under one of the circumstances where external self-determination can be
upheld, which is by foreign domination or occupation. In the case of East Timor, Indonesia had
used military control to occupy East Timor which was owned by the Portuguese at the time and
continued to oppress the people of East Timor hence why external self-determination to create an
independent state was granted to the people. Distinguishing this case to our current scenario,
Contona cannot be considered an occupier or even a foreign domination as they had obtained the
territories through a peace treaty meaning that the territories were given to contona willingly and
they had never used force or military control to take over another state’s territory. They also did
not oppress any of the people of Vann Clapp Island hence why they do not fall under any of the
circumstances of which external self-determination may be granted.

7
“East Timor,” Encyclopædia Britannica, November 9, 2023,
https://www.britannica.com/place/East-Timor.

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 The fourth issue is whether Flavia has a locus standi to make an international claim
against Contona. Article 2(3) of the Charter of the United Nations recommends that members of
the states should settle their international disputes by peaceful means and under Article 33 of the
Charter of the United Nations further explains what peaceful means is which are “negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement and more”. A state can only
make an international claim when it is considered an injured state and an injured state means any
“State a right of which is infringed by the act of another State, if that act constitutes, in
accordance with Part One, an internationally wrongful act of that State.” 8 From this arises the
sub issue of whether Flavia can be considered an injured state as the Islanders on Vann Clapp
Island was once citizens of Flavia. In our current scenario, the Islanders (the seekers) had fled
from persecution in their native land, Flavia, settled in the island. Although yes they can be
considered from Flavia but it needs to be understood that these people ran away from Flavia
meaning that they did not want to be Flavian citizens anymore hence revoking their citizenship.
Another thing that needs to be pointed out is that it had been more than 75 years since they had
fled from Flavia and since the reason why they fled in the first place was to avoid persecution
meaning that they were oppressed and distinguishing their situation from the case of Aaland
Island. Since the seekers were actually oppressed they had the right to external self-
determination to not be a part of Flavia hence proving that the Islanders on Vann Clapp Island
cannot be considered Flavian citizens anymore and since the Islanders aren't considered Flavian
citizens, Flavia has no locus standi to make claim in the International court as Flavia isn't
considered an Injured State.

In conclusion, the peace treaty made between Fudgia and Contona is valid as the treaty
was made in 1935, before the implementation of Article 52 of the Vienna Convention on the Law
of Treaties 1969 and by implementing Inter Temporal Law, it further boosted the validity of the
said treaty. As for Van Clapp Islanders right to self-determination, the Islanders do have rights to
Internal self-determination but they do not have the rights to external self-determination as they
do no fulfil all the criterias of which external self-determination can be granted. So Vann Clapp

8
Kiyoji Kawasaki, THE "INJURED STATE" IN THE INTERNATIONAL LAW OF STATE RESPONSIBILITY,
page 19

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Islanders and the country of Flavia do not have any locus standi to make an international claim
against Contona as Flavia was never an injured state to begin with.

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BIBLIOGRAPHY

1. “Terra Nullius.” Legal Information Institute, April 2022.

https://www.law.cornell.edu/wex/terra_nullius#:~:text=Terra%20nullius%20is%20a%20t

erm,is%20not%20owned%20by%20anyone.

2. Clipperton Island Arbitration (France v Mexico) (1932) 26 AJIL 390

3. Palmas Island Case Palmas Island case (1928) 2 RIAA 829

4. Abdul Ghafur Hamid @ Khin Maung Sein, Public International Law “ A practical

approach” (5th Edition,2023), p96 and p115

5. Ikonomou, Haakon. “The Åland Islands Question – a League Success Story.” The Åland

Islands Question – A League Success Story, May 2, 2018.

https://projects.au.dk/inventingbureaucracy/blog/show/artikel/the-aaland-islands-question

-a-league-success-story.

6. “East Timor.” Encyclopædia Britannica, November 9, 2023.

https://www.britannica.com/place/East-Timor.

7. Kiyoji Kawasaki, THE "INJURED STATE" IN THE INTERNATIONAL LAW OF

STATE RESPONSIBILITY, page 19