Palmas Island Sovereignty Arbitration Case
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ScribdTranslationsPalmas Island Sovereignty Arbitration Case
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ScribdTranslationsArbitral award: Permanent Court of Arbitration, Palmas Island case,
United States of America vs. Netherlands, 1928.
Facts: a lawsuit begins between the United States of America and the Netherlands,
whose object was sovereignty over Palmas Island, which is located in the area of
Philippine archipelago. This had been ceded to the United States (USA) by
Spain through the Treaty of Paris of 1898, which ended the Spanish-American war.
American. The litigation arises after the visit made by the general in 1906.
American Wood to the island of Palmas and his report submitted to the military Secretariat.
of the US Army, under which it establishes that the island was claimed by
the Netherlands. Once the controversy was raised, the parties decided that the case should
to be submitted to one of the peaceful means of dispute resolution, for which
that they agreed to resort to the Permanent Court of Arbitration in The Hague, to which they
they submitted by agreement on January 23, 1925. The disagreement was left in charge of
Swiss jurist Max Huber, who rendered the award in April 1928.
Arbitration agreement
In accordance with the convention signed by the USA and the Netherlands (commitment
arbitration), the issue that the parties agreed to submit to arbitration was to determine whether
the island of Palmas in its entirety was part of the Dutch territory or of
territory belonging to the USA. This is: they adopted the stance that for the
At the end of the arbitration, the island in question can only belong to one or the other of them.
Questions
What criterion or principle should be followed to define which is the State that possesses
sovereignty over a specific territorial space?
Arguments of the parties
The USA based its right to sovereignty over the island on the transfer of the
Philippine archipelago that Spain had granted in its favor, in the Treaty of Paris.
Likewise, he supported his position with two other arguments: a) the discovery of
the island on the part of Spain and b) the principle of continuity (or contiguity) of
territory.
The Netherlands, on the contrary, bases its claim to sovereignty
essentially in the title of the continuous and peaceful exercise of the authority of the State
about the island.
Fail
The island of Palmas is entirely part of the territory of the Netherlands.
Doctrine
First of all, the referee Max Huber makes a series of considerations about
what sovereignty means in relation to territory. Thus, it will say that it is the
legally necessary condition for a part of the earth's surface to be able to
to be attributed to the territory of a certain State. Likewise, in the relations
interstate sovereignty is equivalent to independence, that is, the right to exercise in
a territory the state functions, to the exclusion of any other State. The
sovereignty grants exclusive competence to a State regarding its own
territory.
In case of a controversy regarding sovereignty over a territory, it is customary
examine which of the two States claiming such sovereignty holds a title
(cession, conquest, occupation, etc.) better (or superior) than that presented by the other State.
But if the controversy is based on the fact that the other party has exercised
effectively sovereignty does not suffice to determine the title by which the
sovereignty was validly acquired at a certain moment. It must also
to demonstrate that such territorial sovereignty has continued to exist and exists at
decisive moment for the resolution of the dispute. This demonstration consists of
the effective exercise of state activities inherent to the territorial sovereign.
The principle of effectiveness is the essential element for the acquisition of the
the ownership of sovereignty, as well as its maintenance or continuation.
It is such that practice recognizes that the continuous and peaceful exercise of sovereignty
territorial is as effective as a title. According to current international law,
the titles of acquisition of territorial sovereignty are based on this criterion of
effectiveness (apprehension: occupation or conquest; cession; accession).
In this way, sovereignty is not limited to a negative aspect. On one hand,
it involves the right to exclusively exercise the activities inherent to the
States, on the other hand, have a counterpart duty: the obligation to protect.
within its own territory the rights of other States, together with the
rights that each State can claim for those of its nationals who
they fall in foreign territory (diplomatic protection). We can thus state that, in
International law does not recognize a right of territorial sovereignty in terms
abstract
In relation to the argument presented by the USA to establish its sovereignty, the arbitrator
He understood that he had to establish first, if Spain at the time of celebrating
the Treaty of Paris exercised sovereignty over the island of Palmas. In this regard, it analyzed
the other two pillars of the US argument.
Regarding the discovery of the island by Spain, the arbitrator makes the
Next observation: a legal fact must be appreciated in light of the law.
contemporary to him and not in light of the law in force at the time it arises. By
as much as the creation of a right is subject to the current law of a
period, the existence of that right, that is to say, its continuous manifestation, must continue
the required conditions for the evolution of law. The arbitrator observes that in
the 19th century predominates in international law the principle of effectiveness in
matter of constitution and maintenance of territorial sovereignty. In the present time,
the discovery only grants an imperfect right, which must be completed with
subsequent acts of occupation, within a reasonable time frame. In the present case not
no act of occupation by the Spanish state was deemed accredited.
-And even in the case that Spain may have been able to transmit that imperfect right that
the discovery granted him, that title cannot prevail over the exercise
continuous and peaceful acts of sovereignty, as such exercise of authority can
still prevail over a previous definitive or complete title presented by another
State.
Finally, the US invoked the principle of territorial continuity, understanding
that the island of Palmas was under Spanish sovereignty, because geographically it is
part of the archipelago of the Philippines (territorial space ceded by Spain to)
USA). In this regard, the referee considered that it was impossible to establish the existence
of a rule of international law under which the islands located outside the waters
territorial, belong to a State by the simple fact that its territory
It constitutes the land, the closest continent or considerable-sized island.
Thus, this argument is also discarded.
The Netherlands, for their part, base their claim to sovereignty on the title of
continuous and peaceful exercise of state authority over the island. The argument
Dutch holds that the East India Company established sovereignty
Dutch over the island of Palmas since the 17th century through agreements with
little kings (indigenous people) and that this sovereignty has been exercised for the last two
last centuries. These companies formed by individuals and dedicated to purposes
economic concessions were granted to them by those States they depended on,
public law faculties for the acquisition and administration of colonies. The
Dutch East India Company is one of the best known.
the documentary evidence provided leads to the conclusion that the island of Palmas was
under the sovereignty of this Company and therefore, of the Netherlands.
It was demonstrated in the arbitration process that the Dutch State had been exercising
continuously and peacefully exercising sovereignty over said territory, and it is well known
that, in current international law, this title takes precedence over a title of
acquisition of sovereignty not followed by the effective exercise of state authority.