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.