PALMAS ARBITRATION REVISITED

H. H a y L Roquelr.

I. INTRODUCTION

In 1994, the Phhppines and Indonesia held its first ever Senior Officials Meeting on the D e k t a t i o n of the Maritime Boundary between the two States.

Official representatives agreed that both countries would d e h t the location between 120" and 129" 30" East Longitude.' Thts includes the area of the Pldppines and Indonesia where the island of Palmas may be found.

The officials agreed that the following general principles shall serve as basis for negotiations:

a) ''. . .to acheve result fully in keeping with international law mcludmg the 1982 United Nations Convention on the Law of the Sea (UNCLOS)Z;

b) . . . where applicable, the mantime boundaries between the two countries shall be d e h t e d on the basis of the medan h e principle;

c) The two delegations, c o p z a n t of their friendly and warm relauonship between their governments and people, agreed to use creative options as appropriate.3"

second bilateral consultation between the two countries was held on 9 November 2000. The discussion was exploratory4 and no further agreements were forged.

' O F thc I'hilippine Bar. B..% (Mich), L I B (UP), L1.M. V E ) , Partner, Roque and Butuyan Law i )Fticcs. Senlor Imcturer, UP College of Law, Research Fellow, Institute for International Legal Studies, UP 1,2\v (:cntcr

' Ilccord of lhscussion. The First S&or Officials Meeting on the Delimitation of the hlantlmc L 3 w n d ; i ~ Bcnveen Indonesia and the I'hhppines, Manado, Junr23-25, p. 2

* LINCLOS IS the fundamental international law on maritime matters, including mantlme borders .tmong nations.

Record o f Discussion, rupm note 1 .

437

438 PHILIPPINE LAW JOURNAL [VOL. 77

On 20 December 2002, the T b d Meeting of the Pldppine Indonesian Joint Comrmssion for Bilateral Cooperation was held in Mada. The Indonesian panel gave notice to the Phdippine panel that Indonesia has enacted a new Baseltnes Law, which amended its law enacted in 1 960.5 The Indonesian panel also presented a cop): of the law written in Bahusa. No other substantial topic was discussed in the ineeung and the panels agreed on the agenda for the next bilateral taks scheduled in March 2003.” The Phibppine panel requested that an English version of the law be furnished the government through its mission in Jakarta’.

The new Indonesian Baselines Law uses the island of Palmas (also known as h l & & I J j as a base point in drawing Indonesia’s straight archipelagc baselines.8 This provision emphatically contradicts Indonesia’s commitment with the Plihppine govcrnment to d e h t the area where the island of Palmas is found only after and pursuant to the negotiations, and in keeping with UNCLOS. Prior to the passing of said lnw, the two countries, recognizing that the island of Palmas would be a contentious issue in d e h t i n g their territories, agreed to do so bilaterally and in consultation with the other. This was the very reason why the two countries entered into the delimitation talks in the fmt place.

The passage of the new law is a unilateral act and is the official expression of Indonesia’s intent to treat Palmas island as Indonesian territory. It is not just an official claini to land territory but also to the archipelagic and territorial waters representing all waters enclosed by the island’s straight baselmes.

The Phhppine delegation was surprised with this revelation. It appears that preparatoiy to the passage of the new Baselines Law, Indonesia embarked on a

-I I)ipIomatic Correspondence No. 352.00 from Department of F o r r i p Affairs, I’hilippines to the llcparcmcnt o f 1:orcibm Affairs of Indonesia (18 October 2000) (on tile with the UP Institute for Intermtional

hlinutes of the WorLng Group on Maritime and Ocean Issues, 3“‘ Meeting of the Philippine- Indonesian Joint Commission for Bilateral Coopcration (December 20, 2002) (on file with UP 1115).

Minutes of the ‘ T h d Meeting of the l’hilippine-Indonesian Joint Commission for Bilateral (:odpcrntion. llcccmbcr 20-21, 2002, Manila, Philippines.

‘I’hc head of the I’hlippine I’ancl, Ambassador Alberto Encomienda asked for an English copy ( i f

tlic H;isclines 1,aw from the I-lead of the Indonesian Panel and requested that the same be delivered t o the !’hlllppinc dclcgation in Jakarta, Indonesia.

.\rt. 17, UNC1,OS. “1. An archipelagic stzte may draw straight archipelagic baselines joining tlic wtci-most points o f the outeimost islands and drying reefs of the archipclago provided that withm such In.\clincs ;ire includcd the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”

1 . C q d Stldlcs IUI’ 111~s~).

20031 PALMAS ARBITRATION REVISITED 439

modern hydrographc s w e y to chart its new basehes.9 The project w a s tinanced with the help of Official Development Assistance Funds from Norway of approximately $170 d o n . The head of the Philippine panel admitted later that the Phhppines has not even started its own hydrographc swey .

Clearly, the date of passage of the 2002 Indonesian Baseline Law would be a “critical date’”” from whch to gauge whch one between the two countries has a superior clajm to both Palmas island and the archpelagic and territorial waters surrounding it.

The Indonesian Basehes Law has not yet been deposited with the United Nations Secretary General owing to the fact that the ICJ just recently issued a decision in the te r r i tod dlspute between Indonesia and Malaysia over the islands of Sipadan and &tan, awatdmg both islands to Malaysia and thereby necessitating amendments to the Indonesian Basehes Law.”

If the new basehe coordmates drafted by Indonesia were followed, the Phhppines would lose not only Palmas Island but also some 15,000 square mdes of

‘) Digital Marine liesource Mapping Project A ‘Ihree-Phase Project Undertaken by BLOM-ASA for the Indonesian Mapping Authonty. This was cited by BLOM-ASA in a budgetary proposal submitted to the Department of Foreign Affairs uanuary 2003) (on file with the Maritime and Ocean Affairs Center, DFA).

l o The Arbitration of Differences Respecting Sovereignty Over the Island of P a l m (or Miangas), (Wcthcrlands v. U.S.) 22 Aht J . INT’L L. 867, 875 (1928). “If a dispute a&es as to the sovereignty over a poCtXJn of terntory, it IS customary to exarmne which of the states c l d g sovereignty possesses a title - ccssion, conqucst, occupation, etc. -superior to that which the other state might possibly bring forward agamst it. I-lowever, if the contestation is based on the fact that the other party has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment; it must also be shown that the temtorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical.” See d o See ufro Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ Series AlB No. 43 at 170 (1933). ‘The Danish claim is not founded upon any particular act of occupation but alleges - to use the phrase employed in the P&us Isfund decision of the Permanent Court of Arbitration, April 4*, 1928 - a title ‘founded on the peaceful and continuous display of State authority over the island’ It is based upon the view that Denmark now enjoys all the rights which the King of Denmark and Norway enjoyed over Greenland up d 1814. Both the existence and rstent of these rights must therefore be considered, as weU as the Danish claim to sovereignty since that date.

I t must be borne in mind, however, that as the critical date is July IW, 1931, it is not necessary that sovereignty over Greenland should have existed throughout the period during which the Danish Government maintains that it was in being. Even if the material submitted to the Court might be thought insufficient tO establish the existence of that sovereignty during the earlier periods, this would not exclude a finding that it L: sufficient to establish a valid title in the period immediately preceding the occupation.”

Sovereignty Over Wau Lqm and Puhu S i (Indonesia v. Malaysia), INT’L COURT OF jU!illCF., 17 necember m2

l 1

430 PHILIPPINE Liw JOUFN~L [\70L. 77

archipelagic and territorial wa-ters 12 These are Phhppme territories currently defined under the Treaty of Paris.

There are many reasons why it is m the best mterest of the Plihppmes to iriauitaui its authority and control over the Palmas Island and its surrouriding waters Here are some of the reasons

a) The island of Palmas and the waters surrounding it are veq close to the strategic axls hnlung the Pacific and Indian oceans The nearest island to Palmas is Cape San Xgustin The estabhshment of archpelagc sealanes between Cape San Xgustin and Pdmas over which the Phhppines has sovereignty, d enable the country, possiblv n cooperatlon mth Indonesia, to monitor, control and maintmi 5unTedlance of sensitive mantime jurisdictions 14 LIan1 of the countq 's major populanon centers, industrial zones, and the ports of A h t i , LIJ\~~~O City, General Santos. Cotabato, Pagadian, and Zamboanga are direct11 accessible from the said sealanes

b) Palmas island is also close to the critical spawning areas and passage hghways of econoinicnllp important fish, hke the yello\xx fm tuna. The area has also been tagged as a marine ecoregion by the Worldwide Fund for Nature (WlVq oivliig to the area's dxtinct and outs tanding biodiversity

c) The "warm pool" of the world's oceans is also centered on Southern Lbndanao, m a h g the D.wao Gulf, Sarangani and Illana bay m the Moro gulf the most suitable sites for large scale ocean termnal plants (OTEC)

Clearly, the sheer area of maritime territory which the P u p p i n e s stand to lose, coupled with the foregoing reasons, should warrant a re-examination of the root of Indonesia's claim to the Palmas island, the Palmas Arbitration of 1928.

' 2 'l'hc fikvrc g w n is an estimate based on thc proposed project area. I ' l i r i t i h I ~ l y d r o < p p h c Dcpartmcnt, Occan I'nssagcs for the World at 123 (1087) ' I i:, \ r t 47, Umted N'auons Convcntion on the Law of the Sea JUNCLOS) ' IlAWh W D DIXERSTEIS, The Global 200 llcprcscntation .\pproach to C o n x n m g the ISarth'r w c i h \-a!uable Ecoregons, Conacnauon Biolop [v 11, no. 31 a t 501-515 (199X) .Ccc d i n I< 7

I 1. \I,iritinic jurisdiction and T o t a l hlannr Catch (Alorgan and I'dtncid. cds.) (19x3). ' ; I I I,-\\' \M., I'OU El< 1'1..\1 I ' l ' l~.CI1h01,0GY (hlcGra\v HI!! Intl 13) Jt 027-667 ( I S f l - 4 ~ , .

20031 PALMAS ARBITRATION REVISITED 441

11. PALMAS: THE ISLAND AND THE ARBITRATION

The island of Palmas (also known as Miangar) was descnbed m 1928 as “an isolated island of less than two square mdes lymg about half way between Mmdanao in the Phhppme Islands and the most northerly of the Nanusa group m the former Dutch East In l e s ”17 The SWISS arbitrator Max Huber succinctly summarized the confllcung clam to the island when he sad “It hes w i h the boundanes of the Pldppmes as ceded by Spam to the Umted States m 1898 (by the Treaty of Paris) ”18

Palmas island flrst became a bone of contention between the United States and The Netherlands in 1906, when Major General Leonard Wood, then the American Governor-General of the Phrppines, visited Palmas and discovered that the Dutch flag was hoisted in the island.19 In Maj. Gen. Wood’s affidavit dated July 27, 1925, he said that when he visited the island in 1906, a native who spoke some Spanish informed hun of the ‘‘visits of Netherlands subjects to the island.”2” Gen. Wood informed the State Department of t h l s fact and the latter made inquiries with the Dutch government.21

The Dutch government responded that its claim to the island is by vlrtue of a treaty of suzerainty entered into between the Dutch East Indies Company and the local settlers of Palmas.”

The American authontles reiterated m thelr officd correspondence wth Dutch authoritles that the island forms part of the archipelago ceded to them by Spam through the Treaty of Pans It was evldent from certam records, however, that the Americans were generally hesitant to pursue the c h due to the followmg reasons one, the island was small and populated by “SIX hundred eighty-me (689) diseased and destltute mhabitants of low mentahty who speak a Malay-Spamsh dialect,” and two, the legal recourse to the c h , mcludmg recourse to arbitratlon,

’ f ie Arbitration of Dlfferences Respectmg Sovereignty Over the Island o f Palmas (or Miangas),

Id. Report to the Governor General o f the Philippine Islands from Major General Leonard Wood

(lanuary 26, 1906) in 2 RECORDS OF THE DEPARTMENT OF STATE RELATING TO POLITICAL RELATIONS UKIV’EE> THE UNITED STATES AND THE NETXWDS, 1910-1929 [hereinafter LAS PAWS AR~ITRATIOI, I~I:(:oRDsI (on file with the UP Law Center Institute for International Legal Studies(UP IILS}).

z” .-iffidant of Major General Wood (July 27, 1925) in 1 LAS PALhills ARBITILITION RECORDS (on Llc with the U P IILS).

2 ’ Id 22 Notr from the Nrthrrlands Ministry of Foreign Affairs to the American imgtion at the Hague,

(Netherlands v. U S.) 22 h t . J . IN’T’L L. 867, 872 (1928).

(October 17, 1%K) in 1 LN: P.ALUAS ARBITIL4llON RECORDS (on fde with the UP IILS).

442 PHILIPPINE L i w JOCRV;\L F O L . 77

\.vas n o t Iusufied owing to the “trifing value of the island.”’? It was even admitted that “rhc iiiattcr has been delayed because this Government [the US Government) 112s not been persistent. T h e claim of the United States has undoubtedly suffered trciiicndously by reason of this delay and because of the lack of vigor with which the claim \\.as: presented and prosecuted.”’q

I lie Iinericaiis nevertheless pursued the arbitrauon owmg tu advcrse pul~hc Lc‘.icLion t h t followed a report in 1911 that Dutch autlioriueb tore down the flag of thc L iiitccl States found in the island 25

‘1‘111s illciderit was widely reported in the American media and proinpted at 1 ~ 1 5 [ o ~ i c S,ciiaror to inqulre on the veracity of tlie report from h e State I ) q > , n i i n c i i i 21, ~l‘lic American authorities later started official discussions \vitli Dutch ;iui l i i I I I ~ I L ’ S rc bring the matter to arbitratlon.27

‘l‘iic ~\iiiericaii claim ro the island \vas summarized as follows Zx

1. That the island hes well nithln the demarcation of ,irtlcle i o f the T r e a y of Paris of December 10,1898 between the Uruted S t.itcs ;ind Spain ceding the Philippine ;\rchipelago to the United s t:1 re;,

2. That the island is approximately twelve miles nearer the is!.ind of Ahndanao, the largest island of the Philippine archipelago, r h n to nny of the smaller islands of the Dutch ;irchipelago;

3 That the island IS well wthin the hinits marked by the Bull o f .ilcxnnder G1I1 dated hiay 4, 1491;

4. That the island is well within the limits of the agreement concliided in J u l y 4, 1494, between Spain and Portugal;

20031 PALMAS ARBITRATION REVISITED 443

5 . That the union of Spain and Portugal in 1580 should remove any doubts as to the title of the Island prior to that time;

6 . That the Government of Spain considered the Island as one of its oceanic possessions;

7. That Spain never relinquished control over the island except to the United States;

8. That Spain exercised sovereignty over the Philippine archipelago as a whole and it was not necessary for Spain, in order to sustain its sovereignty over each individual island of the Archipelago, to maintain separate administrations over the island.

The Americans endeavored to prove that Spain exercised sovereignty over the island by attempting to prove the payment of ceduh or residence certificate taxes by the inhabitants of the island to the Government of Spain, as well as regular visits of Spanish naval vessels to the islands.29 Evidence was also uncovered in the archlves of Seville, Spain showing that Spain sent an expedition to the Island in 1710, and that a group of Jesuit missionaries were actually sent to settle in the island with the avowed goal of converting the natives and to exercise occupation of the island on behalf of the Spanish crown.x)

The Netherlands government, on the other hand, anchored its title to the island on the following grounds: 31

1. That the 17ci1 century Palmas Island was conquered by the Rajah of Taboucan, who in 1877 signed the agreement with the Dutch East I d e s Company, which agreement provided that the Taboucan territories should become the property of the company;

2. That the possession of the Dutch East Indies Company came under the direct control of the Netherlands Government and

*’ Telex from US War Department to American S p i n lagation asking for confirmation that Spmish pnboats uscd to visit the islands and that Spain levied cedula tax from the native inhabitants (June 20, 1024) in 3 L A S 1’AI.MAS ARBITKA’flON l&X>RDS (on file with the U1’ IIIAJ.

Ixttcr t o hfr. W. C. Burdett, Amcncan Consul in Seville. Spain on the results o f an investiptlon mto ducumcnts csistlng in the General Archives o f .kville, (April (I, 1925) in 2 l , .~s l’;\l.\f,\s A w i 7 m ’ r i m 111.~01tth (<)n tile with the LIP 111S).

I’ Note from the Netherlands hlinisty o f Forrip Affars t o the h e r i c a n I.cbmtlon A t the FIape (Octolxr 17, 191 1) in 2 LAS l’,\l.h~fS hRn177LA.flON I~ECOIUX (on tile with the UP IIJS).

444 PHILIPPINE LAW JOURN.$L P O L . 77

that since the begmning of the 19"l century the island has been under the suzerainty of the Netherlands;

3. That the inhabitants paid taxes to the Netherlands government since the early part of the 19t" century;

4. That the island is named in contract between the Netherlands government and the Sultan of Turante;

5. That the Netherlands government introduced vaccinatlon upon the island;

6. That the Netherlands authontles visited the island at least once a year,

7. That Spain never questioned the right of the Netherlands government to exercise it sovereignty or to plant its flags in the island;

8. That Spain, not having control of the island at the time of cession in 1898 could not cede it to the United States.

Implicit in its arguments is that while Spain may have had title to the island bjr vktue of discovery, it has since lost and/or abandoned its title by allowing the Dutch East Indies Company to enter into contracts and agreements with the native rulers who ceded their territories in favor of the Company.

The United States and The Netherlands agreed to resort to arbitration under the auspices of the Permanent Court of Arbitranon (PCA) 32 The case could not be brought to the Permanent Court of International Jusuce (PCIJ) because the Lnited States was not a member of the League of Natlons and consequently, of the PCIj The case should have been ideally brought to the PCIJ because it involved iiiternauoiial law The Americans beheved however that die PCIJ m g h t be biased xqainst the US because the court was based at The Hague and headed by a Dutch ,-?n W h y the Americans considered the Permanent Court of Arbitratlon to be KIQIP neutral, considering that it is al\o based at The Hague, is an issue that was not divxisvx! in the official cornmunicduoii made by the people who opted foi the I'eimanent Court of Arbitration

32 Hoth thc Netherlands and the United States were signatories to the Convention for The l'nclfic !;cttlcmcnt of International Disputes, adopted 27 July 1899 which established the Permanent Court of Arb1 tra t1011.

' 3 !d.

20031 PALMAS ARBITRATION REVISITED 445

What does appear in official American communication is that the Swiss Mas Huber was not the Fmt choice of the Americans as Arbitrator. In a telegram from Tokyo dated April 14, 1925, a certain Dr. Yoruzo Oda was believed to be qualified to act as arbitrator.34 A letter to the Secretary of State dated April 25, 1925 shows however that reservations about Dr. Oda were entertained, and the names of Lord Finlay, a member of the Permanent Court of International Justice, and Dr. Walter Schucking of Germany were put fonvard.35 It appears now that Huber, although of unquestionable credentlals, was a choice suggested by the Dutch and viewed with dlsapproval by a competent Amencan authority.36

The arbitratton on Palmas took place pursuant to a Specla1 Agreement for the Subrmssion to Arbitratton of the Quesuon of Sovereignty over the Island-of Palmas37 UnLke subsequent arbitrattons conducted under the aegs of the Permanent Court of Arbitra~on38, the partles, probably to mmuruze costs,39 supulated that the proceedrngs shall be summary m nature, or h t e d to the submssion of Memorandums and Counter-Memorandums.40

The legal lurmnary Phhp Jessup, who was an Assistant Professor at Columbia Umversity at that tune, observed that the supulahon had the effect of h u n g the abhty of each party to prove facts that it was a l lepg4’ Worse, Jessup inamtauled, the Americans and the Dutch had a different constructton of the requisite hIemorandum Consistent with modern forms of summary procedure, the

31 ‘l‘elegrarn from Bancroft to the Secretary of State (April 14, 1925) In 2 IAS P:\IM.kS .\mll-R,+ nob. RECORDS (on file with the UP 1113).

35 lmtter t o the Secretary of State (April 25, 1925) In 2 LAS PALMAS ARBITRATION RECORDS (on file with the UP IILS).

36 I r t ter to the Secretary of State (August 20, 1925) in 2 LAS PALMAS ARBITRATION mC0RDS (on ilk \ w h the U1’ IIIS). Unfortunately, the writer of the letter has not been identified. Nonetheless, the warmng asmist thc appomtrnent of Huber reads: “If the naming of an arbitrator in the island of P a l m case is to be mndc by the I’rcsident of Switzerland, and if he names a Swiss, which he undoubtedly will, he will be lirmted to S\viss rncrnbcrs on the H a b y Court, namely I Iuber and Soldati. Huber, in view of his unfortunate cspencnce \.virh thc Orutcd States recently, will probably not be named”. I t is hghly probable that the wnter of the letter IS

I,’rcd K Niclscn, agent for the US since the letter appears to be part of a series of correspondence wntten by lhim.

%’ Arbitration of Differences Respecting Sovereignty Over Island of Palmas. January 23, 1925. United States-The Netherlands, T.S. No. 711.

u, Permanent Court of Arbitration Optional Rules for Arbitrating Disputes Between Two States (effective October 20, 1992), Article 15, par. 2 “If either party so requests at any appropriate stage of the procecdingx, the arbitral tribunal shall hold hearings for the presentation of evidence by wimesses. includng cspcrt witnesses, o r for oral argument. In the absence of such a request, the arbitral tribunal shall decide whcrhcr to hold such hearings or whether the proceedings shall bc conducted on the basis of documents and <,thcr n~,itcriaIs”

j 9 Pt111.11’ C. J ~ i s u P , Thr Puhur IrIrrndAddrufion, 22 A m J. Int’l. I, 735, 749 (1928).

4 1 JL;ssL;I’, rnpm note 39, at 736, 749. Arbitration Trcaty, snpm note 37, at Art. 11.

446 PHILIPPINE Liw J O ~ R N A L

Americans submitted all their arguments to the island, as well as t h e k evidence, by x - a y of .lnneses to their Memorandum. The Dutch, on the other hand, did not state die entu-ety of their case in their Memorandum. Instead, they summarlzed tlietr xrgurnents for the first time only in their Counter-Memorandum, enabling them to dispute point by point the arguments advanced by the Americans.42 \\%at \vas parucularly alarmng to Jessup was that the Dutch never attached any of thelr alleged documentary evidence to prove their claims, as they merely undertook to “produce r h e m upon request of the

I’lic American panel regstered its objectlon on the manner by which the i h t c h palie1 wanted to prove its allegatlons, i e , by way of hindsight and not up f ron t i he I h t c h posiuon was nevertheless suspiciously sustained by I Iuber when he 1 U l C i i

“however desirable i t might be to produce complete evidence .ir . in carly stage, it was contrary to broad principles apphed in mrcmatlonal arbitrauons to exclude a limine, except under exphcit tcriiis of conventional rule, even allegation made by a party as irrelei-ant, if not supported Iiy evidence, and to exclude evidence re1:tu:ig to such allegauons from bemg produced a t a later stage of the prucedure.”‘+J

ILnder .\rticle I11 of the Special AAgreement, the Arbitrator was authorlzed t c :isk LLjr i;inher written instructtons from either party. Mr. Huber did so but only froin ’! i1c bJr~thcrlands. He asked them to explain the weakness in their arguments as p(-m tcd o u t i n the American Counter-hlemorand~m.~5 The Americans objected to [I , i i> . < n i l l . coiild i i o t Iin-e been expected to sustain the Americans’ objectton arid in effect- question the pt-opriety of his own acts.

Iiut since the Arbitrator was the sole Judge of questions on procedure, lie

hlodein day htlgators would probably not be surprised therefore that i luber ~ n a i d e c l the Palrnas Island in favor of The Netherlands His decision, despite the l i t r l e Lnown critmbms on the procedural aspects of the arbitrauon, would later o n hcco~i ic requued leading for all students of Public Internauonal Law, parucularlF on ~ l i ~ topic o f territorial jurisdicuon The Huber decision would also be invohcd TS n

‘2 j t s S C P , rnpru note 39, at 749.

4‘ .\rbitr,ition Award, .rupru notr 17, at 878. li I I X C I ’ , iupru note 39, at 751.

‘ 3 - Id

20031 P A L ~ L ~ S ARBITRATION REVISITED 447

precedent in the decisions of the ICJ and other arbitral bodies, as well as by party hugants in disputes concerning conficting claims to territory.%

A. HIGHLIGHTS OF THE DECISION

The Palmas case is parucularly remembered for the r u h g that discovery per be, as mvoked by the Americans, gives rise only to an inchoate nght w h c h must be perfected through open and conunuous acts evidencmg effectlve occupauon

“Even admttmg that the Spamsh title s t d l existed as mchoate m 1898 and must be considered as mcluded in the cession under Airode Ill of the Treaty of Pans, an mchoate tttle could not prevd over the continuous and peaceful &splay of authonty by another state, for such display may prevad even over a pnor, definittve tltle put forward by another state 47”

Huber ruled that The Netherlands has established effective occupation through, among others, its contract of surezeinship with the local rulers and tribesmen of the island:

“In the opmion of the Arbitrator, The Netherlands has succeeded in estabhshing the followng facts:

a . The Island of Palmas (or Miangas) is identical with an islaiid designated by this or a similar name, which has formed, at least since 1700, successively a part of two of the native States of the Island of Jaigi palautse Isles).

b These natwe States were from 1677 onwards connected w t h the East India Company, and thereby wtli the Netherlands, by contracts of suzerainty, which conferred upon the suzeram such powers as would ‘jusufy his considering the vassal state as a part of his terntorv

c. Acts characteristic of state authority exercised either by the vassal state or by the suzerain Power in regard precisely to the Island of Palinas (or Mzungm) have been established as occurring at different

‘(’ Some intcmationil law cases w h c h cite as doctrine the I luber decision are thc I rpl Starus of l,:.i>wm C;rccnland (Ilenmark v. Nonvay).l’Cl! Scrics A / H No. 43 (1933), and I-Srirrca-Ymcn :\rbltratlon (Casc ( h c c r n i n g ].and, Island. and htaritime [:ronticrs l>ispute), K.\, October 9, 1W8.

’: :\rbitration Award, wpru iiotc 17, at 884.

448 PHILIPPINE LAW JOURNAL [VOL. 77

epochs between 1700 and 1898, as well as in the period between 1898 and 1906.

The acts of indirect or direct display of Netherlands sovereignty at Palmas (or Miangas), especially in the 18th and early 19th centuries are not numerous, and there are considerable gaps in the evidence of continuous &splay. But apart from the consideration that the manifestations of sovereignty over a small and distant island, inhabited only by natives, cannot be expected to be frequent, it is not necessary that the display of sovereignty should go back to a very far distant period. It may suffice that such &splay existed in 1898, and had already existed as continuous and peaceful before that date long enough to eilable any Power who might have considered herself as possessing sovereignty over the island, or having a claim to sovereignty, to have, according to local conditions, a reasonable possibihty for ascertaining the existence of a state of things contrary to her real or alleged rights. . . . 48

There is moreover no evidence whch would establish any act of display of sovereignty over the island by Spain or another Power, such as might counterbalance or annihilate the manifestations of Netherlands sovereignty. As to third Powers, the evidence submitted to the Tribunal does not disclose. any trace of such action, at least from the middle of the 17th century onwards. These circumstances, together with the absence of any evidence of a conflict between Spaiish and Netherlands authorities during more than two centuries as regards Palmas (or Miangas), are an indirect proof of the exclusive display of Netherlands sovereignty. . . . 49

The conditions of acquisition of sovereignty by the Netherlands are therefore to be considered as fulfded. It remains now to be seen whether the United States as successors of Spain are 111 a position to bring forward an equivalent or stronger title. This is to be answered in the negative.

The title of discovery, if it had not already been disposed of by the Treaties of hiunster and Utrecht, would, under the most favorable and most extensive interpretation, exist only as an inchoate title, as a claim to establish sovereignty by effective occupation. An

48 Arbitration Award, .r~pru note 17, at 908. ‘9 Arbitration Award, supu note 17, at 909.

20031 PALMAS ARBITRATION REVISITED 449

mchoate title however cannot prevad over a defimte utle founded on continuous and peaceful display of sovereigiity. . ..s”

The Netherlands utle of sovereignty, acquired by continuous and peaceful &splay of state authority during a long period of time going probably back beyond the year 1700, therefore holds good. . . . 51

For these reasons the ;irbitrator . . . decides that:

The Island of Palmas (or Mimgus) forms in its entirety a part of Netherlands territow.j?”

I.ilre\vise, I Iuber’s use for the f i s t time of the concepts of “inter-temporal ~ A W ” a i d “critical date,” was precedent-setting and has since been often cited by the I ( ; ] , arbitral bodies, and other htigants to support thek arguments.

Intei-temporal law is the rule that where different legal rules esisted over a period o f time, both the lule a t the creatlon of the right and at the tlme of it5 escrcisc Iiiu‘t be apphed

“.\s reg;irds the quesuon which of different legal systems pi-ewiling ;it successive periods is to be applied in a particular case (the s(,-c:illed intertemporal law), disuncuon must be made between the creation of rights and the esistence of rights. The same principle \\-liicli subjects the act creative of a right to the law in force at the uine the iiglit iirises, deniands that the esistcnce of the right, in other words i t s contrnued manifestation, shall follow the conditions required by the e\-oliitioii of law. 1ntern:itional law in the 19th century, having regard to the fact that most parts of the globe were under the sovereignty of states members of the commuiuty of nations, and that territones without a inlaster had become relatively few, took account of a tendency already esisting and especially developed since the middle of the 16th centun, and laid down the principle that occupation, to constitute a claim to territorial sovereignty, must be effective, that is, offer certain guarantees to other states and their nationals. It seems therefore incompatible with this rule of positive law that there should be repons which are neither under the effective sovereignty of a state,

Arbitration Award, s u p note 17, n t 910.

j2 . \ rh t r .mon Award, wpru no te 17, at 912

i l Id

450 PHILIPPINE L ~ w JOURNAL P O L . 77

nor without a master, but which are reserved for the exclusive influence of one state, in virtue solely of a title of acquisition whch is no longer recogxuzed by existing law, even if such a title ever conferred territorial sovereignty. For these reasons, dscovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of Palmas (or Miangas); and in so far as there is no sovereignty, the question of an abandonment properly speahng of sovereignty by one state in order that the sovereignty of another may take its place does not arise”53.

“Critical date” on the other hand, is a “judicial technique in the use of evidence and more especially the exclusion of evidence consisting of self-serving acts of p r u e s at a stage when it was evident that a dispute existed.”S4 “The United States clauned as successor to Spam under a treaty of cession dated 10 December 1898, and e \w~t l iu ig turned on the nature of Spanish rights at that

The Huber award had its share of criticisms. In the same year that the award was promulgated, a very young Pluhp Jessup had stingrng criticisms not only on the procedural aspect of the arbitration, but also on the substantive aspects of the award. In particular, he described as a “ n ~ n - s e q u i t u r ” ~ ~ the Huber formulation of the inter- temporal law:

“For the sake of clarity, the principle thus enunciated may be applied to another state of facts. Assume that State A in a year acquires Island X from State B by a Treaty of peace after a war in which A is the victor. Assume Island X is a barren rocky place, uninhabited and desired only by A for strategic reasons to prevent its foruficatlon by another power. Assume that A holds island X, but without mahng use of it, for two hundred years. At the end of that time suppose that the development of International law and that the new rule is that no territory maybe acquired by a victor from a vanquished at the close of a war. Under the theory of “intertemporal law” as expounded, it would appear that A would no longer have good title to island X but must secure a new title upon such other basis or in accordance with the new rule. Such a retroactive effect of law would

i’ .\rbitrxion Award, .rupru note 17, at 883-884.

$ 5 Id. ’‘ I \X HRO\I’NLIE, ~ ’ R ~ N C l P l J ~ S I’URLIC 01; ~ & l ’ l 3 W ~ V l ’ l O N . ~ L LAN’ 128 (1998)

Jl;SSUP, wpru note 39, at 730. See ulrn Lxttcr from Laurence Martin, Chief of Maps, I h r a t y of (:oiiycss (lanuar). 22, 1026). in 2 I.AS PAI.MAS ARBIIRA’I1ON RECOllDS (on file with the UP 1IL.S). whcrc he citcd Icbbing \Vubhn’s article entitled “Die Nanusa Lnsels” wtuch said “In conclusion, I note that the Meangs Islands d~ not mist and are apparently confuscd with certain of the Nenusa islands.”

30031 P ; \ L ~ s ARBITR;\?’ION RET‘ISITED 45 1

be highly hsturliing. Every State would constantly be under the necessiy of csmiining its title to each portion of its territory in order t o determine \diether a c1i;inge in the law has necessitated, as It were, a rc:icqulsltlon. If such a pnnciple were to be applied to private law and private titles, the result would be c h a o ~ . ” ~ ‘

Jessup’s foregoing criticism goes to the very heart of the Palmas award. ;\s toiiiiulated by Huber, the application of inter-temporal law is the legal basis for thud states, such as The Netherlands, to acquire a better title to disputed islands on tlir Iiasis o f subsequent acts esecuted over a long period of time from the incipient cuiic‘ of discovery.

1 Iuber’s theory, was, however, without precedent and may probably be c!e.;cribed as a bold articulauon of a new theory which unttl today, does not seem to ha\-c been given wide acceptance. The reahty is that jurisprudence abound ui Internatioiial Law respecting acquired rights or applying the law in force at the time of the creation of the right. This explains why, in Jessup’s example, state’s utle to rci-1-irory acquired as a rcsult of conquest is not zpmfhto extinguished as a result uf the rise o f the contemporary norm forbidding the use of force in the conduct of iiitcrnatiorial relauons.

J C S S L I ~ had othrr criticisms of the Palmas award, one of the most significant . i i i issiic o f fact, \l-hich appears to ha\-e been overlooked. The Americans argued

d o n historical data, the Dutch have always referred to Palma? as ‘‘AllImc,;2~-” ”, ‘ : \ f t?qqi . ! ” mil‘ ‘ > ~ f w ~ ~ J . r . ’ ’ L%u these names have also been used to refer to

ihc ?.Jcnusa Islands, a group admittedly belonging to the Netherlands. It was possible tiicrchorc rh:it the island bciiig claimed bv Netherlands was not the Palmas Island but oiic o f the Nenusa lslaiids wluch admittedly belong to them. Jessup maintamed that

is i i i i issue of fact which should have been decided with the assistance of

. -

es11crts.jfi

jessup also objected to Huber’s findings that the American panel failed to ::lion. evidence proving effective occupation of the islands by either Spain or the T.iiitcd States. Jessup called attention to the American’s argument: there being a ~ : I L I C I L V o f el-idencc of actual Spanish exercise of authority on Palmas island, it is proper to take into account the fact that t h s island is one part of the geographical ti i i i t known as the Phhppine archipelago. Jessup insisted that Spain’s title over the archipelago is clear and in the absence of contrary evidence, it must be assumed that

452 PHILIPPINE LAW JOURNAL P O L . 77

her occupation and control of Mindanao and other islands included Palmas Island.59 This is the theory of constructive possession, it., since Spain possesses the whole, constructively, it possesses all the parts.

The official records of communication among the Americans indcate a consensus as to the need to submit specific evidence to prove effective occupation of Palmas. Evidence contemplated for submission were the collection of the cedukz or residence tax from the inhabitants of the islands, as well as reports from the different catholic sectsm in the island. The fact that they did not actually do so was solely because Spain did not provide the Americans with actual evidence of its effective occupation of the island6’. By default, therefore, the Americans had to argue that it was unnecessary to prove this specific fact of effective occupation in view of its theory of constructive possession as articulated by Jessup.

Clearly, Huber was of the opinion that specific evidence had to be presented. The Dutch agent did this. To debunk the American’s crude formulation of what would later on be an accepted doctrine referred to in International Law as “constructive possession of hmterlands62,” Huber ruled that title could not arise solely by reason of conagulty:

“In the last place there remains to be considered title arising out of contiguity. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a state from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size).”63

Huber obviously not only failed to appreciate the American proposition, he ignored even the common definition of “archlpelago” as a group of islands and

jY IFSUP, r p i note 39, at 742. 60> LhS P A U L A S .hEllRATION RECORDS, rypru note 29. 61 Lctter from Fred Nielsen, Agent and Counsel for the United Statcs in the arbitration, to the

Srcretary of State (September 28, 1925) in 2 LAS P A W S ARBITFL4TION RECORDS (on file with the UP I ILS). “1 have an idea we might have a reasonable chance to win this case if Spain could have shown or would even have said that she ever exercised the slightest control over the island of Palmas. This she has not been wilting to undertake to do.”

62 Legal Status of Eastern Greenland (Denmark v. Noway), PCIJ Series A/B No. 43 (1933). Arbitration Award, rwpm note 17, at 893.

\\ .<-~irci.b foriiiiiig a gecig17.p lucal ~ l i o le.,'~q H uber ruled that P a h i s was beyond the

:!iguniciit o f (lie Americans that the island forms part of the Phhppine archipelago. (.~oiiscclueiitl\., both the Americans and the Dutch, in his m n d , had to prove cffcct IYC occupation of the island.

L l l f t c L ~ ~iorial \xiters of cithci t he Philipplr,es or 1ndcnesia.GjHe blatantly ignored thc

i ~ ! L i k r rclectcd the conuguity theon based solely on the alleged lnck of :I

r ~,<ILKC mlc that such a theory is recognized in international law.66 There was on :;in.ic>us lii-:it,incy on his p x t to establish a precedent on t h s matter, despite the fact thn! Jic \\:oidd later 011 establish two revolutionary and precedent-setting nilings c n i:irci-tcmporal iaw and the use of critical dates.

I t is not true that there was no positive rule in mternational law that would suppurt the Almerican argument that possession of a part of the archipelago results in 311 effective occupation of all the islands comprising the unit. It was pointed out in rhe American memorandum6' and later on by Jessup,68 that Venezuela, in tlic British Guiana Boundary Arbitration, already raised the proposition that occupation t o lic effective need not extend to every nook and corner of the territory. Some esninples given by Venezuela in that arbitration was the constructive occupation of p x t s of Xinerican and Canadian wilderness which had the effect of possession of thc cnure area; as well as the English occupation of parts of Australia and Xew Z,cxlnnd. n h ~ c l i had the effect of possession over the entire continent.

It did not come as a surprise that only five years after Huber's award and lcbsup's article, the Permanent Court of International Justice would expressly recogiiizc the existence o f the same rule, which I-lubcr declared was non-existent. In :!-,c L ~ L ' Jfirirrs oJi ELIJ-~?~) Grecnlmd Care, the Court recognized that Denmark's -:o-;scssion of part of Greenland was sufficient ewlccce of her possess io~~ of thr

.l!(ilc ilisnuted area.69

454 PHILIPPINE LAW J O U ~ A L [VOL. 77

Criucs may pomt out that the arguments advanced by Jessup m 1928 could be disrmssed as biased As an American, he would understandably be dspleased with an award rendered agamst h s own state But Assistant Professor P u p Jessup would later o n become one of the most emment pubhcists m Internatlonal Law, a stature which would c u h a t e with h s appomtment as a Judge of the Internauonal Court of Jusuce

Given the various and irreconulable points of disagreements w h c h Jessup had with the Huber award, it is tempting to resolve these disagreements on the basis of which one is the better publicist. m c h of the two views should be accorded more persuasive weight as subsidary means of ascertaining the correct legal

In any case, Jessup was not alone in h s criticism of the arbitral award Slr Hearsh Lauterpacht, addressmg the issue of contiguty, wrote:

“The award of Dr Huber m the case of Island of Palmas has occasionally been cited as provlng the assertion that mternauonal law does not recogmze the utle of cont lp ty Even if it were the correct interpretauon of the award it is doubtful whether, nomthstandmg the high autlionty of the arbitrator, it could dispose of a doctnne whch has figured prormnently in the pracuce of states ’1

In fact, the apparent antimony of effectiveness and contiguity begms to wear thm as soon as we realize that . . . effectiveness need not be as complete as appears at first sight and that contiguity is not theoretical and arbitrary at first sight. . . . .The fact is that as a rule the conceptions of effectiveness and c o n u p t y often provide no more than starting point.. . . It is effectiveness relative to the situation and to the circumstances. It may range from the requirements of intensive administratlon in every “nook and corner” . . . and it may assume the form of a mere proclamation. When that point is reached there is little

I h n i s h coli)rucs in (;reenland and that Danish sovereignty extended no further than the limits o f these colonics

Even i f the p e n 4 from 1921 to July IO”, 1931 is taken by itself and without refucncc to the prcccding periods, the conclusion reached by the Court I s that during this time Denmark regxdcd herself as poshcssing sovercipty over all Greenland and displayed and escrcised her sovcrcign rights to a n extcnt

7” Statute of the International Court of Jushce, Article 38. “1. The Court, whose functmns is to dcctde in accordance with international law such disputes as are submitted to it, shall apply:. . .(d) subject to the provisions of Article 59, judicial decisions and the teachings of thc most highly qualified publicists of the vanous nations as subsidiary means for the detcmnat ion o f mles of law.”

suificlcnt to Co1~SUtute a valid trtle to sovereignty.”

71 Hearsh I,autcrpacht, .Ymentjyz~ OwSwhmurinr Anur, 1950 BRIT. Y.H. INT’LL 376.

P.ILLL\S .ARBITRITION REVISITED 455

to choose bcawcn conti;guty :Ind effectiveness of 0ccupai:on. Coi i t igi i i~ in sccii c.ises in,!!. be xi essential condition which gives rise to rlic only elcment o f substaticc to such othenvise abstract occupation. In that sense contiguity IS :I factor more potent.”’z

O’Connell, for his part, also questioned how effective the Dutch occupation , ~ ~ f 1):ihas could have been. Could it be, he asked, “ that effectiveness was rsralihshed negatively from the absence of any competing manifestations of so\.crcigrity, and that it was only because The Netherlands has taken more interest in thc Island than Spain that it was adjudged entitled?”73

Clearl!., a t least on the issue of effectiveness, the Legal Status of Grcenland CL 3 s KCU as the later C/+7,bUtOJZ ~~lrbitrufiot~,~~ have established the rule that tribunals li3\ e been sausfied with v e i ~ httle in the way of actual exercise of sovereign rights, lirwided that in the actual esercisc of sovereign rights, the other claimant could not m:ikc out a superior clanii.

The tlieoq of contiguity was already in existence in 1928, despite Huber’s denial. This theory, supported with even token evidence of effective occupation, ~ T ‘ C I I the mere raising of the Spanish flag, should have been enough basis for the an.,iril o f the Palinas Island i n favor of the United States.

B. STANDING TO ARBITRATE

Independent of the substantwe and procedural aspects of the Huber Award, serious quesuons now need to be askcd o n what standing the Americans had to arbitrate on thc issuc of title to Palmas.

Both The Netherlands and the Uni[ed States assumed, and Huber I scognizcd, that the Vnited States’ standing to arbitrate, othenvise defined as a ;xrson:i:ity to :tdvancc :I rightT5, is by x-utue of Spain’s cession of the entire I~liilippine archipelago to the United States through the Treaty of Paris on December ‘1 0. 189s -(,

K1i:lc cession \\-as then, and mid nmv, recognized as a mode for acquisiuon (uf teiritorial s o x r e i p t y , i t is subject to the h i t a t i o n that one’s title is only as good

456 PHILIPPINE LAW JOURNAL P O L . 77

as the title of one’s predecessor, as expressed in the Latin maxim “Nemo dat quod non habet. ’7’

Moreover, it has been the view since the time of Gmtius that the consent of the populauon of the ceded territory is essential to the valid~ty of the cession.7”

Clearly, the American stanchg to arbitrate on Palmas arises from the title of Spam to the entire archpelago at the time of the alleged cession on December 10, 1898. The question however is: Did Spain stdl have title to the Philtppine archipelago on that date?

The Phhppines, as r e c o w e d by all countries of the world, celebrates its Independence Day on June 12, 1898,790r almost 6 months prior to the Treaty of Paris. On that day, Gen. E d o A p a l d o , as a result of a victorious armed struggle for mdependence agamst Colonial Spain, declared the independence of the country from Spanish colonialism and proclauned the first Asian Republic.m

Historians are in agreement that by June 12, 1898, Spanish mhtary forces were already defeated by Fillpino revolutionaries and were then generally isolated.8’

Immediately after the proclamation of independence, a revolutionary government was declared, a cabinet was appointed and convened, a constitution was drafted, local government units were organized, and a Congress was convened with a majority of its members duly elected. All these, includmg the armed struggle, whch preceded it, were done with the knowledge and complicity of American forces.

P u p p i n e hstorian Renato Constantino wrote that by December 18, 1898, when the Treaty of Paris was signed,

” Or, ncm~pLvsivnj /ram+rnpokri $JSC hbet no man can give another any better title than he himself ha?;.

7R I1 ’TI<:\NSACTIOh’S OF ‘RIE GROTlUS SOCIETY. Also recent cessions have been conditioned upon thc will of the people as expressed in plebiscite.

‘‘I Republic Act 4166 (August 4, 1964). An Act C h a n p g the Date of Philippine Independence Day from july Four to June Twelve, and Declaring July Four as PhiLppine Republic Day, further amending for the purpozc Section l’wenty Nine of the Revised Adminitrative Code.

=!AT0 CONSTANTINO, A PAST REVISITED 211 (1975). “The Filipino forces won victory after victory, capturing Sparush garnSons in quick succession. By the end of June, the Filipinos controlled virtually all of Luzon except Manila.” It should be noted, however, that the declaration was patterned after the Amencan Declaration of Independence, and that it said in part, “And summoning as a witness to the rectitude of our intentions, the Supreme Judge of the Universe, and under the protection of the Mighty and Humane North American Nation, we proclaim and solemnly declare, in the name and by the authority of the inhabitants of all these Philippine Islands, that they are and have the right to be free and independent.. . I ’

* I Id at 213.

20031 457

“Sp;un nctually controlled only ;i few outposts in the country. The Filipino people had \van their w a r of liberation. On their own, without the help of a n y foreign power. they had put an end to the 1i;ited Spanish rule over their land. . . . The victorious people were no\v trill!- one nation \vitli sovereigitl\. won on the battlefield. The Llalolos goivxninent was the syml~ol of their unity. They viewed its esistciice as the culmination of their struggles. They gax-e I t their \vholeheaited support and ~i1lcg; ince.”~~

.inother historian corroboratcd the foregoing when he observed t h a t in J ; i i iua i~ 1599.

“Excluding the town of hlanil;~ mid the town of Cavite which \r-ere occupied b y .lnierican troops, ;ind excluding tlie southern nnd ~ c s t e r n part of the islnnd of hlindaiiao and other lesser islmds, the \\:hole of the Philippine :ircliipelngo \ m s loyal to the 1I:ilolos Govci-nmcn tX3”

I t has become clear that as of tlie date of the signing of the Tre;ig- o f Paris, Spain no longer had title to the Phhppine Archipelago. Consequcntly, Spain rr;insfeerrecl nothing to (lie I!nitcd States.

Furtherinorc, Spain could not halve legally ceded the island of Pahiias, or :iii>- othcr parts of the Phhppines to the Cnited States, not only because of its lack of titic, but nlso bccause Fhpluos had already established the Repubhc on June 12, 1393, before the signing of the Treaty of Paris.

. Because of such declarattnn of independence and establishment o f ;I

i kpubhc , tlie question arises: Did the Plihppines achieve independent statehood on i xc ! 2, 1 S08?

* . 1 lie creauom of any state is evaluated on the basis solely of the cleriients of statehood as defined by the i\Lontevzaeo Convention: a permanent populauon, a defined territory, n government, and capacity to engage in formal relations with others”. On

458 PHILIPPINE LAW JOURNAL P O L . 77

the basis of hstorical accounts, the Phlppines satisfied all such criteria by December 18, 1898, if not in fact sooner than such a dateas.

The controversial issue is I d the Phhppmes already have the capacity to enter mto relauons with other nauons on December 18, 1898> Thls acqutres significance p e n that no less than Apohario Mabm, the acknowledged brams of the Phhppme Revolutton, acknowledged that amongst the avowed goals of the Revoluuonary Government was to seek the recogmuon of other countnesH6

Recoption, at one point, was considered to be an element of statehood*’. This debate, however, has since been resolved in favor of the view that recognition is not an element of statehood and is merely declaratory in nature8”.

Consequently, the Phhppmes, by December 18, 1898, need not show proof of recogninon by other nauons In any case, the number of countnes represented in the annual uzn de honor held on the occasion of the country’s mdependence day on June 12 of every year, mcludmg the attendance of the Ambassadors and officials from the Netherlands, S p m , Indonesia, and the Umted States, should be sufficient proof of recogmuon - that mdeed, on June 12, 1898, the Phhppmes acqulred mdependence and statehood

That the Americans were keenly aware of the existence of a new independent State of the Phhppmes, and the fact that S p m had lost its utle to the archipelago as of the tune of signing of the Treaty of Pans, are well documented In fact, it was because of these considerauons that Amencan pohcy makers had to htde theK mpenahsuc agenda to appease those who were opposed to the annexauon of an independent nation

cstcmal plane with other States - either directly (in the case of fully sovereign independent States) or mediately, through other states (in the case of protected states).”

R F Cols1’.4N.nr;o, rwpru notes 80, 81. 84 CONX%NTINO, swpru note 80, at 128. n7 H. LILTERPACHT, RECOGNITION IN INTERNATIONALLAW at 52-58 (1947).

R. Y . JENNINGS, Gcncrnl~urrc on Pnnaphr o/In/crnatiomd Law, 121 HAGUE RECUEIL 323, 349- 368, Scc ofro CHEN, THE INTERNATIONAL LAW OF RECOGNITION 18, n.41 (1951). Chen explans that the declaratory view of State recogrution is grounded on the positivist doctrine of sovereignty of States.

8y CONSTANTTNO, sqru note 80. “Admiral Dewey was pleased afterwards, he wrote in hus autobiography: The Filipinos drove the Spaniards back toward the city. By day, we could see their attacks, and by night we heard their firing. The insurgents fought well.. . Their success, I think, was of rnatenal importance in isolating our marine force at Cavite from Spanish attack and in preparing a foothold for our troops when they should arrive”’

20031 PAL~LIS ARBITRATION REVISITED 459

in long those \rho vigorously opposed the annexanon of the Pluhppine Rcpubhc by the United States was Republtcan Senator George Frisbie Hoar

"under thc Declaratlon of Independence vou cannot govern . I foreign ternton, a foieign people, another people other than !our own , that you cmnot subjugate them or govern them against their \till, Iiecausc you think i t xs for their good when they d o not, hec'iuse T 011 lie going to g v e them the blessings of hbertv 91''

Such opposition prompted the US Congress to esplam its mtentlons

"Resolved, That by rahfic:ihon . . . . i t is not intended to incoiporate the in1iabit:ints of said Islaiids into citizenship of the Unitrd states, nor is i t intcndcd to permmently annex s:tid !slands. ..')2"

c. NON-TRANSFERABILITY OF ARBITRAL AW'MDS

I t is a cardllial rule in arbitration that coiisent freely given is the core for any .i.i-bitratinii'" Arlxtrnl awards are therefore only binding on States that agreed t o the . i r l~ i t ra t i~ i i '4. Since the I'h&ppines, at the uxne a n independent State already, xrns iiot

1i:irty t r the Pahiins Arbitrauon, it follows then that it cannot be ma& wbjcct to thc I-Iuber decisioii ')5

Even assuimng for the sake o f arbwment, that the Pluhppines ma! be held the successor state of the United States to Palmas and the entire Philippine

:ticliipelago as ceded to it by Spain in the Treaty of Paris, stlll it would not $.~,oj i~, to rvsult in' the I-'h&ppines' succession to the obligatlons of US.

'The matter, furthermore, is governed by the eslsung mternauonal law i ioims o n State Syccession Under esistlng norms, successor states d o not

460 PHILIPPINE L;ZW JOURNAL P O L . 77

automatically succeed to the rights, capacities, and obhgations of thelr predecessor statesg6.

Recent state practices, including that of the recently unified Germany and the rise of new states from the former Yugoslavia, prove that States are at liberty to choose which obligations, treaty based or otherwise, they wdl succeed to.

There has yet been no officlal acknowledgement from the government of the Phhppmes that it has opted to succeed the United States in the Palmas arbitrauon On the contrary, all its laws and Consutuuons, define the territory of the Phhppines on the basis of hstorical utle, mcludlng the metes and bounds as contalned m the Treaty of Paris97 There is also nothlng m the Treaty Between the Phihppines and the Umted States preparatory to the latter’s a t t a m e n t of independence that would indicate that the former agreed to succeed the latter on the Palmas arbitration \Xihat was supulated between them was only that

“The Republic of the Phhppines agrees to assume all continuing obligations assumed by the United States of America under the Treaty of Peace between the United States of America and Spain concluded at Paris on the loth day of December, 1898, by which the Phhppine Islands were ceded to the United States of America, and under the Treaty between the United States of America and Spain concluded a t Washmgton the 7‘” day of November, 1900””.

The fact that the Treaty of Paris is recognized as defming the territory of the country does not g v e the supposed cession for which it was signed any r ecop t ion . Instead, the treaty only serves as evidence on the actual boundaries of the country as defined by its former colonial master.

Under the principle of utzposseditir, w h c h was applied in such cases as the Mali-Burkina Faso case, the Gumea Bissau v. Senegal case, and the Guinea-Guinea- Bissau Maritime D e h t a t i o n case, colonial boundaries, for reasons of stabhty and finality of frontiers, should not be challenged.

‘)O D. P. O’CONNEL, STATE SUCCESSION IN MUNICIPAL LAW AND INTERNATIONAL LAW [vok. I and 111 (1967); See d o D. 1’. O’CONNELL, Reant Problems o/Siu& Sumsrion i n nhtion to New S U s , 130 I-IAGUE IIt:CL’l3L 95-206 (1970); See uho KARL ZEMANEK, Slorr Swccrrrion 4icr Decoloniylion, 116 HAGUE RECUEIL. 187- 300 (1965); See ulso ERIK 1 . S. C h S I R W , &cis Rean0 dr la Svcession 7 8 HAGUE RECUEIL 379-506 (1951); jI:hSlNGS, supu note 88 at 437-451.

97 CONST.. 3rt. 1. ’)* Treaty of General Relations Between the United States of America and the Republic of the

I’lulippines, July 4, 1946, United States -Philippines, 7 U.N.T.S. NO. 88. at An. VII.

20031 PALMAS ARBITRATION REVISITED 46 1

Assuming that Indonesia successfully argues that the arbitration is bindmg on the Pldppines, it is sull estopped from claimkg that Palmas forms part of the Indonesian Archpelago because unltke the Americans, the Dutch never alleged thts m the Palmas arbitration99.

At the most, Indonesia may be r e c o w e d to have soveragnty over the iiland by vfitue of the Palmas arbitranon and pursuant to the UNCLOS, the island mav be “enclaved“)”” and given its own terntonal seal01 Any other arrangement would be contrary to the UNCLOS and would lead to a &spropomonate and inequitable result

The surroundmg waters, therefore, even under the best scenario for the Indonesians, should s t d be declared as forming part of P u p p i n e archpelagc and terr i tod waters102.

111. CONCLUSION

The Palmas arbitranon is, on the basis of cntlcisms made by the most quahfied pubhcists, at best defectwe, and at worse, erroneous Pursuant to the prmciple of autonomy of parues, the arbitrauon is bmdmg only on the partles thereto. the Netherlands, and the Umted States. In any case, the Puppmes , as a non-party to the arbitranon, cannot be bound by the arbitral award

Neither may it be said that the award is blndmg on the Phhppmes as successor state of Umted States for at least two reasons one, at the m e of the arbitranon, the Umted States had no mterest over the island of Palmas, nor to any of the islands comprismg the Phhppme archpelago Smce the United States clam its tlltle to the Phhppmes on the basis of cession, it can acqure only such rights that its

w .See Dutch Memorandum and Counter-Memorandum to the Island of Palmas (or Miangas) Arbitration.

‘Otl Since the Dutch never clamed Palmas to be part of an archipelago, it should be treated as an ialnnd under art 121(1) of the UNCLOS, which provtdes that “An island is a naturally formed area of land, surrounded b y water, u h c h is above u-ater at h g h tide.” If it cannot support “human habitahon” or ‘‘cconomic hfe o f its own,” it can only have its own terntonal sea, without an exclusive economic zone, under arc 121 (2 ) and (3) of the UNCLOS. Enclavement was applied by the ICJ m the case of Minquers and Pkrchos, as well as by the PCA in the Entrea-Yemen arbitration.

101 [d ” ’? Pursuant to art 310 of thr UNCLOS. the Phihppines declared that its signing the Convcntion

no: in m y \VL\ impair or prepdlce :he sovereign nghts of the country under and ansmg from the rirution ( I F rhe I’iuLppines. Jee \’I1 PtllL. Y. IhTl,. L 30 (1982). Dean MerLn Magallona o f the Uni\.erslp

i ’ l c i’iulippines niamtams that the boundaries contamed in the Treaty of Paris are sull the basis of thr mmtirne t c r r i t q of the Phlippmes. See MERL.IN MAGALLONA, Tk LIN Conwnjion on fhc Law ofthe Seu and i j r

hnphaiiiionns on ‘Iknilu?iui Suien&n,, VIII ’THE 1,AWYERS REVIEW 2 (1 994)

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462 PHILIPPINE L iw JOURNAL p o L . 77

predecessor had in the archipelago. Since Spain no longer had title to the Philippines at the time of the cession, it follows that its successor-in-interest acquired the same title it had over the country: that is, none. Second, there is nothmg, to date, to show that the Pldippines has agreed to succeed the United States in the arbitral award.

Assuming, for the sake of argument that Indonesia’s title to Palmas is beyond dispute because of the Palmas arbitration, it does not, however, justify Indonesia’s act in its 1992 baselines law uthzing the island as a base point for the drawing of its archipelagc baselines. Thls is because Indonesia’s predecessor-in- interest, Netherlands, did not allege, in the Palmas arbitration, that the island formed part of the Indonesian archipelago. Accordingly, Palmas should be treated as an island independent of the Indonesian archipelago and properly enclaved.