PALMAS ARBITRATION REVISITED

H. H a y L Roquelr.
I. INTRODUCTION
I n 1994, the Phhppines and Indonesia held its first ever Senior Officials
Meeting on the Dektati on 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
Pl dppi nes 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 dehted on the basis of the medan h e
principle;
c) The two delegations, copzant 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
L3 wn 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 of Discussion, rupm note 1 .
437
438 PHILIPPINE LAW J OURNAL [VOL. 77
On 20 December 2002, the T bd Meeting of the Pldppine Indonesian
J oint 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 Indonesias straight archipelagc baselines.8 This
provision emphatically contradicts Indonesias 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 dehti ng 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 Indonesias 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 islands 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 Forri p Affairs, Ihilippines to the
llcparcmcnt of 1:orcibmAffairs 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 J oint Commission for Bilateral Coopcration (December 20, 2002) (on file with UP 1115).
Minutes of the T h d Meeting of the lhilippine-Indonesian J oint Commission for Bilateral
(:odpcrntion. llcccmbcr 20-21, 2002, Manila, Philippines.
Ihc head of the Ihlippine Iancl, 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 to the
!hlllppinc dclcgation in J akarta, Indonesia.
.\rt. 17, UNC1,OS. 1. An archipelagic stzte may draw straight archipelagic baselines joining tlic
wtci-most points of 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 swey 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 terri 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 . INTL 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 Al B 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 I t 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 J uly 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 t he occupation.
Sovereignty Over Wau Lqm and Puhu S i (Indonesia v. Malaysia), INTL COURT OF
jU!illCF., 17 necember m2
l 1
430 PHILIPPINE Liw J OUFN~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
maj or populanon centers, industrial zones, and the ports of A ht 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, mahg 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 Puppi nes 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 gwn is an estimate based on thc proposed project area.
I ' l i r i ti h I ~l ydro<pphc Dcpartmcnt, Occan I'nssagcs for the World at 123 (1087)
' I i:, \rt 47, Umted N'auons Convcntion on the Law of the Sea J UNCLOS)
'
IlAWh W D DIXERSTEIS, The Global 200 llcprcscntation .\pproach to Conxnmg the I Sarth'r
wci h \-a!uable Ecoregons, Conacnauon Biolop [ v 11, no. 31 at 501-515 (199X) .Ccc di n I<7
I 1. \I,iritinic jurisdiction and Total hl annr Catch (Alorgan and I'dtncid. cds.) (19x3).
' ; I I I,-\\' \M., I'OU El<1'1..\1 I 'l 'l ~.CI 1h01,0GY (hlcGra\v HI!! Intl 13) J t 027-667 (I Sf 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 I nl es 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. Woods 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,
fi e Arbitration of Dlfferences Respectmg Sovereignty Over the Island of 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 RELATI ONS
UKI VEE> 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 I I LS}).
z .-iffidant of Major General Wood (July 27, 1925) i n 1 LAS PALhills ARBITILITION RECORDS (on
Llc with the U P I I LS).
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 . INTL L. 867, 872 (1928).
(October 17, 1%K) i n 1 LN: P.ALUAS ARBITIL4llON RECORDS (on fde with the UP IILS).
442 PHILIPPINE L i w J OCRV;\L F OL . 77
\.vas not Iusufied owing to the trifing value of the island.? I t was even admitted
that rhc iiiattcr has been delayed because this Government [the US Government)
112s not been persistent. The 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 I inericaiis 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 inthe island 25
1111s illciderit was widely reported in the American media and proinpted at
1~15[ o~i c S,ciiaror to inqulre on the veracity of tlie report from h e State
I )q>,ni i nci i i 21, ~llic 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
liic ~\iiiericaii claim ro the island \vas summarized as fol l ows Zx
1. That the island hes well nithln the demarcation of ,irtlcle
i of the Treay 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 hn to nny of the smaller islands of the Dutch ;irchipelago;
3 That the island IS well wthin the hinits marked by the Bull
of .ilcxnnder G1I1 dated hiay 4, 1491;
4. That the island is well within the limits of the agreement
concliided in J ul 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 J esuit 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 des 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 Spi n lagation asking for confirmation that
Spmish pnboat s 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 ARBITKAflON l&X>RDS (on file with the U1 IIIAJ.
Ixttcr to hfr. W. C. Burdett, Amcncan Consul in Seville. Spain on the results of an investiptlon
mt o ducumcnts csistlng in the General Archives of .kville, (April (I, 1925) in 2 l , . ~s l;\l.\f,\s Awi 7 m r i m
111. ~01t t h (<)n tile with the LIP 111S).
I Note from the Netherlands hlinisty o f Forri p Affars t o the he 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 ~ECOI UX (on tile wi t h the UP I I J S).
444 PHILIPPINE LAW JOURN.$L POL . 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 inthe 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 J usuce (PCIJ ) because the
Lnited States was not a member of the League of Natlons and consequently, of the
PCI j The case should have been ideally brought to the PCIJ because it involved
iiiternauoiial law The Americans beheved however that die PCIJ mght be biased
xqainst the US because the court was based at The Hague and headed by a Dutch
,-?n Why 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 J uly 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 J ustice, 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 ed to the
submssion of Memorandums and Counter-Memorandums.40
The legal lurmnary Phhp J essup, 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 al l epg4 Worse, J essup
inamtauled, the Americans and the Dutch had a different constructton of the
requisite hIemorandum Consistent with modern forms of summary procedure, the
31 lelegrarn 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 to the Secretary of State (April 25, 1925) In 2 LAS PALMAS ARBITRATION RECORDS (on file
with the UP IILS).
36 I rtter to the Secretary of State (August 20, 1925) i n 2 LAS PALMAS ARBITRATION mC0RDS (on
ilk \ wh the U1 I I I S). Unfortunately, the writer of the letter has not been identified. Nonetheless, the warmng
asmist thc appomtrnent of Huber reads: I f the naming of an arbitrator in the island of P al m case is to be
mndc by the Ircsident of Switzerland, and if he names a Swiss, which he undoubtedly will, he will be lirmted to
S\viss rncrnbcrs on the Haby 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. J anuary 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, or 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 suP, Thr Puhur IrIrrndAddrufion, 22 A m J . Intl. I, 735, 749 (1928).
4 1 J L;ssL;I, rnpm note 39, at 736, 749.
Arbitration Trcaty, snpm note 37, at Art. 11.
446 PHILIPPINE Liw J O~RNA L
Americans submitted all their arguments to the island, as well as thek evidence, by
x- ay 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 J essup was that the Dutch never attached any of thelr alleged
documentary evidence to prove their claims, as they merely undertook to produce
r hem upon request of the
Ilic American panel regstered its objectlon on the manner by which the
i htch palie1 wanted to prove its allegatlons, i e , by way of hindsight and not up
front i he I htch posiuon was nevertheless suspiciously sustained by I Iuber when he
1Ul Ci 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 at 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 bJ r~thcrlands. He asked them to explain the weakness in their arguments as
p(-m tcd out i n the American Counter-hl emorand~m.~5 The Americans objected to
[I ,i i > . <ni l l .
coiild i i ot Iin-e been expected to sustain the Americans objectton arid in effect-
question the pt-opriety of his own acts.
I iut since the Arbitrator was the sole J udge of questions on procedure, lie
hlodein day htlgators would probably not be surprised therefore that i luber
~nai decl the Palrnas Island in favor of The Netherlands His decision, despite the
l i trl e Lnown critmbms on the procedural aspects of the arbitrauon, would later on
hcco~i i c requued leading for all students of Public Internauonal Law, parucularlF on
~ l i ~ topic of territorial jurisdicuon The Huber decision would also be invohcd TS n
2 j t s SCP, rnpru note 39, at 749.
4 .\rbitr,ition Award, .rupru notr 17, at 878.
li I I X CI , iupru note 39, at 751.
3 - I d
20031 PA 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 uhg that discovery per
be, as mvoked by the Americans, gives rise only to an inchoate nght whch 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
Ai rode 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 wi th the local rulers and
tribesmen of the island:
In the opmion of the Arbitrator, The Netherlands has
succeeded i n 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
wt 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 whch cite as doctrine the I luber decision are thc I rpl Starus of
l,:.i>wm C;rccnland (I l enmark v. Nonvay).lCl! Scrics A/ H No. 43 (1933), and I-Srirrca-Ymcn :\rbltratlon (Casc
(hccrni ng ].and, Island. and htaritime [:ronticrs l>ispute), K.\, October 9, 1W8.
: :\rbitration Award, wpru iiotc 17, at 884.
448 PHILIPPINE LAW J OURNAL [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 111a
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 Iubers use for the f i st time of the concepts of inter-temporal
~A W ai d critical date, was precedent-setting and has since been often cited by the
I (;], arbitral bodies, and other htigants to support thek arguments.
I ntei-temporal law is the rule that where different legal rules esisted over a
period of time, both the lule at the creatlon of the right and at the tlme of it5 escrcisc
Iiiut 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 ts 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. I t 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, nt 910.
j 2 .\rhtr.mon Award, wpru note 17, at 912
i l Id
450 PHILIPPINE L ~w J OURNAL POL . 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 arise53.
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 prues 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~tl i ui g 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 J essup had stingrng criticisms not only on the
procedural aspect of the arbitration, but also on the substantive aspects of the award.
I n particular, he described as a n~n-sequi tur~~ 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\INLIE, ~ R~ NCl Pl J ~ S IURLIC 01; ~ &l l 3 W~ Vl l ON. ~ L LAN 128 (1998)
Jl;SSUP, wpru note 39, at 730. See ulrn Lxttcr from Laurence Martin, Chief of Maps, I hraty of
(:oiiycss (lanuar). 22, 1026). in 2 I.AS PAI.MAS ARBIIRAI1ON RECOllDS (on file with the UP 1IL.S). whcrc he
citcd Icbbing \Vubhns article entitled Die Nanusa Lnsels wtuch said In conclusion, I note that the Meangs
I sl ands d~not mist and are apparently confuscd with certain of the Nenusa islands.
30031 P ; \ L ~s ARBITR;\?ION RETISITED
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 \di ether a c1i;inge in the law has necessitated, as I t were, a
rc:icqulsltlon. I f such a pnnciple were to be applied to private law and
private titles, the result would be chao~.~
J essups 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 of subsequent acts esecuted over a long period of time from the incipient
cuiic of discovery.
1 Iubers 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 J essups example, states utle to
rci-1-irory acquired as a rcsult of conquest is not zpmfhto extinguished as a result uf the
rise of the contemporary norm forbidding the use of force in the conduct of
iiitcrnatiorial relauons.
J C SSL I ~ had othrr criticisms of the Palmas award, one of the most significant
.i i i issiic of fact, \l-hich appears to ha\-e been overlooked. The Americans argued
d on historical data, the Dutch have always referred to Palma? as AllImc,;2~-
, :\ft?qqi .! mil >~f w~~J . r . L%u these names have also been used to refer to
ihc ?.J cnusa 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
oi i c o f the Nenusa lslaiids wluch admittedly belong to them. J essup 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 Hubers findings that the American panel failed to
::lion. evidence proving effective occupation of the islands by either Spain or the
T.iiitcd States. J essup called attention to the Americans argument: there being a
~: I L I C I L V of el-idencc of actual Spanish exercise of authority on Palmas island, it is
proper to take into account the fact that ths island is one part of the geographical
ti i i i t known as the Phhppine archipelago. J essup insisted that Spains title over the
archipelago is clear and in the absence of contrary evidence, it must be assumed that
452 PHILIPPINE LAW J OURNAL POL . 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 al l 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 J essup.
Clearly, Huber was of the opinion that specific evidence had to be
presented. The Dutch agent did this. To debunk the Americans 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
j Y IFSUP, r p i note 39, at 742.
60> LhS PAUL AS .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) i n 2 LAS PAWS ARBITFL4TION RECORDS (on file with the UP I I LS).
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 ahi s was beyond the
:!iguniciit of (lie Americans that the island forms part of the Phhppine archipelago.
(.~oiiscclueiitl\., both the Americans and the Dutch, in his mnd, had to prove
cffcct I Y C occupation of the island.
L l l f t c L ~ ~iorial \xiters of ci thci t he Philipplr,es or 1ndcnesia.GjHe blatantly ignored thc
i ~!L i kr rclectcd the conuguity theon based solely on the alleged lnck of :I
r ~, <I L KC mlc that such a theory is recognized in international law.66 There was on
:;in.ic>us lii-:it,incy on his pxt to establish a precedent on ths matter, despite the fact
thn! Jic \\:oidd later 011 establish two revolutionary and precedent-setting nilings cn
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
i n 311effective occupation of all the islands comprising the unit. It was pointed out
i n rhe American memorandum6' and later on by J essup,68 that Venezuela, in tlic
British Guiana Boundary Arbitration, already raised the proposition that occupation
to 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
pxts 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. nh~cl 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 J ustice would expressly
recogiiizc the existence of 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 possessi o~~ 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 J essup m 1928 could
be disrmssed as biased As an American, he would understandably be dspleased with
an award rendered agamst hs own state But Assistant Professor P u p J essup would
later on become one of the most emment pubhcists m Internatlonal Law, a stature
which would c uhat e with hs appomtment as a J udge of the Internauonal Court
of J usuce
Given the various and irreconulable points of disagreements whch J essup
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
I n any case, J essup was not alone in hs 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 contl pty 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 t hmas 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 conupty 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 hni sh coli)rucs in (;reenland and that Danish sovereignty extended no further than the limits of these
colonics
Even i f the pen4 from 1921 to J uly 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 an extcnt
7 Statute of the International Court of J ushce, 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 detcmnati on of mles of law.
suificlcnt to Co1~SUtute a valid trtle to sovereignty.
71 Hearsh I,autcrpacht, .Ymentjyz~ OwSwhmuri nr Anur, 1950 BRIT. Y.H. INTLL 376.
P.ILLL\S .ARBITRITION REVISITED
455
to choose bcawcn conti;guty :Ind effectiveness of 0ccupai:on.
Coi i ti gi i i ~ in sccii c.ises in,!!. be xi essential condition which gives rise
to rlic only elcment of substaticc to such othenvise abstract
occupation. In that sense contiguity IS :I factor more potent.z
OConnell, 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 I sland than Spain that it was adjudged entitled?73
Clearl!., at least on the issue of effectiveness, the Legal Status of Grcenland
CL 3s KCU as the later C/+7,bUtOJZ ~~lrbitrufiot~,~~ have established the rule that tribunals
li3\ e been sausfied with v ei ~ httle in the way of actual exercise of sovereign rights,
lirwided that i n 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 Hubers
denial. This theory, supported with even token evidence of effective occupation,
~T CI I the mere raising of the Spanish flag, should have been enough basis for the
an.,iril of the Palinas Island i n favor of the United States.
B. STANDI NG TO ARBITRATE
Independent of the substantwe and procedural aspects of the Huber Award,
serious quesuons now need to be askcd on 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 Spains cession of the entire
I~liilippine archipelago to the United States through the Treaty of Paris on December
10. 189s -(,
K1i:lc cession \\-as then, and mid nmv, recognized as a mode for acquisiuon
(uf teiritorial soxrei pty, i t is subject to the hi tati on that ones title is only as good
456 PHILIPPINE LAW J OURNAL POL . 77
as the title of ones 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 recowed by all countries of the world, celebrates its
Independence Day on J une 12, 1898,790r almost 6 months prior to the Treaty of
Paris. On that day, Gen. E d o A pal do, 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 J une 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.
Puppi ne 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 I 1 TI<:\NSACTIOhS 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 Chanpg the Date of Philippine Independence Day
from july Four to J une Twelve, and Declaring July Four as PhiLppine Republic Day, further amending for the
purpozc Section lwenty 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 J une, 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 J udge 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 war of liberation. On their own,
without the help of any 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 ~i 1l cg;i nce.~~
.inother historian corroboratcd the foregoing when he observed that in
J ;i i i uai ~ 1599.
Excluding the town of hlanil;~ mid the town of Cavite which
\r-ere occupied by .lnierican troops, ;ind excluding tlie southern nnd
~cst er n part of the islnnd of hlindaiiao and other lesser islmds, the
\\:hole of the Philippine :ircliipelngo \ ms 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- of Pari s,
Spai n no longer had title to the Phhppi ne Archipelago. Consequcntly, Spain
rr;insfeerrecl nothing to (lie I!nitcd States.
Furtherinorc, Spain could not halve legally ceded the island of Pahi i as, 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 J une 12,
1393, before the signing of the Treaty of Paris.
. Because of such declarattnn of independence and establishment of ;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 POL . 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 en 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
Recopti on, 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 countrys mdependence day on
J une 12 of every year, mcludmg the attendance of the Ambassadors and officials
from the Netherlands, Spm, Indonesia, and the Umted States, should be sufficient
proof of recogmuon - that mdeed, on J une 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 Spm had lost its utle to the
archipelago as of the tune of signing of the Treaty of Pans, are well documented I n
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. J ENNI NGS, 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~LI S ARBITRATION REVISITED 459
i nl ong 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 do not, hec'iuse
T 011 lie going to gve 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 to the
.i rl ~i trati ~i i '4. Since the I'h&ppines, at the uxnean independent State already, xrns iiot
1i:irty t r the Pahiins Arbitrauon, it follows then that it cannot be ma& wbj cct to
thc I-Iuber decisioii ')5
Even assuimng for the sake of 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 ~, t o
rvsult in' the I-'h&ppines' succession to the obligatlons of US.
'The matter, furthermore, is governed by the eslsung mternauonal law
i i oi ms on State Syccession Under esistlng norms, successor states do not
460 PHILIPPINE L;ZW J OURNAL POL . 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 latters attament 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 at 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 gve the supposed cession for which it was signed any
recopti on. 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, whch was applied in such cases as the
Mali-Burkina Faso case, the Gumea Bissau v. Senegal case, and the Guinea-Guinea-
Bissau Maritime Dehtati on case, colonial boundaries, for reasons of stabhty and
finality of frontiers, should not be challenged.
)O D. P. OCONNEL, STATE SUCCESSION IN MUNICIPAL LAW AND INTERNATIONAL LAW [vok. I
and 111(1967); See d o D. 1. OCONNELL, Reant Problems o/Siu& Sumsri on i n nhtion to New S Us , 130 I-IAGUE
IIt:CLl3L 95-206 (1970); See uho KARL ZEMANEK, Slorr Swccrrrion 4i cr Decoloniylion, 116 HAGUE RECUEIL. 187-
300 (1965); See ulso ERIK 1. S. ChSI RW, &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
Ilulippines, 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 recowed 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 std be declared as forming part of Puppi ne archpelagc and
terri 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 by water, uhch is above u-ater at hgh tide. I f it cannot support human habitahon or
cconomic hfe of its own, i t 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 IiuLppines. J ee \I1 PtllL. Y. IhTl,. L 30 (1982). Dean MerLn Magallona of the Uni\.erslp
i l c iiulippines niamtams that the boundaries contamed in the Treaty of Paris are sull the basis of thr
mmtirne tcrri tq 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)
- ,
462 PHILIPPINE L i w J OURNAL po 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 Indonesias title to Palmas is
beyond dispute because of the Palmas arbitration, it does not, however, justify
Indonesias act in its 1992 baselines law uthzing the island as a base point for the
drawing of its archipelagc baselines. Thls is because Indonesias 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.