Island of Palmas (Netherlands v.

US) (1928)
Concepts: State Territorial Sovereignty
Disputing States: Netherlands and USA
Brief Facts: Both the United States and the Netherlands laid claim to the ownership of the Island
of Palmas. While the U.S. (maintained that it was part of the Philippines, the Netherlands
claimed it as part of their territories in the East Indies. The claim of the U.S. was back up with the
fact that the islands had been ceded by Spain by the Treaty of Paris in 1898, and as successor
to the rights of Spain over the Philippines, it based its claim of title in the first place on discovery.
On the other hand, the Netherlands claimed to have possessed and exercised rights of
sovereignty over the island from 1677 or earlier to the present.

Doctrine: A title that is inchoate cannot prevail over a definite title found on the continuous
and peaceful display of sovereignty.

FACTS:
1. The island of Palmas is a single, isolated island which lies about half way between Cape
San Agustin (Mindanao, PH) and the most northerly island of the Nanusa group
(Netherlands East Indies.
2. The origin of the dispute was the visit to the island by Gen. Leonard Wood, who was then
the Governor of the Province of Moro.
3. The visit led to the statement by the US that the Island of Palmas (or Miangas) is
undoubtedly included in the archipelago known as the Philippine Islands, as delimited by
the Treaty of Paris, which Spain ceded in favor of the US.
4. Netherlands also claimed sovereignty over the island and considered it as forming part of
the territory of their possessions in the East Indies.

US Arguments:
- The US, as successor to the rights of Spain over the Philippines, bases its title on discovery.
- The existence of such sovereignty is confirmed not merely by cartographers and authors,
but also by treaty, in particular by the Treaty of Munster of 1648, to which Spain and the
Netherlands are themselves Contracting parties.
- Nothing has occurred of a nature, in international law, to cause the acquired title to
disappear. As such, this title was intact when, by way of the Treaty of Paris, Spain ceded
the PH to the US.
- The island was within the lines traced by the Treaty of Paris
- It is unnecessary to establish facts showing the actual display of sovereignty over Palmas.
- The island of Palmas forms a geographical part of the Philippine group and, in virtue of the
principle of contiguity, it belongs to the Power having the sovereignty over the Philippines.

The Netherlands contentions:

- The fact of discovery by Spain is not proved, nor yet any other form of acquisition, and
even if Spain had at any moment had a title, such title had been lost.
- It, represented for this purpose in first period of colonization by the East India Company,
have possessed and exercised rights of sovereignty from 1677.
- The sovereignty arose out of conventions entered into with native princes of the Island of
Sangi (the main island of the Talautse) establishing the sovereignty of the Netherlands over
the territories of these princes.

Sovereignty in its relation to territory:

- Sovereignty in relation to a portion of the surface of the globe is the legal condition
necessary for the inclusion of such portion in the territory of any particular State.
Sovereignty in relation to territory is called territorial sovereignty.
- Sovereignty in the relations between States signifies independence. Independence in
regard to a portion of the globe is the right to exercise therein, to the exclusion of any
other State, the functions of a State.
- Territorial sovereignty belongs always to one, or in exceptional circumstances to several
States, to the exclusion of all others.
- Territorial sovereignty is, in general, a situation recognized and delimited in space, either by
so-called
o natural frontiers as recognized by international law or
o by outward signs of delimitation that are undisputed, or else
 o by legal engagements entered into between interested neighbors such as frontier
conventions, or
o by acts of recognition of States within fixed boundaries.
- If a dispute arises as to the sovereignty over a portion of territory, it is customary to
o examine which of the States claiming sovereignty possesses title cession, conquest,
occupation, etc. superior to which the other State might possibly bring forward
against it.
- However, 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;
o it must also be shown that the territorial sovereignty has continued to exist and did
exist at the moment which for the decision of the dispute must be considered critical.
- The continuous and peaceful display of territorial sovereignty (peaceful in relation to other
States) is as good as title.
- International law cannot be presumed to reduce a right such as territorial sovereignty, with
which almost all international relations are bound up, to the category of an abstract right,
without concrete manifestations.

ISSUES: WON an inchoate title prevail over a definite title found on the continuous and
peaceful display of sovereignty (NO)

RULING & RATIO: An inchoate title could not prevail over the continuous and peaceful display
of authority by another State; for such display may prevail even over a prior, definitive title put
forward by another State.
On title based on Discovery:
- US bases its title on discovery, alleging that it was Spain which first discovered the island in
the 16th century. As such, Spain had sovereignty over the island when it ceded it to the US
by virtue of the Treaty of Paris.
- However, such discovery was not proven.
o No mention is made or of contact with natives and
o no signs of taking possession or of administration by Spain have been
shown or even alleged to exist. Until 1919.
- Discovery alone, without any subsequent act, cannot suffice to prove sovereignty. It does
not create a definite title of sovereignty, but only an inchoate title.
- An inchoate title of discovery must be completed within a reasonable period by the
effective occupation of the region claimed to be discovered.
- In the present case, no act of occupation or any exercise of sovereignty at Palmas by
Spain has been alleged. But even admitting that the Spanish title still existed inchoate at
the time of the Treaty, an inchoate title could not prevail over the continuous and peaceful
display of authority by another State; for such display may prevail even over a prior,
definitive title put forward by another State.

On title because of recognition by Treaty:

- US claims that the Treaty of Munster, entered into by Spain and the Netherlands in 1648
already dealt with the territorial relations between the two countries in the East and West
Indies.
- However, the articles use the notions tenir (hold) and posseder (posses) which it is
hardly possible to comprise within these terms the right arising out of mere discovery i.e.
out of the fact that the island had been sighted.
- If title arising from discovery, well-known and already a matter of controversy at the period
in question, were meant to be recognized by the treaty, it would probably have been
mentioned in express terms.

On 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 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
forma (nearest continent or island of considerable size)
- The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in
international law.
- The principle of contiguity, as a rule establishing ipso jure the presumption in favor of a
particular State, would be in conflict with what has been said as to territorial sovereignty
 and as to the necessary relation between the right to exclude other States from a region
and the duty to display therein the activities of a State.
- Nor is this principle admissible as a legal method of deciding questions of territorial
sovereignty for it is wholly lacking in precision and would in its application lead to arbitrary
results.
- This would be especially true in the case at bar wherein the island is not relatively close to
one single continent but forms part of a large archipelago in which strict delimitations
between the different parts are not naturally obvious.
- The fact that a State cannot prove display of sovereignty as regards such a portion of
territory cannot forthwith be interpreted as showing that sovereignty is inexistent. However,
we must distinguish between the act of first taking possession, which can hardly extend to
every portion of territory, and the display of sovereignty as a continuous and prolonged
manifestation which must make itself felt through the whole territory.
- In the case at bar, the inability of the US to indicate any acts of public administration by
Spain makes it difficult to imagine the actual display of sovereignty.

On the Netherlands claim:

- The Dutch contend that the East India Company established Dutch sovereignty over the
island of Palmas as early as the 17th century, by means of conventions with the princes of
Tabukan and Taruna, of the island Sangi, and that sovereignty has been displayed during
the past two centuries.
- These successive contracts are all based on the conception that the prince receives his
principality as a fief of the Company or the Dutch Sate, which is suzerain (feudal lord)
- Even the oldest contract, dated 1677, contains clauses binding the vassals of the East India
Company to refuse to admit the nationals of other States, in particular Spain, into his
territories.
- As such, if both Spain and the Netherlands had in reality displayed their sovereignty over
Palmas, it would seem that collisions between the two powers must almost inevitably have
occurred.
- The fact that these contracts were renewed from time to time appears to indicate an
extension of the influence of the suzerain and seems to show that the regime of suzerainty
has been effective.
- If the claim to sovereignty is based on the continuous and peaceful display of State
authority, the fact of such display must be shown precisely in relation to the disputed
territory. What is essential is the continuous and peaceful display of actual power in the
contested region.
- The most important fact to be considered is the existence of documentary evidence as to
the taxation of the people of Palmas by the Dutch authorities.
o While in earlier times the tribute was paid in mats, rice and other objects, it
was in conformity with the contract with Taruna of 1885, replaced by a
capitation tax, to be paid in money.
o The people of Melangis paid their tax by selling products on the larger
islands and thus getting the money with which the new tax was to be paid.
The effective payment of the tax is likewise confirmed by the commander
of H.M.S. Edi in a report dated June 1898.
- It was also found that a coat of arms was delivered to the administrator of Melangis in 1896
as a sign of sovereignty by the Netherlands.
o Such coat of arms was found in good condition by H.M.S. Edi in its visit in
1898 and was proved by sketches made by officers of the Dutch ships.
- It is also to be noted that there is no essential difference between the relations of the Dutch
authorities and the island of Palmas before and after the Treaty of Paris. The system of
taxation, as shown by the tables of the years 1904 and 1905, is the same as instituted in
1895.
- It is also noted that the Dutch extended assistance after the island was hit by a typhoon in
October 1904.
- No contestation or protest against the exercise of territorial rights by the Netherlands over
the Sangi Isles and their dependencies (Palmas included) has been recorded.
- The peaceful character of the display of the Netherlands sovereignty for the entire period
(1700-1906) is admitted.
- There is also no evidence which would establish any act of display of sovereignty over the
island by Spain or another Power, an indirect proof of the exclusive display of Netherlands
sovereignty.
- An inchoate title based on display of State authority- the flag and coat of arms- would
prevail over an inchoate title derived from discovery, especially if the latter title has been
left for a very long time without completion by occupation.

Minquiers and Ecrehos (1953)

States-Parties: UK and France
Concept: Territorial Sovereignty

Brief Facts: The UK and France are both alleging sovereignty over the islands of Minquiers and
Ecrehos.

Doctrine: Aside from possession of territories, The Court attaches probative value to the acts
which relate to the exercise of jurisdiction and local administration and to legislation. These
include the exercise of criminal jurisdiction, acts of registration, and legislation (by the
enactment of the British Treasury Warrant of 1875, which was a clear manifestation of British
sovereignty at a time when no dispute existed).

FACTS:
1. The British Ambassador submitted a certified copy of a Special Agreement concluded
between the Government of the United Kingdom of Great Britain and Northern Island and
the Government of the French Republic
Preamble stated that there were differences which arose as a result of claims by each
of them to sovereignty over the islets and rocks in the Minquiers and Ecrehos groups
and that they wanted the differences to be settled by the ICJ through a decision
determining their respective rights as regards sovereignty over the islets and rocks
2. The final submissions of both parties:
British Government:
o That UK is entitled to full and undivided sovereignty by reason of having
established the existence of an ancient title supported throughout by effective
possession evidenced by acts which manifest a continuous display of sovereignty
over the groups; alternatively, by reason of having established title by long
continued effective possession alone, such possession being evidenced by similar
acts
French Government:
o That it possesses original title to the islets and rocks, that it has at all times
confirmed this through effective exercise of her sovereignty, that the UK has been
unable to establish effective possession of the islands at the conclusion of the
Treaty of Paris, that the acts of the UK do not satisfy the conditions for the
acquisition or preservation of territorial sovereignty, and that France has performed
the acts of sovereignty required

ISSUE/S:
1. W the sovereignty over Ecrehos, in so far as it is capable of appropriation, belongs to the
UK or to France (UK)
2. W the sovereignty over Minquiers, in so far as it is capable of appropriation, belongs to the
UK or to France (UK)

RATIO:
1. The sovereignty over the Ecrehos belongs to the United Kingdom.
The evidence for the UK:
o Charter of 1200 where the English King granted the fief of the Channel Islands to Piers
des Preaux and Charter of 1203 whereby Piers granted the Ecrehos to the Abbey of
Val-Richer, and shows that Ecrehos was treated as an integral part of his fief
French: The grant had the effect of severing the feudal link between Piers and the
Abbey, so the Ecrehos no longer formed part of the fief of the Channel Islands. The
Ecrehos remained subject to the Duke of Normandy through the intermediary of
the Abbey of Val-Richer, but when the King of France succeeded to the rights of
the Duke after the occupation of Continental Normandy, the Abbey passed
under his protection, as did the Ecrehos, whose overlord he became
Charter of 1203, whereby Piers confirmed the island of Escrehou in entirety to the
church of St. Mary of Val-Richer and to the monks there
 Under the Grand Coutumier de Normandie, land held in frankalmoin1 (such as
Ecrehos) was a tenure, and that such a grant in frankalmoin to an ecclesiastical
institution did not have the effect of severing feudal ties. The text shows that the
grantor retained the patronal domain
Court: Piers did not by his grant drop out of the feudal chain as far as the Ecrehos
was concerned.
He continued to hold the Ecrehos as a part of his fief of the Channel Islands By
granting the Ecrehos in frankalmoin to the Abbey, Piers did not, and could not,
alienate the island from the fief of the Channel Islands; it remained a part of that
fief.
Shortly after his grant of 1203, Piers forfeited the fief of the Channel Islands, which
reverted to the English King and were administered by Wardens appointed by the
King Up to 1309, no indication that any change had occurred as to the
connection of the Ecrehos with the Channel Islands
o Quo Warranto proceedings of 1309, which wanted to enquire into the property and
revenue of the English King
Abbot was summoned before the Kings Justices in Jersey to answer for his
advocatio2
It must have been on the ground that the Ecrehos, to which the avocatio was
attached, was considered to be within the domain of the English King
The Justices decided that it is permitted to the said Prior to hold the premissa as
he holds them as long as it shall please the lord the king
o Letters of Protection granted by the English King to 10 Priors of Jersey and Guernsey,
including the Prior of Ecrehos the protection was granted because the Priory was
under the authority of the English King
o For a considerable period, because the Priory lost its means of subsistence (rentals), the
close relationship between the Ecrehos and Jersey ceased
o From the beginning of the 19th century, the connection between the Ecrehos and
Jersey became closer again because of the growing importance of the oyster fishery
o Of the manifold facts invoked by the UK Govt, the Court attaches, in particular,
probative value to the acts which relate to the exercise of jurisdiction and local
administration and to legislation these various facts show that Jersey authorities
have in several ways exercised ordinary local administration in respect of the Ecrehos
during a long period of time.
In 1826, criminal proceedings were instituted before the Royal Court of Jersey
against a Jerseyman for having shot a person on the Ecrehos; other criminal
proceedings took place in 1881, 1883, 1891, 1913 and 1921
Court: The Courts of Jersey, in criminal cases such as these, have no jurisdiction
in the matter of a criminal offense committed outside the Bailiwick of Jersey;
that Jersey authorities took action in these cases show that the Ecrehos were
considered to be within the Bailiwick. Jersey Courts have exercised criminal
jurisdiction in respect of the Ecrehos during nearly a hundred years.
Inquest conducted on corpses found at the Ecrehos (1859, 1917, and 1948),
pursuant to the law of Jersey requiring the holding of an inquest on such corpses
found within the Bailiwick, are additional evidence of the exercise of jurisdiction in
respect of these islets
Since 1820, persons from Jersey have erected and maintained habitable houses or
huts on the islets; these have been included in the records of the Parish of St. Martin
in Jersey and have been kept since 1889, and have been assessed for levying
local taxes
Register of fishing boat of a Jersey fisherman who lived on the islet of Ecrehos for
more than 40 years, was entered in that register in 1872, with the port of the boat
being indicated as Ecrehos Rocks
Contracts of sale of real property on the Ecrehos islets have been passed before
the competent authorities of Jersey and registered in the public registry of deeds
Customs-house was established in the Ecrehos and the islets were included in the
census enumerations

1One of the feudal land tenures in feudal England (from Wiki)

2 Right of a patron to presentation to an ecclesiastical office, which is treated as a jus in rem, inherent in
the soil and inseparable from the territory of the fief to which it was attached
 British Treasury Warrant of 1875 constituted Jersey as a Port of the Channel Islands
the Ecrehou Rocks were included within the limits of that Port. This legislative act
was a clear manifestation of British sovereignty over the Ecrehos at a time when a
dispute as to such sovereignty had not yet arisen.
Although the French Government protested in 1876, it could not deprive the
Act of its character as a manifestation of sovereignty
Evidence for France:
o Alleged original feudal title
o States of Jersey prohibited the inhabitants of Jersey from fishing at the Ecrehos and
Chausey Islands without special permission and that they restricted visits to Ecrehos
because of the war between England and France
Court: Not necessary or natural inference that Ecrehos was not considered as
British authority
o During diplomatic exchanges, two charts were attached, which purported to delimit
the areas in which the fishermen of each country were entitled to exclusive rights of
fishery. It treated a portion of Ecrehos as res nullius, and during its protest of the British
Treasury Warrant of 1875, it continued to treat Ecrehos as res nullius
Court: The Ecrehos group in the beginning of the 13th century was considered and treated
as an integral part of the fief of the Channel Islands which were held by the English King,
and that the group continued to be under the dominion of that King, who in the beginning
of the 14th century exercised jurisdiction in respect thereof.
The Court further finds that British authorities during the greater parts of the 19th century and
in the 20th century have exercised State functions in respect of the group. The French
Government has not produced evidence showing that it has any valid title to the group.

2. The sovereignty over the Minquiers belongs to the United Kingdom.

Evidence for the UK:
o Rolls of the Manorial Court of the fief of Noirmont in Jersey
The Grand Coutumier de Normandie made statements as to custody and
ownership of wrecks, and enumerated things to which the Duke of Normandy was
entitled, and continued: all things other than these shall enure to the lord in
whose fief the wreck is found
It was on the basis of this ancient Norman custom that the Manorial Court of
Noirmont dealt with 2 cases of wreck found at the Minquiers it dealt with them on
behalf of the lord in whose fief the wreck is found, the lord of Noirmont
Court: As the jurisdiction of local Court such as that of a Manor must have been
strictly territorial and, in cases concerning wreck, limited to wreck found within the
territory of its jurisdiction, it is difficult to explain the Manorial Courts dealing with
the cases unless the Minquiers were considered to be a part of the fief of Noirmont
o Judgment of 1692 of the Royal Court of Jersey in litigation between the English King
and the guardian of the Seigneur of the fief of Samares in Jersey
The Court in the 1692 Judgment decided on the basis of certain Letters of the
Kings Privy Council of 1620 and on an Act of 1632
Court: The documents were not produced, and it cannot be seen on what
ground the Judgment was based. It is therefore not possible to draw from this
Judgment any conclusion supporting the British claim to the Minquiers.
o Jersey Piers and Harbours Committee Order to subsidize the owner of a boat for the
use of his boat and for services rendered by him and his crew who have been at the
Minquiers for the purpose of helping and saving persons who had been
shipwrecked there
Court: It can hardly be considered as a measure by which authority was exercised
in respect of the islets
o Two Judgments of the Royal Court of Jersey relating to salvage cases
Court: Appear to be ordinary salvage cases; not shown that the Royal Court of
Jersey would have lacked jurisdiction if the salvage had taken place outside the
territory of Jersey
o Further evidence is of the same character as that considered in connection with its
claim to the Ecrehos Facts show that Jersey authorities have in several ways
exercised ordinary local administration in respect of the Minquiers during a long period
of time
Law of Jersey (for centuries) has required the holding of an inquest on corpses
found within the Bailiwick such inquests on corpses found at the Minquiers were
 held in 1850, 1938 and 1948 and show that jurisdiction was exercised in respect of
these islets
Since 1815, persons from Jersey have erected and maintained some habitable
houses or huts also on the islets of the Minquiers some have been included in the
records in Jersey and property taxes have been paid by the owners
Contracts of sale relating to property in the Minquiers have, as in the case of
Ecrehos, been passed before the competent authorities of Jersey and registered in
the public registry of deeds of the Island
Jersey customs authorities established in the Minquiers a custom-house with the
arms of Jersey
Court: The Minquiers in the beginning of the 17th century were treated as part of the fief of
Noirmont in Jersey and British authorities during a considerable part of the 19th century and
in the 20th century have exercised State functions in respect of this group
Facts invoked by France, in addition to the alleged original feudal title:
o Minquiers have been a dependency of the Chausey Islands, which have always
belonged to France and which were granted to the Abbey of Mont-Saint-Michel by
the Duke of Normandy. A Papal Bull confirmed this Abbey in all its possessions
o Application by a French national for a concession in respect of the Minquiers which
was not granted
o French national made a hydrographical survey of the Minquiers group in 1831 (but
British Naval officer surveyed both Minquiers and Ecrehos as early as 1813-1815)
o Since 1861, it has assumed the sole charge of the lighting and buoying of the Minquiers
for more than 75 years buoys placed outside the reefs of the group to aid navigation
o Frenchman erected a house on one of the islets
o There were hydro-electric projects for the installation of tidal power plants in the Bay of
Mont-Saint-Michel and the region of the Minquiers islets
Court: The Court does not find that that facts invoked by the French Government are
sufficient to show that France has a valid title to the Minquiers. As to the above-mentioned
acts from the 19th and 20th centuries in particular, including the buoying outside the reefs of
the group, such acts can hardly be considered as sufficient evidence of the intention of
that Government to act as sovereign over the islets; nor are those acts of such a character
that they can be considered as involving a manifestation of State authority in respect of
the islets.
o It was not until 1888 that France, in a Note of August 27th, for the first time made a claim
to sovereignty over that group, a claim which appears to have been provoked by a
visit to the islets of the Jersey Piers and Harbours Committee

DISPOSITIVE: The Court, unanimously, finds that the sovereignty over the islets and rocks of the
Ecrehos and Minquiers groups, in so far as these islets and rocks are capable of appropriation,
belongs to the United Kingdom.

Denmark v. Norway The Legal Status of Eastern Greenland (1933)

Brief: After the Danish Government applied for assurances from the Powers recognizing its
sovereignty over the whole of Greenland, the Norwegian government submitted that part of
Greenland is terra nullius and can therefore be subject to their sovereignty. However, Denmark
relies on M. Ihlen's declaration in response to a statement coming from the Danish government
expressing its intent to obtain the recognition, which said that the plans of the Royal [Danish]
Government respecting Danish sovereignty over the whole of Greenland...would meet no
difficulties on the part of Norway. The Court ruled that while this declaration is not a
recognition of Danish sovereignty, it nonetheless constitutes an obligation on the part of
Norway to refrain from occupying any part of Greenland.

Doctrine: A reply of this nature [in this case, affirmative] given by the Minister of Foreign Affairs
on behalf of his Government in response to a request by the diplomatic representative of a
foreign Power, in regard to a question falling within his province, is binding upon the country to
which the Minister belongs.

FACTS:

ANTECEDENTS
1. The first European settlement in Greenland was established by Norse colonists from
Iceland around the year 1000.
 1. There were two main Norse settlements on Greenland, but both were on the
southwestern coast of the island, far away from Erik the Red's Land, an area on the
coast of Eastern Greenland (the area in question in this case).
2. It is important to note that in their dispute, Norway uses Greenland to refer to the
colonized part of the West coast; Denmark uses it to refer to the whole island.
2. In 1380, Norway and Denmark were united under the same Crown; this lasted until
1814.
1. During this period, Greenland was, insofar as it constituted a dependency of the
Crown, was regarded as a Norwegian possession. However, around 1500, its Norse
population died out.
3. In 1721, missionary Hans Egede (from Norway) founded a new colony there, following
his formation of a Greenland Company.
1. The Company was given a concession for 25 years which put the whole country
of Greenland at its disposal. However, this Company was dissolved soon after. This
was followed by several other concessions, which eventually led to a Danish
monopoly on Greenland trade.
4. In 1814, the Swedish army compelled Denmark to sign the Peace Treaty of Kiel, which
provided for the cession of Norway to Sweden.
5. In the same year, liquidation of all matters arising out of the Denmark-Norway union
was effected by a Convention signed on Sept. 1, 1819.
6. In the 19th century, the whole East coast was explored by Danish expeditions. The first
Danish settlement was established in 1894 at Angmagssalik. In 1905, a Proclamation was
published, identifying Danish colonies on the West coast of Greenland.
7. In 1878, the Danish Government set up a Commission for the study of the natural and
ethnographic phenomena of Greenland. Following sentiment that the Danish position in
Greenland was becoming weak and prone to foreign power opinion began to manifest in
favor of occupation of the uncolonized areas in Greenland (eastern).
8. During the Great War of 1914 to 1918 Denmark by treaty ceded the Danish Antilles
to the US.
1. During the negotiations, the question of the extension of Danish activities
throughout all Greenland was brought to the American Secretary of State.
2. The US (in 1916) declared that they would not object to this extension of political
and economic interests.
9. In 1921, a Decree was issued by Denmark:
In pursuance of His Majesty's authority...know all men that Danish Trading,
Mission and Hunting Stations have been established on the East and West
coasts of Greenland, with the result that the whole of the country is henceforth
linked up with Danish colonies and stations under the authority of the Danish
Administration of Greenland.
10. July 12, 1919-- the Danish Minister for Foreign Affairs manifested that a Committee has
just been constituted at the Peace Conference and that the Danish Government would renew
its unofficial assurance to the Norwegian government that it does not have any interest in the
Spitzbergen archipelago.
1. In this same statement, the Danish minister pointed out that the Danish
Government had been anxious for some years to obtain the recognition by all the
interested [Principal Allied] Powers of Denmark's sovereignty over Greenland and
that it would place that question before the Committee.
2. Furthermore, Denmark felt that the extension of its political and economic interests
to Greenland would not encounter any difficulties on the part of the Norwegian
Government.

CONTENTIONS

Denmark:
II. Denmark possessed full and entire sovereignty over the whole of Greenland;
III. this sovereignty has existed for a long time, has been continuously and peacefully
exercised, and until this dispute, has not been contested by any Power;
IV. Norway recognized that sovereignty;
V. the Ihlen Declaration barred Norway from proceeding to any occupation of territory in
Greenland.

Norway:
III. Denmark possesses no sovereignty over the area that Norway occupied on July 10,
1931 (at the time was terra nullius);
IV. all parts of Greenland which had not been occupied in such a manner as to bring
them effectively under Danish administration were terra nullius
V. and if they ceased to be terrce nullius they must pass under Norwegian sovereignty.

ISSUE: WON Denmark has really exercised sovereign rights over Greenland as a whole for a
long time YES
Court: The date at which Danish sovereignty must have existed in order to render the
Norwegian occupation invalid is July 10, 1931.
1) A claim to sovereignty (continued display of authority):
1. intention and will to act as sovereign;
2. some actual exercise or display of such authority.
IV. Up to 1931, there was no claim by any Power other than Denmark to the sovereignty
over Greenland.

Court: Legislation is one of the most obvious forms of the exercise of sovereign powers.
The Danish Government issued Ordinances during 1740-1751,
o prohibiting trading in Greenland colonies, as well as a
o prohibition of injurious treatment of the Greenlanders (applying to both current
and future colonies).
o The prohibitions were also widened to apply in all places whatever.
Furthermore, Denmark concluded a lot of commercial conventions (1782 onwards) in
which a stipulations were inserted to the effect that the convention shall not apply to
Greenland (made without qualification).
o For example, in the Treaty of 1826 with the US: The present Convention shall
not apply to the Northern possessions of His Majesty the King of Denmark, that
is to say Iceland...and Greenland3... In these treaties, there is a display of
willingness on the part of other States to support the exercise of Danish
sovereignty over Greenland as a whole.
Finally, the counsel for Denmark relied on a concession granted in 1863 to Tayler of
exclusive rights on the East coast for trading and hunting. It showed that the King of
Denmark was in a position to grant a valid monopoly, following his sovereign rights.
Court, on extension of sovereignty: the Danish government was endeavoring to secure an
assurance from each of the foreign governments that it accepted the Danish point of view that
all Greenland was already subject to Danish sovereignty and was therefore content to see an
extension of Denmark's activities to the uncolonized parts of Greenland.
Also, the US declaration of assurance said it will not object to the Danish Government
extending their political and economic interests to the whole of Greenland.
The word extension is used in connection with the attitude that Denmark had adopted in
1919. Words such as reconnaissance expresse de la souverainet du Groenland dans son
entier (found in the memorandum addressed to Norway by Denmark, regarding the
assurance) are more applicable to an existing sovereignty than to describe an agreement to
an extension.

Fisheries Case (UK v Norway)

Brief Facts: Norway delimited the zone in which the fisheries were reserved to its own nationals
through a decree promulgated in 1935. UK asked the Court to state whether this delimitation
was or was not contrary to international law. In its Judgment, the Court found that neither the
method employed for the delimitation nor the lines themselves fixed by the said decree are
contrary to international law.
Doctrine: The delimitation of sea areas has always an international aspect; it cannot be
dependent merely upon the will of the coastal State as expressed in its municipal law.
Although it is true that the act of delimitation is necessarily a unilateral act, because only the
coastal State is competent to undertake it, the validity of the delimitation with regard to other
States depends upon international law.
Topic: Territorial Sea

3 Norway: in the legislation Denmark relies on as proof of exercise of sovereignty, Greenland refers only to
colonized areas on the West Coast, and not to the whole Court: The burden of proof is on Norway, and it
has failed to establish the contention. Most of the legislative and administrative acts dealt with things which
only happened in the coloniesthis is not sufficient ground.
FACTS
In past centuries, British fisherman had made incursions in the waters near the Norwegian
coast. As a result of complaints from the King of Norway, they abstained from doing so at
the beginning of the 17th century and for 300 years.
But in 1906 British vessels appeared again. These were trawlers equipped with improved
and powerful gear. The local population became perturbed, and measures were taken by
Norway with a view to specifying the limits within which fishing was prohibited to foreigners.
On July 12, 1935, the Norwegian Government delimited the Norwegian fisheries zone by a
Decree. The Norwegian Royal Decree was enacted delimiting the Norwegian fisheries
zone north of 66" 28.8' North latitude.
Negotiations had been entered into by the two Governments, but without success. A
considerable number of British trawlers were arrested and condemned in 1948 and 1949.
It was then that the UK Government instituted proceedings before the Court.

ISSUE: WON the lines laid down by the 1935 Decree for the purpose of delimiting the Norwegian
fisheries zone have been drawn in accordance with international law <YES. They are in
accordance with international law>

ARGUMENTS:
UK denies that they have been drawn in accordance with international law, and it relies
on various principles which it regards as applicable.
Norway, while not denying that rules do exist, contends that those put forward by the UK
are not applicable and it further relies on its own system of delimitation which it asserts to
be in every respect in conformity with international law.

RATIO:
The first principle put forward by UK: The base-line must be low-water mark.
o The Court said this indeed is the criterion generally adopted in the practice of
States. But the coastal zone is described to be made of the skjaergaard (rock
rampart), and the coast does not constitute, as it does in practically all other
countries in the world, a clear dividing line between land and sea. This geographic
reality lead to the conclusion that the relevant line is not that of the mainland, but
rather that of the skjaergaard. This also lead to the rejection of the requirement
that the base-line should always follow low-water mark. Drawn between
appropriate points on this low-water mark, departing from the physical coastline to
a reasonable extent, the base-line can only be determined by means of a
geometric construction. Straight lines will be drawn across well-defined bays, minor
curvatures of the coastline, and sea areas separating islands, islets and reefs, thus
giving a simpler form to the belt of territorial waters.
It was put forward by UK that there be a maximum length for straight lines by using the ten-
mile rule for the closing lines of bays.
o The Court said the ten-mile rule has not acquired the authority of a general rule of
international law. Furthermore, the ten-mile rule is inapplicable as against Norway
inasmuch as it has always opposed its application to the Norwegian coast.
Basing itself on the analogy with the alleged general rule of ten miles relating to bays, the
UK still maintains that the length of straight lines must not exceed ten miles.
o The Court says that the practice of States does not justify the formulation of any
general rule of law. The attempts that have been made to subject groups of
islands or coastal archipelagoes to conditions analogous to the limitations
concerning bays have not got beyond the stage of proposals. Furthermore, apart
from any question of limiting the lines to ten miles, it may be that several lines can
be envisaged. In such cases the coastal State would seem to be in the best
position to appraise the local conditions dictating the selection.
Thus the Court finds that the 1935 delimitation does not violate international law according
to the principles used by UK in its arguments. The Court also adds that the delimitation of
sea areas has always an international aspect since it interests States other than the coastal
State; consequently, it cannot be dependent merely upon the will of the coastal state.
Because of this, the court took note of certain criteria which can provide guidance to
Courts:
1. Since the territorial sea is closely dependent upon the land domain, the base-line
must not depart to any appreciable extent from the general direction of the
coast.
 2. Certain waters are particularly closely linked to the land formations which divide or
surround them. This idea should be liberally applied in the present case because of
the geographic configuration of the Norwegian coast.
3. It may be necessary to have regard to certain economic interests peculiar to a
region when their reality and importance are clearly evidenced by a long usage.
Norway puts forward the 1935 Decree as the application of a traditional system of
delimitation in accordance with international law. It says that international law takes into
account the diversity of facts and concedes that the delimitation must be adapted to the
special conditions obtaining in different regions.
o The Court notes that a Norwegian Decree of 1812, as well as a number of
subsequent texts, show that the method of straight lines, imposed by geography,
has been established in the Norwegian system and consolidated by a constant
and sufficiently long practice.
o The application of this system encountered no opposition from other States. The
general toleration of the international community therefore shows that the
Norwegian system was not regarded as contrary to international law.
The UK then contends that certain of the base-lines adopted by the Decree are without
justification from the point of view of the criteria stated by the Court. It is contended that
they do not respect the general direction of the coast, or it does not follow it sufficiently
closely, or that they do not respect the natural connection existing between certain sea
areas and the land formations separating or surrounding them.
o The Court concludes that the lines drawn are justified. In one case, the divergence
between the base-line and the land formations is not such that is a distortion of the
general direction of the Norwegian coast. Furthermore, the Norwegian
Government has relied upon an historic title: the exclusive privilege to fish and hunt
whales granted in the 17th century to a Norwegian subject, from which it follows
that the waters were regarded as falling exclusively within Norwegian sovereignty.
o Moreover, it was said that along the coastal zone are situated shallow banks that
are very rich in fish. The inhabitants of the mainland and of the islands have
exploited these from time immemorial and they derive their livelihood essentially
from such fishing.

CONCLUSION: The method employed and the base-lines fixed by the Decree of 1935 is not
contrary to international law.

The Lotus Case (France vs Turkey);

Year of the decision: 1927.

Overview:
A collision occurred on the high seas between a French vessel and a Turkish
vessel. Victims were Turkish nationals and the alleged offender was French.
Could Turkey exercise its jurisdiction over this French national under
international law?

Facts of the Case:

A collision occurred on the high seas between a French vessel Lotus and a
Turkish vessel Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals
on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey on board the Lotus. In Turkey, the officer on watch
of the Lotus (Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment
and a fine. The French government protested, demanding the release of Demons or
the transfer of his case to the French Courts. Turkey and France agreed to refer
this dispute on the jurisdiction to the Permanent Court of International Justice
(PCIJ).

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised jurisdiction
over a crime committed by a French national, outside Turkey? If yes, should
Turkey pay compensation to France?

The Courts Decision:

Turkey, by instituting criminal proceedings against Demons, did not violate

international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of

jurisdiction using an existing rule of international law or is the mere absence
of a prohibition preventing the exercise of jurisdiction enough?

The first principle of the Lotus Case: A State cannot exercise its
jurisdiction outside its territory unless an international treaty or customary
law permits it to do so. This is what we called the first principle of the Lotus
Case. The Court held that:

Now the first and foremost restriction imposed by international law upon a State
is that failing the existence of a permissive rule to the contrary it may not
exercise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised by a State outside
its territory except by virtue of a permissive rule derived from international
custom or from a convention. (para 45)

The second principle of the Lotus Case: Within its territory, a State may
exercise its jurisdiction, in any matter, even if there is no specific rule of
international law permitting it to do so. In these instances, States have a wide
measure of discretion, which is only limited by the prohibitive rules of
international law.The Court held that:

It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which
relates to acts which have taken place abroad, and in which it cannot rely on
some permissive rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to extend the
application of their laws and the jurisdiction of their courts to persons,
property and acts outside their territory, and if, as an exception to this
general prohibition, it allowed States to do so in certain specific cases. But
this is certainly not the case under international law as it stands at present.
Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it leaves them in this
respect a wide measure of discretion, which is only limited in certain cases by
prohibitive rules; as regards other cases, every State remains free to adopt the
principles which it regards as best and most suitable. This discretion left to
States by international law explains the great variety of rules which they have
been able to adopt without objections or complaints on the part of other States
In these circumstances all that can be required of a State is that it should not
overstep the limits which international law places upon its jurisdiction; within
these limits, its title to exercise jurisdiction rests in its
sovereignty. (paras 46 and 47)

This applied to civil and criminal cases. If the existence of a specific rule was
a pre-requisite to exercise jurisdiction, the Court argued, then it wouldin
many cases result in paralysing the action of the courts, owing to the
impossibility of citing a universally accepted rule on which to support the
exercise of their [States] jurisdiction (para 48).

The Court based this finding on the sovereign will of States. It held that:

International law governs relations between independent States. The rules of law
binding upon States therefor emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed

[Note: This was one of the more debated aspects of the judgement. Some argued
that the Court placed too much emphasis on sovereignty and consent of States
(i.e. took a strong positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel has exclusive jurisdiction over
offences committed on board the ship in high seas. The Court disagreed. It held
that France, as the flag State, did not enjoy exclusive territorial jurisdiction
in the high seas in respect of a collision with a vessel carrying the flag of
another State (paras 71 84). The Court held that Turkey and France both have
jurisdiction in respect of the whole incident: in other words, there
was concurrent jurisdiction.

The Court held that a ship in the high seas is assimilated to the territory of
the flag State. This State may exercise its jurisdiction over the ship, in the
same way as it exercises its jurisdiction over its land, to the exclusion of all
other States. In this case, the Court equated the Turkish vessel to Turkish
territory. The Court held that the offence produced its effects on the Turkish
vessel and consequently in a place assimilated to Turkish territory in which the
application of Turkish criminal law cannot be challenged, even in regard to
offences committed there by foreigners. The Court concluded that Turkey had
jurisdiction over this case. It further said:

If, therefore, a guilty act committed on the high seas produces its effects on
a vessel flying another flag or in foreign territory, the same principles must
be applied as if the territories of two different States were concerned, and the
conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence have
taken place belongs, from regarding the offence as having been committed in its
territory and prosecuting, accordingly, the delinquent.

The Lotus Case is also significant in that the Court said that a State would have
territorial jurisdiction, even if the crime was committed outside its territory,
so long as a constitutive element of the crime was committed in that State.
Today, we call this subjective territorial jurisdiction. In order for subjective
territorial jurisdiction to be established, one must prove that the element
of the crime and the actual crime are entirely inseparable: in other words, if
the constituent element was absent the crime would not have happened. The Court
said:

The offence for which Lieutenant Demons appears to have been prosecuted was an
act of negligence or imprudence having its origin on board the Lotus, whilst
its effects made themselves felt on board the Boz-Kourt. These two elements are,
legally, entirely inseparable, so much so that their separation renders the
offence non-existent It is only natural that each should be able to exercise
jurisdiction and to do so in respect of the incident as a whole. It is therefore
a case of concurrent jurisdiction.

Customary International Law

The Lotus case gave an important dictum on creating customary international law.
France had alleged that jurisdictional questions on collision cases are rarely
heard in criminal cases, because States tend to prosecute only before the flag
State. France argued that this absence of prosecutions points to a positive rule
in customary law on collisions.The Court disagreed and held that, this:

would merely show that States had often, in practice, abstained from
instituting criminal proceedings, and not that they recognized themselves as
being obliged to do so; for only if such abstention were based on their being
conscious of having a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States
have been conscious of having such a duty; on the other hand, as will presently
be seen, there are other circumstances calculated to show that the contrary is
true.

In other words, opinio juris is reflected not only in acts of States (Nicaragua
Case), but also in omissions when those omissions are made following a belief
that the said State is obligated by law to refrain from acting in a particular
way. (For more on opinio juris click here)

Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of

the Lotus Case

Advisory Opinion on the Unilateral Declaration of Kosovo (2010)

In the Kosovo Advisory Opinion the Court had to decide if the unilateral
declaration of Kosovo of February 2008 was in accordance with international
law. The Court inquired and concluded that the applicable international law did
not prohibit an unilateral declaration of independence. Based on this finding,
the Court decided that the adoption of the declaration of independence did not
violate any applicable rule of international law.

Judge Simma disagreed, inter alia, with Courts methodology in arriving at this
conclusion. He imputed the method to the principle established in the Lotus case:
that which is not prohibited is permitted under international law. He criticised
the Lotus dictum as an out dated, 19th century positivist approach that is
excessively differential towards State consent. He said that the Court should
have considered the possibility that international law can be deliberately
neutral or silent on the international lawfulness of certain acts. Instead of
concluding that an the absence of prohibition ipso facto meant that a unilateral
declaration of independence is permitted under international law, the Court
should have inquired whether under certain conditions international law permits
or tolerates unilateral declarations of independence.