SUBMITTED BY

ARANDA,
VALDERRAMA AND
VALDEVIESO

TO BE SUBMITTED
TO
ATTY. JP LEO ASONG

ISLAND OF
PALMAS
United States of America vs Netherlands (1928)

I. CASE BRIEF
FACTS: The Island of Palmas (Miangas) is an island of little economic value or strategic
location. It is two miles in length, three-quarters of a mile in width, and had a population of
about 750 in 1932, when the case was decided. Palmas lies between Mindanao, the southernmost
part of the Philippines, and the Nanusa Islands, the northernmost part of Indonesia other than
Palmas.

In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and
Palmas lay within the boundaries of that cession to the U.S. The United States, as successor to
the rights of Spain over the Philippines, based its claim of title in the first place on discovery. In
1906, the United States discovered that the Netherlands also claimed sovereignty over the island.
The Netherlands claimed that it had possessed and exercised rights of sovereignty over the island
from 1677 or earlier to the present.

The two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration.
On 23 January 1925, the two governments signed an agreement to that effect. The sole arbitrator
in the case was Max Huber, a Swiss lawyer.

ISSUE: Whether or not the Island of Palmas was a part of the territory of the United States or
the Netherlands

RULING: The Netherland’s title of sovereignty holds good over the inchoate title of the United
States of America. The latter’s title cannot prevail over a definite title founded on continuous and
peaceful display of sovereignty.

Further, Spain could not transfer more rights than she herself possessed. In letter dated April 7th,
1900, from the Secretary of State of the United States to the Spanish Minister at Washington:
The metes and bounds defined in the treaty were not understood by either party to limit or extend
Spain's right of cession. Were any island within those described bounds ascertained to belong in
fact to Japan, China, Great Britain or Holland, the United States could derive no valid title from
its ostensible inclusion in the Spanish cession. The compact upon which the United States
negotiators insisted was that all Spanish title to the archipelago known as the Philippine Islands
should pass to the United States—no less or more than Spain's actual holdings therein, but all.

The records of the conquest cannot come to the aid of US. Indeed, the reports on record which
concern the discovery of the Island of Palmas state only that an island was "seen", which island,
according to the geographical data, is probably identical with that in dispute. No mention is made
of landing or of contact with the natives. And in any case no signs of taking possession or of
administration by Spain have been shown or even alleged to exist until the very recent date to
which the reports of Captain Malone and M. Alvarez, of 1919 contained in the United States
Memorandum, relate.
Moreover, a map affords only an indication—and that a very indirect one—and, except when
annexed to a legal instrument, has not the value of such an instrument, involving recognition or
abandonment of rights.

Lastly, the principle of contiguity, in regard to islands, may not be out of place when it is a
question of allotting them to one State rather than another, either by agreement between the
Parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the
presumption of sovereignty in favour of a particular State, this principle 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 the
state. Nor is this principle of contiguity 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 a case such as that of the island in question,
which 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.

II. SOVEREIGNTY

At issue in this case was the sovereignty over a small island with around 700 inhabitants, called
the Island of Palmas, or the Island of Miangas, in the north of the archipelago which today
constitutes Indonesia.

Max Huber, the then president of the Permanent Court of International Justice, as sole arbitrator
of a tribunal set up under the auspices of the Permanent Court of Arbitration. It was agreed that:
His sole duty as the arbitrator shall be to determine whether the Island of Palmas (or Miangas) in
its entirety forms a part of territory belonging to the United States of America or of Netherlands
territory.

 First, the Award establishes that state sovereignty ‘signifies independence’ and ‘exclusive
competence’, such that in international law sovereignty is ‘the point of departure in settling most
questions that concern international relations’.

It follows that appeals to sovereignty, for the settlement of legal disputes, must be accompanied
by careful examinations of what exactly sovereignty signifies.

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. The development of the national organisation of States during the last few
centuries and, as a corollary, the development of international law, have established this principle
of the exclusive competence of the State in regard to its own territory in such a way as to make it
the point of departure in settling most questions that concern international relations.
The Island of Palmas makes plain that with sovereignty, as that concept is understood in
international law, comes not only certain rights and freedoms for states—but also obligations.

Thus, in Island of Palmas, sovereignty involves not merely the exclusive right to engage in the
activities of a state within a given territory, but also, as a corollary, the obligation to protect
within that territory the rights of nationals of other states, which was defined by Huber as:

“Territorial sovereignty cannot limit itself to its negative side, i.e., to excluding the activities of
other States; for it serves to divide between nations the space upon which human activities are
employed, in order to assure them at all points the minimum protection of which international
law is the guardian.”

The importance of the activities of the state vis-à-vis the individuals living on the territory over
which the state claims to have sovereignty. In Island of Palmas, when stressing the importance of
peaceful, continuous, and effective display of state activity as a title of acquisition of
sovereignty, expressed the view that the recognition of the effect of prescription is necessary in
view of the particular needs of international society.

III. THE INTERTEMPORAL LAW

The Island of Palmas establishes that ‘a juridical fact must be appreciated in the light of the law
contemporary with it’. Nonetheless, ‘the same principle which subjects the act creative of a right
to the law in force at the time the right arises, demands that the existence of the right, in other
words its continued manifestations, shall follow the conditions required by the evolution of law’.

In Reuter’s words, Island of Palmas gave expression to the rule generally recognised in domestic
law that legal situations come into being validly in accordance with rules that are in operation at
a certain given point in time but depend, for their continued existence, on rules which later come
into existence

The Sole Arbitrator, Max Huber, explicitly tempered the second limb of its test by adding the
rider that the second limb would not be brought to bear in the case of ‘territories in which there is
already an established order of things’

As Crawford would later observe, ‘the two elements of the Island of Palmas case are less
antithetical than they may seem; stability due to the creation, and flexibility due to evolution in
the existence of rights, should be conceived as complementary principles

The two-limbed principle of intertemporality was not a new one. Early arbitrations settled on the
heels of the gradual development of the customary rules concerning discovery and occupation
showed the gradual evolution of international law in respect of the acquisition of sovereignty
from the original legal sufficiency of discovery or symbolic occupation to the requirement of the
effectiveness of the occupation

The principle of intertemporality was most famously criticised by Jessup. He attempted in his
criticism to take the axe to the very root of the ruling in Island of Palmas, the effects of which he
saw as highly disturbing:

Assume that State A in a certain 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
by A only for strategic reasons to prevent its fortification by another Power. Assume that A holds
Island X, but without making direct use of it, for two hundred years. At the end of that time
suppose that the development of international morality has so far progressed as to change the
previous rule of international law and that the new rule is that no territory may be 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 some other basis or in accordance with the new rule. Such a retroactive effect of
law would be highly disturbing.

However, the argument put forward by Jessup in his example is open to criticism.

First, Jessup’s case in point is different from the legal situation in Island of Palmas. While the
norm I relied on related only to the facts obtaining at the time of the coming into force of the
norm itself, the norm in Jessup’s example bears on the way in which the territory was acquired in
the first place. Thus A’s right to Island X in Jessup’s example could be extinguished only if it
was applied to the acquisition which took place 200 years before the norm’s coming into force.

This was, however, exactly that which the tribunal was at pains to avoid in Island of Palmas; it
made very clear that the effects of the new rule was that ‘discovery alone, without any
subsequent act, cannot at the present time suffice to prove sovereignty over the Island of
Palmas’.

It is thus far from clear that the effect here described is actually retroactive. Rather the case is
that the change of law prompts a change ex nunc as opposed to ex tunc. This has parenthetically
led one commentator to argue not only that Jessup had misunderstood the difference between
nullity ex nunc and ex tunc but also that his was an outright misreading of the whole Island of
Palmas case. In the light of the above, this criticism of Jessup’s stance seems fair.

Secondly, counter examples to Jessup’s example could be imagined that would make very clear
the necessity of the rule of intertemporality. One could think of examples bearing on colonialism.
It could hardly be disputed that colonialism was central to the development of international law.
It is possible therefore to imagine examples to do with slavery, exploitation, and the rights of
peoples to self-determination which would furnish us with situations in which that which was
once in conformity with international law at a later point is singularly in breach of a newly
emerged rule because, to use Jessup’s words, ‘the development of international morality has so
far progressed as to change the previous rule of international law’.

There is this  two-fold misconception: first, the new norm did not in point of fact reopen the
question of the title acquired at the date of colonisation, it rather demanded its cessation and just
possibly eroded it; secondly, the new norm did not operate on the basis of re-examining old titles
but based itself on the rights of the inhabitants of the colonially defined territory to self-
determination.

A third criticism levelled at the principle relied on by the tribunal in Island of Palmas by Jessup
was that the application of my  principle would mean chaos if such a principle were to be applied
to private law and private titles in national law.

The intertemporal law, like other branches of international law, ‘does not operate in a vacuum’;
rather it operates in ‘relation to facts and in the context of a wider framework of legal rules of
which it forms only a part’. The impact of the intertemporal law will be reduced by the effect of
other principles of international law. These include the effect of recognition, acquiescence, and
the rule that abandonment is not to be presumed.

The principle of the Island of Palmas rule has become an article of faith in international law. Yet
the chaos foreshadowed by Jessup seems somehow not to have come to pass. This is partly
because of the flexibility of the rule. It is also partly because other principles of interpretation
and application of intertemporal law such as acquiescence, prescription, and desuetude would
operate to make it impossible for the second element of the principle to work injustices. But the
success of the principle is also precisely the fact that it reflects the evolution of law. 

There is no surprise in the fact that states follow international law, for it is the states themselves
who will have made the law which they are following. The reason why states do comply, and
always have complied, with international law is that they make the rules to suit themselves

The intertemporal principle to which Island of Palmas gives expression has taken on importance
within treaty interpretation.

IV. OTHER ISSUES SETTLED IN THE AWARD

Two other issues were settled by the Award. First, as the International Court observed in Land
and Maritime Boundary, the Award is authority for the proposition that agreements between
states and local chieftains are not treaties, the Court referring to Arbitrator Huber’s determination
that such an instrument ‘is not an agreement between equals; it is rather a form of internal
organisation of a colonial territory, on the basis of autonomy of the natives’.

As Judge Al Khasawneh pointed out in his Separate Opinion, however, Island of Palmas was on
this score clearly wrong: the fact that the agreement is not one between equals does not mean
that it cannot be valid as a matter of the law of treaties. Judge Al Khasawneh observed that ‘Such
an approach is a confusion of inequality in status on the one hand and inequality in power on the
other. That local rulers and chiefs were weak is apparent from their agreeing to enter into treaties
of protection, but this does not detract from the fact that they had the capacity to enter into treaty
relations.

Huber ruled that some local political entities in South-East Asia could not conclude real treaties
because they were outside the European Family of Nations’.

Secondly, and less controversially, Island of Palmas is authority for the evidentiary rule that
maps are to be handled with great care. For him, “only with the greatest caution can account be
taken of maps in deciding a question of sovereignty … Any maps which do not precisely indicate
the political distribution of territories … clearly marked as such, must be rejected forthwith …
The first condition required of maps that are to serve as evidence on points of law it their
geographical accuracy. It must here be pointed out that not only maps of ancient date, but also
modern, even official or semi-official maps seem wanting in accuracy.”

V. CONCLUSION

Though the disputed territory in question was all but miniscule, the Award settling which state
had sovereignty over it, is nothing if not a landmark of public international law. Hence, the
Island of Palmas case is one of the first cases which made public international law a public law
as opposed to being only, as one leading nineteenth-century work would have it, ‘private law
writ large’.

As the Sole Arbitrator, Max Huber, showed, private law concepts of ownership were not
sufficient to inspire the international law of sovereignty over land. Island of Palmas thus took a
small but decisive step away from a conception of international law in which sovereignty had
been modelled on transfer of property in domestic private law.

Small, because it was founded on already existing international law, as set out in numerous
awards and judgments. Important, because, by leaving behind the negatively conceived private
law concept of sovereignty-as-ownership, Sole Arbitrator Huber in Island of Palmas considered
himself bound to conceive of sovereignty as a fundamentally concrete concept, positively
conceived, and one which gave importance to the individuals who actually lived on the territory
in question. 

According to the orthodox conception of international law, individuals were classed as objects of
international law on a par with rivers and canals; Island of Palmas, through the concept of
sovereignty that it promulgated, effected a jurisprudential dent in this age-old conception.

In this way Island of Palmas can be seen to have laid the groundwork for later developments of
international law which would recognise individuals as subjects and no longer only objects of
international law. This should be seen as being closely connected with that which the Award says
about the intertemporal law.

The second limb of the intertemporal rule was no more than a natural corollary to the modern
doctrine according to which sovereignty involves the provision of guarantees for the observance
of minimum standards of international law in the territory. (Bjorge, 2017)

Reference
Bjorge, E. (2017). Landmark Cases in Public International Law. Oxford and Portland, Oregon: Hart
Publishing.