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Digest 8 3

Digest 8 3

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Published by: Sui on Mar 22, 2009
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* bok * cj * tiff * gem * tin * public international lawUPLAW 2009 B“TAI-land. Without the “H”. The sexpot of Asia… based on secondary sources, of course."
This digest compilation wouldn’t have been possible without the help of Andi and Cathe.
III. Actors in International Lawa.States1.Territorial SovereigntyPalmas Arbitration Revisited
(by H. Harry L. Roque Jr., 77 PLJ 437 (2003))I. IntroductionCONTEXT OF ARTICLE. The Phils and Indonesia have been arguing over who gets tokeep the island of Palmas; Indonesia pulls a surprise sneak attack. Timeline:23-25 Jun 1994: First-ever Senior Officials Meeting on the Delimitation of the MaritimeBoundary between Indonesia and the Phils. Official representatives agree that bothcountries will delimit the location between 120
and 129
East Longitude. This includesthe area in which Palmas is located. The officials agree that the following generalprinciples shall serve as basis for negotiations: (1) The result shall be fully in keeping withinternational law, including the 1982 UN Convention on the Law of the Sea (UNCLOS); (2)Where applicable, the maritime boundaries shall be delimited on the basis of the medianline principle; and (3) Creative options shall be used as appropriate.9 Nov 2000: Second bilateral consultation. Discussion is only exploratory; no further agreements are forged.20 Dec 2002: 3
Meeting of the Philippine-Indonesian Joint Commission for BilateralCooperation held. Indonesia gives notice that it has enacted a new Baselines Law, whichamends its law enacted in 1960, and presents a copy in Bahasa. The Philippines requeststhat an English version be furnished the Phil government. No other substantial topic isdiscussed.INDONESIA’S NEW BASELINES LAW. It uses Palmas as a base point in drawingIndonesia’s straight archipelagic baselines.
This provision contradicts Indonesia’scommitment with the Philippine govt to delimit the area where Palmas is found only after and pursuant to the negotiations, and in keeping with UNCLOS. Before this law waspassed, the two countries agreed that delimitation of their territories would be donebilaterally and in consultation with each other. This was why the 2 countries entered intodelimitation talks in the first place. The passage of the law is a unilateral act and is theofficial expression of Indonesia’s intent to treat Palmas as Indonesian territory. It is not justan official claim to land territory, but also to the archipelagic and territorial watersrepresenting all waters enclosed by the island’s straight baselines. The Baselines Law hasnot yet been deposited with the UN Sec-Gen, owing to the fact that the ICJ just recentlyissued a decision in the territorial dispute between Indonesia and Malaysia over the islans
Art. 47, UNCLOS: “1. An archipelagic State may draw straight archipelagic baselines joining theoutermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included 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.”
of Sipadan and Ligitan, awarding both islands to Malaysia and thereby necessitatingamendments to the Baselines Law.Preparatory to the passage of the law, Indonesia embarked on a modern hydrographicsurvey to chart its new baselines, financed with the help (approx $170 M) of thegovernment of Norway. The Philippines has not even started its own hydrographic survey.Clearly, the date of passage of the 2002 law would be a “critical date
 from which to gaugewhich of the 2 countries has a superior claim to both Palmas and the archipelagic andterritorial waters surrounding it.If the new baseline coordinates drafted by Indonesia were followed, the Phils would losenot only Palmas Island but also some 15,000 sq.mi. of archipelagic and territorial waters.These are Phil territories currently defined under the Treaty of Paris.IT IS IN THE RP’S BEST INTERESTS TO MAINTAIN AUTHORITY AND CONTROL OVERTHE PALMAS AREA. Reasons include:(1)Very close to the strategic axis linking the Pacific and Indean Oceans. The nearestisland to Palmas is Cape San Agustin. The establishment of archipelagic sealanesbetween the two, under Phil sovereignty, will enable the country, possibly incooperation with Indonesia, to monitor, control, and maintain surveillance of sensitivemaritime jurisdictions. Many of the country’s major population centers, industrialzones, and the ports of Mati, Davao City, General Santos, Cotabato, Pagadian, andZamboanga are directly accessible from the said sealanes.(2)Close to the critical spawning areas and passage highways of economically importantfish, e.g. yellowfin tuna. Also, the area has been tagged as a marine ecoregion bythe WWF, owing to the area’s distinct and outstanding biodiversity.
The “warm pool” of the world’s oceans is centered on Southern Mindanao, makingthe Davao Gulf, Sarangani and Illana bay in the Moro Gulf the most suitable sites for large-scale ocean terminal plants.
The sheer area of maritime territory that the Phils would lose, plus the foregoing reaons,warrant a re-examination of the root of Indonesia’s claim to Palmas: the Palmas Arbitrationof 1928.II. Palmas: The Island and the Arbitration
Palmas case (see third(?) page of the digest, under “How to Settle Disputes”): “If a dispute arises as tothe sovereignty over a portion of territory, it is customary to examine which of the claiming States possesses a title—cession, conquest, occupation, etc.—superior to that advanced by the other State.
 However, if the contestation is based on the fact that the other Party has actually displayed sovereignty
, itcannt be sufficient to establish the title by which TS was validly acquired at a certain moment;
it must alsobe shown that the TS has continued to exist and did exist at the moment which, for the decision of thedispute, must be considered critical 
[emphasis added].” Also in
 Legal Status of Eastern Greenland (Denmark v Norway)
: “It must be borne in mind, however, that as the critical date is July 10
, 1931, it isnot necessary that sovereignty over Greenland should have existed throughout the period during which theDanish Got maintains that it was in being. Even if the material submitted to the Court might be thoughtinsufficient to establish the existence of that sovereignty during the earlier periods, this would not excludea finding that it is sufficient to establish a valid title in the period immediately preceding the occupation.”
Not defined, but a footnote points to a book entitled “Power Plant Technology.”
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THE CASE, IN A NUTSHELL. The Swiss arbitrator Max Huber succinctly summarized theconflicting claim to Palmas when he said, “It lies within the boundaries of the Phils asceded by Spain to the US in 1898 (by the Treaty of Paris).” The dispute began in 1906when Maj. Gen. Leonard Wood, then the American Gov-Gen of the Phils., visited Palmasand discovered the Dutch flag hoisted on the island. A native who spoke Spanish allegedlyinformed him of “the visits of Natherlands subjects to the island.”WHAT HUBER DOESN’T TELL US. The Americans were generally hesitant to pursue theclaim. The island was small and populated by 689 “diseased and destitute inhabitants of low mentality who speak a Malay-Spanish dialect;” and the legal recourse to the claim,including recourse to arbitration, was not justified owing to the “trifling value of the island.”Nevertheless, there was a lot of publicity in 1911 over a report that Dutch authorities toredown a US flag found on the island, which got at least one US senator to ask about theveracity of the report.The US tried to prove the payment of 
, or residence certificate taxes, by the island’sinhabitants to the Spanish Govt, as well as regular visits of Spanish naval vessels to theislands. Archives in Seville also disclosed evidence that Spain sent an expedition to theisland in 1710, and that a group of Jesuit missionaries were actually sent to settle in theisland, with the avowed goal of converting the natives and exercise occupation of theisland on behalf of the Spanish crown.US CLAIM, IN A NUTSHELL. The US claim, summarized:(1)Palmas lies well within the demarcation of Art. 3, Treay of Paris;(2)It is approx 12 miles nearer to Mindanao than to any of the smaller islands of theDutch Archipelago;
It is well within the limits marked by the 4 May 1493 Bull of Alexander VI [the
Inter Caetera
];(4)It is well within the limits of the agreement concluded 4 July 1494 between Spain andPortugal;(5)The union of Spain and Portugal in 1580 should remove any doubts as to the title of the Island prior to that time;(6)The govt of Spain considered Palmas one of its oceanic possessions;(7)Spain never relinquished control over the island except to the US; and(8)Spain exercised sovereignty over the Phil archipelago as a whole; it was notnecessary for Spain to maintain seaprate administrations over the island.DUTCH CLAIM, IN A NUTSHELL. The alleged grounds for the Netherlands claim:
In the 17
century, Palmas was conquered by the Rajah of Tabukan, who in 1877signed an agreement with the Dutch East Indies Company that the Tabukan territoriesshould become the property of the company;
The possession of the Dutch East Indies Company came under the direct control of the Netherlands Govt. Since the beginning of the 19
century, the island has beenunder the suzerainty of the Netherlands;
The inhabitants paid taxes to the Dutch govt since the early 19
century;(4)The island is named in contract between the Dutch govt and the Sultan of Turante;(5)The Netherlands Govt introduced vaccination upon the island;(6)The Netherlands authoriesi visited the island at least once a year;(7)Spain never questioned the right of the Netherlands govt to exercise its sovereignty or to plant its flags on the island; and(8)Spain, not having control of the island at the time of cession in 1898, could not cede itto the US.Implicit in its arguments is that while Spain may have had title to the island by virtue of discovery, it had since lost and/or abandoned its title by allowing the Dutch East IndiesCompany to enter into contracts and agreements with native rulers who ceded their territories in favor of the company.MISC. FACTS. The case could not be brought to the Permanent Court of InternationalJustice because the US was not a member of the League of Nations and, consequently, of the PCIJ. The case would have been ideally brought to the PCIJ because it involvedinternational law. The Americans believed however that the PCIJ might be biased againstthe US, because the court was based at The Hague and headed by a Dutch man. Whythe US considered the PCA to be more neutral, considering it is also based at The Hague,was not discussed. Max Huber was actually not the US’s first choice as Arbitrator; theywanted a certain Dr. Yoruzo Oda, or one Lord Finlay, a member of the PCIJ, or a Dr. Walter Schucking of Germany.THE DUTCH HAD THE UPPER HAND
Unlike subsequent arbitrations, probably tominimize costs, the parties stipulated that the proceedings shall be summary in nature, or limited to Memorandums and Counter-Memorandums. The stipulation had the effect of limiting the ability of each party to prove facts it was alleging. Worse, the Americans andthe Dutch had a different construction of the requisite Memorandum: Consistent withmodern forms of summary procedure, the Americans submitted all their arguments andevidence by way of Annexes to their Memorandum. On the other hand, the Dutch did notstate the entirety of their case in their Memorandum; instead, they summarized their arguments for the first time only in their Counter-Memorandum, enabling them to disputepoint by point the Americans’ arguments. Most alarming to Philip Jessup, the Dutch never attached any of their alleged documentary evidence; they merely undertook to “producethem upon request of the arbitrator.” The American panel registered its objection to themanner by which the Dutch wanted to prove their allegations, but the Dutch position wassuspiciously sustained by Huber in his award.HUBER BIASED? Huber asked for further written instructions [/explanations] only from theNetherlands, asking them to explain the weakness in their arguments as pointed out in theAmerican Counter-Memorandum. The Americans objeced, but the Arbitrator was the soleJudge of questions on procedure.A. Highlights of the Decision
 per se
, as invoked by the Americans, gives rise only to an inchoate rightwhich must be perfected through open and continuous acts evidencing effectiveoccupation. “An inchoate title could not prevail over the continuous and peacefuldisplay of authority by another state; for such display may prevail even over a prior,definitive title put forward by another state.”-The Netherlands established effective occupation through, among others, is contractof suzerainty with the local rulers and tribesmen of the island.
Inter-temporal law:
Where different legal rules existed over a period of time, both therule at the creation of the right and at the time of its exercise must be applied. Asformulated by Huber, the application of inter-temporal law is the legal basis for thirdstates (e.g. Netherlands) to acquire a better title to disputed islands on the basis of 
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subsequent acts executed over a long period of time from the incipient time of discovery.
Critical date:
a judicial technique in the use of evidence and more especially theexclusion of evidence consisting of self-serving acts of parties at a stage when it wasevident that a dispute existed.JESSUP SHOWS WHY HE HAS A MOOT COURT COMPETITION NAMED AFTER HIM.He had criticisms not only on the procedural aspect of the artbitration, but also on thesubstantive aspects of the award.INTER-TEMPORAL LAW AS FORMULATED:
. “Assume that State Aacquires Island X from State B by a Treaty of peace after a war in which A is the victor...Assume that A holds X, but without making use of it, for 200 years. At the end of that timesuppose that the development of international law [
] and that the new rule is that noterritory may be acquired by a victor from a vanquished at the close of a war. Under thetheory of “inter-temporal law” as expounded, it would appear that A would no longer havegood title to X, but must secure a new title upon such other basis [as is] in accordance withthe new rule. Such a retroactive effect of law would be highly disturbing. Every Statewould constantly be under the necessity of examining its title to each portion of its territoryin order to determine whether a change in the law has necessitated, as it were, areacquisition. If such a principle were to be applied to private law and private titles, theresult would be chaos.”Huber’s theory was without precedent and may probably be described as a boldarticulation of a new theory which until today does not seem to have been given wideacceptance. Jurisprudence abound in international law respecting acquired rights or applying the law in force at the time of the creation of the right. Thus state’s title to territoryacquired as a result of conquest is not
ipso facto
extinguished as a result of the rise of thecontemporary norm forbidding the use of force in the conduct of international relations.ARE WE TALKING ABOUT THE RIGHT ISLAND HERE? All the Dutch’s names for Palmas have also been used to refer to the Nenusa Islands, a group admittedly belongingto the Netherlands. It was possible therefore that the island being claimed by theNetherlands was not Palmas, but one of the Nenusa Islands. This was an issue of factthat should have been decided with the assistance of experts.THEORY OF CONSTRUCTIVE POSSESSION. There being a paucity of evidence of actual Spanish exercise of authority on Palmas, it was proper to take into account the factthat the island is one part of the geographical unit known as the Philippine archipelago.Jessup insisted that Spain’s title over the archipelago is clear and that in the absence of contrary evidence, it must be assumed that her occupation and control of Mindanao andother islands included Palmas. Since Spain possessed the whole, constructively, itpossessed all the parts. Besides, the fact that the US did not actually submit evidence of effective occupation (e.g. collection of 
, reports from the different Catholic sects onthe island) was solely because Spain did not provide the US with such evidence. Bydefault, therefore, the US had to argue that it was unnecessary to prove this specific fact of effective occupation.Huber not only failed to appreciate the American formulation of what would later on be theaccepted international law doctrine called “constructive possession of hinterlands,” heignored even the common definition of “archipelago” as a group of islands and watersforming a geographical whole.
Thus the US and the Netherlands, to his mind, had toprove effective occupation.CONTIGUITY THEORY. The theory of contiguity was already in existence in 1928;supported with even token evidence of effective occupation, even the mere raising of theSpanish flag, it should have been enough basis for an award in the US’s favor. But Huber rejected this argument based solely on the alleged lack of a positive rule that the theory isrecognized in international law. He was obviously hesitant to establish a precedent on thismatter, even though he would also establish two revolutionary and precedent-settingrulings (inter-temporal law, critical date). But Venezuela, in the British Guiana BoundaryArbitration, already raised the proposition that occupation, to be effective, need not extendto every nook and corner of the territory. Examples: American and Canadian wilderness;actual occupation of only parts of Australia and New Zealand. Only 5 years after Huber’saward and Jessup’s article, the PCIJ would expressly recognize the existence of the rulewhich Huber declared non-existent.
Eastern Greenland:
Denmark’s possession of part of Greenland was held sufficient evidence of her possession of the whole disputed area.JESSUP WAS NOT ALONE. Sir Hearsh Lauterpacht, addressing the issue of contiguity:“[I]t is doubtful whether, notwithstanding the high authority of the arbitrator, it could disposeof a doctrine which has figured prominently in the practice of states... The apparentantimony of effectiveness and contiguity begins to wear thin as soon as we realize that...effectiveness need not be as complete as appears at first sight and that contiguity is nottheoretical and arbitrary at first sight... As a rule, the conceptions of effectiveness andcontiguity often provide no more than [a] starting point... It is effectiveness relative to thesituation and to the circumstances... When that point is reached there is little to choosebetween contiguity and effectiveness of occupation. Contiguity in such cases may be anessential condition which gives rise to the only element of substance to such otherwiseabstract occupation. In that sense contiguity is a factor more potent.”O’Connell also questioned how effective the Dutch occupation of Palmas could have been.Could it be “that effectiveness was established negatively from the absence of anycompeting manifestations of sovereignty, and that it was only because the Netherlands hastaken more interest in the island than Spain that it was adjudged entitled [by the latter]?”B. Standing to ArbitrateCESSION AS BASIS OF US’S STANDING. The US’s standing to arbitrate, a.k.a. itspersonality to advance a right, was by virtue of Spain’s cession in 1898. While cessionwas then, and until now, recognized as a mode of acquisition of territorial sovereignty, it issubject to the limitation that one’s title is only as good as the title of one’s predecessor (
Nemo dat quod non habet 
). Moreover, it has been the view since the time of Grotius thatthe consent of the population of the ceded territory is essential to the validity of thecession.BUT WE WERE ALREADY INDEPENDENT, AND THE US KNEW. But did Spain still havetitle to the Philippine archipelago on the date of the cession? By 12 June 1898, or almost 6months prior to the Treaty of Paris, Spanish military forces were already defeated by
Art. 46(b), UNCLOS: “’archipelago’ means a group of islands, including parts of islands,interconnecting waters and other natural features which are so closely interrelated that such islands, watersand other natural features form an intrinsic geographical, economic and political entity, or whichhistorically have been regarded as such.”
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