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REPARATION FOR INJURIES SUFFERED

SERVICE OF THE UNITED NATIONS

IN

THE

FACTS: The United Nations (UN) requested an advisory opinion
from the International Court of Justice (ICJ) on two primary
questions.
(1)

Whether, when an agent of the UN is injured while performing
duties relating to an individual State, the UN may bring an
international claim against the State’s government for damages
caused to either (a) the UN or to (b) the victim.

In the event of an affirmative answer to the first question, the UN
also requested an answer on the following question:
(2)

When both the UN and an individual State have an interest in
the same international claim, does the UN’s interest in bringing
the claim outweigh the State’s interest in either providing
diplomatic protection for its offending national, or bringing the
claim itself, depending on the factual circumstances present?

The Organizations is a political body, charged with political
tasks of an important character, and covering a wide field namely,
the maintenance of international peace and security, the
development of friendly relations among nations, and the
achievement of international cooperation in the solution of
problems of an economic, social, cultural or humanitarian
character; and in dealing with its Members it employs political
means.
It is difficult to see how such a convention could operate except upon
the international plane and as between parties possessing
international personality.
The Organization was intended to exercise and enjoy, and is in fact
exercising and enjoying, functions and rights which can only be
explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon
an international plane.
-

ISSUE: WON the Organization has international personality.
HELD: YES.

-

RATIO: Questions to be asked:
(1)

WHETHER
THE
CHARTER
HAS
GIVEN
THE
ORGANIZATION SUCH A POSITION THAT IT POSSESSES,
IN REGARD TO ITS MEMBERS, RIGHTS WHICH IT IS
ENTITLED TO ASK THEM TO RESPECT.

In other words, does the Organization possess international
personality?
To answer this question, which is not settled by the actual terms of
the Charter, we must consider what characteristics it was intended
thereby to give to the Organization.
-

The Charter has not been content to make the Organization
created by it merely a center “for harmonizing the actions of
nations in the attainment of these common ends.”
It has equipped the center with organs and has given it
special tasks.
It has defined the position of the Members in relation to the
Organization by requiring them to give it every assistance in
any action undertaken by it, and to accept and carry out the
decisions of the Security Council; by authorizing the General
Assembly to make recommendations to the Members; by
giving the Organization legal capacity and privileges and
immunities in the territory of its Members; and by
providing for the conclusion of agreements between the
Organization and its Members.

Practice – in particular the conclusion of conventions to which the
Organization is a party – has confirmed this character of the
Organization, which occupies a position in certain respects in
detachment from its Members, and which is under a duty to remind
them, if need be, of certain obligations.

PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015

It is at present the supreme type of international
organization, and it could not carry out the
intentions of its founders if it was devoid of
international personality.
It must be acknowledged that its Members, by entrusting
certain functions to it, with the attendant duties and
responsibilities, have clothed it with competence
required to enable those functions to be effectively
discharged.

1(a): The Organization has the capacity to bring a claim for this
damage.
-

-

Measure of the reparation: should depend upon the amount of the
damage which the Organization has suffered as the result of the
wrongful act or omission of the defendant State and should be
calculated in accordance with the rules of international law.
1(b): TRADITIONAL RULE: diplomatic protection is exercised by
the national State does not involve the giving of a negative answer to
Question 1 (b).
1)
2)

3)

CONCLUSION: the Organizations is an international person.
-

That is not the same as saying that that it is a State, which it
certainly is NOT, or that its legal personality and rights and
duties are the same as those of a State.
Still less is it the same thing as saying that it is “a superState,” whatever that expression may mean.
It does NOT even imply that all its rights and duties must be
upon the international plane, any more than all the rights
and duties of a State must be upon that plane.

-

(2)

WHETHER THE SUM OF THE ITNERNATIONAL RIGHTS
OF THE ORGANIZATION COMPRISES THE RIGHT TO
BRING THE KIND OF INTERNATIONAL CLAIM (against as
State to obtain reparation in respect of the damage caused by
the injury of an agent of the Organization in the course of the
performance of his duties).

-

Whereas s State possesses the totality of international rights and
duties recognized by international law, the rights and duties of an
entity such as the Organization must depend upon its purposes
and functions as specified or implied in its constituent documents
and developed practice.

-

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This rule applies to claims brought by a State.
Even in inter-State relations, there are important exceptions
to the rule, for there are cases in which protection may be
exercised by a State on behalf of persons not having its
nationality.
The rule rests on two bases:
a)
The defendant State has broken an obligation
towards the national State in respect of its nationals.
b) Only the party to whom an international obligation
is due can bring a claim in respect of its breach.

Under international law, the Organization must be deemed to have
those powers which, though not expressly provided in the Charter,
are
conferred upon it by necessary implication as being essential to the
performance of its duties.

WHAT IT MEANS: it is a subject of international law and capable of
possessing international rights and duties, and that it has capacity to
maintain its rights by bringing international claims.

CONCLUSION: the Members have endowed the Organization with
capacity to bring international claims when necessitated by the
discharge of its functions.

As the claim is based on the breach of an international
obligation on the part of the Member held responsible by
the Organization, the Member cannot contend that this
obligation is governed by municipal law, and the
Organization is justified in giving its claim the character of
an international claim.
When the Organization has sustained damage resulting from
a breach by a Member of its international obligations, it is
impossible to see how it can obtain reparation unless it
possesses capacity to bring an international claim.

-

Having regard to its purposes and functions already referred
to, the Organization may find it necessary, and has in fact
found it necessary, to entrust its agents with important
missions to be performed in disturbed parts of the world.
Many missions, from their very nature, involve the agents in
unusual dangers to which ordinary persons are not exposed.
For the same reason, the injuries suffered by its agents in
these circumstances will sometimes have occurred in such a
manner that their national State would not be justified in
bringing a claim for reparation on the ground of diplomatic
protection, or, at any rate, would not feel disposed to do so.
Both to ensure the efficient and independent performance of
these missions and to afford effective support to its agents,
the Organization must provide them with adequate
protection.

For this purpose, the Members of the Organization have entered into
certain undertakings, some of which are in the Charter and others
in complementary agreements.

and upon agreements to be made between the Organization and individual States. the independent action of the Organization itself. therefore. paragraph 5.- The Court must stress the importance of the duty to render to the Organization "every assistance" which is accepted by the Members in Article 2. On this ground. his independence might well be compromised. and. By 10 votes against 5 that when the United Nations as an organization is bringing a claim for reparation for damage caused to its agent. In order that the agent may perform his duties satisfactorily. the Organization is invoking its own right. By 11 votes against 4 that the Organization has the capacity o bring an international claim whether or not the responsible State is a Member of the United Nations. for "it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. contrary to the principle applied by Article 100 of the Charter. And lastly. but in that of the Organization. In such an event. - - - In such a case. 1(a) 1(b) 2 Affirmative. he must feel that this protection is assured to him by the Organization. and as between the Organization and its Members it draws attention to their duty to render "every assistance" provided by Article 2. competition between the State's right of diplomatic protection and the Organization's right of functional protection might arise. cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the Organization. of the Charter. and the independence and effectiveness of the work of its agents—require that these undertakings should be strictly observed. by the complications of international life. Although the bases of the two claims are different. he should not have to rely on the protection of his own State. If he had to rely on that State. In particular. paragraph 5. the right to secure respect for undertakings entered into towards the Organization. and this is the only case with which the Court is invited to deal. to one more affected or less affected. The risk of competition between the Organization and the national State can be reduced or eliminated either by a general convention or by agreements entered into in each particular case. to one in sympathy or not in sympathy with the mission of the agent— he should know that in the performance of his duties he is under the protection of the Organization. - - Therefore it does not matter whether or not the State to which the claim is addressed regards him as its own national. respect for this rule will usually prevent a conflict between the action of the United Nations and such rights as the agent’s national State may possess. In law. but is asserting its own right. - - When it claims redress for a breach of these obligations. PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015 Page 2 | Bantay . When the agent bears the nationality of the defendant State: The action of the Organization is in fact based not upon the nationality of the victim but upon his status as agent of the Organization. the Organization does not represent the agent. The effective working of the Organization—the accomplishment of its task. The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense. it can only do so basing its claim upon a breach of obligations due to itself. it does not seem that the fact of the possession of the nationality of the defendant State by the agent constitutes any obstacle to a claim brought by the Organization for a breach of obligations towards it occurring in relation to the performance of his mission by that agent. it is essential that—whether the agent belongs to a powerful or to a weak State. it asks for reparation of the injury suffered. this reconciliation must depend upon considerations applicable to each particular case. it is essential that in performing his duties he need not have to rely on any other protection than that of the Organization (save of course for the more direct and immediate protection due from the State in whose territory he may be). 2: When the victim has nationality. The capacity of the Organization to exercise a measure of functional protection of its agents arises by necessary intendment out of the Charter. - - - To ensure the independence of the agent. SUMMARY OF OPINIONS: With respect to questions 1(a) and 1(b). moreover. This assurance is even more necessary when the agent is stateless. that does not mean that the defendant State can be compelled to pay the reparation due in respect of the damage twice over. The obligations entered into by States to enable the agents of the Organization to perform their duties are undertaken not in the interest of the agents. there is no rule of law which assigns priority to the one or to the other. the right that the obligations due to it should be respected." In claiming reparation based on the injury suffered by its agent. or which compels either the State or the Organization to refrain from bringing an international claim. because the question of nationality is not pertinent to the admissibility of the claim. consequently. the Court established a distinction according to whether the responsible State is a Member or not of the United Nations. of the Charter. and that he may count on it.

place in that body. is designed only to determine the respective functions of these two organs which consist in pronouncing upon the question whether or not the applicant State shall be admitted to membership after having established whether or not the prescribed conditions are fulfilled. or to specify the elements which may serve in a concrete case to verify the existence of the requisite conditions. Nor does the request concern a Member's freedom of expressing its opinion. the limits of this freedom are fixed by Article 4 and allow for a wide liberty of appreciation. reference must be made to the terms of its constitution. none connected with the conditions of admission—is excluded. the Court may give an advisory opinion on any PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015 couched in abstract terms? The Court cannot reply to the question as it involves an interpretation of the Charter? Nowhere is any provision to be found forbidding the Court. the General Assembly can hardly be supposed to have intended to ask the Court's opinion as to the reasons which.CONDITIONS OF ADMISSION OF A MEMBERSHIP IN THE UNITED NATIONS STATE TO FACTS: The General Assembly of the United Nations asked the Court to give an advisory opinion on the question concerning the conditions of admission of a State to membership in the United Nations (Art. REQUISITE CONDITIONS TO BE ADMITTED TO THE MEMBERSHIP IN THE UNITED NATIONS: an applicant must: (1) (2) (3) (4) (5) Be a State. All these conditions are subject to the judgment of the Organization. which provide for the admission of "tout Etat remplissant ces conditions"—"any such State". nor with the nature of the appreciation involved in that judgment. unconnected with those laid down. an interpretative function which falls within the normal exercise of its judicial powers. the Court holds that it is competent. may prompt its vote. According to Article 96 of the Charter and Article 65 of the Statute. nor with the considerations which. in virtue of Article 4 of the Charter. in the concrete cases submitted for examination to the Security Council. in referring to the "recommendation" of the Security Council and the "decision" of the General Assembly. a multilateral treaty. no relevant political factor that is to say. invites it to undertake an essentially judicial task. Such a power would be inconsistent with the very character of paragraph I of Article 4 which. If the authors of the Charter had meant to leave Members free to import into the application of this provision Page 3 | Bantay The Court furthermore observes that Rule 60 of the Provisional Rules of Procedure of the Security Council is based on this interpretation. follow from the exhaustive character of paragraph I of Article 4 that an appreciation is precluded of such circumstances of fact as would enable the existence of the requisite conditions to be verified. clearly constitutes a legal regulation of the question of the admission of new States. That is a mere affirmation devoid of any justification. either directly or indirectly. legal question. - - - It would lead to conferring upon Members an indefinite and practically unlimited power of discretion in the imposition of new conditions. which. which enter into a mental process. The Court considers that the text is sufficiently clear. however. RATIO: The request for an opinion does NOT refer to the actual vote. are obviously subject to no control. if other conditions. while the preceding paragraph lays down the substantive law. Moreover. Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article. on the admission of a State to membership in the United Nations. "the principal judicial organ of the United Nations". this paragraph. Accept the obligations of the Charter. Accordingly. could be demanded. It does not. by linking admission to the decision. to pronounce itself by its vote. Be able to carry out these obligations. that of its Members. consequently. - - Although the Members are bound to conform to the requirements of Article 4 in giving their votes. they would undoubtedly have adopted a different wording. can such a Member. 4 of the Charter). - - Does not preclude the Members of the Organization from advancing considerations of political expediency. The question put is concerned with the individual attitude of each Member called upon to pronounce itself on the question of admission. abstract or otherwise. framed in abstract terms. The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. to exercise in regard to Article 4 of the Charter. - These conditions constitute an exhaustive enumeration and are not merely stated by way of guidance or example. The Court is NOT called upon either to define the meaning and scope of the conditions on which admission is made dependent. The judgment of the Organization means the judgment of the two organs mentioned in paragraph 2 of Article 4. The taking into account of such factors is implied in the very wide and very elastic nature of the prescribed conditions. by reason of the close connection which it establishes between membership and the observance of the principles and obligations of the Charter. - Does NOT represent only an indispensable minimum: Such an interpretation would be inconsistent with the terms of paragraph 2 of Article 4. SECOND PART OF THE QUESTION: to demand on the part of a Member making its consent to the admission of an applicant dependent on the admission of other applicants. these two questions being dealt with in the preceding paragraph. it does not feel that it should deviate from the consistent practice of the Permanent Court of International Justice. to concrete cases or to particular circumstances. and Be willing to do so. the spirit as well as the terms of the paragraph preclude the idea that considerations extraneous to these principles and obligations can prevent the admission of a State which complies with them. Falls outside the jurisdiction of this Court as the questions put must be regarded as a political one? The Court should NOT deal with a question The Court cannot attribute a political character to a request which. and not with the subject of the judgment of the Organization. Moreover. . “Is a Member of the United Nations which is called upon. extraneous to the conditions of Article 4? But paragraph 2 is concerned only with the procedure for admission. on the basis of Article 96 of the Charter and Article 65 of the Statute. in the last analysis. the interpretation of a treaty provision. nothing which is said in the present opinion refers. either in the Security Council or in the General Assembly. according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself. formed the subject of the exchange of views which tool. - - This procedural character is clearly indicated by the words "will be effected". It is not concerned with the motives which may have inspired this request. point clearly to the fact that the paragraph is solely concerned with the manner in which admission is effected. while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned. subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?” HELD: NO. To ascertain whether an organ has freedom of choice for its decisions. - considerations extraneous to the conditions laid down therein. juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular. and. in the mind of a Member. - The provision would lose its significance and weight. In this case. It is the duty of the Court to envisage the question submitted to it only in the abstract form which has been given to it. Be peace-loving. Such reasons.

not on the conditions required of applicants. but on an extraneous consideration concerning States other than the applicant State. Such a demand is incompatible with the letter and spirit of Article 4 of the Charter. To subject an affirmative vote for the admission of an applicant State to the condition that other States be admitted with that State would prevent Members from exercising their judgement in each case with complete liberty. within the scope of the prescribed conditions. otherwise it would be impossible to determine whether a particular applicant fulfils the necessary conditions.- - - Such a demand clearly constitutes a new condition. PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015 Page 4 | Bantay . qualifications which are supposed to be fulfilled. since it makes admission dependent. since it is entirely unconnected with those prescribed in Article 4. The provisions of Article 4 necessarily imply that every application for admission should be examined and voted on separately and on its own merits. It is also in an entirely different category from those conditions.

will signify de jure recognition by Australia of the Indonesian incorporation of East Timor. the very subject-matter of the Court's decision would necessarily be a determination whether. however. on the question whether the conduct of Australia in negotiating. The incorporation of East Timor as part of Indonesia was recognized by Australia de facto on 20 January 1978. Indeed.. the Australian Minister of Foreign Affairs declare that negotiations which were about to begin between Australia and Indonesia for the delimitation of the continental shelf between Australia and East Timor. In this connection. hearings were held between 30 January and 16 February 1995. of the Statute would not enable the Court to act if. Portugal agrees that if its Application required the Court to decide any of these questions. Australia contends that the case as presented by Portugal is artificially limited to the question of the lawfulness of Australia's conduct. The objection of Australia must therefore be dismissed. "failed to observe -. Australia contends that the jurisdiction conferred upon the Court by the Parties' declarations under Article 36. A Treaty to this effect was eventually concluded between then on 11 December 1989. On 15 December 1978. the Court concludes that Australia's behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty. . Asserting on 31 May 1976 the people of East Timor had requested Indonesia “to accept East Timor as an integral part of the Republic of Indonesia. in 1971-1972. to the effect that Portugal's Application would require the Court to determine the rights and obligations of Indonesia.” The negotiations in question began in February 1979. this law came into force in 1991. __________ Following the intervention of the armed forces of Indonesia in the Territory and the withdrawal of the Portuguese authorities. it points out that Portugal and Australia have accepted the compulsory jurisdiction of the Court under Article 36. according to the Application. even if the Court did not have to determine its validity.” on 17 July 1976. paragraph 2. whereby a “Zone of Cooperation” was created “in an area between the Indonesian Province of East Timor and Northern Australia. possibility of establishing a provisional arrangement for the joint exploration and exploitation of the resources of an area of the continental shelf. Indonesia enacted a law incorporating the Territory as part of its national territory. Australia maintains that it is being sued in place of Indonesia. while Portugal allegedly could have done so. Prior to this. 23-35) The Court then considers Australia's principal objection. the Court were required to rule on the lawfulness of Indonesia's entry into and continuing presence in East Timor. AUSTRALIA) Judgment of 30 June 1995 In its Judgment on the case concerning East Timor (Portugal v. Since their departure. On 7 December 1975. it refers to the Court's Judgment in the case of the Monetary Gold Removed from Rome in 1943. In support of its argument. the Court. formulated complaints of fact and law against Australia which the latter has denied. Portugal contends first that its Application is concerned exclusively with the objective conduct of Australia. Australia and Indonesia had. the Application refers to the declarations by which the two States have accepted the compulsory jurisdiction of the Court under Article 36. Australia raised questions concerning the jurisdiction of the Court and the admissibility of the Application. Australia's objection that there exists in reality no dispute between the Parties (paras. on the validity of the 1989 Treaty between Australia and Indonesia. 1-10) In its Judgment the Court recalls that on 22 February 1991 Portugal instituted proceedings against Australia concerning "certain activities of Australia with respect to East Timor". by its conduct.. concluding and initiating performance of the 1989 Treaty was in breach of an obligation due by Australia to Portugal under international law. on 27 August 1975. Portugal has. On 8 December 1975. By virtue of this denial.” The delimitation negotiations which began in February 1979 between Australia and Indonesia related to the Timor Gap. There nonetheless exists a legal dispute between Portugal and Australia. The Parties disagree.: he added: “The acceptance of this situation does not alter the opposition which the Government has consistently expressed regarding the manner of incorporation. rightly or wrongly. and that the true respondent is Indonesia. there is a legal dispute. in order to do so. Summary of the Judgment FACTS: Following internal disturbances in East Timor. not Australia. paragraph 2. and the Parties acknowledge that the Territory has remained under the effective control of that State. Portugal’s Application limits the proceedings to these questions. According to the Application Australia had. and that this question is perfectly separable from any question relating to the lawfulness of the conduct of Indonesia. the question of East Timor became the subject of two resolutions of the Security Council and of eight resolutions of the General Assembly. both on the law and on the facts.CASE CONCERNING EAST TIMOR (PORTUGAL v. of its Statute. or on the rights and obligations of Indonesia under that Treaty. As the basis for the jurisdiction of the Court. it is not relevant whether the "real dispute" is between Portugal and Indonesia rather than Portugal and Australia. Australia and Indonesia then turned to the PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015 On the record before the Court. Page 5 | Bantay Australia's objection that the Court is required to determine the rights and obligations of Indonesia (paras. The Court finds in this respect that for the purpose of verifying the existence of a legal dispute in the present case. and. the Portuguese authorities departed from the island of Atauro. the armed forces of Indonesia intervenes in East Timor. In consequence. The Judgment then sets out the final submissions which were presented by both Parties in the course of the oral proceedings. of its Statute.the obligation to respect the duties and powers of [Portugal as] the administering Power [of East Timor]. which consists in having negotiated. it is clear that the Parties re in disagreement. established a delimitation of the continental shelf between their respective coasts. The Court could not make such a determination in the absence of the consent of Indonesia. the delimitation so effected stopped short on either side of the continental shelf between the south coast of East Timor and the north coast of Australia. and thus left East Timor altogether. Australia). In its Counter-Memorial. by 14 votes to 2. paragraph 2. as to whether the Court is required to decide any of these questions in order to resolve the dispute referred to it. the right of the people of East Timor to self-determination and the related rights". found that it could not exercise the jurisdiction conferred upon it by the declarations made by the Parties under Article 36. it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental shelf. Procedural history (paras. 21-22) The Court goes on to consider Australia's objection that there is in reality no dispute between itself and Portugal.. they did not come to fruition. Having carefully considered the argument advanced by Portugal which seeks to separate Australia's behaviour from that of the Indonesia. of its Statute to adjudicate upon the dispute referred to it by the Application of the Portuguese Republic. This undelimited part of the continental shelf was called the “Timor Gap. but that Indonesia has not. In the course of a meeting held by the President of the Court the Parties agreed that these questions were inextricably linked to the merits and that they should therefore be heard and determined within the framework of the merits. the Portuguese civil and military authorities withdrew from the mainland of East Timor to the island of Atauro.” Australia enacted legislation in 1990 with a view to implementing the Treaty. concluded and initiated performance of the 1989 Treaty with Indonesia. “when they start. The written proceedings having been completed in July 1993. having regard to the circumstances in which Indonesia entered and remained in East Timor. Indonesia has occupied the Territory. Australia had "incurred international responsibility vis-a-vis both the people of East Timor and Portugal". paragraph 2. the Court could not entertain it.

even if the right in questions is a right erga omnes. has an erga omnes character. 36-37) The Court recalls in any event that it has taken note in the Judgment that. Conclusions (paras. The Court finds. p. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court. can be read as imposing an obligation on States not to recognize any authority on the part of Indonesia over East Timor and. rests on the premise that the United Nations resolutions. Without prejudice to the question whether the resolutions under discussion could be binding in nature. I. The Court takes note of the fact that. East Timor's status as a non-self governing territory and the right of the people of the Territory to self-determination and to permanent sovereignty over its wealth and natural resources. for the two Parties. the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. the Court observes.J. for the two Parties. The Court accordingly finds that it is not required to consider Australia's other objections and that it cannot rule on Portugal's claims on the merits. to deal only with Portugal.The Court rejects Portugal's additional argument that the rights which Australia allegedly breached were rights erga omnes and that accordingly Portugal could require it. is irreproachable. and that the express reference to Portugal as the "administering Power" in a number of the above-mentioned resolutions is not at issue between them. to respect them regardless of whether or not another State had conducted itself in a similarly unlawful manner. Indonesia's rights and obligations would thus constitute the very subject matter of such a judgment made in the absence of that State's consent. that the Court can only exercise jurisdiction over a State PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015 Page 6 | Bantay . the Court cannot act. Whatever the nature of the obligations invoked. whatever the importance of the questions raised by those claims and of the rules of international law which they bring into play. the Territory of East Timor remains a nonself governing territory and its people has the right to selfdetermination. that it cannot be inferred from the sole fact that a number of resolutions of the General Assembly and the Security Council refer to Portugal as the administering Power of East Timor that they intended to establish an obligation on third States to treat exclusively with Portugal as regards the continental shelf of East Timor. the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. individually. the Territory of East Timor remains a non-self governing territory and its people has the right to self-determination. the Court considers as a result that they cannot be regarded as "givens" which constitute a sufficient basis for determining the dispute between the Parties. Portugal maintains that those resolutions would constitute "givens" on the content of which the Court would not have to decide de novo. and in particular those of the Security Council. In the Court's view. However. Reports 1954. namely. Such a judgment would run directly counter to the "well-established principle of international law embodied in the Court's Statute. where the latter is concerned. it is one of the essential principles of contemporary international law. The Court goes on to consider another argument of Portugal which. Portugal's assertion that the right of peoples to self-determination. Where this is so. however.C. with its consent" (Monetary Gold Removed from Rome in 1943. 32). It follows from this that the Court would necessarily have to rule upon the lawfulness of Indonesia's conduct as a prerequisite for deciding on Portugal's contention that Australia violated its obligation to respect Portugal's status as administering Power. as it evolved from the Charter and from United Nations practice.

precisely the characteristic feature of the legal situation pertaining in those parts of the globe which. - - - Territorial sovereignty is. 1898. The subject of the dispute is the sovereignty over the Island of Palmas (or Miangas). bases its title in the first place on discovery. - Page 7 | Bantay The development of the national organization of States during the last few centuries and.5 billion. It results from the evidence produced by either side that Palmas (or Miangas) is a single. 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. in the American view. (P) was back up with the fact that the islands had been ceded by Spain by the Treaty of Paris in 1898. it based its claim of title in the first place on discovery. or by acts of recognition of States within fixed boundaries. or in exceptional circumstances to several States. in general. The existence of sovereignty thus acquired is. nationals amounting to over $2. the fact of discovery by Spain is not proved. it is. this latter title was intact at the moment when. In these circumstances. 1906.S. to the present day. etc. of collective sovereignty. Arb. The fact that the functions of a State can be performed by any State within a given zone is. throw any doubt upon the principle which has just been enunciated. Independence in regard to a portion of the globe is the right to exercise therein. on the other hand. nor yet any other form of acquisition. . claims. (P) maintained that it was part of the Philippines. (Huber. 1925. Spain was found not to have dominion over the island. On the part of the Netherlands (D). such as frontier conventions. to which Spain and the Netherlands are themselves Contracting Parlies. but also by treaty. at the time of the Treaty of Paris in 1898. that is. Spain ceded the Philippines to the United States. 1925. on the ground that these Powers put forward conflicting claims to sovereignty over the said island. or else by legal engagements entered into between interested neighbors. NO. to the exclusion of all others. and the Special Agreement of January 23"'. either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed. cannot or do not yet form the territory of a State. have possessed and exercised rights of sovereignty from 1677. who was then Governor of the Province of Moro. isolated island. 1898. and even if Spain had at any moment had a title. While the U. and the Netherlands. The territorial sovereignty of the Netherlands (D) was not contested by anyone from 1700 to 1906. on the one hand. including Palmas (or Miangas). DISCUSSION. ordered payment by Iran (D) to U. This visit led to the statement that the Island of Palmas (or Miangas). establishing the suzerainty of the Netherlands over the territories of these princes. according to the same argument.S. or include it in or exclude it from a zone delimited by a geographical frontier-line. as a corollary. on the other hand. such title had been lost. like the high seas or lands without a master. y 4. unnecessary to establish facts showing the actual display of sovereignty precisely over the Island of Palmas (or Miangas). The title of discovery at best an inchoate title does not therefore prevail over the Netherlands (D) claims of sovereignty. Evidence of contracts made by the East India Company and the Netherlands (D) was examined by the arbitrator. ISSUE. occupation. It lies about halfway between Cape San Augustin (Mindanao. There followed a diplomatic correspondence. Can a title which is inchoate prevail over a definite title found on the continuous and peaceful display of sovereignty? HELD.ISLAND OF LAS PALMAS CASE BRIEF FACT SUMMARY. in the American view. A title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display of sovereignty. Both the United States (P) laid claim to the ownership of the Island of Palmas. The principle of contiguity is contested. represented for this purpose in the first period of colonisation by the East India Company. they claimed to have possessed and exercised rights of sovereignty over the island from 1677 or earlier to the present.S. of 1648. it is customary to examine which of the States claiming sovereignty possesses a title—cession conquest. in particular by the Treaty of Minister.700 private U. The special cases of the composite State. Both the United States (P) laid claim to the ownership of the Island of Palmas. do not fall to be considered here and do not. a situation recognized and delimited in space. was considered by the Netherlands as forming part of the territory of their possessions in the East Indies. The origin of the dispute is to be found in the visit paid to the Island of Palmas (or Miangas) on January 21st. If a dispute arises as to the sovereignty over a portion of territory. by the Treaty of December 10. on the other. as delimited by Article III of the Treaty of Peace between the United States and Spain. The peaceful and continuous display of territorial sovereignty is as good as title. This sovereignty arose out of conventions entered into with native princes of the Island of Sangi (the main island of the Talautse (Sangi) Isles). and ceded in virtue of the said article to the United States. According to the Netherlands Government. by General Leonard Wood. The Netherlands Government's main argument endeavours to show that the Netherlands. and as successor to the rights of Spain over the Philippines. to the island in dispute. ARGUMENTS: UNITED STATES THE NETHERLANDS The united States.—superior to that which the other State might possibly bring forward against it. Before 1906 no dispute had arisen between the United States or Spain. Philippine Islands) and the most northerly island of the Nanusa (Nanoesa) group (Netherlands East Indies).). The Treaty of Peace of December 10*''. 2. As. A title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display of sovereignty. not one of several islands clustered together. 4. The state of affairs thus set up is claimed to be validated by international treaties. in regard specifically to the Island of Palmas (or Miangas). Hence. SYNOPSIS OF RULE OF LAW. The claim of the U. FACTS. the development of international law. are the only international instruments laid before the Arbitrator which refer precisely. for that matter. to cause the acquired title to disappear. etc. The two Parties claim the island in question as a territoiy attached for a very long period to territories relatively close at hand which are incontestably under the sovereignty of the one or the other of them. The scope of the international treaties which relate to the "Philippines" and of conventions entered into with native Princes will be considered in connection with the arguments of the Party relying on a particular act. the functions of a State. beginning on March 31*1. the Netherlands (D) claimed it as their own. ARBITRATOR’S REMARKS ON SOVEREIGNTY IN ITS RELATION TO TERRITORY: Sovereignty in the relations between States signifies independence.S.. However. Under this reservation it may be stated that territorial sovereignty belongs always to one. PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015 3. confirmed not merely by the most reliable cartographers and authors. in international law. While the U. or probably from a date prior even to 1648. It results from the terms of the Special Agreement (Article I) that the Parties adopt the view that for the purposes of the present arbitration the island in question can belong only to one or the other of them. nothing has occurred of a nature. by mathematical location or by express and unequivocal mention. Rights of third Powers only come into account in so far as the rights of the Parties to the dispute may be derived from them.S. undoubtedly included in the "archipelago known as the Philippine Islands". The claims made by the Netherlands (D) were also based on the premise of the convention it had with the princes and native chieftains of the islands. discovery alone without subsequent act cannot suffice to prove sovereignty over the island. as successor to the rights of Spain over Philippines. ESTABLISHED FACTS: 1. to the exclusion of any other State. (P) maintained that it was part of the Philippines. The United States Government finally maintains that Palmas (or Miangas) forms a geographical part of the Philippine group and in virtue of the principle of contiguity belongs to the Power having the sovereignty over the Philippines. 1906. 1898 (hereinafter also called "Treaty of Paris"). and leading up to the conclusion of the Special Agreement of January 23™1. the Netherlands (D) claimed it as their own. dated December 10lh.

Manifestations of territorial sovereignty assume. and as long as they hold good. Article III of the Treaty of Paris. this is because the question rarely arises in connection with territories in which there is already an established order of things. One observation. Without manifesting its territorial sovereignty in a manner corresponding to circumstances. which is drafted differently from the preceding Article concerning Porto Rico. as need arises. recognizes— though under different legal formulae and with certain differences as to the conditions required—that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as a title. The delimitation of Hinterland may also be mentioned in this connection. - - The principle that continuous and peaceful display of the functions of State within a given region is a constituent element of territorial sovereignty is not only based on the conditions of the formation of independent States and their boundaries (as shown by the experience of political history) as well as on an international jurisprudence and doctrine widely accepted. like cession. therefore.g. the high seas. such as belongs only to the territorial sovereign. sovereignty cannot be exercised in fact at every moment on every point of a territory. International law. - - This right has as corollary a duty: the obligation to protect within the territory the rights of other States. . If. it has none the less limited their effect by the principles of prescription and the protection of possession. together with the rights which each State may claim for its nationals in foreign territory. is to be made. that practice. within the limits fixed by the Article. or on those of the Powers signatories of the treaty. failing any specific provision of law to the contrary. in the case of an island situated in the high seas. has demanded that the occupation shall be effective would be inconceivable. So true is this.e. this principle has further been recognized in more than one federal State. a. such as occupation or conquest. - As already stated the Island of Palmas lies within the lines traced by the Treaty. as e. or if. is so worded that it seems as though the Philippine Archipelago.- - However. Just as before the rise of international law. no conventional line of sufficient topographical precision exists or if there are gaps in the frontiers otherwise established. as well as doctrine. the fact of peaceful and continuous display is still one of the most important considerations in establishing boundaries between States. such a title exists. - - - - In the same way natural accretion can only be conceived of as an accretion to a portion of territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity. different forms. the actual continuous and peaceful display of State functions is in case of dispute the sound and natural critérium of territorial sovereignty. abandoned the right. however. Page 8 | Bantay It is evident that Spain could not transfer more rights than she herself possessed. 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 as critical. and this right or claim of right would have been ceded to the United States. or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from. and that no reservations were made by the latter in respect to the delimitation of the Philippines in Article III. could have been modified by the Netherlands only in agreement with Spain. so too.). thanks to its complete judicial system. where a jurisdiction is established in order to apply. it is true. to the category of an abstract right. cannot be presumed to reduce a right such as territorial sovereignty. without concrete manifestations. or. - Although continuous in principle. It is true that neighboring States may by convention fix limits to their own sovereignty. the question arises whether a title is valid erga omnes. - It is. though the negotiations of 1898. If the effectiveness has above all been insisted on in regard to occupation. ISSUE: [1] WON the Island of Palmas (or Miangas) at the moment of the conclusion and coming into force of the Treaty of Paris formed a part of the Spanish or Netherlands territory. in particular their right to integrity and inviolability in peace and in war. as has already been said. or if a conventional line leaves room for doubt. to excluding the activities of other States. i. but only an "inchoate" title. on February 3. if effectiveness were required only for the act of acquisition and not equally for the maintenance of the right. - This principle must be applied in the present case. was at the moment of cession under Spanish sovereignty. boundaries of lands were necessarily determined by the fact that the power of a State was exercised within them. it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment. the structure of which is not based on any super-State organization. As it is not proved that Span. 1899. jus in re once lawfully acquired shall prevail over de facto possession however well established. The growing insistence with which international law. It is recognized that the United States communicated. RATIO: [1] for the purpose of the present affair it may be admitted that the original title derived from discovery belonged to Spain. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved. Territorial sovereignty cannot limit itself to its negative side. under the reign of international law. [2] Whether and to what extent the territorial sovereignty of Spain was manifested in or in regard to the Island of Palmas for Miangas. unnecessary to consider whether subsequently Spain by any express or conclusive action. Article III may therefore be considered as an affirmation of sovereignty on the part of Spain as regards the Island of Palmas (or Miangas). It seems therefore natural that an element which is essential for the constitution of sovereignty should not be lacking in its continuation. in regard to a treaty notified to it can exercise any influence on the rights of this Power. which the said Treaties may have conferred upon her in regard to Palmas (or Miangas). even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested. at the beginning of 1648 or in June 1714. - the minimum of protection of which international law is the guardian. presuppose that the ceding and the cessionary powers or at least one of them. in order to assure them at all points PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015 This is the more significant. for instance. however. it is true. for it serves to divide between nations the space upon which human activities are employed. if the contestation is based on the fact that the other Party has actually displayed sovereignty. - The question whether the silence of a third Power. ever since the middle of the 18th century. was in possession of the Island of Palmas (or Miangas). involves the exclusive right to display the activities of a State. do not disclose that the situation of Palmas had been specifically examined. VIEW: discovery does not create a definitive title of sovereignty. rules of international law to the interstate relations of the States members. as far as they are on the record of the present case. the Treaty of Paris to the Netherlands. for the reasons given above in regard to the rules determining which of successive legal systems is to be applied (the socalled intertemporal law). in that it might well be conceived that in a federal State possessing a complete judicial system for interstate matters—far more than in the domain of international relations properly so-called—there should be applied to territorial questions the principle that. have the faculty of effectively disposing of the ceded territory. This demonstration consists in the actual display of State activities. there is no proof that Spain acquired by the Treaty of Munster or the Treaty of Utrecht a title to sovereignty over the island which. and in this way each may prevent the other from any penetration of its territory. in accordance with the said Treaties. Although municipal law. the State cannot fulfill this duty. is a question the answer to which may depend on the nature of such rights. - - Territorial sovereignty. according to conditions of time and place. without external manifestation. with which almost all international relations are bound up. is able to recognize abstract rights of property as existing apart from any material display of them. Titles of acquisition of territorial sovereignty in present-day international law are either based on an act of effective apprehension.

- - - - The title of discovery. The title of contiguity. namely the existence of a state of war or at least of subdued hostility amongst the Moros against Spanish rule. S. - Neither is there any official document mentioning the Island of Palmas as belonging to an administrative or judicial district of the former Spanish Government in the Philippines. official or semi-official maps seem capable of fulfilling these conditions. such evidence is exclusively in favour of the Netherlands. which suppose the existence of Mata. because even if the Sangi States. - - If the Spanish naval authorities to whom the administrative inspection of the southern Philippine Islands belonged. exist only as an inchoate title. Above all. - RE: letter of the Dutch missionary Stellar: These facts. rather the contrary. . RE: title arising out of contiguity: The conditions of acquisition of sovereignty by the Netherlands are therefore to be considered as fulfilled. under the most favourable and most extensive interpretation. in a report of August 31st. it would remain to be seen whether continuous and peaceful display of sovereignty by any other Power at a later period might not have superseded even conventional rights. But even if the Treaty of Utrecht could not be taken into consideration. were convinced that the Island of Palmas was Spanish territory. RE: telegram from General Wood to the Bureau of Insular Affairs: The fact that not the ordinary provincial agencies but the navy were in charge of the inspection of the islands in the south. supposing they are correct. are to be considered as "held and possessed" by Spain in 1648. and they would be of special interest in cases where they do not assert the sovereignty of the country of which the Government has caused them to be issued. together with another incidentally mentioned by Major General E. if it had not been already disposed of by the Treaties of Munster and Utrecht would. as a claim to establish sovereignty by effective occupation. and in particular the Island of Palmas (or Miangas) clearly marked as such. A comparison of the maps submitted to the Arbitrator shows that there is doubt as to the existence or the names of Page 9 | Bantay several islands which should be close to Palmas (or Miangas). Moreover. This is to be answered in the negative. the refusal of the native chief to accept the Spanish flag would naturally have led either to direct action on the Island in order to affirm Spanish sovereignty. indications of such a nature are only of value when there is reason to think that the cartographer has not merely referred to already existing maps—as seems very often to be the case—but that he has based his decision on information carefully collected for the purpose. 1899. must be rejected forthwith. An inchoate title however cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. the acquiescence of Spain in the situation created after 1677 would deprive her and her successors of the possibility of still invoking conventional rights at the present time. are no proof of a display of sovereignty over Palmas (or Miangas) . they are not available even as indirect evidence. It remains now to be seen whether the United States as successors of Spain are in a position to bring forward an equivalent or stronger title. as such Treaties do not mention the island in dispute. has no foundation in international law. understood as a basis of territorial sovereignty. at any rate in the case of an island such as Palmas (or Miangas). The title of recognition by treaty does not apply. PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF – SOL 2015 - - Any maps which do not precisely indicate the political distribution of territories. or. RE: evidence from MAPS: only with the greatest caution can account be taken of maps in deciding a question of sovereignty. then. It appears further to be evident that Treaties concluded by Spain with third Powers recognizing her sovereignty over the "Philippines" could not be binding upon the Netherlands and. but are rather conjectures of the author as to what seems probable. [2] The documents laid before the Arbitrator contain no trace of Spanish activities of any kind specifically on the Island of Palmas. if the Netherlands rights had been invoked. but is to be explained by the absence of interest of Spain in the establishment or the maintenance of her rule over a small island lying far off the coast of a distant and only incompletely subdued province. Otis. with the dependency of Miangas. Now if there is evidence of a state of possession in 1714 concerning the island of Palmas (or Miangas). to negotiations such as were the sequel to General Wood's visit in 1906. are not based immediately on information taken on the spot. RE: letter emanating from the Provincial Government of the Philippines: these statements. and in about the same latitude. unless they contribute—supposing that they are accurate—to the location of geographical names.- - Moreover even if she had acquired a title she never intended to abandon. the rights of Spain to be derived from the Treaty of Munster would have been superseded by those which were acquired by the Treaty of Utrecht. leads to the very probable—though not necessary—conclusion that the complete absence of evidence as to display of Spanish sovereignty over the Island of Palmas is not due to mere chance.