I.

General Considerations:

THE ISLAND OF PALMAS CASE (OR MIANGAS)

UNITED STATES OF AMERICA v. THE NETHERLANDS
PERMANENT COURT OF ARBITRATION, Arbitrator – M. Huber,
The Hague, 4 April 1928
. . . .

II.
The subject of the dispute is the sovereignty over the Island of Palmas (or Miangas). . . .
It results from the evidence produced by either side that Palmas (or Miangas) is a single,
isolated island, not one of several islands clustered together. It lies about half way between Cape
San Augustin (Mindanao, Philippine Islands) and the most northerly island of the Nanusa
(Nanoesa) group (Netherlands 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, 1906, by General LEONARD WOOD, who was then Governor of the
Province of Moro . . . [which] is to be regarded as the first entry into contact by the American
authorities with the island. . . .

This visit led to the statement that the Island of Palmas (or Miangas), undoubtedly
included in the “archipelago known as the Philippine Islands”, as delimited by Article III of the
Treaty of Peace between the United States and Spain, dated December 10th, 1898 (hereinafter
also called “Treaty of Paris”), and ceded in virtue of the said article to the United States, was
considered by the Netherlands as forming part of the territory of their possessions in the East
Indies. There followed a diplomatic correspondence, beginning on March 31st, 1906, and leading
up to the conclusion of the Special Agreement of January 23rd, 1925 [ An agreement relating to
the arbitration of differences respecting sovereignty over the Island of Palmas (or Miangas) ].
. . . .

[Positions of the Parties]

In the absence of an international instrument recognized by both Parties and explicitly
determining the legal position of the Island of Palmas (or Miangas), the arguments of the Parties
may in a general way be summed up as follows:
The United States, as successor to the rights of Spain over the Philippines, bases its title
in the first place on discovery. The existence of sovereignty thus acquired is, in the American
view, confirmed not merely by the most reliable cartographers and authors, but also by treaty, in
particular by the Treaty of Münster, of 1648, to which Spain and the Netherlands are themselves
Contracting Parties. As, according to the same argument, nothing has occurred of a nature, in
international law, to cause the acquired title to disappear, this latter title was intact at the moment
when, by the Treaty of December 10th, 1898, Spain ceded the Philippines to the United States. In
these circumstances, it is, in the American view, unnecessary to establish facts showing the
1
actual display of sovereignty precisely over the Island of Palmas (or Miangas). 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.

According to the Netherlands Government, on the other hand, the fact of discovery by
Spain is not proved, nor yet any other form of acquisition, and even if Spain had at any moment
had a title, such title had been lost. The principle of contiguity is contested.
The Netherlands Government’s main argument endeavours to show that the Netherlands,
represented for this purpose in the first period of colonisation by the East India Company, have
possessed and exercised rights of sovereignty from 1677, or probably from a date prior even to
1648, to the present day. This sovereignty arose out of conventions entered into with native
princes of the Island of Sangi (the main island of the Talautse (Sangi) Isles), establishing the
suzerainty of the Netherlands over the territories of these princes, including Palmas (or
Miangas). The state of affairs thus set up is claimed to be validated by international treaties.
The facts alleged in support of the Netherlands arguments are, in the United States
Government’s view, not proved, and, even if they were proved, they would not create a title of
sovereignty, or would not concern the Island of Palmas.

*
[General Remarks on Sovereignty in Relation to Territory]
In the first place the Arbitrator deems it necessary to make some general remarks on
sovereignty in its relation to territory.
. . . . [S]overeignty in relation to a portion of the surface of the globe is the legal
condition necessary for the inclusion of such portion in the territory of any particular State.
Sovereignty in relation to territory is in the present award called “territorial sovereignty”.
Sovereignty in the relations between States signifies independence. Independence in
regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State,
the functions of a State. 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. . . . [T]erritorial sovereignty belongs always to one . . . [State] to the exclusion of all
others. The fact that the functions of a State can be performed by any State within a given zone
is, on the other hand, precisely the characteristic feature of the legal situation pertaining in those
parts of the globe which, like the high seas or lands without a master, cannot or do not yet form
the territory of a State.
Territorial sovereignty is, in general, a situation recognised and delimited in space, either
by so-called natural frontiers as recognised by international law or by outward signs of
delimitation that are undisputed, or else by legal engagements entered into between interested
neighbours, such as frontier conventions, or by acts of recognition of States within fixed
boundaries. If a dispute arises as to the sovereignty over a portion of territory, it is customary to
examine which of the States claiming sovereignty possesses a title – cession, conquest,
occupation, etc. – superior to that which the other State might possibly bring forward against it.
However, if the contestation is based on the fact that the other Party has actually displayed
sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was

2
validly acquired at a certain moment; 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. This demonstration consists in the actual display of State activities, such as
belongs only to the territorial sovereign.
Titles of acquisition of territorial sovereignty in present-day international law are either
based on an act of effective apprehension, such as occupation or conquest, or, like cession,
presuppose that the ceding and the cessionary Powers or at least one of them, have the faculty of
effectively disposing of the ceded territory. 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. It seems therefore natural
that an element which is essential for the constitution of sovereignty should not be lacking in its
continuation. So true is this, that practice, as well as doctrine, 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 growing insistence with which international law, ever since the middle of
the 18th century, has demanded that the occupation shall be effective would be inconceivable, if
effectiveness were required only for the act of acquisition and not equally for the maintenance of
the right. If the effectiveness has above all been insisted on in regard to occupation, this is
because the question rarely arises in connection with territories in which there is already an
established order of things. Just as before the rise of international law, boundaries of lands were
necessarily determined by the fact that the power of a State was exercised within them, so too,
under the reign of international law, the fact of peaceful and continuous display is still one of the
most important considerations in establishing boundaries between States.
Territorial sovereignty, as has already been said, involves the exclusive right to display
the activities of a State. This right has as corollary a duty: the obligation to protect within the
territory the rights of other States, in particular their right to integrity and inviolability in peace
and in war, together with the rights which each State may claim for its nationals in foreign
territory. Without manifesting its territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfil this duty. 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 of protection of which international law is the guardian.
Although municipal law, thanks to its complete judicial system, is able to recognize
abstract rights of property as existing apart from any material display of them, it has none the
less limited their effect by the principles of prescription and the protection of possession.
International law, the structure of which is not based on any super-State organisation, cannot be
presumed to reduce a right such as territorial sovereignty, with which almost all international
relations are bound up, to the category of an abstract right, without concrete manifestations.
. . . .

Manifestations of territorial sovereignty assume, it is true, different forms, according to

conditions of time and place. Although continuous in principle, sovereignty cannot be exercised
in fact at every moment on every point of a territory. The intermittence and discontinuity
compatible with the maintenance of the right necessarily differ according as inhabited or
uninhabited regions are involved, or regions enclosed within territories in which sovereignty is
incontestably displayed or again regions accessible from, for instance, the high seas. It is true

3
that neighbouring States may by convention fix limits to their own sovereignty, even in regions
such as the interior of scarcely explored continents where such sovereignty is scarcely
manifested, and in this way each may prevent the other from any penetration of its territory. The
delimitation of Hinterland may also be mentioned in this connection.
If, however, no conventional line of sufficient topographical precision exists or if there
are gaps in the frontiers otherwise established, or if a conventional line leaves room for doubt, or
if, as e.g. in the case of an island situated in the high seas, the question arises whether a title is
valid erga omnes, the actual continuous and peaceful display of state functions is in case of
dispute the sound and natural criterium of territorial sovereignty.
. . . .

[Consideration of the United States’ Arguments/Position]

III.
The title alleged by the United States of America as constituting the immediate
foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession
transferred all rights of sovereignty which Spain may have possessed in the region indicated in
Article III of the said Treaty and therefore also those concerning the Island of Palmas (or
Miangas).
It is evident that Spain could not transfer more rights than she herself possessed.
. . . .

The essential point is therefore whether 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. . . .
*

As pointed out above, the United States bases its claim, as successor of Spain, in the first
place on discovery. . . .
. . . .
If the view most favourable to the American arguments is adopted . . . that is to say, if we
consider as positive law at the period in question the rule that discovery as such, i.e. the mere
fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure
territorial sovereignty and not merely an “inchoate title”, a jus ad rem, to be completed
eventually by an actual and durable taking of possession within a reasonable time, the question
arises whether sovereignty yet existed at the critical date, i.e. the moment of conclusion and
coming into force of the Treaty of Paris.
As regards the question which of different legal systems prevailing at successive periods
is to be applied in a particular case (the so-called intertemporal law), a distinction must be made
between the creation of rights and the existence of rights. 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 manifestation, shall follow the conditions required by the
evolution of law. International law in the 19th century, having regard to the fact that most parts
of the globe were under the sovereignty of States members of the community of nations, and that
territories without a master had become relatively few, took account of a tendency already

4
existing and especially developed since the middle of the 18th century, and laid down the
principle that occupation, to constitute a claim to territorial sovereignty, must be effective, that
is, offer certain guarantees to other States and their nationals. It seems therefore incompatible
with this rule of positive law that there should be regions which are neither under the effective
sovereignty of a State, nor without a master, but which are reserved for the exclusive influence of
one State, in virtue solely of a title of acquisition which is no longer recognized by existing law,
even if such a title ever conferred territorial sovereignty. For these reasons, discovery alone,
without any subsequent act, cannot at the present time suffice to prove sovereignty over the
Island of Palmas (or Miangas); and in so far as there is no sovereignty, the question of an
abandonment properly speaking of sovereignty by one State in order that the sovereignty of
another may take its place does not arise.
If on the other hand the view is adopted that discovery does not create a definitive title of
sovereignty, but only an “inchoate” title, such a title exists, it is true, without external
manifestation. However, according to the view that has prevailed at any rate since the 19th
century, an inchoate title of discovery must be completed within a reasonable period by the
effective occupation of the region claimed to be discovered. This principle must be applied in the
present case, for the reasons given above in regard to the rules determining which of successive
legal systems is to be applied (the so-called intertemporal law). Now, no act of occupation nor,
except as to a recent period, any exercise of sovereignty at Palmas by Spain has been alleged.
But even admitting that the Spanish title still existed as inchoate in 1898 and must be considered
as included in the cession under Article III of the Treaty of Paris, an inchoate title could not
prevail over the continuous and peaceful display of authority by another State; for such display
may prevail even over a prior, definitive title put forward by another State. This point will be
considered, when the Netherlands argument has been examined and the allegations of either
Party as to the display of their authority can be compared.
. . . .

[Consideration of the Netherlands’ Arguments/Position]

IV.
The Netherlands’ arguments contend that the East India Company [acting on behalf of the
Netherlands] established Dutch sovereignty over the Island of Palmas (or Miangas) as early as the
17th century, by means of conventions with the princes of Tabukan (Taboekan) and Taruna (Taroena),
two native chieftains of the Island of Sangi (Groot Sangihe), the principal island of the Talautse Isles
(Sangi Islands), and that sovereignty has been displayed during the past two centuries.
. . . .
*

The fact that these contracts were renewed from time to time and appear to indicate an
extension of the influence of the suzerain, seems to show that the regime of suzerainty has been
effective. The sovereignty of the Netherlands over the Sangi and Talauer Islands is moreover not
disputed. There is here a manifestation of territorial sovereignty normal for such a region. The
questions to be solved in the present case are the following:
Was the island of Palmas (or Miangas) in 1898 a part of territory under Netherlands’
sovereignty?

5
 Did this sovereignty actually exist in 1898 in regard to Palmas (or Miangas) and are the
facts proved which were alleged on this subject?
If the claim to sovereignty is based on the continuous and peaceful display of State
authority, the fact of such display must be shown precisely in relation to the disputed territory. It
is not necessary that there should be a special administration established in this territory; but it
cannot suffice for the territory to be attached to another by a legal relation which is not
recognized in international law as valid against a State contesting this claim to sovereignty; what
is essential in such a case is the continuous and peaceful display of actual power in the contested
region.
According to the description of the frontiers of the territory of Taruna annexed to the
contract of 1885, the list of dependencies of Taruna on the Talauer Islands mentions first the
different islands of Nanusa, and ends by the words, “and lastly the island Melangis (Palmas)”.
The similar description of frontiers attached to the contract of 1899 states that the Islands
of Nanusa (including the Island of “Miangas”) belong to the territory of Kandahar-Taruna. If
these two mentions refer to the Island of Palmas (or Miangas), it must be recognized that that
island, at any rate nominally, belongs to the vassal State in question; it is by no means necessary
to prove the existence of a special contract with a chieftain of Palmas (or Miangas).
However much the opinions of the Parties may differ as to the existence of proof of the
display of Dutch sovereignty over the Island of Palmas (or Miangas), the reports, furnished by
both sides, of the visit of General WOOD, in January 1906, show that at that time there were at
least traces of continuous relations between the island in dispute and neighbouring Dutch
possessions, and even traces of Dutch sovereignty. General WOOD noted his surprise that the
Dutch flag was flying on the beach and on the boat which came to meet the American ship. . . .
. . . .

V.
The Conclusions to be derived from the above examination of the arguments of the
Parties are the following:
The claim of the United States to sovereignty over the Island of Palmas (or Miangas) is
derived from Spain by way of cession under the Treaty of Paris. The latter Treaty, though it
comprises the island in dispute within the limits of cession, and in spite of the absence of any
reserves or protest by the Netherlands as to these limits, has not created in favour of the United
States any title of sovereignty such as was not already vested in Spain. The essential point is
therefore to decide whether Spain had sovereignty over Palmas (or Miangas) at the time of the
coming into force of the Treaty of Paris.
The United States base their claim on the titles of discovery, of recognition by treaty and
of contiguity, i.e. titles relating to acts or circumstances leading to the acquisition of sovereignty;
they have however not established the fact that sovereignty so acquired was effectively displayed
at any time.
The Netherlands on the contrary found their claim to sovereignty essentially on the title
of peaceful and continuous display of State authority over the island. Since this title would in
international law prevail over a title of acquisition of sovereignty not followed by actual display
of State authority, it is necessary to ascertain in the first place, whether the contention of the
Netherlands is sufficiently established by evidence, and, if so, for what period of time.
In the opinion of the Arbitrator the Netherlands have succeeded in establishing the
following facts:

6
 a. The Island of Palmas (or Miangas) is identical with an island designated by this or a
similar name, which has formed, at least since 1700, successively a part of two of the native
States of the Island of Sangi (Talautse Isles).
b. These native States were from 1677 onwards connected with the East India Company,
and thereby with the Netherlands, by contracts of suzerainty, which conferred upon the suzerain
such powers as would justify his considering the vassal State as a part of his territory.
c. Acts characteristic of State authority exercised either by the vassal State or by the
suzerain Power in regard precisely to the Island of Palmas (or Miangas) have been established as
occurring at different epochs between 1700 and 1898, as well as in the period between 1898 and
1906.
The acts of indirect or direct display of Netherlands sovereignty at Palmas (or Miangas),
especially in the 18th and early 19th centuries are not numerous, and there are considerable gaps in the
evidence of continuous display. But apart from the consideration that the manifestations of
sovereignty over a small and distant island, inhabited only by natives, cannot be expected to be
frequent, it is not necessary that the display of sovereignty should go back to a very far distant
period. It may suffice that such display existed in 1898, and had already existed as continuous and
peaceful before that date long enough to enable any Power who might have considered herself as
possessing sovereignty over the island, or having a claim to sovereignty, to have, according to local
conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her
real or alleged rights.
It is not necessary that the display of sovereignty should be established as having begun at a
precise epoch; it suffices that it had existed at the critical period preceding the year 1898. It is quite
natural that the establishment of sovereignty may be the outcome of a slow evolution, of a
progressive intensification of State control. This is particularly the case, if sovereignty is acquired by
the establishment of the suzerainty of a colonial Power over a native State, and in regard to outlying
possessions of such a vassal State.
Now the evidence relating to the period after the middle of the 19 th century makes it clear that
the Netherlands Indian Government considered the island distinctly as a part of its possessions and
that, in the years immediately preceding 1898, an intensification of display of sovereignty took place.
Since the moment when the Spaniards, in withdrawing from the Moluccas in 1666, made
express reservations as to the maintenance of their sovereign rights, up to the contestation made by
the United States in 1906, no contestation or other action whatever or protest against the exercise of
territorial rights by the Netherlands over the Talautse (Sangi) Isles and their dependencies (Miangas
included) has been recorded. The peaceful character of the display of Netherlands sovereignty for the
entire period to which the evidence concerning acts of display relates (1700–1906) must be admitted.
There is moreover no evidence which would establish any act of display of sovereignty over
the island by Spain or another Power, such as might counter-balance or annihilate the manifestations
of Netherlands sovereignty. As to third Powers, the evidence submitted to the Tribunal does not
disclose any trace of such action, at least from the middle of the 17 th century onwards. These
circumstances, together with the absence of any evidence of a conflict between Spanish and
Netherlands authorities during more than two centuries as regards Palmas (or Miangas), are an
indirect proof of the exclusive display of Netherlands sovereignty.
This being so, it remains to be considered first whether the display of State authority might
not be legally defective and therefore unable to create a valid title of sovereignty, and secondly
whether the United States may not put forward a better title to that of the Netherlands.

7
 As to the conditions of acquisition of sovereignty by way of continuous and peaceful display
of State authority (so-called prescription), some of which have been discussed in the United States
Counter-Memorandum, the following must be said:
The display has been open and public, that is to say that it was in conformity with usages as
to exercise of sovereignty over colonial States. A clandestine exercise of State authority over an
inhabited territory during a considerable length of time would seem to be impossible. An obligation
for the Netherlands to notify to other Powers the establishment of suzerainty over the Sangi States or
of the display of sovereignty in these territories did not exist.
. . . .
The conditions of acquisition of sovereignty by the Netherlands are therefore to be
considered as fulfilled. 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. This is to be answered in the
negative.
The title of discovery, if it had not been already disposed of by the Treaties of Münster and
Utrecht would, under the most favourable and most extensive interpretation, exist only as an inchoate
title, as a claim to establish sovereignty by effective occupation. An inchoate title however cannot
prevail over a definite title founded on continuous and peaceful display of sovereignty.
The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in
international law.
The title of recognition by treaty does not apply, because even if the Sangi States, with the
dependency of Miangas, are to be considered as “held and possessed” by Spain in 1648, the rights of
Spain to be derived from the Treaty of Münster would have been superseded by those which were
acquired by the Treaty of Utrecht. Now if there is evidence of a state of possession in 1714
concerning the island of Palmas (or Miangas), such evidence is exclusively in favour of the
Netherlands. But even if the Treaty of Utrecht could not be taken into consideration, 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.
The Netherlands title of sovereignty, acquired by continuous and peaceful display of State
authority during a long period of time going probably back beyond the year 1700, therefore holds
good.
***
. . . .
For these reasons the Arbitrator, in conformity with Article I of the Special Agreement of January
23rd, 1925, DECIDES that:
The Island of Palmas (or Miangas) forms in its entirety a part of Netherlands territory.

Done at The Hague, this fourth day of April 1928.

MAX HUBER, Arbitrator.

II. Means of Acquiring Territory:

8
 A. Effective Occupation

Clipperton Island Arbitration (France v. Mexico)

(1932) 26 AJIL 390

We, Victor Emmanuel III, by the grace of God and by the will of the nation, King of
Italy.
Considering the agreement signed at Mexico March 2, 1909, by which the Government
of the French Republic and that of the Republic of Mexico have referred to our arbitration the
solution of the difference . . . [regarding] sovereignty over Clipperton Island;

. . . .
In fact, we find, in the first place, that on November 17, 1858, Lieutenant Victor Le Coat
de Kerwéguen, of the French Navy, commissioner of the French Government, while cruising
about one-half mile off Clipperton, drew up, on board the commercial vessel L’Amiral, an act by
which, conformably to the orders which had been given to him by the Minister of Marine, he
proclaimed and declared that the sovereignty of the said island beginning from that date
belonged in perpetuity to His Majesty the Emperor Napoleon III and to his heirs and successors.
During the cruise, careful and minute geographical notes were made; a boat succeeded, after
numerous difficulties, in landing some members of the crew; and on the evening of November
20, after a second unsuccessful attempt to reach the shore, the vessel put off without leaving in
the island any sign of sovereignty. Lieut. de Kerwéguen officially notified the accomplishment
of his mission to the Consulate of France at Honolulu, which made a like communication to the
Government of Hawaii. Moreover, the same consulate had published in English in the journal
The Polynesian, of Honolulu, on December 8, the declaration by which French sovereignty over
Clipperton had already been proclaimed.
Thereafter, until the end of 1887 no positive and apparent act of sovereignty can be
recalled either on the part of France or on the part of any other Powers. The island remained
without population, at least stable, and no administration was organized there. A concession for
the exploitation of guano beds existing there, which had been approved by the Emperor on
April 8, 1858, in favor of a certain Mr. Lockart, and which had given rise to the expedition of
Lieut. de Kerwéguen, had not been followed up, nor had its exploitation been undertaken on the
part of any other French subject.
Towards the end of 1897, precisely the 24 th of November of that year, France stated,
through the Chief of the Naval Division of the Pacific Ocean, which was charged with the
examination of the matter, that three persons were found in the island collecting guano for the
account of the Oceanic Phosphate Co., of San Francisco, and that they had, on the appearance of
the French vessel, raised the American flag. Explanations were demanded on this subject from
the United States, which responded that it had not granted any concession to the said company
and did not intend to claim any right of sovereignty over Clipperton (January 28, 1898).
About a month after this act of surveillance had been accomplished by the French Navy,
and while the diplomatic action with the United States was in progress, Mexico, ignoring the
occupation claimed by France and considering that Clipperton was territory belonging to her for
a long time, sent to the place a gun-boat, La Democrata, which action was caused by the report,
afterwards acknowledged to be inaccurate, that England had designs upon the island. A

9
detachment of officers and marines landed from the said ship December 13, 1897, and again
found the three persons who resided on the island at the time of the preceding arrival of the
French ship. It made them lower the American flag and hoist the Mexican flag in its place. Of the
three individuals above mentioned, two consented to leave the island, and the third declared his
wish to remain there, and in fact remained there until an unknown date. After that the Democrata
left on December 15.
On January 8, France, having learned of the Mexican expedition, reminded that Power of
its rights over Clipperton. From then a very long diplomatic discussion took place which lasted
until the date when, by the agreement of March 2, 1909, the two governments decided to refer to
our arbitration the solution of the difference relative to sovereignty over the island.
IN LAW, it is opportune to examine, in the first instance, the principal thesis maintained
by Mexico that Clipperton Island already belonged to her before France had proclaimed her
sovereignty over the said island. If this claim should be recognized as founded, it would be
necessary to conclude that the occupation of the said island by France was unlawful.
According to Mexico, Clipperton Island, which had been given the name of the famous
English adventurer who, at the beginning of the 18th century, used it as a place of refuge, was
none other than Passion Island, called also Medano or Medanos Island, that this island had been
discovered by the Spanish Navy and, by virtue of the law then in force, fixed by the Bull of
Alexander VII, had belonged to Spain, and afterwards, from 1836, to Mexico as the successor
state of the Spanish state.
But according to the actual state of our knowledge, it has not been proved that this island,
by whatever name one may call it, had been actually discovered by the Spanish navigators. That
they might have known it before the log-books on board the French vessels La Princess and La
Découverte, dated in 1711, had identified and described it, is a conjecture more or less probable,
but from which one cannot draw any decisive argument. However, even admitting that the
discovery had been made by Spanish subjects, it would be necessary, to establish the contention
of Mexico, to prove that Spain not only had the right, as a state, to incorporate the island in her
possessions, but also had effectively exercised that right. But that has not been demonstrated at
all. Mexico produces to support her thesis a geographical map printed from the Archives of the
Mexican Society of Geography and Statistics, where the island figures as comprised within the
“Political and Military Governments of Spain in North America.” But the official character of
this map cannot be affirmed, because it is not certain that it was drawn by order and under the
care of the state, or because the manuscript memorandum which one reads there, namely, that it
was used at the Royal Tribunal of the Consulate of Mexico, does not confer official character
upon it.
Moreover the proof of an historic right of Mexico's is not supported by any manifestation
of her sovereignty over the island, a sovereignty never exercised until the expedition of 1897;
and the mere conviction that this was territory belonging to Mexico, although general and of long
standing, cannot be retained.
Consequently, there is ground to admit that, when in November, 1858, France proclaimed
her sovereignty over Clipperton, that island was in the legal situation of territorium nullius, and,
therefore, susceptible of occupation.
The question remains whether France proceeded to an effective occupation, satisfying the
conditions required by international law for the validity of this kind of territorial acquisition. In
effect, Mexico maintains, secondarily to her principal contention which has just been examined,

10
that the French occupation was not valid, and consequently her own right to occupy the island
which must still be considered as nullius in 1897
In whatever concerns this question, there is, first of all, ground to hold as incontestable,
the regularity of the act by which France in 1858 made known in a clear and precise manner, her
intention to consider the island as her territory.
On the other hand, it is disputed that France took effective possession of the island, and it
is maintained that without such a taking of possession of an effective character, the occupation
must be considered as null and void.
It is beyond doubt that by immemorial usage having the force of law, besides the animus
occupandi, the actual, and not the nominal, taking of possession is a necessary condition of
occupation. This taking of possession consists in the act, or series of acts, by which the
occupying state reduces to its possession the territory in question and takes steps to exercise
exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the
state establishes in the territory itself an organization capable of making its laws respected. But
this step is, properly speaking, but a means of procedure to the taking of possession, and,
therefore, is not identical with the latter. There may also be cases where it is unnecessary to have
recourse to this method. Thus, if a territory, by virtue of the fact that it was completely
uninhabited, is, from the first moment when the occupying state makes its appearance there, at
the absolute and undisputed disposition of that state, from that moment the taking of possession
must be considered as accomplished, and the occupation is thereby completed....

It follows from these premises that Clipperton Island was legitimately acquired by France
on November 17,1858. There is no reason to suppose that France has subsequently lost her right
by derelictio, since she never had the animus of abandoning the island, and the fact that she has
not exercised her authority there in a positive manner does not imply the forfeiture of an
acquisition already definitively perfected.

FOR THESE REASONS, we decide, as arbiter, that the sovereignty over Clipperton Island
belongs to France, dating from November 17, 1958.

Rome, January 28, 1931

[signed] Victor Emmanuel

Legal Status of Eastern Greenland case (Norway v. Denmark),

Permanent Court of International Justice, [1933] PCIJ Rep. Ser. A/B No. 53
. . . .

Before proceeding to consider in detail the evidence submitted to the Court, it may be
well to state that a claim to sovereignty based not upon some particular act or title such as a
treaty of cession but merely upon continued display of authority, involves two elements each of
which must be shown to exist: the intention and will to act as sovereign, and some actual
exercise or display of such authority.
Another circumstance which must be taken into account by any tribunal which has to
adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the

11
sovereignty is also claimed by some other Power. In most of the cases involving claims to
territorial sovereignty which have come before an international tribunal, there have been two
competing claims to the sovereignty, and the tribunal has had to decide which of the two is the
stronger. One of the peculiar features of the present case is that up to 1931 there was no claim by
any Power other than Denmark to the sovereignty over Greenland. Indeed, up till 1921, no Power
disputed the Danish claim to sovereignty.
It is impossible to read the records of the decisions in cases as to territorial sovereignty
without observing that in many cases the tribunal has been satisfied with very little in the way of
the actual exercise of sovereign rights, provided that the other State could not make out a
superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly
populated or unsettled countries.
. . . .

These were all cases in which the Danish Government was exercising governmental
functions in connection with the territory now under dispute.
The character of these Danish acts is not altered by the protests or reserves which, from
time to time, were made by the Norwegian Government.
These acts, coupled with the activities of the Danish hunting expeditions which were
supported by the Danish Government, the increase in the number of scientific expeditions
engaged in mapping and exploring the country with the authorization and encouragement of the
Government, even though the expeditions may have been organized by nonofficial institutions,
the occasions on which the Godthaab, a vessel belonging to the State and placed at one time
under the command of a naval officer, was sent to the East coast on inspection duty, the issue of
permits by the Danish authorities, under regulations issued in 1930, to persons visiting the
eastern coast of Greenland, show to a sufficient extent-even when separated from the history of
the preceding periods-the two elements necessary to establish a valid title to sovereignty, namely
: the intention and will to exercise such sovereignty and the manifestation of State activity.
The conclusion of the 1924 Convention with Norway, to which reference must again be
made later, though signed by that State on the footing that she maintained her point of view as to
the territorial status of Eastern Greenland (terra nullius) and that the conclusion of the
Convention did not prejudice her point of view, does not exclude the right of Denmark to
maintain her point of view that she was entitled to and was in fact enjoying sovereignty over all
Greenland, nor does it exclude her right to show that the elements which go to establish a valid
claim to sovereignty were both present.
Except for the verbal change that the phrase "territoire de Groënland" is more often
employed than "Groënland", the commercial arrangements concluded by Denmark during this
period continue to provide that, on the Danish side, the agreement is not to apply to Greenland,
showing thereby that the States with which Denmark was concluding these agreements were not
disposed to dispute her claim to be sovereign over the area which the agreement denominates as
Greenland. As also is the case with regard to the previous periods, it lies on Norway to show that
the word "Greenland" in these agreements is used in some special sense which does not include
the uncolonized part of the East coast, and in the opinion of the Court Norway has not shown
that this is so.
Even if the period from 1921 to July 10th, 1931, is taken by itself and without reference to
the preceding periods, the conclusion reached by the Court is that during this time Denmark
regarded herself as possessing sovereignty over all Greenland and displayed and exercised her

12
sovereign rights to an extent sufficient to constitute a valid title to sovereignty. When considered
in conjunction with the facts of the preceding periods, the case in favour of Denmark is
confirmed and strengthened.
It follows from the above that the Court is satisfied that Denmark has succeeded in
establishing her contention that at the critical date, namely, July 10th, 1931, she possessed a valid
title to the sovereignty over all Greenland.
This finding constitutes by itself sufficient reason for holding that the occupation of July
10th, 1931, and any steps taken in this connection by the Norwegian Government, were illegal
and invalid.
. . . .

B. Cession of Territory

Iloilo Claims
SEVERAL BRITISH SUBJECTS (GREAT BRITAIN) v. UNITED STATES
Reports of International Arbitral Awards, Vol. VI (November 19, 1925, pp. 158-60.)

These are claims for destruction of property of British subjects on the occasion of the occupation
of Iloilo by the forces of the United States during the Philippine Insurrection.
On August 12. 1898. a "Protocol of Agreement" had been entered into between the
United States and Spain whereby it was provided that the United States should "occupy and hold
the city, bay, and harbour of Manila, pending the conclusion of a treaty which shall determine
the control, disposition, and government of the Philippines". On December 10. 1898, a treaty was
signed whereby, in article III, Spain ceded the Philippines to the United States. Article V of the
treaty provided that on exchange of ratifications Spain should evacuate the islands. Exchange of
ratifications did not take place until April 11 following. In the meantime, the Spanish
commander at Iloilo on the island of Panay, the second place of importance in the archipelago,
being pressed by Filipino insurgents, desired to evacuate, and seems to have communicated this
desire to General Otis, the American commander at Manila. The latter stated that he was without
authority to act on the suggestion. On December 14, however, the businessmen of Iloilo having
requested General Otis to occupy the place in order to preserve peace and property, the general
cabled to Washington asking permission to do so. No answer was sent till December 21. In
consequence an expeditionary force could not be dispatched until December 26 and it did not
reach Iloilo until December 28. Although General Otis had endeavoured to get word of the
expedition to the Spanish commander, he had not succeeded. The place had been evacuated on
December 24, and was promptly occupied by a force of Filipino insurgents. General Miller, who
commanded the expeditionary force, acting on a petition from the business men of Iloilo, which
he communicated to General Otis, and on instructions from Manila, and ultimately from
Washington, remained in the harbour without landing his force or attempting to take possession
until February 11. On that date, pursuant to orders dated February 8, which reached him on
February 10, he landed, drove out the insurgents, and occupied the town. From the beginning the
insurgents had threatened to burn the town if forcibly driven out, and on February 11 they
succeeded in carrying out this threat. The property of the claimants was destroyed by, or lost in
consequence of this fire.

13
 It is contended by Great Britain that there was culpable neglect on the part of the
authorities of the United States in three respects: (1) in the delay of a week in answering General
Otis's request, so that the Spanish commander had evacuated Iloilo and the insurgents had taken
control before the expedition under General Miller arrived; (2) in delaying the occupation of
Iloilo after General Miller's arrival, so that the insurgents were able to make and carry out
preparations for burning the town; (3) in the manner of landing and occupation when finally
made.
As to the first contention, we are of opinion that there was no duty upon the United States
under the terms of the Protocol, or of the then unratified treaty, or otherwise, to assume control at
Iloilo. De jure there was no sovereignty over the islands until the treaty was ratified. Nor was
any de facto control over Iloilo assumed until the taking up of hostilities against the United
States on the part of the so-called Filipino Republic required it on February 11, 1899. The
sending of General Miller's force, at the request of the business men of the place, was an
intervention to preserve peace and property. As between the United States and the claimants or
their government, it was a matter of discretion whether or not to do this, and no fault can be
imputed because of delay in undertaking such an intervention.
As to the second contention, it appears that the delay was, at least, largely due to request
of the business men who had originally sought intervention (among them six of the present
claimants) who feared the town would be burned and their property destroyed if General Miller
attempted to land and to take forcible possession. Even if it is assumed that there was any duty
toward the claimants to act promptly, under all the circumstances we can not say that the delay
was culpable.
As to the third contention, it appears that the Filipino insurgents, who burned Iloilo, were
acting under orders from and professed allegiance to the so-called Filipino Republic, which, on
February 4 preceding, had declared war against the United States and had attacked the American
forces at Manila, thus bringing on a conflict which lasted over three years. There was no wanton
or intentional destruction of property by the vessels or troops of the United States. Indeed, there
is evidence that the troops exerted themselves vigorously to put out the fires and to stop looting.
The most that is claimed is that, if the operations of landing and taking the town had been carried
out in a different way, the burning by the insurgents might have been prevented. But the
circumstances were difficult and the general situation was trying. The operations were in charge
of experienced officers and we do not feel competent to criticize their judgment as to the conduct
of military operations. Considering all the circumstances, we do not think that any culpable
disregard of the interests of the claimants has been shown.

We decide that these claims must be rejected.

C. Prescription and Accretion:

The Chamizal Case (Mexico, United States)

Reports of International Arbitral Awards, Vol. XI (15 June 1911, pp. 309-347)
. . . .

[ACCRETION]

14
 The Chamizal tract consists of about six hundred acres, and lies between the old bed of
the Rio Grande, as it was surveyed in 1852, and the present bed of the river, as more particularly
described in article 1 of the convention of 1910. It is the result of changes which have taken
place through the action of the water upon the banks of the river causing the river to move
southward into Mexican territory.
With the progressive movement of the river to the south, the American city of El Paso
has been extending on the accretions formed by the action of the river on its north bank, while
the Mexican city of Juarez to the south has suffered a corresponding loss of territory.
By the treaties of 1848 and 1853 the Rio Grande, from a point a little higher than the
present city of El Paso, to its mouth in the Gulf of Mexico, was constituted the boundary line
between the United States and Mexico.
The contention on behalf of the United States of Mexico is that this dividing line was
fixed under those treaties in a permanent and invariable manner, and consequently that the
changes which have taken place in the river have not affected the boundary line, which was
established and marked in 1852.
On behalf of the United States of America it is contended that according to the true intent
and meaning of the treaties of 1848 and 1853, if the channel of the river changes by gradual
accretion, the boundary follows the channel, and that it is only in case of a sudden change of bed
that the river ceases to be the boundary, which then remains in the abandoned bed of the river.
It is further contended on behalf of the United States of America . . . that the changes
which determined the formation of the Chamizal tract are changes resulting from slow and
gradual erosion and deposit of alluvion within the meaning of that convention and consequently
changes which left the channel of the river as the international boundary line.
The Mexican Government . . . further contends that . . . the changes in the channel have
not been the result of slow and gradual erosion and deposit of alluvion.
. . . .

PRESCRIPTION
In the countercase of the United States, the contention is advanced that the United States
has acquired a good title by prescription to the tract in dispute, in addition to its title under treaty
provisions.
In the argument it is contended that the Republic of Mexico is estopped from asserting
the national title over the territory known as "El Chamizal" by reason of the undisturbed,
uninterrupted, and unchallenged possession of said territory by the United States of America
since the treaty of Guadalupe Hidalgo.
Without thinking it necessary to discuss the very controversial question as to whether the
right of prescription invoked by the United States is an accepted principle of the law of nations,
in the absence of any convention establishing a term of prescription, the commissioners are
unanimous in coming to the conclusion that the possession of the United States in the present
case was not of such a character as to found a prescriptive title. Upon the evidence adduced it is
impossible to hold that the possession of El Chamizal by the United States was undisturbed,
uninterrupted, and unchallenged from the date of the treaty of the creation of a competent
tribunal to decide the question, the Chamizal case was first presented. On the contrary, it may be
said that the physical possession taken by citizens of the United States and the political control
exercised by the local and Federal Governments, have been constantly challenged and
questioned by the Republic of Mexico, through its accredited diplomatic agents.

15
As early as 1856, the river changes threatening the Valley of El Paso had caused anxious
inquiries, which resulted in a reference of the matter to the Hon. Caleb Cushing for his opinion.
In January, 1867, Don Matias Romero forwarded to Mr. Seward, Secretary of State, a
communication from the perfecture of Brazos relating to the controversy between the people of
El Paso del Norte (now Juarez) and the people of Franklin (now El Paso, Tex.) over the
Chamizal tract, then in process of formation. From that time until the negotiation of the
convention of 1884, a considerable amount of diplomatic correspondence is devoted to this very
question, and the convention of 1884 was an endeavor to fix the rights of the two nations with
respect to the changes brought about by the action of the waters of the Rio Grande.
The very existence of that convention precludes the United States from acquiring by
prescription against the terms of their title, and, as has been pointed out above, the two Republics
have ever since the signing of that convention treated it as a source of all their rights in respect of
accretion to the territory on one side or the other of the river.
Another characteristic of possession serving as a foundation for prescription is that it
should be peaceable. In one of the affidavits filed by the United States to prove their possession
and control over the Chamizal distict (that of Mr. Coldwell) we find the following significant
statement:
In 1874 or 1875 I was present at an interview between my father and Mr. Jesus Necobar y
Armendariz, then Mexican collector of customs at Paso del Norte, now Ciudad Juarez, which
meeting took place at my father's office on this side of the river.
Mr. Necobar asked my father for permission to station a Mexican customhouse officer on
the road leading from El Paso to Juarez, about 200 or 300 yards north of the river. My father
replied in substance that he had no authority to grant any such permission, and even if he had,
and granted permission, it would not be safe for a Mexican customs officer to attempt to exercise
any authority on this side of the river.
It is quite clear from the circumstances related in this affidavit that however much the
Mexicans may have desired to take physical possession of the district, the result of any attempt
to do so would have provoked scenes of violence and the Republic of Mexico cannot be blamed
for resorting to the milder forms of protest contained in its diplomatic correspondence.
In private law, the interruption of prescription is effected by a suit, but in dealings
between nations this is of course impossible, unless and until an international tribunal is
established for such purpose. In the present case, the Mexican claim was asserted before the
International Boundary Commission within a reasonable time after it commenced to exercise its
functions, and prior to that date the Mexican Government had done all that could be reasonably
required of it by way of protest against the alleged encroachment. Under these circumstances the
commissioners have no difficulty in coming to the conclusion that the plea of prescription should
be dismissed.
. . . .

III. Rights in the Territory of Another State

Case of the S.S. "WIMBLEDON"
Permanent Court of International Justice, August 17th, 1923, Series A, No. 1, p. 15, at 21-25

16
. . . .
IV.
The Law.
A.
The question upon which the whole case depends is whether the German authorities were
entitled to refuse access to and passage through the Kiel Canal to the S.S. "Wimbledon" on
March 21st, 1921, under the conditions and circumstances in which they did so.
The reply to this question must be sought in the provisions devoted by the Peace Treaty
of Versailles to the Kiel Canal, in Part XI1, entitled "Ports, Waterways and Railways", Section
VI. This Section commences with a provision of a general and peremptory character, contained
in Article 380, which is as follows :
“The Kiel Canal and its approaches shall be maintained free and open to the
vessels of commerce and of war of all nations at peace with Germany on terms of
entire equality”.
Then follow various provisions intended to facilitate and regulate the exercise of this
right of free passage.
Article 381, after mentioning that “the nationals, property and vessels of all Powers,
shall, in respect of charges, facilities, and in all other respects, be treated on a footing of perfect
equality in the use of the canal. . . . ”, adds that “no impediment shall be placed on the movement
of persons or vessels other than those arising out of police, customs, sanitary, emigration or
immigration regulations, and those relating to the import and export of prohibited goods, and
that such regulations must be reasonable and uniform and must not unnecessarily impede
traffic.”
. . . .

The claim advanced by the Applicants, that the S.S. "Wimbledon" should have enjoyed
the right of free passage through the Kiel Canal, is based on the general rule embodied in Article
380 of the Treaty of Versailles.
This clause, they say, could not be more clear as regards the provision to the effect that
the canal shall be maintained free and open to the vessels of commerce and of war of all nations
at peace with Germany; it follows therefore, that the S.S. "Wimbledon", belonging to a nation at
that moment at peace with Germany, was entitled to free passage through the Canal.
The Applicants have also maintained that this interpretation of Article 380 is confirmed
by the terms of paragraph 2 of the following Article, providing for certain restrictions or
impediments which may be placed by the German Government upon free movement in the canal,
since none of these restrictions or impediments, which are enumerated exclusively, can be
applied to the S.S. "Wimbledon" by reason of the nature of her cargo.
The Court considers that the terms of article 380 are categorical and give rise to no doubt.
It follows that the canal has ceased to be an interna1 and national navigable waterway, the use of
which by the vessels of states other than the riparian state is left entirely to the discretion of that
state, and that it has become an international waterway intended to provide under treaty
guarantee easier access to the Baltic for the benefit of all nations of the world. Under its new
régime, the Kiel Canal must be open, on a footing of equality, to all vessels, without making any
distinction between war vessels and vessels of commerce, but on one express condition, namely,
that these vessels must belong to nations at peace with Germany.

17
 The right of the Empire to defend herself against her enemies by refusing to allow their
vessels to pass through the canal is therefore proclaimed and recognised. In making this
reservation in the event of Germany not being at peace with the nation whose vessels of war or
of commerce claim access to the canal, the Peace Treaty clearly contemplated the possibility of a
future war in which Germany was involved. If the conditions of access to the canal were also to
be modified in the event of a conflict between two Powers remaining at peace with the German
Empire, the Treaty would not have failed to Say so. It has not said so and this omission was no
doubt intentional.
. . . .

In order to dispute, in this case, the right of the S.S. "Wimbledon" to free passage through
the Kiel Canal under the terms of Article 380, the argument has been urged upon the Court that
this right really amounts to a servitude by international law resting upon Germany and that, like
all restrictions or limitations upon the exercise of sovereignty, this servitude must be construed
as restrictively as possible and confined within its narrowest limits, mole especially in the sense
that it should not be allowed to affect the rights consequent upon neutrality in an armed conflict.
The Court is not called upon to take a definite attitude with regard to the question, which is
moreover of a very controversial nature, whether in the domain of international law, there really
exist servitudes analogous to the servitudes of private law. Whether the German Government is
bound by virtue of a servitude or by virtue of a contractual obligation undertaken towards the
Powers entitled to benefit by the terms of the Treaty of Versailles, to allow free access to the
Kiel Canal in time of war as in time of peace to the vessels of all nations, the fact remains that
Germany has to submit to an important limitation of the exercise of the sovereign rights which
no one disputes that she possesses over the Kiel Canal. This fact constitutes a sufficient reason
for the restrictive interpretation, in case of doubt, of the clause which produces such a limitation.
But the Court feels obliged to stop at the point where the so-called restrictive interpretation
would be contrary to the plain terms of the article and would destroy what has been clearly
granted.
The argument has also been advanced that the general grant of a right of passage to
vessels of all nationalities through the Kiel Canal cannot deprive Germany of the exercise of her
rights as a neutral power in time of war, and place her under an obligation to allow the passage
through the canal of contraband destined for one of the belligerents; for, in this wide sense, this
grant would imply the abandonment by Germany of a personal and imprescriptible right, which
forms an essential part of her sovereignty and which she neither could nor intended to renounce
by anticipation. This contention has not convinced the Court; it conflicts with general
considerations of the highest order. It is also gainsaid by consistent international practice and is
at the same time contrary to the wording of Article 380 which clearly contemplates time of war
as well as time of peace. The Court declines to see in the conclusion of any Treaty by which a
State undertakes to perform or refrain from performing a particular act an abandonment of its
sovereignty. No doubt any convention creating an obligation of this kind places a restriction
upon the exercise of the sovereign rights of the State, in the sense that it requires them to be
exercised in a certain way. But the right of entering into international engagements is an attribute
of State sovereignty.
. . . .

18
IV. The Rights of Indigenous Peoples

“They were conquerors, and for that you want only brute force— nothing to boast of, when you have it,
since your strength is just an accident arising from the weakness of others. They grabbed what they could
get for the sake of what was to be got. It was just robbery with violence, aggravated murder on a great
scale, and men going at it blind—as is very proper for those who tackle a darkness. The conquest of the
earth, which mostly means the taking it away from those who have a different complexion or slightly
flatter noses than ourselves, is not a pretty thing when you look into it too much. What redeems it is the
idea only. An idea at the back of it; not a sentimental pretence but an idea; and an unselfish belief in the
idea—something you can set up, and bow down before, and offer a sacrifice to. . . . ”

Joseph Conrad, Heart of Darkness

Mabo v Queensland (No 2) ("Mabo case")

[1992] HCA 23; (1992) 175 CLR 1 (3 June 1992), High Court of Australia

BRENNAN J. The Murray Islands lie in the Torres Strait . . . The people who were in occupation
of these Islands before first European contact and who have continued to occupy those Islands to
the present day are known as the Meriam people. Although outsiders, relatively few in number,
have lived on the Murray Islands from time to time and worked as missionaries, government
officials, or fishermen, there has not been a permanent immigrant population. Anthropological
records and research show that the present inhabitants of the Islands are descended from the
people described in early European reports. The component of foreign ancestry among the
present population is small compared with most communities living in the Torres Strait. The
Meriam people of today retain a strong sense of affiliation with their forbears and with the
society and culture of earlier times. They have a strong sense of identity with their Islands. The
plaintiffs are members of the Meriam people. In this case, the legal rights of the members of the
Meriam people to the land of the Murray Islands are in question.
. . . .

25. On analysis, [Queensland’s] argument is that, when the territory of a settled colony became
part of the Crown's dominions, the law of England so far as applicable to colonial conditions
became the law of the colony and, by that law, the Crown acquired the absolute beneficial
ownership of all land in the territory so that the colony became the Crown's demesne and no right
or interest in any land in the territory could thereafter be possessed by any other person unless
granted by the Crown. . . .
. . . .

28. The proposition that, when the Crown assumed sovereignty over an Australian colony, it
became the universal and absolute beneficial owner of all the land therein, invites critical
examination. If [that] conclusion . . . be right, the interests of indigenous inhabitants in colonial
land were extinguished so soon as British subjects settled in a colony, though the indigenous
inhabitants had neither ceded their lands to the Crown nor suffered them to be taken as the spoils

19
of conquest. According to the cases, the common law itself took from indigenous inhabitants any
right to occupy their traditional land, exposed them to deprivation of the religious, cultural and
economic sustenance which the land provides, vested the land effectively in the control of the
Imperial authorities without any right to compensation and made the indigenous inhabitants
intruders in their own homes and mendicants for a place to live. Judged by any civilized
standard, such a law is unjust and its claim to be part of the common law to be applied in
contemporary Australia must be questioned. This Court must now determine whether, by the
common law of this country, the rights and interests of the Meriam people of today are to be
determined on the footing that their ancestors lost their traditional rights and interests in the land
of the Murray Islands on 1 August 1879.

29. In discharging its duty to declare the common law of Australia, this Court is not free to adopt
rules that accord with contemporary notions of justice and human rights if their adoption would
fracture the skeleton of principle which gives the body of our law its shape and internal
consistency. Australian law is not only the historical successor of, but is an organic development
from, the law of England. Although our law is the prisoner of its history, it is not now bound by
decisions of courts in the hierarchy of an Empire then concerned with the development of its
colonies. It is not immaterial to the resolution of the present problem that . . . the law of this
country is [now] entirely free of Imperial control. The law which governs Australia is Australian
law. The Privy Council itself held that the common law of this country might legitimately
develop independently of English precedent, the common law of Australia has been substantially
in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the
nation. . . . [N]o case can command unquestioning adherence if the rule it expresses seriously
offends the values of justice and human rights (especially equality before the law) which are
aspirations of the contemporary Australian legal system. If a postulated rule of the common law
expressed in earlier cases seriously offends those contemporary values, the question arises
whether the rule should be maintained and applied. . . .

30. . . . . We start with the proposition that the Imperial Crown acquired sovereignty over the
Murray Islands on 1 August 1879 and that the laws of Queensland (including the common law)
became the law of the Murray Islands on that day . . . . Next, by the common law, the Crown
acquired a radical or ultimate title to the Murray Islands. The plaintiffs accept these propositions
but challenge the final link in the chain, namely, that the Crown also acquired absolute beneficial
ownership of the land in the Murray Islands when the Crown acquired sovereignty over them.
. . . .

32. Although the question whether a territory has been acquired by the Crown is not justiciable
before municipal courts, those courts have jurisdiction to determine the consequences of an
acquisition under municipal law. Accordingly, the municipal courts must determine the body of
law which is in force in the new territory. By the common law, the law in force in a newly-
acquired territory depends on the manner of its acquisition by the Crown. Although the manner
in which a sovereign state might acquire new territory is a matter for international law, the
common law has had to march in step with international law in order to provide the body of law
to apply in a territory newly acquired by the Crown.

20
33. International law recognized conquest, cession, and occupation of territory that was terra
nullius as three of the effective ways of acquiring sovereignty. No other way is presently
relevant. The great voyages of European discovery opened to European nations the prospect of
occupying new and valuable territories that were already inhabited. As among themselves, the
European nations parcelled out the territories newly discovered to the sovereigns of the
respective discoverers (Worcester v. Georgia, 31 US 350 (1832), at p 369, provided the
discovery was confirmed by occupation and provided the indigenous inhabitants were not
organized in a society that was united permanently for political action. To these territories the
European colonial nations applied the doctrines relating to acquisition of territory that was terra
nullius. They recognized the sovereignty of the respective European nations over the territory of
"backward peoples" and, by State practice, permitted the acquisition of sovereignty of such
territory by occupation rather than by conquest. Various justifications for the acquisition of
sovereignty over the territory of "backward peoples" were advanced. The benefits of Christianity
and European civilization had been seen as a sufficient justification from mediaeval times.
Another justification for the application of the theory of terra nullius to inhabited territory - a
justification first advanced by Vattel at the end of the 18th century - was that new territories
could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring
lands into production if they were left uncultivated by the indigenous inhabitants. It may be
doubted whether, even if these justifications were accepted, the facts would have sufficed to
permit acquisition of the Murray Islands as though the Islands were terra nullius. The Meriam
people were, as Moynihan J. found, devoted gardeners. In 1879, having accepted the influence of
the London Missionary Society, they were living peacefully in a land-based society under some
sort of governance by the Mamoose and the London Missionary Society. However that may be,
it is not for this Court to canvass the validity of the Crown's acquisition of sovereignty over the
Islands which, in any event, was consolidated by uninterrupted control of the Islands by
Queensland authorities.
. . . .

37. It is one thing for our contemporary law to accept that the laws of England, so far as
applicable, became the laws of New South Wales and of the other Australian colonies. It is
another thing for our contemporary law to accept that, when the common law of England became
the common law of the several colonies, the theory which was advanced to support the
introduction of the common law of England accords with our present knowledge and
appreciation of the facts. When it was sought to apply Lord Watson's assumption in Cooper v.
Stuart that the colony of New South Wales was "without settled inhabitants or settled law" to
Aboriginal society in the Northern Territory, the assumption proved false. In Milirrpum v.
Nabalco Pty. Ltd. Blackburn J. said, (1971) 17 FLR 141, at p 267:
"The evidence shows a subtle and elaborate system highly adapted to the country in which the
people led their lives, which provided a stable order of society and was remarkably free from the
vagaries of personal whim or influence. If ever a system could be called 'a government of laws,
and not of men', it is that shown in the evidence before me."
Faced with a contradiction between the authority of the Privy Council and the evidence, his
Honour held that the class to which a colony belonged was a question of law, not of fact (ibid., at
p 244):
"Whether or not the Australian aboriginals living in any part of New South Wales had in 1788 a
system of law which was beyond the powers of the settlers at that time to perceive or

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 comprehend, it is beyond the power of this Court to decide otherwise than that New South Wales
came into the category of a settled or occupied colony."

38. The facts as we know them today do not fit the "absence of law" or "barbarian" theory
underpinning the colonial reception of the common law of England. That being so, there is no
warrant for applying in these times rules of the English common law which were the product of
that theory. It would be a curious doctrine to propound today that, when the benefit of the
common law was first extended to Her Majesty's indigenous subjects in the Antipodes, its first
fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly
barbarian nature of indigenous people provided the common law of England with the
justification for denying them their traditional rights and interests in land, as Lord Sumner
speaking for the Privy Council said in In re Southern Rhodesia, (1919) AC 211, at pp 233-234:
"The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so
low in the scale of social organization that their usages and conceptions of rights and duties are
not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot
be bridged. It would be idle to impute to such people some shadow of the rights known to our law
and then to transmute it into the substance of transferable rights of property as we know them."

39. As the indigenous inhabitants of a settled colony were regarded as "low in the scale of social
organization", they and their occupancy of colonial land were ignored in considering the title to
land in a settled colony. Ignoring those rights and interests, the Crown's sovereignty over a
territory which had been acquired under the enlarged notion of terra nullius was equated with
Crown ownership of the lands therein, because, as Stephen C.J. said, there was "no other
proprietor of such lands". Thus, a Select Committee on Aborigines reported in 1837 to the
House of Commons that the state of Australian Aborigines was "barbarous" and "so entirely
destitute ... of the rudest forms of civil polity, that their claims, whether as sovereigns or
proprietors of the soil, have been utterly disregarded". The theory that the indigenous inhabitants
of a "settled" colony had no proprietary interest in the land thus depended on a discriminatory
denigration of indigenous inhabitants, their social organization and customs. As the basis of the
theory is false in fact and unacceptable in our society, there is a choice of legal principle to be
made in the present case. This Court can either apply the existing authorities and proceed to
inquire whether the Meriam people are higher "in the scale of social organization" than the
Australian Aborigines whose claims were "utterly disregarded" by the existing authorities or the
Court can overrule the existing authorities, discarding the distinction between inhabited colonies
that were terra nullius and those which were not.

40. The theory of terra nullius has been critically examined in recent times by the International
Court of Justice in its Advisory Opinion on Western Sahara, (1975) ICJR, at p 39. There the
majority judgment read:
" 'Occupation' being legally an original means of peaceably acquiring sovereignty over territory
otherwise than by cession or succession, it was a cardinal condition of a valid 'occupation' that
the territory should be terra nullius - a territory belonging to no-one - at the time of the act
alleged to constitute the 'occupation' (cf. Legal Status of Eastern Greenland, P.C.I.J., Series A/B,
No.53, pp. 44 f. and 63 f.). In the view of the Court, therefore, a determination that Western
Sahara was a 'terra nullius' at the time of colonization by Spain would be possible only if it were
established that at that time the territory belonged to no-one in the sense that it was then open to
acquisition through the legal process of 'occupation'.

22
 80. Whatever differences of opinion there may have been among jurists, the State
practice of the relevant period indicates that territories inhabited by tribes or peoples having a
social and political organization were not regarded as terrae nullius. It shows that in the case of
such territories the acquisition of sovereignty was not generally considered as effected
unilaterally through 'occupation' of terra nullius by original title but through agreements
concluded with local rulers. On occasion, it is true, the word 'occupation' was used in a non-
technical sense denoting simply acquisition of sovereignty; but that did not signify that the
acquisition of sovereignty through such agreements with authorities of the country was regarded
as an 'occupation' of a "terra nullius" in the proper sense of these terms. On the contrary, such
agreements with local rulers, whether or not considered as an actual 'cession' of the territory,
were regarded as derivative roots of title, and not original titles obtained by occupation of terrae
nullius."

Judge Ammoun, Vice-President of the Court, delivered a separate opinion in which he

commended as penetrating the views expressed on behalf of the Republic of Zaire which he
restated as follows (ibid., at pp 85-86):
"Mr. Bayona-Ba-Meya, goes on to dismiss the materialistic concept of terra nullius, which led to
this dismemberment of Africa following the Berlin Conference of 1885. Mr. Bayona-Ba-Meya
substitutes for this a spiritual notion: the ancestral tie between the land, or 'mother nature', and
the man who was born therefrom, remains attached thereto, and must one day return thither to be
united with his ancestors. This link is the basis of the ownership of the soil, or better, of
sovereignty. This amounts to a denial of the very concept of terra nullius in the sense of a land
which is capable of being appropriated by someone who is not born therefrom. It is a
condemnation of the modern concept, as defined by Pasquale Fiore, which regards as terrae
nullius territories inhabited by populations whose civilization, in the sense of the public law of
Europe, is backward, and whose political organization is not conceived according to Western
norms.
One might go still further in analysing the statement of the representative of Zaire so as
to say that he would exclude from the concept of terra nullius any inhabited territory. His view
thus agrees with that of Vattel, who defined terra nullius as a land empty of inhabitants."

He concluded (ibid., at p 86) that "the concept of terra nullius, employed at all periods, to the
brink of the twentieth century, to justify conquest and colonization, stands condemned." The
court was unanimously of the opinion that Western Sahara at the time of colonization by Spain in
1884 was not a territory belonging to no-one (terra nullius).

41. If the international law notion that inhabited land may be classified as terra nullius no longer
commands general support, the doctrines of the common law which depend on the notion that
native peoples may be "so low in the scale of social organization" that it is "idle to impute to
such people some shadow of the rights known to our law" (In re Southern Rhodesia (1919) AC,
at pp 233-234) can hardly be retained. If it were permissible in past centuries to keep the
common law in step with international law, it is imperative in today's world that the common law
should neither be nor be seen to be frozen in an age of racial discrimination.

42. The fiction by which the rights and interests of indigenous inhabitants in land were treated as
non-existent was justified by a policy which has no place in the contemporary law of this
country. The policy appears explicitly in the judgment of the Privy Council in In re Southern
Rhodesia in rejecting an argument that the native people "were the owners of the unalienated

23
lands long before either the Company or the Crown became concerned with them and from time
immemorial ... and that the unalienated lands belonged to them still". Their Lordships replied –
"the maintenance of their rights was fatally inconsistent with white settlement of the country, and
yet white settlement was the object of the whole forward movement, pioneered by the Company
and controlled by the Crown, and that object was successfully accomplished, with the result that
the aboriginal system gave place to another prescribed by the Order in Council".

Whatever the justification advanced in earlier days for refusing to recognize the rights and
interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory
doctrine of that kind can no longer be accepted. The expectations of the international community
accord in this respect with the contemporary values of the Australian people. The opening up of
international remedies to individuals pursuant to Australia's accession to the Optional Protocol to
the International Covenant on Civil and Political Rights brings to bear on the common law the
powerful influence of the Covenant and the international standards it imports. The common law
does not necessarily conform with international law, but international law is a legitimate and
important influence on the development of the common law, especially when international law
declares the existence of universal human rights. A common law doctrine founded on unjust
discrimination in the enjoyment of civil and political rights demands reconsideration. It is
contrary both to international standards and to the fundamental values of our common law to
entrench a discriminatory rule which, because of the supposed position on the scale of social
organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their
traditional lands. It was such a rule which evoked from Deane J. (Gerhardy v. Brown [1985]
HCA 11) the criticism that –
"the common law of this land has still not reached the stage of retreat from injustice which the
law of Illinois and Virginia had reached in 1823 when Marshall C.J., in Johnson v. McIntosh (8
Wheat, at p 574), accepted that, subject to the assertion of ultimate dominion (including the
power to convey title by grant) by the State, the 'original inhabitants' should be recognized as
having 'a legal as well as just claim' to retain the occupancy of their traditional lands".
. . . .

ORDER

In lieu of answering the questions reserved for the consideration of the Full Court,
(1) declare that the land in the Murray Islands is not Crown land within the meaning of that term
in s. 5 of the Land Act 1962 (Q.);

(2) . . . declare that the Meriam people are entitled as against the whole world to possession,
occupation, use and enjoyment of the lands of the Murray Islands;

(3) declare that the title of the Meriam people is subject to the power of the Parliament of
Queensland and the power of the Governor in Council of Queensland to extinguish that title by
valid exercise of their respective powers, provided any exercise of those powers is not
inconsistent with the laws of the Commonwealth.

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