The Clipperton Island Case

Author(s): Edwin D. Dickinson

Source: The American Journal of International Law, Vol. 27, No. 1 (Jan., 1933), pp. 130-133
Published by: Cambridge University Press
Stable URL: https://www.jstor.org/stable/2189797
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 EDITORIAL COMMENT 131

tion in novel circumstances of the principle of discovery and occupation.

And now come press despatches from Mexico City reporting that action on
the bill introduced in the Mexican Senate to provide for compliance with the
award has been postponed indefinitely in consequence of a desire to avoid em-
barrassing an incoming administration in the United States which might
regard French acquisition of the island as a violation of the Monroe Doctrine.2
The present comment is concerned only with the legal aspects of the award.
Clipperton Island is a low coral lagoon reef, less than three miles in
diameter, situated in the Pacific Ocean at 100 17' N., 1090 13' W., some 670
miles southwest of Mexico.3 It is uninhabited and for all practical purposes
uninhabitable. Whether it was known to the early Spanish navigators is
uncertain. It was discovered by an Englishman, Captain Clipperton, in
1705, but was not claimed by the British Government. A few years later it
was rediscovered by French navigators, but France made no formal claim at
the time. It appears to have been regarded in Mexico as a part of the domain
of that republic, by right of succession to Spain, though there is no record of
an active Mexican claim until comparatively recent times. Meanwhile,
early in 1858, the French Government granted a concession to exploit the
island's guano, which was never used. On November 17, 1858, French
sovereignty was formally proclaimed from the deck of a French commercial
vessel cruising off the island by a naval officer commissioned for that purpose.
Careful geographical notes were made and one attempt at a landing was
successful; but the vessel left without placing any mark of French sovereignty
on the island itself. The accomplishment of this mission was reported to the
French Consulate at Honolulu, the Government of Hawaii was notified, and
the proclamation of sovereignty was published in an Hawaiian journal. In
1897, a French vessel found three persons on the island collecting guano for
the account of the Oceanic Phosphate Co. of San Francisco. The French
Government requested explanations of the United States, and the United
States replied that it had granted no concession and claimed no sovereignty
over Clipperton Island. While this correspondence was pending, Mexico
sent out a gunboat which effected a landing on the island and hoisted the
Mexican flag.4 The diplomatic correspondence which ensued between France
and Mexico culminated on March 2, 1909, in an agreement to refer the con-

2The Washington Evening Star, Nov. 15, 1932; Cumulative Digest of International
Law and Relations, Vol. 2, Bulletin 42 and 43 (Nov. 18, 1932).
On Mexico's official attitude toward the Monroe Doctrine, see editorial comment in
this JOURNAL, Vol. 26 (1932), pp. 114, 117.
3Brigham, Index to the Islands of the Pacific Ocean, p. 52 (Honolulu, 1900). In his
Narrative of a Voyage Round the World, Vol. 1, p. 256, Captain Sir Edward Belcher
describes the island as follows: "a very dangerous low lagoon island, destitute of trees,
with a high rock on its southern edge, which may be mistaken for a sail. This rock can be
seen fifteen miles." (London, 1843.)
'The above is a summary of the facts as set forth in the text of the award, this JOURNAL,
loc. cit.

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132 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

troversy to the arbitration of His Majesty Victor Emmanuel III.5 The

recent award is the outcome of that agreement.
The award rejects the Mexican claim to priority of discovery and occupa-
tion on the ground that prior Spanish discovery was not proved, and further
that, in any case, there was no proof of an effective occupation by Mexico
before 1858. It follows that Clipperton Island was terra nuttius in 1858.
The award then proceeds to consider whether France accomplished an effective
occupation "satisfying the conditions required by international law for the
validity of this kind of territorial acquisition." If the French occupation was
insufficient, it was still arguable that Mexico had taken possession in 1897.
The arbitrator was satisfied that the French occupation of 1858 satisfied the
requirements of international law. The point is covered in the following
passage from the award:

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 posses-
sion consists in the act, or series of acts, by which the occupying state re-
duces 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 ter-
ritory, 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 oc-
cupation is thereby completed.6
The notice given of French occupation in 1858 was sufficient; and French
sovereignty had not been lost by abandonment, since France "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 ac-
quisition already definitely perfected." 7
The award is significant, in its legal aspect, chiefly for what it contributes
to the development of the doctrine of occupation. "Discovery," says Moore,
"gives only an inchoate title, which must be confirmed by use and settle-
ment." 8 But what are the requisites of "use and settlement" in a particular

5Martens, Nouveau Recueil General, 3d series, Vol. 5, p. 8. Ratifications were ex-

changed at Mexico City, May 9, 1911. There is nothing in the award to explain why it
took nearly twenty years to conclude the arbitration.
6Text in this JOURNAL, 1oc. cit., p. 393.
7Ibid., p. 394.
8Digest of International Law, Vol. 1, p. 258. See the award in the Palmas Island Ar-
bitration, this JOURNAL, Vol. 22 (1928), p. 867; Jessup, "The Palmas Island Arbitration,"
ibid., p. 735. See also Fauchille, Vol. 1, Pt. 2, ??534-556(3); Oppenheim, 4th ed., Vol. 1,
??220-228.

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 EDITORIAL COMMENT 133

case, and especially in a case involving those parts of the earth which are
incapable of the traditional kind of occupation? What of uninhabited and
uninhabitable islands, of the arctic or antarctic regions, or of the unexploited
lands that lie under the sea? If the requisites of occupation are the same for
these areas as they were for the great continents discovered in the 15th and
16th centuries, then the doctrine of occupation has obviously lost its vitality
and legislation is required. The award in the Clipperton Island case re-
affirms the continued vitality of the doctrine. In effect, it is held that the
occupation which is required is such an occupation as is appropriate and
possible under the circumstances. It is a question of fact. This is a realistic
and altogether satisfactory solution from the legal point of view. The old
principles are still capable of development and application whenever judicial
settlement is invoked. Correctly understood, they provide adequate criteria
for determining the ownership of such parts of the earth as still remain un-
claimed and unexploited.
EDWIN D. DICKINSON

THE ADMISSION OF IRAQ TO MEMBERSHIP IN THE LEAGUE OF NATIONS 1

On October 3, 1932, the Kingdom of Iraq became the 57th2 member of the
League of Nations. It was not the ordinary case of the admission of a state
previously a non-member, but the first case of the graduation of a community
from the status of mandated community to the status of member of the League
of Nations.
Iraq is one of those "communities formerly belonging to the Turkish
Empire" described in Article 22 of the Covenant of the League of Nations as
having "reached a stage of development where their existence as independent
nations can be provisionally recognized subject to the rendering of administra-
tive advice and assistance by a mandatory until such time as they are able to
stand alone." Great Britain was selected by the Principal Allied Powers as
the mandatory for Iraq, but no mandate was ever issued by the Council of the
League of Nations. Instead, on September 27,1924, the Council approved the
terms of a British communication, following the conclusion of a treaty of
alliance between Great Britain and Iraq, as "giving effect to the provisions of
Article 22 of the Covenant." 3 The treaty of alliance signed at Baghdad on
October 10, 1922,4 came into force on December 19, 1924, and since that time
the relations of Great Britain and Iraq have been based upon treaty. The
treaty of alliance of 1922 was originally designed to continue in force for at
least twenty years, but a protocol signed at Baghdad on April 30, 1923,5
1 See, also, W. L. Williams, "The State of Iraq," 8 Foreign Policy Reports (1932), p. 184.
2 The 59th, if one counts Brazil and Costa Rica, which have withdrawn from membership.
3 League of Nations Official Journal, 1924, p. 1346; 1 Hudson, International Legislation,
p. 122.
4 35 League of Nations Treaty Series, p. 13. On the Anglo-Iraq treaties, see Elizabeth P.
MacCallum, "Iraq and the British Treaties," Foreign Policy Association Information
Service, Vol. VI, No. 12, Aug. 20, 1930. 5 35 League of Nations Treaty Series, p. 18.

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