Will Smiley, Lawless Wars of Empire?

: The International Law of War in

the Philippines,(1893-1903), Law and History Review (2009)

1. How was the Western claim to civilizational superiority expressed in the

conduct of the American colonial conquest in the Philippines? (pp 512-514)

The American colonial conquest in the Philippines is always linked to

extreme violence and atrocities. The said laws of wars was suggested as
“adaptable to the irregular warfare of the Philippines, nevertheless “seemed
to have lost its way”, specifically through torture as indicated in the survey
conducted by John WItt.
As the study focused on the mid-ranking officers who engaged with
the law. Many of these officers were trained as lawyers although without
formal legal roles. Crane’s article implies that US officers reinterpreted the
law for them to be able to simultaneously demonstrate their moral and
cultural superiority, while using violence. By doing so, officers used the law
to understand guerrilla warfare, to advance their operational goals, to
defend their actions, and to vindicate their claims to be “civilizing” the
Philippines.

2. In what way was the American civil war experience an influence in the
treatment by the Americans of the conflict they waged in the Philippines
against Filipino forces that resisted them? (pp 516-518)
Racism and brutality are rampant and that even though the US has
acquired the rights of sovereignty over those islands, they did not have
peaceable and undisputed possession. In the course of building the
possession it encountered insurrection, against which it is conducting
military operations and with the forces of which it is engaged in active
hostilities. The military government of the islands continued and even
utilized it as a means of suppressing the armed insurrection, and was
authorized to exercise the rights of the hostile.

3. How did the Americans initially treat captured Filipino fighters under the
laws of war of the time? (pp. 520-522)
The American commanders initially insisted on imposing the laws of war to
constrain the means of Filipinos of fighting, and even the authority to fight
at all. As Americans did not recognize the sovereignty of the Philippines,
the laws of war made an off-the-shelf set of rules that the insurgents
accepted by engaging in warfare.
The laws of war governed the treatment of property and people. In
customary international law, soldiers are entitled to “belligerent privilege”,
the immunity to punishment by the enemy for the violent actions they took
as part of their wartime duties. Were this not the case, soldiers in combat
would constantly worry that, if captured, they could be tried for murder or
assault.

4. Why did this approach change? (pp. 522-524)

The roots of the evolution was in Aguinaldo’s shift to guerrilla warfare in the
second year of the war. The insurgents hoped that if they fought “in
conventional formations, demonstrated discipline, and treated prisoners
humanely,” they might gain international recognition as a sovereign state
with rights under international law, but United States victories doomed this
strategy. Because of this,
As Americans adopted increasingly harsh military tactics, they felt the need
to fo the said tactics with legal reinterpretation, more and more insurgents
shed their uniforms and became guerrillas. With this, American
commanders had difficulty differentiating bandits from guerrillas.

5. How did Macarthur presage a change in the treatment by the Americans

of the legal framework used to deal with Filipino guerillas? (pp 529-538).
Do you see echoes of this in present issues of the last 20 years?
MacArthur sought harsher measures to suppress the continuous
resistance of insurgents. He chose not to reject the laws of war but to
interpret it. He issued a proclamation for the precise observance of the law
and reiterated that the US recognized the Filipinos as legitimate
belligerents. MacArthur laid out his views and rules as well as implications
because of Filipinos violations in observing the laws.
 1. He argued that American occupation invoked martial law.
2. MacArthur turned to “war traitors”, persons residing within an
occupied place who do things inimical to the interests of the
occupying power " according to the nature of their overt acts.
3. MacArthur turned to the rules for unprivileged belligerents as war
rebels, “partisans,” or “armed prowlers.”

Yes, although it may not seem obvious, Filipinos are being oppressed and
treated as traitors if they choose not to believe in the current leaders. And
although in this generation, people are able to express their concerns and
issues through social media and other platforms. However, the only
difference is that Filipinos are smarter and aware of their rights and
freedom.

6. How did the Americans treat the Moros in contrast to the Filipinos in
other places? (p. 544)

Muslim Moros, arel described as “not enemies but religious fanatics.”

Perhaps because of such religious prejudice. This is different from
MacArthur’s harsher policies on unlawful belligerency.

Merlin M. Magallona, 'The Treaty of Paris of 10 December 1898:

History and Morality in International Law,' P.L.J. (2000)

1. Per Magallona, how was the notion of civilization conceived at the time
of the American annexation of the Philippines and how did it influence such
annexation? (pp. 159-162)

-The impact of the treaty made a huge impact on the Philippines as it

obliterates the idea of the status of sovereign community but more of the
victorious Philippine revolution. Transforming us to a more civilized mission
to become an imperialist archipelago. That influence as today by having a
republican and democratic country wherein the sovereignty resides in the
people through right to suffrage and that all government authority are the
ones we follow.
2. In the Island of Las Palmas case, how did the arbitrator Max Huber treat
the standing of the islands as far as the regnant international law was
concerned? (p. 162-164)

-Judge Huber mentioned that the island is an “inhabited only by natives”

regarding that the island of las palmas is a terra nullius, clean of people
who could acquire title to the territory.

3. How was this cession by Spain of the Philippine islands to the Americans
a rank immorality?

-It is immoral as the americans used the filipinos to defend and combat the
spaniards for them to be victorious. The cession of the Philippines involved
payment of 20 million dollars equivalent of 700 million dollars today. It was
given to spain by the US to cover infrastracture owned by spain.

Compagnie de Commerce v Hamburg Amerika [1917] GR No L-10986

[En Banc] 31 March 1917

1. What was the main issue in this case?

The main issue in this case was whether or not the Hamburg is liable
to Companie for damages?

2. What were the authorities/norms used by the Philippine Supreme Court

in resolving the issue?

The Philippine Supreme Court used the concept of granting of “days of

grace” and “safe conducts” as well as jurisprudence established by other
neighboring countries, through evidence of record or lack thereof, and on
general knowledge. When the case was submitted, there was still no final
report as to the proceedings at The Hague Convention. Also, looking at the
terms of the convention itself, at the outbreak of the present war, there was
still no general recognition of the duty of a belligerent to grant “days of
grace” and “safe conducts” to enemy ships in their harbor. There was still
no binding rule or basis to say that the master should have relied
confidently upon a compliance with its terms by the French authorities in
Saigon. Also, there exists a lot of divergence among nations as to the
existence and binding character of such a duty under accepted rules of
International Law. Adherence to the practice could not be demanded by
virtue of any convention universally recognized.

3. Did we already have a constitution at this time? Did the Philippine

Supreme Court discuss how these authorities/norms became part of
Philippine domestic law?

Yes, we did have a constitution at the time. No, they did not discuss.

In Re Max Shoop [1920] 041 Phil 213 [En Banc] 29 November 1920

1. How did the status of the Philippines as an “unorganized territory”

became one of the bases for admitting an American lawyer to the
Philippine bar?

It is because of the importance of interpreting and applying the bulk of

the written jurisdiction in the same topic, and in rendering its decisions in
cases not covered by the letter of the written law but may be seen in the
history of the territory, as the court relies upon the theories and precedents
of Anglo-American cases, subject to the limited exception of those
instances where the remnants of the Spanish written law present
well-defined civil law theories and of the few cases where such precedents
are inconsistent with local customs and institutions. The jurisprudence of
this jurisdiction is based upon the ECL in its present-day form of
Anglo-American Common Law to an almost exclusive extent. New York
permits conferring privileges on attorneys admitted to practice in the
Philippines, like those privileges accorded by the rule of this
court.
2. The case talks about the development of a “Philippine common law”.
What is this about? Do we still have a Philippine common law today?

Common law as adopted by the decision of the court; In the US, the ECL -
English Commission Law is blended with American codification and
remnants of the Spanish and French Civil Codes. Legal metamorphosis
has occurred similar to that which is transpiring in this jurisdiction. New
York uses the phrase "based on the English Common Law" in a general
sense and that such Common Law may become the basis of the
jurisprudence of the courts where practical considerations and the effect of
sovereignty gives ground for such a decision. If in the Philippines, ECL
principles as embodied in Anglo-American jurisprudence are used and
applied by the courts to the extent that Common Law principles are not in
conflict with the local written laws, customs, and institutions as modified by
the change of sovereignty and subsequent legislation, and there is no other
foreign case law system used to any substantial extent, then it is proper to
say in the sense of the New York rule that the "jurisprudence" of the
Philippines is based

Yes, the Philippines still have a common law today as our legal system is a
mixture of customary usage and Roman Law. It seems properly to say that
the jurisprudence of a particular jurisdiction is based upon the principles of
that Common Law, if, its statute law and its case law to a very large extent
includes the science and application of law as laid Down by the old English
cases, as perpetuated and modified by the American cases.

Island of Palm nas [or Miangas] (United States v Netherlands) (Award)

[1928] II RIAA 829, ICGJ 392 (PCA 1928), 4 April 1928, Permanent
Court of Arbitration [PCA]

1. What was the subject of the dispute between the Netherlands and the
United States here? (pp 835-838) What was the principle issue? (p. 838)

-The subject of the dispute is the sovereignty over the Island of Palmas (or
Miangas). The two Parties claim the island in question as a territory
attached for a very long time to territories relatively caq lose at hand that
are incontestably under the sovereignty of one or the other of them. It
follows from the terms of the Special Agreement (Article I) that the Parties
adopt the view that the island in question can only belong to one of them
for the purposes of the current arbitration. Third-party rights are only
considered insofar as they may derive rights for the parties to the dispute.
According to the US Government, the facts asserted in favour of the Dutch
arguments are unproven, and even if they were, they would not generate a
title of sovereignty or concern the Island of Palmas.

2. How was the Treaty of Paris relevant to the dispute? (pp. 842-843)

-It is relevant because The crucial question is thus whether the Island of
Palmas (or Miangas) was part of Spanish or Dutch territory at the time the
Treaty of Paris was signed and entered into force. The United States claims
Palmas (or Miangas) to be Spanish territory and denies Dutch sovereignty;
the Netherlands maintains their sovereignty and opposes Spanish
sovereignty. Only if the examination of both Parties' arguments leads to the
conclusion that the Island of Palmas (or Miangas) was neither Spanish nor
Dutch territory at the critical moment would the question arise
whether—and, if so, how—the conclusion of the Treaty of Paris and its
notification to the Netherlands might have interfered with the rights which
the Netherlands or the United States of America may claim over the island
in dispute. The crucial question was whether the Island of Palmas (or
Miangas) was part of Spanish or Dutch territory at the time the Treaty of
Paris was signed and entered into force. The United States declared
Palmas (or Miangas) to be Spanish territory and disputed Dutch
sovereignty; the Netherlands maintained their sovereignty and denied
Spanish sovereignty. Only if the examination of both Parties' arguments
leads to the conclusion that the Island of Palmas (or Miangas) was neither
Spanish nor Dutch territory at the critical moment would ultimately the
question arise whether or not the conclusion of the Treaty of Paris and its
notification to the Netherlands might have interfered with the rights which
the Netherlands or the United States of America may claim over the island
in dispute.

3. Concepts to define:

3.1 independence (p. 838)

-Independence in reference to a region of the globe is the right to execute

the functions of a State therein, to the exclusion of any other State.

3.2 Territorial sovereignty (p. 838)

-The term "territorial sovereignty" refers to sovereignty over territory.

Territorial sovereignty is, in general, a situation recognised and delimited in
space, either by so-called natural frontiers recognised by international law
or by undisputed outward signs of delimitation, or by legal commitments
entered into between interested neighbours, such as frontier conventions,
or by acts of recognition of States within fixed boundaries.

3.3 Modes of acquiring territory (p. 839)

-In modern international law, titles of acquisition of territorial sovereignty are

either based on an act of effective apprehension, such as occupation or
conquest, or, like cession, assume that the ceding and cessionary powers,
or at least one of them, have the capability of effectively disposing of the
ceded territory. Similarly, natural accretion can only be thought of as an
accretion to a section of territory when there is actual sovereignty capable
of extending to a location within its area of action.

3.4 discovery v. inter-temporal law

-Spain, Portugal, England, and the Church predominantly created the

Doctrine of Discovery in the fourteenth century. The Doctrine is not merely
an intriguing remnant of world history; it is still an applicable principle in
many countries and continues to constrain Indigenous Peoples' and their
governments' human, sovereign, commercial, and property rights. The
Doctrine was utilised by European nations to legitimise their ambition for
global riches and empires. The European powers justified their acquisitions
and ambitions chiefly through ethnocentric claims of cultural, racial,
governmental, and religious superiority over the rest of the globe.
Modern-day territorial boundaries and land titles, according to the idea of
"intertemporal" law, "are to be judged by the law in force at the time the title
was first asserted and not by the law of today."

As a result, how European countries and their colonies divided up the lands
and assets of Indigenous Peoples and Nations in the distant past still
influences national boundaries today, which is extremely important to
Indigenous Peoples.

3.5 critical date

-The 'critical date' is the point at which a territorial dispute "crystallises." In

many cases, a certain date will be crucial in determining between
competing claims. The tribunal deciding the dispute will determine the
important date or dates, which will normally be based on the circumstances
of the case.

4. According to Huber, what is the corollary duty of an entity given the right
to display exclusively the activities of a state within a particular territory? (p.
839)

-It is the obligation to preserve the rights of other states within its territory,
particularly their right to integrity and inviolability in peace and conflict, as
well as the rights that each state may claim for its nationals in foreign
territory. The State cannot fulfil this duty unless it manifests its territorial
sovereignty in a manner appropriate to the circumstances. Territorial
sovereignty cannot be limited to its negative side, excluding the activities of
other states; rather, it serves to divide between nations the space upon
which human activities are carried out, in order to provide them with the
bare minimum of protection, of which international law is the guardian.
Territorial sovereignty is said to be the exclusive right to exercise the
activities of a state within a particular territory. How was this established by
The Netherlands over Las Palmas?

-According to Van Delden's account, as well as later documentation from

the nineteenth century, Miangas was always recognised by Dutch officials
to be part of the Sangi and Talauer Isles, with a special relationship to the
Nanusa. A detailed report by the Resident of Menado, dated August 12th,
1857, provides detailed statements regarding the administrative
organisation, including the names of the villages (negorijen) and districts or
presidencies (djoegoeschappen), as well as the number, title, and names of
the native authorities. The island "Melangis" is connected to the Nanusa
but different from the islands "Nanoesa" (commonly referred to as
Mehampi, after the principal hamlet) and Karaton; it is governed by a single
"radja." who was known as Sasoeh at the time.

This report leaves little doubt about the legal situation in Melangis at the
time, and is consistent with the territorial description given for Palmas (or
Miangas) in the previously cited contracts of 1885 and 1899, as well as a
table dated September 15th, 1889. displaying the entire administrative
district system of the Talauer Islands, which are dependencies of the Sangi
Isles' native princes.

The presentation was open and public, in accordance with conventions

governing the exercise of authority over colonial states. A clandestine
exercise of State control over a populated territory for an extended period
of time appears to be impossible.

There was no requirement for the Netherlands to notify foreign powers of

the formation of suzerainty over the Sangi States or the display of
sovereignty in these territories.

Such notification, like any other formal act, can only be legitimate as a
result of an established rule of law. A rule of this type adopted by the
Powers in 1885 for the African continent does not apply de facto to other
regions, and thus the 1885 contract with Taruna, or the 1889 contract with
Kandahar-Taruna, even if considered the first assertions of sovereignty
over Palmas (or Miangas), would not be subject to the rule of notification.

There is also clear doubt that the Netherlands exercised State authority
over the Sangi States as sovereign in their own right, rather than on a
derived or insecure title.

H. Harry L. Roque, Jr. 'Las Palmas Arbitration Revisited' P.L.J (2003)

Read with: Ambassador Arif Havas Oegroseno, How Indonesia and
the Philippines Solved Their Maritime Dispute, The Diplomat, June 14,
2014.

1. What are some of the reasons Roque lists for the Philippines to hold on
to the island of Las Palmas?

The following are some reasons which Roque lists for the Philippines to
hold on to the island of Las Palmas:

a. The island of Palmas and the waters surrounding it are very close to
the strategic axis linking the Pacific and Indian oceans. The nearest
island to Palmas is Cape San Agustin. The establishment of
archipelagic sealanes between Cape San Agustin and Palmas over
which the Philippines has sovereignty, will enable the country,
possibly in cooperation with Indonesia, to monitor, control and
maintain surveillance of sensitive maritime jurisdictions. Many of the
country's major population centers, industrial zones, and the ports of
Mati, Davao City, General Santos, Cotabato, Pagadian, and
Zamboanga are directly accessible from the said sealanes.

b. Palmas island is also close to the critical spawning areas and

passage highways of economically important fish, like the yellow fin
tuna. The area has also been tagged as a marine ecoregion by the
 Worldwide Fund for Nature (WWF) owing to the area's distinct and
outstanding biodiversity.

c. The "war pool" of the world's oceans is also centered on Souther

Mindanao, making the Davao Gulf, Sarangani and Illana bay in the
Moro gulf the most suitable sites for large scale ocean terminal plants
(OTEC).

2. Per Roque, what are the eight arguments raised by the United States as
basis for its claim of sovereignty over Las Palmas?

The eight arguments raised by the United States as basis for its claim of
sovereignty over Las Palmas are:

1. That the island lies well within the demarcation of Article 3 of the
Treaty of Paris of December 10,1898 between the United States and
Spain ceding the Philippine Archipelago to the United States;
2. That the island is approximately twelve miles nearer the island of
Mindanao, the largest island of the Philippine archipelago, than to any
of the smaller islands of the Dutch Archipelago;
3. That the island is thin the limits marked by the Bull of Alexander 6th
dated May 4,1493;
4. That the island is well within the limits of the agreement concluded in
July 4, 1494, between Spain and Portugal;
5. That the union of Spain and Portugal in 1580 should remove any
doubts as to the titler of the Island prior to that time;
6. That the Government of Spain considered the Island as one of its
oceanic possessions;
7. That Spain never relinquished control over the island except to the
United States;
8. That Spain exercised sovereignty over the Philippine archipelago as
a whole and it was not necessary for Spain, in order to sustain its
sovereignty over each individual island of the Archipelago, to
maintain separate administrations over the island.
3. What were the Netherlands’ counter-arguments? What was the most
significant of these arguments?

Netherland’s counter-arguments were:

1. That the 17th century Palmas Island was conquered by the Rajah of
Taboucan, who in 1877 signed the agreement with the Dutch East
Indies Company, which agreement provided that the Taboucan
territories should become the property of the company;

2. That the possession or the Dutch East Indies Company came under
the direct control of the Netherlands Government and that since the
beginning of the 19th century the island has been under the
suzerainty of the Netherlands;

3. That the inhabitants paid taxes to the Netherlands government since

the early part of the 19th century;

4. That the island is named in contract between the Netherlands

government and the Sultan of Turante;

5. That the Netherlands government introduced vaccination upon the

island;

6. That the Netherlands authorities visited the island at least once a

year;

7. That Spain never questioned the right of the Netherlands government

to exercise it sovereignty or to plant its flags in the island;

8. That Spain, not having control of the island at the time of cession in
1898 could not cede it to the United States.

The most significant of these arguments was the fact that Spain may have
had the title of the island by virtue of discovery, but it has since lost/or
abandoned its title by allowing the rulers who ceded their territories in favor
of the Company.

4. What is effective occupation? How did the Netherlands establish this in

Las Palmas, according to Huber?

Effective occupation is the control of free newly discovered territory

exercised by a power with no sovereign title to the land, whether in
defiance or absence of a proper sovereign.

According to Huber, Netherlands establish effective occupation ​:

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.

5. What were the relevance of the doctrines of inter-temporal law and

critical date to the dispute? What were Roque’s criticisms of Huber’s use of
these concepts?

Inter-temporal Law Is the rule that where different legal rules existed over a
period of time, both the rule at the creation of the right and at the time of its
existence must be applied. Meanwhile, critical date is a judicial technique in
the use of evidence and more especially the exclusion of evidence
consisting of self-serving acts of parties at a stage when it was evident that
a dispute existed.

Roque’s criticisms of Huber's theory was that it was used without precedent
and may probably be described as a bold articulation of a new theory which
until today, does not seem to have been given wide acceptance. The reality
is that jurisprudence abound in International Law respecting acquired rights
or applying the law in force at the time of the creation of the right.

6. How did Jessup seek to establish American control of Las Palmas via
the island of Mindanao? What would this argument came to be known
much later on?

Jessup called attention to the American's argument: there being a paucity

of evidence of actual Spanish exercise of authority on Palmas island, it is
proper to take into account the fact that this island is one part of the
geographical unit known as the Philippine archipelago. Jessup insisted that
Spain's title over the archipelago is clear and in the absence of contrary
evidence, it must be assumed that her occupation and control of Mindanao
and other islands included Palmas Island. This is the theory of constructive
possession, ie. since Spain possesses the whole, constructively, it
possesses all the parts.

7. How would the notion of an archipelago been relevant to the case?

The notion of an archipelago was relevant to the case because one of the
arguments of the American proposition was that the island forms part of the
Philippine archipelago. As such, Huber stood by his belief that both the
Americans and Dutch should prove effective occupation of the island
instead of recognizing the instance that the Americans had already
established their presence in the Philippines generally –including the
Palmas Island.