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THE MIANGAS ARBITRATION.

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THE MIANGAS ARBITRATION

PROEFSCHRIFT

TER VERKRIJGING VAN DEN GRAAD VAN
DOCTOR IN DE RECHTSGELEERDHEID AAN
DE RIJKSUNIVERSITEIT TE UTRECHT OP
GEZAG VAN DEN RECTOR-MAGNIFICUS
Dr. C. G. N. D E
V O O Y S, HOOGLEERAAR IN
DE FACULTEIT DER LETTEREN EN WIJS-
BEGEERTE, VOLGENS BESLUIT VAN DEN
SENAAT DER UNIVERSITEIT TE VERDEDI-
GEN TEGEN DE BEDENKINGEN VAN DE
FACULTEIT DER RECHTSGELEERDHEID OP
VRIJDAG 7 JULI 1933, DES NAMIDDAGS 5 UUR

DOOR

WILLEM JOHAN BERNARD VERSFELT

GEBOREN TE HAARLEM

ömLèOTMEEK DER
INWERSITEIT
afHtCHT.

KEMINK EN ZOON N.V. - OVER DEN DOM - UTRECHT

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CHAPTER I.

GENERAL SURVEY.

A. Exposition of the Case.

1. The Facts.

On April 4th. 1928 the controversy which had been in progress
between the United States of America and the Netherlands for
over twenty years, relating to differences respecting sovereignty
over the Island of Miangas, was brought to an end. On that date,
Dr. Max Huber, acting as sole Arbitrator, decided, in conformity
with Article 1 of the Special Agreement of January 23, 1925, that
the Island of Palmas (or Miangas) forms in its entirety a part of
Netherlands territory.

The island in dispute, named Miangas according to the Nether-
lands and Palmas according to the United States, is situated about
5° 35' north latitude and 126° 36' longitude east from Green-
wich. between the Talaud Islands (Netherlands East Indies) on
one side, and Mindanao (Philippine Islands) on the other side. The
distance from Garata, the most northerly of the Nanusa Islands,
forming in their turn the most northerly group of the Talaud
Islands, is 52 sea miles; the distance from the nearest point of
Mindanao. Cape San Augustin. is 48 sea miles.

The island itself is oblong in shape and is about K.M. in
circumference; it rises both in the north and in the south into an
elevation or hill. At high tide, part of the island to the north of
the southern elevation is inundated, a circumstance which, when
the island is seen from a certain angle, produces the effect, that
it consists of two smaller islands. The low middle part of the island
is formed by a fresh water marsh, covered with sago trees and
tuberous plants: its more sandy parts are rich in coconut palm
trees; hence probably the Spanish name Palmas (in Portuguese:
Palmeiras). On the northern hill are one or two small groves,
valuable for their timber.

The number of inhabitants, formerly Mohammedans, afterwards

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converted by Protestant Missionaries from the Island of Celebes,
amounts to less than 700; the language spoken by the native
population is most closely akin to the Talaud language, much
more so than to the language of the native population in
Mindanao^).

According to the statement of D. H. Malone, major of the
Philippine Constabulary, who visited the island in June 1919. the
only articles of commerce exported from the island are copra and
mats. Practically all the copra exported from the island is bought
by some Chinese merchants running a small store on the island.
According to this official the sanitary conditions are very bad
indeed^). It is stated, however, by the Dutch Government^), that
the reports of the Dutch civil officers, who regularly visited the
island, are quite different: the death rate on Miangas was in
1924 24 per 1000, which is the same as in Batavia in 1923. The
water supply, however, is unsatisfactory in the dry season. Ac-
cording to Major-General Leonard Wood^), who visited the
island on January 21. 1906, being on a tour of inspection as Pro-
vincial Governor of the Moro Province (Mindanao), the island
is fertile, and well cultivated; in 1919 Newton D. Baker®), the
then Secretary for War, esteemed the value of Palmas Island from
a military, naval or commercial point of view to be relatively
small: an opinion, shared by the United States Agent, Fred K.
Nielsen quot;), as appears from his report on May 2. 1928. to the then
Secretary of State, Frank B. Kellogg.

By the Treaty of Paris of December 10. 1898. which put an end
to the war between the United States of America and Spain, the
latter country ceded the Philippine Islands to the former.

1)nbsp;Dr. N. Adriani, in quot;De Indische Gidsquot;. 1916. I. p. 221. states: Miangas
speaks the Talaud language and the Philippine languages spoken north
of this island are neither used nor understood on the latter, although they
are fairly closely related to the Talaud language.

2)nbsp;U. S, Mem. p. 208; U. S. Count. Mem. p. 108.

3)nbsp;Neth. Count. Mem. p. 78.

4)nbsp;Neth. Count. Mem. p. 83.

5)nbsp;U. S. Count. Mem. p. 106.

6)nbsp;The Island of Palmas Arbitration. Report of Fred. K. Nielsen, p. 1.

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Article III of the treaty reads as follows^):

Spain cedes to the United States the archipelago known as
the Philippine Islands, and comprehending the islands lying
within the following line:

A line, running from West to East, along or near the twen-
tieth parallel of north latitude, and through the middle of the
navigable channel of Bachi, from the one hundred and
eighteenth (118th) to the one hundred and twenty-seventh
(127th) degree meridian of longitude East of Greenwich, thence
along the one hundred and twenty-seventh (127th) degree
meridian of longitude East of Greenwich to the parallel of four
degrees and forty-five minutes (4° 45') north latitude, thence
along the parallel of four degrees and forty five minutes (4° 45')
north latitude to its intersection with the meridian of longitude
one hundred and nineteen degrees and thirty-five minutes
(119° 35') East of Greenwich, thence along the meridian of
longitude one hundred and nineteen degrees and thirty-five
minutes (119° 35') East of Greenwich to the parallel of latitude
seven degrees and forty minutes (7° 40') north, thence along
the parallel of latitude of seven degrees and forty minutes
(7° 40') north to its intersection with the one hundred and six-
teenth (116th) degree meridian of longitude. East of Greenwich,
thence by a direct line to the intersection of the tenth (10th)
degree parallel of north latitude with the one hundred and
eighteenth (118th) degree meridian of longitude East of Green-
wich, and thence along the one hundred and eigteenth (118th)
degree meridian of longitude East of Greenwich to the point of
beginning.

The United States will pay to Spain the sum of twenty million
dollars ($ 20,000,000) within three months after the exchange
of the ratifications of the present treaty.

Undoubtedly the Island of Miangas is included within the lines
of demarcation traced by the contracting parties. The United
States, on February 3, 1899, communicated the Treaty of Paris

7) U. S. Mem. p. 4.

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to the Netherlands; no formal reservations were, however, made
by the latter Power, in respect to the dehmitation of the PhiUppmes
in article III of the said treaty. Both the litigant Powers and the
Arbitrator are of the opinion, that the dispute did not arise at the
moment of this notification«); the United States Government, as
successor to the Spanish title, claim sovereignty over the island
from the moment of cession (ratification of the treaty), whereas
the Dutch claim that they have exercised sovereignty there for
over 200 years and that they still continue to do so.

The litigant Powers, however, esteem that the conflict only
arose in 1906. On January 21st of that year a visit was paid to the
island by Major-General Leonard Wood, who was much surprised
to find the Dutch flag flying, both on shore and on a boat which
came out to meet him. quot;As far as I could ascertainquot;, runs his
report from Zamboanga, January 26, 1906, to the military secretary
U.S. Army»), quot;the Dutch flag has been there for the past fifteen
years, one man said he thought it had always been there. — The
people trade with the Philippine Islands and appear to have little
communication with the Celebes, except through the annual visit
of a Dutch ship.quot; On March 31, 1906, the United States Ambas-
sador at The Hague inquired of Her Majesty's Government what
was its understanding as to its status in the territory referred to:
a copy of Major-General Wood's letter, quot;relative to the ownership
of Palmas Islandquot; was enclosed Iquot; a note of October 17. 1906.
from the Netherland's Ministry for Foreign Affairs to the American
Legation at the Hague, it was stated on several grounds that the
Island of Palmas or Miangas forms a part of the Netherlands
possessions and that naturally Spain could not cede an islet which
had never formed a part of the Spanish territory and over which
Spain has never exercised any right of suzerainty . The diplom-
atic correspondence proceeded until January 23. 1925. when on
the basis of the existing Arbitration Convention of May 2. 1908.

8)nbsp;Prof. F. de Visscher is of a different opinion. Revue de Droit Int. et de
Lég. Comp.. 1929, p. 738.

9)nbsp;Neth. Count. Mem. p. 83.

10) id.

11) U. S. Mem. p. 135.

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last renewed on February 13, 1924, the Special Agreement was
concluded, by which the United States of America and Her Majesty
the Queen of the Netherlands agreed to refer the decision of the
difference to the Permanent Court of Arbitration at The Hague.
Dr. Max Huber, of Zurich, member of this Court, having been
asked, whether he would be disposed to accept the mandate to act
as sole arbitrator under the Special Agreement of January 23, 1925,
informed the Parties that he was wilhng to accept the task. This
decision was delivered, as has already been stated, on April 4, 1928.

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 only by reliable cartographers and authors, but also
by treaty, in particular the Treaty of Münster of 1648, to which
Spain and the Netherlands are themselves contracting parties. The
Treaty of Münster of January 30th 1648, by which a state of
peace was established between Spain and the States-General of
the United Provinces of the Netherlands deals in article V with
the territorial relations between the two Powers as regards the
East- and West Indies. This article provides a solution of the
territorial question on the basis of actual possession. (.... Et un
chacun, sçavoir les susdits Seigneurs Roy 6 Estats respectivement
demeureront en possession et jouiront de telles Seigneuries, Villes,
Chasteaux, Forteresses, Commerce 6 Pays és Indes Orientales 6

Occidentales.....que lesdits Seigneurs Roy amp; Estats respectivement

tiennent et possèdent ....). As nothing has occurred of a nature
which, at international law, would cause the acquired title to
disappear, this title was still intact when by the Treaty of Paris
Spain ceded the Philippines to the United States. In these circums-
tances it is, in the American view, unnecessary to establish facts,
showing the actual display of sovereignty over the Island of
Miangas itself. The United States Government finally maintains,
that the island forms a geographical part of the Phihppine group,
and in virtue of the principle of contiguity belongs to the Power,
having the sovereignty over the Philippines. The claim of the
United States to sovereignty over the Island of Miangas, is thus

-ocr page 18-

derived from Spain by way of cession under the Treaty of Paris
and is based 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.

The Nether- According to the Netherlands Government, on the other hand,
ar^ui'nts ^he fact of discovery by Spain is not proved, nor yet any other
argumen s ^^^^ ^^ acquisition, and even if Spain had at any time had a title,

such title had been lost; in the Netherlands view the principle of
contiguity is open to dispute. The Netherlands Government argue,
that the Netherlands, represented for this purpose in the first
period of colonization by the East-India Company, have possessed
and exercised rights of sovereignty since 1677, or probably even
from a date prior to 1648, up to the present day. This sovereignty
arose out of conventions, concluded with the native princes of
the Sangi Islands, estabhshing the suzerainty of the Netherlands
over the territories of these princes, including the Island of Mian-
gas. In the submission of the Netherlands, this claim, founded on a
title of continuous and peaceful display of state authority over the
island, prevails in international law, over a title of acquisition of
sovereignty, not followed by actual display of state authority.

2. The Award.

quot;It is evidentquot;, the Arbitrator remarksquot;that Spain could

not transfer more rights than she herself possessed..... it would

seem, that the cessionary Power never envisaged, that the cession,
in spite of the sweeping terms of Article III of the Treaty of Paris,
should comprise territories, on which Spain had not a vahd title,
though falling within the hmits, traced by the treaty. This article
may, however, be considered as an affirmation of sovereignty on
the part of Spain as regards the islandquot;.

The quot;The essential point is, whether the Island of Palmas (or Mian-
notification ggg) jhg moment of the conclusion and coming into force of the
Treaty of Paris formed a part of the Spanish or the Netherlands
territory. If at that moment the Netherlands had a perfect title to

12) Award, p. 22.

-ocr page 19-

sovereignty over the island, such sovereignty could not be affected
by the mere silence of the territorial sovereign as regards a treaty
which has been notified to him and which seems to dispose of a
part of his territory. If she had not, only then the question would
arise, whether — and, if so, how — the conclusion of the Treaty
of Paris and its notification to the Netherlands might have inter-
fered with the rights which the Netherlands or the United States
of America may claim over the island in disputequot;

This condition having been stated, the Arbitrator proceeds to
consider the United States arguments.

a.nbsp;The study of the adduced documents leads to the result, that
for the purpose of the present affair it may be admitted that the
original title derived from discovery belonged to Spain. The
effect of discovery is to be determined by the rules of international
law in force in the first half of the 16th century.
Did discovery
at that time create a definite title to sovereignty or only an inchoate
title? The Arbitrator apparently hesitates and consequently both
possibilities are considered. In regard to the first hypothesis Judge
Huber states, that international law in the 19th century laid down
the principle that occupation, to constitute a claim to territorial
sovereignty, must be effective. Therefore a title of acquisition
which is no longer recognized by existing law cannot at the present
time suffice to prove sovereignty, if it is not supported by any
subsequent act.

In regard to the second hypothesis. Judge Huber admits, that
such an inchoate title exists without external manifestation. Ac-
cording to existing international law such an inchoate title must
be completed within a reasonable period by the effective occupation
of the region claimed. Even if such an inchoate title still existed
in 1898. it could not prevail over a definite title founded on con-
tinuous and peaceful display of sovereigntyquot;).

b.nbsp;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 quot;held and possessedquot; by Spain

13)nbsp;id., p. 22.

14)nbsp;id., p. 26-28.

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in 1648, the rights derived by Spain from the Treaty of Münster
would have been superseded by those which were acquired by
the Netherlands under the Treaty of Utrecht, for if there is evi-
dence of a state of possession in 1714, concerning the Island of
Palmas (or Miangas), such evidence is exclusively in favour of

the Netherlands.

The study of the United States documents leads to the con-
clusion, that there is a complete absence of (effective)
Spanish sovereignty over the Island of Palmas

c. The title of contiguity as a basis of territorial
sovereignty has, according to the Arbitrator, no foundation in
international law.

The Nether- In the opinion of the Arbitrator the Netherlands has succeeded

^^ments establishing the following facts:
argumen Snbsp;^ ^^^ ^^^^^^ ^^ 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 Islands);

b.nbsp;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 part of his territory;

c.nbsp;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 conditions for the acquisition of sovereignty by the Nether-
lands are therefore to be considered as fulfilled.

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 quot;).

15)nbsp;id., p. 36.

16)nbsp;id., p. 57-58.

17)nbsp;id., p. 60.

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3. Analysis of the Award.

In form the Award is a model of clearness and precision. The
body of the Award is divided into three parts: general observa-
tions, arguments of the United States, and arguments of the Ne-
therlands. In these three parts questions of substance and form
are treated separately. The body is preceded by a chapter on
the proceedings and followed by the conclusions, ending with the
dictum. The whole is preceded by the Special Agreement of January
23, 1925, by which the difference is submitted to arbitration.

The general observations contain a section dealing with legal
doctrine^®) in which the Arbitrator expounds his conception of
territorial sovereignty. It may be stated at once, that this con-
ception is of decisive influence on the Award.

display The Arbitrator does not admit the existence of territorial
authority Sovereignty which is not actually exercised. On p. 18 of the Award,
Judge Huber speaks of quot;the principle that continuous and peaceful
display of the functions of state within a given region is a constit-
uent element of territorial sovereigntyquot;, and again on p. 19: quot;the
actual continuous and peaceful display of state functions is in case
of dispute the sound and natural criterium of territorial sover-
eigntyquot;.

The Arbitrator, however, only points to the necessity of a dis-
play of sovereignty in the event of sovereignty being disputed by
an other State: quot;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, occu-
pation, etc. — superior to that which the other State might possibly
bring forward against itquot; In that case the mere title of cession,
conquest, occupation, etc. appears to be insufficient of the con-
testation is based on actual display of state authority: quot;However,
if the contestation is based on the fact that the other Party has
actually displayed sovereignty, it cannot be sufficient to establish

18)nbsp;id., p. 16-19.

19)nbsp;id., p. 16.

-ocr page 22-

the title by which territiorial sovereignty was 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'
and this can only be shown by the actual display of state activity
by the state whose right is contested.

The united It is evident, that the Arbitrator considers it possible that a
States definite title, acquired by discovery, may afterwards be lost i his
arguments ^^^^^^^ ^^^^nbsp;hesitates to accept the first hypo-

'^SL'over? thesis which we have mentioned.nbsp;, . , .. u

From a general point of view, apart from the Award, it wou d

hypSsis seem, that only in one of the three following ways Spain could
have lost her title to the Island of Miangas:

1. By abandonment. In this case it must be proved, that
Spain has relinquished both the
animus possidendi and the corpus.

As to the corpus, it is expressly stated, that Spain withdrew from
the Moluccas in 1666. making however, express reservations as
to the maintenance of her sovereign rights. In 1677 the Spaniards
were, in particular, driven by the
East-India Company from Ta-
boekan of which Miangas was a dependency History only
affords scanty information about these facts. Nothing, for instance,
is said of the Island of Miangas in particular and it does not
appear, that before this time Spain ever exercised authority over
the island It is questionable accordingly, whether Spain ever was
in possession of the
corpus, but if she were, she lost the corpus in
1677, when the
East-India Company concluded its first treaty with

the Sangi princes.nbsp;. . i

The same holds good as regards the animus. It is true, that m 1666

the Spaniards were determined to keep the animus, but until the pro-
test made by the United States in 1906, no protest or action of any
kind directed against the exercise of territorial sovereignty by the Ne-
therlands is on record. No reference is made to the act of violence
above-mentioned in the Treaty of Utrecht of 1714, which, in so

20) id., p. 16.

21) id., p. 31.

-ocr page 23-

far as Spain and the Netherlands were concerned, afforded a legal
basis to the
status quo of the moment as regards their possessions
in the East and West Indies. If Spain had meant to keep her rights
of sovereignty over the region in question, she would at that mo-
ment have formulated a claim. There is further no trace of evidence
that Spain ever on some later occasion, for instance in connection
with the territorial rearrangements at the end of the Napoleonic
wars, claimed the restitution of territories taken or withheld from
her in violation of the treaties of Münster and Utrecht'-quot;).

That Spain had abandoned the animus detinendi is flatly denied
by Jessup^^), who contends, that quot;Spain exercised a very high
order of sovereign authority by a formal cession of the territoryquot;;
adding the following reproach: Judge Huber discusses the Treaty
of Paris merely from the point of view that Spain could not cede
the island if it were not hers. Jessup's argument, however, does
not seem quite justifiable. From what has been said on p. 6 it
appears, that this affirmation of sovereignty on the part of Spain
as regards the island did not escape the Arbitrator's attention.
Moreover, it would seem that the act of cession is not amongst
those acts which the Arbitrator comprises under display of state
activity, as will be shown on p. 30. It may suffice at the moment
to state, that territorial sovereignty, according to Judge Huber,
involves not only a right, but also a duty, viz. the duty to assure
the minimum of protection of which international law is the
guardian. A formal act like the cession of the island by the Treaty
of Paris, could not be said to fall within the category of acts,
providing this assurance. Moreover, in the third place, this act
of cession is precisely the point of difference upon which the
whole arbitration turns, for only if Spain had the sovereignty over
the Island of Miangas in 1898 could she cede it to the United
States.

2. By prescription^^). Still adopting the hypothesis

22)nbsp;id., p. 32.

23)nbsp;Am. I. 1928. p. 746.

24)nbsp;The word prescription is used both by the Parties and the Arbitrator.
For this reason, the term is used in this analysis of the Award. In the
next Chapter it will be discussed in detail.

-ocr page 24-

that discovery formerly gave a perfect title, Spain could have lost
this title, either by extinctive prescription or by acquisitive pre-
scription on the part of the Netherlands. A detailed consideration
of the question whether international law recognizes the principle
of prescription, is, of course, outside the scope of this monograph.
As. however, the principle is appealed to. both by the Parties^®)
and by the Arbitrator^®), some provisional observations on the
subject may not be out of place here:

Assuming that international law recognized the principle of
extinctive prescription, the Spanish title, estabhshed
in the first part of the sixteenth century, would have lapsed. From
this it would follow that the Island of Miangas, as Spain never
exercised any state activity there, would also have become a
territorium nullius; however long the delay required in connection
with limitation of actions at international law, a period of over two
hundred years would at all events be sufficient

If on the other hand Spain lost her title by means of acquisi-
tive
prescription operating on behalf of the Netherlands,
in the first place possession must have been taken by the Nether-
lands in the conviction that sovereignty would thus be acquired.
If possession is acquired by a lessor (the contracts of lease with
China), if the administration is ceded to another Power (as was
the case in Cyprus in 1878 and in Bosnia Herzegovina in the
same year) or exercised by a mandatory Power (Art. 22 of the
Covenant of the League of Nations), the latter Power can never
lawfully acquire sovereignty, however long the full range of
sovereign rights be exercised.

In the second place the exercise of sovereignty must have been
peaceful and uninterrupted. Whatever the delay which must elapse

25)nbsp;Neth. Mem., p. 22; U. S. Count. Mem. p. 84.

26)nbsp;Award, p. 59.

27)nbsp;Extinctive prescription was largely discussed by the Institute of Inter-
national Law, which stated, in its Resolution on Limitation of Actions
(1925), that hmitation of actions is quot;a general principle of law, recognized
by civilised nationsquot;; the principle is quot;long accepted in arbitral jurispru-
dencequot;; e.g. in the case of the Williams.

-ocr page 25-

for acquisition by prescription in international law^®), an exercise
of state functions contested by a third state, or not continued
throughout the whole period, can never lead to the acquisition of
sovereignty.

In the third place, possession must have been exercised publicly.
It might seem hardly possible that state activity could be displayed
without being noticed abroad. This, if anywhere, would be possible
in so remote a part of the world as the region between the Philip-
pines and the Dutch East-Indies. In the case of the Island of
Miangas, however, the Spaniards were turned out of the Moluccas
and as they never asserted their rights, it would seem that Spain is
in a weaker position than any other Power to plead the necessity
for the public exercice of state functions'^»).

The Arbitrator repeatedly states that the Netherlands exercised
state authority and that they did so continuously and peacefully
during at least two centuries. It would therefore seem, that this
is a case for appeal to
vetustas or immemorabilis rather than to
prescription. Subject to this observation, the lapse of the Spanish
title can be explained by means of acquisitive prescription operating
on behalf of the Netherlands.

The Arbitrator comes back to this point in his conclusions: As
to the conditions of acquisition of sovereignty by way of continuous
and peaceful display of state authority (so-called prescription),

28)nbsp;Infra, p. 105.

29)nbsp;A different question is, of course, whether, again assuming that inter-
national law recognizes acquisitive proscription, the same conditions must
be fulfilled as in private law. The Arbitrator refers to the conditions of
private law on p. 59 of the Award. The question was amply discussed in
regard to rule A of Article 4 of the treaty of 1897 in the case of the
Venezuela-British Guiana Boundary Arbitration; it was provided: quot;Adverse
holding or prescription during a period of 50 years shall make a good
title. The Arbitrators may deem exclusive political control of a district,
as well as actual settlement thereof, sufficient to constitute adverse holding
or to make title by prescription.quot; It was argued by Venezuela, that time
is but one of many elements essential to create title by prescription; and
that prescription must be bona fide, public, notorious, adverse, exclusive,
peaceful, continuous, uncontested, and maintained under a claim of
right (H. Lauterpacht, Private Law Sources and Analogies of International
Law, p. 229).

-ocr page 26-

some of which have been discussed in the United States Counter
Memorandum, the following may be said:

quot;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 impossiblequot;. And after having argued that an obUgation
of notification, as required by the Act of Berlin, does not exist
for the Netherlands as regards the contracts, concluded with
native princes in 1885 and 1889, Judge Huber continues: quot;There
can further be no doubt that the Netherlands exercised the state
authority over the Sangi states as sovereign in their own right,
not under a derived or precarious titlequot;

Nec vl nec clam, nec precario, have the Netherlands exercised
their authority: could it be said more clearly, that the Arbitrator
here takes the position that the Netherlands has acquired sover-
eignty over the Island of Miangas by means of prescription? The
Arbitrator has the less difficulty in adopting the hypothesis of
prescription because, however long the period required for acqui-
sition by means of prescription, the period from 1700 till 1906 is

certainly adequate.

3. By the change of International Law.
Again assuming that in former times discovery as such, without
any subsequent act, could establish a perfect tide to sovereignty,
this title may be lost, according to the Arbitrator, in the following
way ):

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 mani-
festation, shall follow the conditions required by the evolution
of law.

30)nbsp;Award, p. 59.

31)nbsp;id., p. 27.

-ocr page 27-

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 the tendency already existing, and especially devel-
oped 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 incom-
patible 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.

quot;For these reasonsquot;. Judge Huber continues, quot;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 abandon-
ment properly speaking of sovereignty by one State, in order
that the sovereignty of another make take its place, does not
arisequot;.

This theory is certainly open to dispute, for its influence would,
if it were accepted by State practice, be highly disturbing. Every
state would continually have to be considering: does international
law still recognize my sovereignty over such or such part of my
territory or has it developed new requirements, which I do not
now fulfil?

Jessup®^) formulates his objection as follows:

For the sake of clarity, the principle thus enunciated, may
be applied to another state of facts. Assume that state A in a
certain year acquires Island X from State B by a treaty of
peace, after a war, in which A is the victor. Assume Island X
is a barren, rocky place, uninhabited and desired by A only
for strategic reasons, to prevent its fortification by another

32) Loc. cit., p. 739.

-ocr page 28-

Power. Assume that A holds Island X, but without making
direct use of it, for two hundred years. At the end of that time
suppose that the development of international morality has so
far progressed as to change the previous rule of international
law, and that the new rule is that no territory may be acquired
by a victor from a vanquished at the close of a war. Under the
theory of quot;intertemporal lawquot; as expounded, it would appear
that A could no longer have good title to Island X, but must
secure a new title upon some other basis or in accordance with
the new rule. Such retroactive effect of law would be highly
disturbing. Every state would constantly be under the necessity
of examining its title to each portion of its territory in order
to determine, whether a change in the law had necessitated, as
it were, a reacquisition. If such a principle were applied to
private law and private titles, the resuh would be chaos.
It may be recalled once more, that the Arbitrator is still arguing
on the hypothesis, that in the 16th century the mere fact of dis-
covery gave a definite title to sovereignty. If international law had
not developed the requirement of effective possession, Spain's title,
and accordingly the United States title, would have subsisted up to
the present day. According, however, to the principles laid down
by the Arbitrator in the doctrinal part of the Award and expressing
this requirement, Spain has lost her title by not fulfilling it. This,
of course, is totally different from the extinction of an existing
sovereignty by
non-usage and De Visscher seems to be under a
misapprehension, when, referring to this doctrine of intertemporal
law, he states: C'est un véritable cas de perte de la souveraineté

par le non-usage^quot;).

Thus, by means of this theory of intertemporal law, the Arbi-
trator comes to the conclusion, that assuming a definite title con-
ferred by discovery. Spain would in any event have lost it by the
time of the cession.

The title of The Arbitrator, however, also takes a second hypothesis and
discovery argues as follows ) :

Second -------

hypothesis 33) Visscher, loc. cit. p. 740.
34) Award, p. 27.

-ocr page 29-

If on the other hand, the view is adopted that discovery does
not create a definite title of sovereignty, but only an quot;inchoatequot;
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 occu-
pation 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 apphed (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 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,

It has been stated on p. 7, that an inchoate title must, within
a reasonable time, be consummated by effective possession. If such
possession is not taken, the inchoate title will lapse and the terri-
tory, to which it relates, will again be
territorium nullius. Inter-
national law, however, has not developed and cannot develop a
general rule to fix this period, because the circumstances will
differ according to each case. A period that will suffice in one
case, will not suffice in another. Accordingly, the Arbitrator takes
into account the possibility, that the inchoate title still existed in
1898 and that, consequently, Spain ceded this inchoate title to the
island, to the United States.

This is, what Judge Huber has in mind, when he states^®):
quot;The title of discovery... would, under the most favourable and
most extensive interpretation, exist only as an inchoate title, as a
claim to establish sovereignty by effective occupationquot;. But a period
of a length such as is here conceived by the Arbitrator, seems at
all events excessive. Moreover it is very improbable, that inter-

-ocr page 30-

national law, on the one hand definitely rejecting the perfect title
under the first hypothesis, would under the second hypothesis,
allow an inchoate title to subsist. The Arbitrator's view is appa-
rently to be explained by his desire
suum cuique tribuere.

This lengthy discussion of the Arbitrator's opinion may be sum-
marized as follows:

1.nbsp;Spain has lost her title to the Island of Miangas as a result of
the change in the requirements regarding territorial sovereignty
laid down by international law. If Spain's title was a definite title,
this title is completely lost. If Spain's title was an inchoate title, it
is questionable, whether it still existed in 1898. But even if it existed
at that moment, it could not prevail over a title based on effective
display of state functions.

2.nbsp;Apart from this reasoning, based on the theory of inter-
temporal law, Spain would have lost her title by means of acquis-
itive prescription operating on behalf of the Netherlands.

The title of The United States contends, that its claim based on the fact
Treaty discovery, is confirmed in particular by the Treaty of Münster
of 1648, to which Spain and the Netherlands were Contracting
Parties. Article V of this treaty reads as follows:

La Navigation 6 Trafique des Indes Orientales et Occiden-
tales sera maintenuë, selon ô en conformité des Octroys sur ce
donnés, ou à donner cy-aprés; pour seureté de quoy servira le
present Traicté ô la Ratification d'iceluy, qui de part 6 d'autre
en sera procurée; Et seront compris sous ledit Traicté tous Po-
tentats, Nations Ô Peuples, avec lesquels lesdits Seigneurs
Estats, ou ceux de la Société des Indes Orientales 6 Occiden-
tales en leur nom, entre les limites de leursdits Octroys sont en
Amitié et Alliance; Et un chacun, sçavoir les susdits Seigneurs
Roy et Estats respectivement demeureront en possession et
jouiront de telles Seigneuries, Villes, Chasteaux, Forteresses,
Commerce 6 Pays ès Indes Orientales ô Occidentales, comme
aussi au Brésil 6 sur les costes d'Asie, Afrique ô Amérique
respectivement, que lesdits Seigneurs Roy 6 Estats respective-
ment tiennent et possèdent, en ce compris spécialement les Lieux
6 Places que les Portugais depuis l'an mil six cent quarante 6

-ocr page 31-

un, ont pris 6 occupé sur lesdits Seigneurs Estats; compris aussi
les Lieux ô Places qu'iceux Seigneurs Estats cy-aprés sans in-
fraction du present Traicté viendront à conquérir ô posséder;
Et les Directeurs de la Société des Indes tant Orientales que
Occidentales des Provinces-Unies, comme aussi les Ministres,
Officiers hauts amp; bas. Soldats amp; Matelots, estans en service
actuel de l'une ou de l'autre desdites Compagnies, ou aiants
esté en leurs service, comme aussi ceux qui hors leur service
respectivement, tant en ce Pays qu'au District desdites deux
Compagnies, continuent encor, ou pourront cy-après estre em-
ployés, seront et demeureront libres amp; sans estre molestez en
tous les Pays estans sous l'obéissance dudit Seigneur Roy en
l'Europe, pourront voyager, trafiquer amp; frequenter, comme tous
autres Habitans des Pays desdits Seigneurs Estats. En outre
a esté conditionné amp; stipulé, que les Espagnols retiendront leur
Navigation en telle manière qu'ils la tiennent pour le present
és Indes Orientales* sans se pouvoir estendre plus avant, comme
aussi les Habitants de ce Pays-Bas s'abstiendront de la fré-
quentation des Places, que les Castillans ont és Indes Orientales.
The Arbitrator, however, does not accept the contention. quot;How-
ever liberal be the interpretation given, for the period in question,
to the notions of quot;tenirquot; (hold) and quot;posséderquot; (possess)quot;, the
Arbitrator remarks^quot;), quot;it is hardly possible to comprise within
these terms the right arising out of mere discovery; i.e. out of the
fact that the island had been sighted. If title, arising from discovery,
well-known and already a matter of controversy at the period in
question, were meant to be recognized by the Treaty, it would
probably have been mentioned in express termsquot;. Moreover, the
Arbitrator bases his opinion on the following consideration: quot;It
must be remembered that Article V provides not merely a solution
of the territorial question on the basis of possession, but also a
solution of the Spanish navigation question on the basis of the
status quo. Whilst Spain may not extend the limits of her naviga-
tion in the East-Indies, nationals of the Netherlands are only
excluded from quot;placesquot; which the Spaniards hold in the East-

-ocr page 32-

Indies. Without navigation there is no possibihty of occupying
and colonizing regions as yet only discovered; on the other hand,
the exclusion from Spanish quot;placesquot; of Netherlands navigation does
not admit of an extensive interpretation. For these reasonsquot;, the
Arbitrator concludes, quot;a title based on mere discovery cannot
apply to the situation considered in Article V as already estab-
lishedquot;.

The question is rather, which of the two parties was at the
moment of the conclusion of the Treaty of Münster in possession
of the island, for this is, according to the article, the critérium. The
United States consequently tries very hard to prove that at that
date Spain was in possession of the island. She makes it probable
indeed, that the island came into Spanish possession in 1606. But
in 1677 the Spaniards were driven by the Dutch from Taboekan,
to which the Island of Miangas, with the Nanusa and Talauer
Islands belonged. quot;It may be considered as not unlikelyquot;, the
Arbitrator states^''), quot;that Miangas, in consequence of its ancient
connection with the native state of Taboekan, was in 1648 at least
in direct possession of Spain. However, this point has not been
established by any specific proofquot;.

But all this is, according to the Arbitrator, of no importance, for
on June 26, 1714, a new Treaty of Peace was concluded, in which
again the
status quo possessionis at that moment was taken as the
critérium. Article X stipulates that the Treaty of Münster is main-
tained in so far as not modified and that the above quoted
Article V remains in force as far as it concerns Spain and the
Netherlands.

The wording of Article X of the Treaty of Utrecht is as follows:
Le Traité de Munster du 30 janvier 1648 fait entre le feu
Roi Philippe 4 amp; les Seigneurs Etats Généraux, servira de base
au présent Traité, amp; aura lieu en tout, autant qu'il ne sera pas
changé par les Articles suivants, amp; pour autant qu'il est appli-
cable, amp; pour ce qui regarde les Articles 5 et 16 de ladite Paix
de Munster, ils n'auront Heu qu'en ce qui concerne seulement
lesdites deux hautes Puissances contractantes amp; leurs Sujets.

-ocr page 33-

It thus appears, that the argument put forward by the United
States to prove her right, operates against her: the Treaty of
Münster does not confirm the Spanish title, but the Treaty of
Utrecht confirms the Netherlands title.

Accordingly it appears that the Treaty of Münster and at all
events that of Utrecht would have constituted facts of a nature
to cause the acquired title to disappear if really such title had been
previously established by discovery. And the Arbitrator is justified
in saying: quot;It is, therefore, unnecessary to consider, whether sub-
sequently Spain by any express or conclusive action, abandoned
the right, which the said treaties may have conferred upon her in
regard to Palmas (or Miangas)quot;''®).

Tjie title of The United States, however, have another argument: quot;The
United States finally maintainsquot;, the Arbitrator states quot;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 Philippinesquot;.

It is to be observed that the distance from the island to the
nearest point of American territory is about 48 sea-miles, whereas
that to the nearest point of Netherlands territory is 52 sea-miles,
so that the United States have scarcely more justification for
appealing to the principle of contiguity than the Netherlands. But
it is not on this ground that the claim based on this principle is
rejected by the Arbitrator^quot;):

Although States have in certain circumstances maintained that
islands relatively close to their shores, belonged to them in
virtue of their geographical situation, it is impossible to show
the existence of a rule of positive international law to the effect
that islands situated outside territorial waters, should belong
to a State from the mere fact that its territory forms the
terra
firma
(nearest continent or island of considerable size). Not
only would it seem that there are no precedents sufficiently
frequent and sufficiently precise in their bearing to establish

38)nbsp;id., p. 33.

39)nbsp;id., p. H.

40)nbsp;id., p. 39.

-ocr page 34-

such a rule of international law, but the alleged principle itself
is by its very nature so uncertain and contested that even
Governments of the same State have on different occasions
maintained contradictory opinions as to its soundness. The
principle of contiguity, in regard to islands, may not be out of
place when it is a question of allotting them to one State rather
than another, either by agreement between the Parties, or by
a decision not necessarily based on law; but as a' rule estab-
lishing
ipso jure the presumption of sovereignty in favour of
a particular State, this principle would be in conflict with what
has been said as to territorial sovereignty and as to the necessary
relation between the right to exclude other States from a region
and the duty to display therein the activities of a State. Nor
is this principle of contiguity admissible as a legal method of
deciding questions of territorial sovereignty; for it is wholly
lacking in precision and would in its apphcation lead to arbitrary
results.

This would be especially true in a case such as that of the
island in question, which is not relatively close to one single
continent, but forms part of a large archipelago in which strict
delimitations between the different parts are not naturally
obvious.

Having dealt with the Arbitrator's views upon the arguments
of the United States, it remains to consider what he has to say
concerning the Netherlands' arguments.

The quot;The Netherlands Government's main argumentquot;. Judge Huber
Netherlands points out quot;endeavours to show that the Netherlands, represented
for this purpose in the first period of colonization by the East-
^ovquot;ereigm^ 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 on 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

-ocr page 35-

(or Miangas). The state of affairs thus set up is claimed to be
vaMdated by international treatiesquot;.

The native princes to whom the Arbitrator refers, are those of
Taboekan, Taroena and Kandahar-Taroena. Contracts, the text
of which are filed in the Netherlands memorandum, were concluded
in 1677, 1697, 1720, 1758, 1828, 1885 and 1899. These principalities,
at any rate since 1885, include the Nanusa Islands and, according
to the Netherlands, the Island of Miangas also. The contracts are
of an eminently political nature and based on the conception that
the Prince received his principality as a fief of the East-India
Company in the 17th and 18th centuries and after 1795 of the
Dutch State. The Arbitrator says: quot;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 effectivequot;, and he concludesquot;quot;^):
quot;there is here a manifestation of territorial sovereignty normal for
such regionquot;.

Having stated this, the Arbitrator proceeds to consider the two
following questions:

Was the Island of Palmas (or Miangas) in 1898 a part of
territory under Netherlands sovereignty?

Did this sovereignty actually exist in 1898 in regard to Palmas
(or Miangas) and are the facts proved which were alleged on
this subject?

At first sight the former question is by no means clear, for the
answer to it would seem to cover the whole issue between the
United States and the Netherlands regarding the Island of Mian-
gas. The Arbitrator's meaning is only clear if we bear in mind the
principles laid down by him regarding territorial sovereignty in
the section of the Award deahng with doctrine. The same questions
might be put in the following form:

Had the Netherlands in 1898 a title to the Island of Miangas?

Was this title supported by the exercise of state authority by
the Netherlands?

The main point consequently is, whether there is evidence of

-ocr page 36-

the continuous and peaceful display of state activity by the
Netherlands in the contested region. There are, however, two
preliminary points to be considered in regard to which the Parties
put forward different views:

1.nbsp;The United States contests the power of the East-India Com-
pany under international law validly to act on behalf of the
Netherlands, in particular by concluding so-called political con-
tracts with native rulers;

2.nbsp;The identity or non-identity of the island in dispute with
the island to which the allegations of the Netherlands as to dis-
play of sovereignty, would seem to relate.

Status of As to the first point (for the second point see Chapter III) the

Company -Arbitrator remarks^®), that quot;acts of the East-India Company, in
view of occupying or colonizing the regions at issue in the present
affair, must, in international law, be entirely assimilated to acts
of the Netherlands State itself. . . Article V of the Treaty of
Münster and consequently also the Treaty of Utrecht clearly show
that the East- and West-India Company were entitled to create
situations recognized by international law: for the peace between
Spain and the Netherlands extends to quot;tous Potentats, nations et
peuplesquot; with whom the said companies, in the name of the States
of the Netherlands, quot;entre les limites de leursdits Octroys sont
en Amitié et Alliancequot;. The conclusion of conventions, even of a
political nature, was, by Article XXXV of the Charter of 1602,
within the powers of the Companyquot;. quot;These conventions are notquot;.
Judge Huber continues, quot;in the international law sense, treaties
or conventions capable of creating rights and obligations, such as
may, in international law, arise out of treaties. But, on the other
hand, contracts of this nature, are not wholly void of indirect
effects on situations governed by international law; if they do not
constitute titles in international law, they are none the less facts
of which that law must in certain circumstances take accountquot;.

Character of As to the character of such a contract, the Arbitrator says^^):

political

contracis

43)nbsp;id., p. 44.

44)nbsp;id., p. 44.

-ocr page 37-

quot;It is a question for decision in each individual case whether a
contract, concluded by the Company, falls within the range of
simple economic transactions or is of a political and public adminis-
trative naturequot;, and continues^®): quot;in substance, it is not an
agreement between equals; it is rather a form of internal organi-
sation of a colonial territory, on the basis of autonomy for the
nativesquot;. The Arbitrator quot;can therefore not exclude the contracts
invoked by the Netherlands from being taken into consideration
in the present casequot;^®).

^^spfa'^quot;^® Having considered these preliminary points, the Arbitrator turns
acIivUy attention to the documentary evidence laid before him by the
Netherlands Government in support of their claim. After a careful
consideration of the facts alleged by this Government, the Arbi-
trator states that^^) quot;this documentary evidence.... leads to the
conclusion that the Island Palmas (or Miangas) was in the early
part of the 18th century considered by the Dutch East-India Com-
pany as a part of their vassal-State of Taboekanquot;.

A report of the governor of Menado, dated December 31, 1857,
mentions the Nanusa and quot;Melangisquot; Islands as part of Taroena,
a state of things maintained in the contracts of 1885 and 1899.
A transfer must evidently have taken place between 1825 and 1857.
quot;From the point of view of international lawquot;, the Arbitrator re-
marks^®), quot;the transfer from one to another vassal-State is to be
considered as a purely domestic affair of the Netherlands; for their
suzerainty over Taboekan and Taroena goes back far beyond the
date of this transferquot;.

There is a considerable gap in the documentary evidence in the
period between 1726 and 1825 so far as concerns not the vassal-
State of Taboekan in general, but Miangas in particular, and the
Arbitrator is fully justified in statingquot;*®): quot;It would however seem
that before 1895 the direct relations between the island and the
colonial administration were very loosequot;. Several instances of the
display of state authority are. on the contrary, alleged by the

45) id., p. 45. 46) id., p. 46. 47) id., p. 51.
48) id., p. 52. 49) id., p. 53.

-ocr page 38-

Netherlands in the period from 1895 to 1906, when the dispute
arose. As to this point the Arbitrator says®quot;): quot;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 ascer-
taining the existence of a state of things contrary to her real or
alleged rights.... 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-statequot;.

The Arbitrator then carefully examines, whether there is any
evidence which would establish any instance for display of
sovereignty over the island by Spain or another Power, such as might
counter-balance or annihilate the manifestations of Netherlands
sovereignty and whether the display of state authority might not
be legally defective and therefore unable to create a vahd title of
sovereignty. Both questions being answered in the negative, the
Arbitrator concludes that the Netherlands title holds good.

Corroboration It is characteristic of the scrupulousness of the Arbitrator that,

of Conclusion having ended his task. Judge Huber states®^): quot;The same con-
clusion would be reached, if, for arguments sake, it were admitted
that the evidence laid before the Tribunal... dit not — as it is
submitted by the United States — suffice to establish continuous
and peaceful display of sovereignty over the island of Miangasquot;.
If neither of the Parties had succeeded in establishing its claim,
the decision of the Arbitrator would have to be founded on the

50)nbsp;id., p. 58.

51)nbsp;id. p. 60.

-ocr page 39-

relative strength of the titles invoked by each Party, since, ac-
cording to the Special Agreement (Article I), it is presupposed for
the purpose of the arbitration, that the island can only belong in
its entirety either to the United States or to the Netherlands
and (Preamble of the Special Agreement) a
non liquet is not
desired. In this case the same conclusion would be reached, for
the acts in the years immediately preceding the rise of the dispute
quot;at least constitute a beginning of establishment of sovereignty
by continuous and peaceful display of state authority, or a
commencement of occupation of an island not yet forming a
part of the territory of a state; and such a state of things would
create in favour of the Netherlands an inchoate title for com-
pleting the conditions of sovereignty. Such inchoate title, based
on display of state authority, would, in the opinion of the
Arbitrator, prevail over an inchoate title derived from discovery,
especially if this latter title has been left for a very long time
without completion by occupation; and it would equally prevail
over any claim which, in equity, might be deduced from the
notion of contiguity. International law, like law in general, has
the object of assuring the coexistence of different interests which
are worthy of legal protection. If, as in the present instance, only
one of the two conflicting interests is to prevail, because
sovereignty can be attributed but to one of the Parties, the interest
which involves the maintenance of a state of things having
offered at the critical time to the inhabitants of the disputed
territory and to other States a certain guarantee for the respect
of their rights ought, in doubt, to prevail over an interest which
— supposing it to be recognized in international law — has not
yet received any concrete form of developmentquot;.
This conclusion is again wholly in accordance with the prin-
ciples of territorial sovereignty, as laid down by the Arbitrator.
Supposing that the Netherlands had only an inchoate title in 1898,
it would remain to be seen whether some third Power had not a
perfect title to the island. As already stated, no trace of any action
calculated to confer such a title is found in the evidence submitted
to the Tribunal. In these circumstances however the validity of the
Netherlands title could hardly be regarded as valid
erga omnes.

-ocr page 40-

B. Territorial Sovereignty and its Title.

1. Territorial Sovereignty.

The State and In the previous paragraph, we have several times had occasion
Its Territory ^^nbsp;^^ weight assigned by the Arbitrator to the effective

display of state functions in regard to the establishment of a title
to sovereignty. In order fully to understand this the question of
the relation between a State and its territory must be considered
more closely. This question can in fact be considered from different
points of view; it has even been said that in international law there
are as many opinions concerning this relation as there are authors
who deal with the subject^); or again: there are as many juridical
definitions of territory as there are theories or even tendencies as
regards the conception of the State

Three main trends of opinion, however, may be noticed:

Right of The patrimonial conception of the State considers the relation
sovereigntynbsp;^^ territory analogous to the relation between

subject and object. In this theory this relation is identical with
or analogous to the private law right of property. quot;It is a con-
venient and not wholly arbitrary rule of international jurisprudence
to regard the territory of the State as something distinct from the
State itself, and to treat it as if it were national property possessed
by the State in much the same way that property in land is held
by individual citizens within the Statequot; To the like effect Hyde^):
quot;The existence of an exclusive right of property and control over
territory necessarily implies the existence of a possessor whose
capacity to possess is recognized by the family of nationsquot;. In its
strictest sense this theory is taken up by Donati®), who points
out that the right of a State to its territory quot;constitutes a right of
property in the strictest sense of the wordquot;. According to this author

1)nbsp;Cavaglieri, Recueil des Cours A.D.I., 1929, p. 384.

2)nbsp;L. Delbez, Du Territoire dans ses Rapports avec I'Etat. Revue Gén.
de Droit Int. Public. 1932. p. 711.

3)nbsp;Fen wick, p. 219.

4)nbsp;Ch. Ch. Hyde, vol. I. p. 162.

5)nbsp;D. Donati, Stato e territorio; p. 59—60.

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the State is the owner of the whole of the territory and conse-
quently also of the part owned by a private individual, but only
in relation to other States; State-ownership therefore is co-existent
with and cannot clash with individual property rights. This view
is shared by Gemma®): quot;We can therefore say, that every .State
has in its own territory in relation to other States, a right of a
real nature, either in the strict meaning of a
jus in re, or in the
more absolute sense of an exclusive right of state activity exercised
erga omnesquot;, and especially by Cavaglieriquot;We beheve that
the right of the State in its territory is a right of a real nature, a
dominium, the nature and the effects of which belong to the domain
of public law. This right covers the whole territory conceived as
a unit and therefore has nothing to do with the proprietary right
exercised by individuals within the sphere of private law over parts
of the same territoryquot;. It has been remarked®), that this theory
is in accordance with the terminology of treaties, and excellently
explains a certain number of institutions of international law (ces-
sions of territory, servitudes, condominium) but that it is inadequate
from the point of view of internal law (federal State, colonies).

In contradistinction with this theory, which considers the territory
as the object of the State, another theory, of which G. Jellinek is
the main exponent, considers the territory as one of the constit-
utive elements of the State. In this view the territory is the State
itself, considered within its territorial limitation. The relation of
the State to its territory corresponds to that between an individual
and his body; quot;Le territoire ne fait pas partie de l'avoir de l'Etat,
mais de son êtrequot;quot;). An individual may lose his patrimony, he
remains none the less a subject of law as before. A State which lost
its territory would disappear. According to this view the authority
exercised in the State is not
dominium, but imperium; it can only
be exercised in relation to the individual.

According to the third opinion the territory of a State is that

6)nbsp;Gemma, Appunti di diritto internazionale; p. 180.

7)nbsp;Cavaglieri, loc. cit. p. 385.

8)nbsp;Delbez, loc. cit. p. 711, note.

9)nbsp;Carré de Malberg, quoted from Delbez.

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portion of the globe's surface within which its authority is vahd.
According to this view the State is a bundle (faisceau) of objective
rights, derived from the national constitution or from some superior
law, and its jurisdiction extends only within the frontiers of the
territory. But a State cannot fix its frontiers by a unilateral act,
as in so doing it would also fix the limits of other States. A frontier
also derives its characteristics from international law; quot;by fixing
the frontiers of a State international law likewise gives it its title
to jurisdictionquot;^quot;).

Be this as it may, the value of these opinions is mainly theoretical.
What they have in common is the great importance assigned to
the territory and to its frontiers in connexion with the exclusive
jurisdiction of the local State as regards the exercise of State
authority.

This in fact is also the point of departure of the Arbitrator in
the doctrinal part of the Award, where the principles of territorial
sovereignty are laid down. quot;Territorial sovereigntyquot;, it is stated on
p. 17, quot;involves the exclusive right to display the activity of a
Statequot;. quot;This rightquot;, the learned Arbitrator continues, quot;has as
corrollary a duty: the obligation to protect within the territory the
rights of other States, in particular the 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 fulfill 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 inter-
national law is the guardianquot;.

Duty of Now it is evident that the three different trends of opinion
sovereignty above-mentioned in regard to the relation of a State to its territory
only explain a right on the part of the State, viz. the right to
exclude other States, but say nothing of the duty to which the

10) Bourquin, qouted from Delbez.

-ocr page 43-

Arbitrator refers. It seems that the problem of the relation between
a State and its territory must be looked at from a different angle
to explain the Arbitrator's view; The Arbitrator lays down that
the titles on which the United States claim is based, those of
discovery, of recognition by treaty and of contiguity, are titles
relating to acts or circumstances leading to the acquisition of
sovereignty. Now, in general, one of the titles of acquisition of
sovereignty over a certain territory is occupation. We may recall here
what the Arbitrator says about occupation: International law in
the 19th century... laid down the principle that occupation, to
constitute a claim to territorial sovereignty, must be effective. The
Arbitrator concludes from this: it seems therefore incompatible with
this rule of positive law that there should be regions 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. The
Arbitrator here extends the requirement as to effectiveness, which
is generally recognized in the case of a particular title of acqui-
sition, namely the title of occupation, to titles of acquisition in
general.

In fact the same requirement of effectiveness would seem, ac-
cording to the Arbitrator, to be demanded in a case where the
title is acquired by treaty recognition: on p. 33 Judge Huber says:
it remains to be seen whether continuous and peaceful display of state
authority by any other Power at a later period might not have
superseded even conventional rights. And cession presupposes''^),
that the ceding and the cessionary Power or at least one of them,
have the faculty of effectively disposing of the ceded territory'®).
As to the question of cession Prof, de Visscher remarks quot;): it does
not seem that a conveyance to the cessionary Power is necessary for
a transfer of sovereignty; though the question is disputed by jurists.
State practice seems to keep to the system whereby transfer is

11)nbsp;Award, p. 57.

12)nbsp;id., p. 16.

13) The question, of course, does not arise if the territory is acquired by
means of conquest, which presupposes effective seizure.

H) loc. cit. p. 757.

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effected by means of the treaty itself. Prof, de Visscher refers to
articles
99, 100, etc. of the Treaty of Versailles; Article IV' of
the convention concerning the cession of the Danish West-Indian
Islands of August 4, 1916, may also be mentioned^quot;). quot;As regards
effective delivery by the ceding Power, this undoubtedly concerns
the execution of its obligations, but cannot be considered as a con-
dition for the validity of the transfer of sovereigntyquot;.

It is thus the requirement of effectiveness in the case of occu-
pation, demanded by modern international law, which becomes the
guiding principle of the Arbitrator. The reason why effectiveness
is required in the 19th century is very clearly indicated by the
Arbitrator: quot;There should be no regions which .. , are reserved for
the exclusive influence of one Statequot;. It should not be forgotten
that the last quarter of the 19th century was the period of the
second great colonial expansion. Whereas in the 16th and 17th
centuries the principal aim of the developing European States was
to assure themselves of territories in which they could exercise a
commercial monopoly, and commercial aims thus prevailed, the
acquisition of territory, principally in Africa and Oceania, is the
aim of the second wave of colonization.

It is true that the opening of new débouchés for the rapidly
developing industries is a powerful motive, but political interests
are prominent. As this need of expansion is urgent for a number
of great Powers, it is certainly true that, theoretically, and from
the point of state-morality, regions could not be reserved for the
influence of one State. Even if the occupation of
territorium nullius
is thus justified from the point of view of the colonizing Powers,
this argument does not suffice to justify colonization from the point
of view of the population of the backward territory: the newly
colonized territories are inhabited and thus a justification is neces-
sary also as regards the population of these regions. As to the

15) Article IV... Formal delivery of the territory and property ceded shall
be made immediately after the payment by the United States of the sum
of money stipulated in this convention; but the cession with the right of
immediate possession is nevertheless to be deemed complete on the exchange
of ratifications of this convention without such formal delivery. De Mar-
tens III, X, p. 357.

-ocr page 45-

latter point it should not be forgotten that the War of Secession
had focussed the attention on the relation with backward peoples.
The world becomes conscious, that the advanced peoples have a
duty to fulfil as regards backward peoples: the Act of Berhn of
1885 contains some stipulations for the protection of the native
African population; from this very moment the consciousness of
this duty increases and culminates in Article XXII of the Covenant
of the League of Nations, which lays down the principle quot;that the
well-being and development of such peoples form a sacred trust
of civilizationquot;, whilst safeguards for the performance of this trust
are embodied in the same article of the Covenant.

''^oral duty This formula sounds as edifying as the argument, put forward
by Fauchille quot;Occupation consists, as we know, of the ap-
propriation of territories without a master, either uninhabited or
inhabited by a barbarous population without organization. Is it
not in accordance with the general interest that these territories
should not always remain unproductive, that they should be culti-
vated and regularly developed, that the fruits they can produce
should be produced? Is not occupation a means of attaining this
end? Moreover it is a means of bringing civilization to barbarous
peoples, of initiating them in the usages and laws of more advanced
peoples. An occupation is thus legal, when it leads to such con-
sequences. It would seem that the occupant, in order really to justify
occupation, should not confine himself to a taking of possession
but should leave a token of his activityquot;.

General This appeal to the quot;general interestquot; is taken up by de Vis-
»nterest scherquot;): quot;It is contrary to the general interest that these territories
should remain abandoned; the progress of civihzation demands that
as far as possible all territories and all populations of the globe
should be brought under the domination of States capable of
ensuring their material and moral development and of establishing
effectively the conditions requisite for international juridical inter-

16)nbsp;Fauchille, I, II. 534.

17)nbsp;loc. cit. p. 758.

A

-ocr page 46-

coursequot;. This point of view is characterized by this jurist as the
quot;finahtyquot; of the right of sovereignty.

A legal duty If follows from this, that the Arbitrator is fully justified in saying
that the right of sovereignty has as corrollary a duty; but according
to Judge Huber this duty is not essentially moral, but essentially
legal, viz. the duty to protect within the territory the rights of other
States, for territorial sovereignty 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 inter-
national law is the guardian.

An appeal to international law as the guardian of a minimum
of protection presupposes that the territory in question,
in casu the
Island of Miangas, is inhabited by the subjects of other States or
at least one other State. At p. 58 of the Award the island how-
ever is referred to as quot;a small and distant island, inhabited only
by nativesquot;. Now the affidavit of Major D. H. Malone, filed in
the annexes of the United States memorandum, mentions a small
store on the island operated by Chinese traders^quot;). The affidavit,
however, is dated July 8, 1925, and contains a statement concerning
conditions on Palmas Island on June 14, 1919. It docs not appear
from the documents that Chinese subjects inhabited the island in
1906, when the dispute arose, and this is the moment the Arbitrator
has to deal with. This, however, seems of but little importance, as
the island could be, and in fact was visited by subjects of other
States: this appears from the visits of mr. Malone, mr. Alvarez
and that of the American gentlemen in 1924, which gave rise to a
minor incident

From the point of view of the quot;finalityquot; of the right of sover-
eignty the Arbitrator is certainly justified in extending the require-
ment of effectiveness, originally demanded only in case of occu-
pation, to other titles of acquisition. A different question is, whether
the Arbitrators opinion is supported by positive international law.
Before answering this question a preliminary point must be settled.

18)nbsp;U. S. Mem. p. 208. Perhaps they were Netherlands subjects?

19)nbsp;Neth. Mem. p. 20.

-ocr page 47-

We may refer again to Prof, de Visscfier's study quot;The
hkehhood of a territory remaining uncuhivated or without state
organization exists only in the case of certain territories over which
the hold (l'emprise) of the civihzed world is as yet incomplete or
precarious. On the other hand, on the European continent, for
instance, such a possibility is practically excluded. Every territory
is necessarily placed under the effective authority of one State or
another, whether it be that of the rightful sovereign (souverain en
titre) or not. The inconveniences resulting from the absence of
any real possession need no longer be consideredquot;. In this case,
quot;juridical titles reassume their full value in connexion with the
decision of controversies regarding sovereignty (au point de vue de
la décision des litiges de souveraineté). Simple possession cannot
prevail over a title, as the general interest which was the dominating
factor in the case previously considered cannot be invoked in this
casequot;. But in this system the principle of acquisitive prescription,
quot;nowadays nearly unanimously recognizedquot;^'), operates as a cor-
rective.

Thus the two conceptions are at variance: that based on the
social and economic function of sovereignty prevails in backward
territory over that based on respect for the right of the State,
whereas in more developed territory the latter prevails over the
former. This would certainly supply a guiding principle, if in any
controversy regarding territorial sovereignty it were possible a
priori
to decide, whether the region in question was or was not a back-
ward territory. As positive international law has not laid down any
objective rule or any criterion for the decision of this point, it seems
that de Visscher's distinction can only be accepted with great
caution. It must at all events be regretted that de Visscher dit not
elaborate the point.

The question has now to be considered, whether the Arbitrator
quot; is justified in extending the requirement of effectiveness, demanded
by modern international law in the case of occupation, to other titles
of acquisition.

20)nbsp;loc. cit. p. 759.

21)nbsp;The responsibility for this remark remains with Fernand de Visscher.

-ocr page 48-

This view is based on the conception that international law, being
a system of law, different from municipal law, has not yet reached
such a degree of development as to recognize a nominal right of
sovereignty^^): quot;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 hmited their effect by the principles of prescription, and the
protection of possession. International Jaw, the structure of which
is not based on any superstate organization, 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 manifestationsquot;.

This is certainly true, to a certain extent, in the case of acquis-
ition of territory by means of occupation.

The fundamental principle was laid down by the Act of Berlin in
1885, in Articles XXXIV and XXXV. Chapter VI of this Act
bears the title: Déclaration relative aux conditions essentielles à
remplir pour que des occupations nouvelles sur les côtes du con-
tinent africain soient considérées commes effectives.
Article XXXIV reads as follows:

La puissance qui, dorénavant, prendra possession d'un terri-
toire sur les côtes du continent africain situé en dehors de ses
possessions actuelles, ou qui, n'en ayant pas eu jusque-là. vien-
drait à en acquérir, et de même la puissance qui y assumera un
protectorat, accompagnera l'acte respectif d'une notification
adressée aux autres puissances signataires du présent acte, afin
de les mettre à même de faire valoir, s'il y a lieu, leurs récla-
mations;
and article XXXV:

Les puissances signataires du présent acte reconnaissent
l'obligation d'assurer dans les territoires occupés par elles, sur
les côtes du continent africain l'existence d'une autorité suffi-
sante pour faire respecter les droits acquis et, le cas échéant, la
liberté du commerce et du transit dans les conditions où elle serait
stipulée.

22) Award, p. 17.

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The opinion that effectiveness is desirable in the case of occu-
pation was also expressed during the session of the Institut de
Droit International in 1888 at which it was proposed to extend
the requirements of notification and effectiveness to any occupation
in any part of the world, whereas the Act of Berlin restricted these
requirements only to occupations on the African coast. In fact, the
Act of Berlin contains two more limitations: it only has in view
future occupations^®), not those already effected at the time the Act
was signed and it only applies to the Powers signatories of the
Act: the resolutions were, for instance, not signed by the United
States, although this Power participated at the conference.

F. de Martens^quot;*) points out, that under those circumstances the
practical value of the dispositions of the Act of Berlin is very small,
because before the opening of the conference nearly the whole of
the African coast had already been occupied. As an example
showing that state practice is in accordance with the principle that
territorial sovereignty should be effective, the mediation of Pope
Leo XIII in 1885, in the controversy between Spain and Germany,
concerning the Caroline Islands, is generally invoked the Pope
assigned the sovereignty over the Islands to Spain, subject to the
obligation to establish in the group of Islands as soon as possible
a regular administration with adequate powers for the maintenance
of order and protection of vested rights; Spain's claim was thus
recognized, although it would not seem sufficient at the present
day. The mediation proves, and in this respect accords with the
Act of Berlin, that for the
future effective occupation is required.
On the contrary by the Treaty of March 7, 1885, Great Britain
and Germany recognized the sovereignty of Spain over such parts
of the Sulu Archipelago as she had occupied effectively: this implies
recognition of an already existing principle, that effective occu-
pation creates a title to sovereignty.

23)nbsp;Title of the Act: Déclaration pour régler la liberté du commerce dans les
bassins du Congo et du Niger, ainsi que les occupations nouvelles de
territories sur la côte occidentale de l'Afrique.

24)nbsp;La Conférence du Congo à Berlin et la politique coloniale des Etats mo-
dernes. R.D.I. t XVIII, p.p. 113 and 244.

25)nbsp;Fauchille I. II, 540; Cavaglieri loc. cit. 410.

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The Act of Berhn does not, as is stated above, apply to the interior
of the African continent; moreover it recognizes the institution
known as a colonial protectorate, established either by a unilateral
act of the protecting Power, or by a treaty, concluded by or on
behalf of this Power with native chiefs. It had been proposed at
the conference to extend the requirement of effective possession
to this institution, but mainly as a consequence of the British oppo-
sition, this requirement was dropped and mere notification to the
other Signatory Powers was considered sufficient, as appears from
Article XXXIV, to render the establishment of such a protectorate
valid as regards these Powers, which practically means valid
erga
omnes.
The fictitious occupation, which the contracting Powers
intended to prevent by means of this conference, has thus been
legalised.

About the same time a new state practice arises which, it is unani-
mously held, has no foundation in international law. It is the
practice of establishing a hinterland, or a sphere of influence by
means of a treaty, by which two Powers each reserve a certain
region for their own influence and undertake to refrain from effective
occupation, concluding contracts with native chiefs, etc., in the
region of the other. Such a regional understanding is, of course,
vahd only between the contracting Parties and theoretically any
third state would be at liberty to acquire sovereign rights over the
region or part of it by effective occupation or by concluding con-
tracts with the chieftains. But state practice is, as Cavaglieri
remarks^quot;), wholly different: quot;When the two States have notified
their convention to third Powers and these have manifested their
acquiescence either explicitly or tacitly, or when possible claims of
their own have been set off by the concession of other advantages,
the delimination becomes effective
erga omnesquot;.

Cavaglieri thus seems justified in concluding that this rule of
the Act of Berlin has not lost its purely conventional character and
assumed that of a rule of general law.

Although the desirability of establishing the principle that any
future occupation should be effective, was generally recognized at

26) Cavaglieri, p. 411.

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the time of the Conference, the result was by no means in accor-
dance.

A similar rule was laid down by the Convention of St. Germain
of September 10, 1919. Article 10 of this convention states:

,,The Signatory Powers recognize the obligation to maintain in
the region subject to their jurisdiction an authority and police forces
sufficient to ensure protection of persons and of property and, if
necessary, freedom of trade and transitquot;.

There is no article, however, dealing with the conditions to be
fulfilled by a State if it acquires possession by means of occu-
pation.

But again the practice of fictitious occupations was adopted and,
in fact, is still adopted to a large extent in the case of Polar regions.

practice By a decree of November 21, 1924, France placed a part of the
Antarctic Continent, Adélie Land, under the administration of the
Governor General of Madagascar According to Article L Adélie
Land and the Antarctic Islands Saint Paul, Amsterdam, Kerguelen
and Crozet are attached to the Government-General of Madagascar
and form one of the administrative branches of this colony. As
appears from the Preamble of the Decree, the requirement of effec-
tive occupation is formally maintained but the stipulations of the
Decree of March 27, 1924, by which the rights of mining, hunting
and fishing within territiorial waters are reserved to French sub-
jects, are not controlled, and if they are infringed, no attempt is
made to enforce them. Smedal states'^quot;), that the distance from
the southern point of Madagascar to Adélie Island is about 8000
K.M. quot;It is self-evident that the Governor-General, even with the
best will in the world, cannot exercise any control over this part
of Antarctica. No French official, as far as is known, has ever set
foot on Adélie Land, nor was the Frenchman DumOnt d'Urville,
gt;vho discovered the land in 1840, and whose discovery is the basis
of the French claim, ever ashore on the Antarctic Continentquot;.

27)nbsp;quot;Journal Officielquot;, Nov. 27. 1924.

28)nbsp;G. Smedal, Acquisition of sovereignty over Polar Areas; in Skrifter om
Svalbard og Ishavet, p. 36.

-ocr page 52-

A considerable number of years before, by Letters Patent of
July 21, 1908, and March 28, 1917, South Georgia, the South
Orkneys, South Shetland, the Sandwich Islands, Graham Land, and
a considerable sector of the Antarctic Continent, were declared to
be British and placed under the administration of the Governor
of the Falkland Islands.

Again by an Order in Council of July 30, 1923, all islands and
territories situated between 160 E. and 150 W. to the 60th degree
south latitude were assigned administratively to the Governor-
General of New Zealand. According to Smedal, the condition
as to effective possession^quot;) cannot be fulfilled as regards the
greater part of the territories in question. The distance from the
Falkland Islands to Graham land is about 1250 K.M., and to the
South Pole about 4250 K.M. In this case Great Britain claims land,
some of which is quite unexplored, has never been seen by any
human being, and about the conditions of which there is no positive
information. From the Falkland Islands no control can be exercised
over these territories. The distance from Wellington, the capital
of New Zealand, to Oatesland, is about 3100 Kilometers; to Ross
Barrier about 4200 Kilometers, and to the South Pole about 5500
Kilometers. It is not easy to understand how any of these territories
can be efficiently controlled by an administration at Wellington.

Again attention may be drawn to the notification of the Sowiet
Government of November 4, 1924, whereby a number of islands,
among others Wrangel Island, lying on the Asiatic coast of Russia,
within the Siberian sector, are declared to be Russian, and other
Powers are warned to keep awayquot;').

These cases prove that the principle that occupation should be
supported by effective occupation, is not so rigourously apphed by
modern state practice as the Arbitrator supposes. The Arbitrator
does not deny, that manifestations of sovereignty assume different
forms, according to conditions of time and place. quot;The intermittance
and discontinuity compatible with the maintainance of the right.

29)nbsp;ibid., p. 37.

30)nbsp;P. G. de Lapradelle; La Frontiere, p. 68 note 2.

-ocr page 53-

necessarily differ according as inhabited or uninhabited regions are
involved, or regions enclosed within territories in which sovereignty
is uncontestably displayed, or again regions accessible from, for
instance, the high seasquot; The requirement of effective occupation
cannot be maintained, it would seem, in the case of an island only
temporarely inhabited in view of the collection of guano or for
fishing purposes. In 1877 Great Britain annexed Amboyna Cay,
and Sprattley Island, and leased these sandbanks, lying in the
middle of the Chinese Sea, for the purpose mentioned. The sover-
eignty of Great Britain, is not contested. The same would seem
to hold good in the hypothesis taken by Jessup, mentioned on
p. 15. It would thus appear that a title based on the subjective
right of a State, would again prevail over a title based on the
economic function of a State. From this point of view an award
rendered by the King of Italy on January 28, 1931, in the contro-
versy between France and Mexico, concerning Clipperton Island,
is very interesting

^•ipperton The sovereignty over the island, lying less than 700 miles south-
west of Mexico, was proclaimed and declared to belong to the
Emperor Napoleon III on November 17, 1858, by an act, drawn up
by Lieutenant Le Coat de Kerweguen, of the French Navy, com-
missioner of the French Government, while cruising about half a mile
off the island. The accomplishment of the mission was notified to the
Consulate of France at Honolulu. The island remained uninhabited
or at all events without any permanent population, and the con-
cession for the exploitation of guano beds, which had been approved
by the Emperor on April 8, 1858, was not followed up; in 1897
a French vessel stated, that three persons were found on the island,
collecting guano and that they had. on the appearance of the vessel,
raised the American flag. Explanations were requested from the
United States, which responded that it had not granted any con-
cession and did not intend to claim any right of sovereignty over

31)nbsp;Award, p. 18.

32)nbsp;Text, translated into English, to be found in Am. Journal, Vol. XXVI,
p. 390.

-ocr page 54-

Clipperton. (January 28, 1898.) Mexico, ignorant of the occupation
claimed by France, and regarding Clipperton as territory which
had long belonged to her, sent a gun-boat to the island, and a de-
tachment of officers and marines who landed on December 13,
1897, and again found the three persons residing on the island. The
American flag was lowered and the Mexican flag hoisted in its
place. France, on January 8, informed Mexico of her rights over
Clipperton; a diplomatic correspondence ensued, and the solution
of the difference was referred to Victor Emmanuel III, King of
Italy.

The King assigned the island to France. The Award rejects the
Mexican claihi on the ground that prior Spanish discovery is not
proved, and the right of Mexico, as successor of Spain, is not sup-
ported by any manifestation of her sovereignty, a sovereignty never
exerted until the expedition of 1897, and it is consequently held
that, when France proclaimed her sovereignty over Clipperton,
that island was in the legal situation of
territorium nullius. Mexico
maintained alternatively, that France had not carried out an effec-
tive occupation, satisfying the conditions required by international
law for the validity of this method of territorial acquisition and
that she (Mexico) had acquired an original title to the island in
1897. As to this point the King of Italy remarks:

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 occu-
pation. 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 author-
ity 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

-ocr page 55-

undisputed disposition of that State, from that moment the taking
of possession must be considered as accompHshed, and the
occupation is thereby completed.

The Award is approved by Edwin D. Dickinson^®): quot;In effect,
it is held that the occupation which is required is such an occu-
pation 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 viewquot;. This may be true, it proves
none the less that actual display of sovereignty is not in all cases
the sound and natural criterium of territorial sovereignty®quot;*). Ac-
cording to Judge Hubers doctrine, the only solution possible in this
case woud seem either a
non liquet, or a decision in favour of that
Power whose inchoate title is the stronger.

siler?quot;quot;^ As the Award is a declaratory one, sovereignty is assigned,
reignty
nbsp;verbis, to France as from 1858. What is really done here,

is to presume a nominal right of sovereignty. This is wholly con-
trary to Judge Huber's opinion, who states that international law
cannot be presumed to reduce a right such as territorial sovereignty,
to the category of an abstract right, without concrete manifestations.
This statement, it may be recalled, is based on the Arbitrator's view
as to a fundamental difference between municipal and international
law. The point, which is one of those in regard to which jurists
differ fundamentally, cannot be discussed here, as it lies without
the scope of this study. It may however be remarked that modern
international law, as a consequence of the rapid development of
intercourse between states, has of late evolved a complicated system
of territorial relations and a great variety of juridical situations was
bound to follow. The fundamental axiom of the classical doctrine,
viz. the territorial principle, according to which a territory is sub-
ject to the exclusive influence of the local state, is nowadays often

33)nbsp;Am. Journal, Vol. XXVII, p. 133.

34)nbsp;The Award is, of course, only valid between Mexico and France. If a
third Power took possession of the island, built a lighthouse on the place,
the guardian of which were assigned police authority, it would be doubt-
ful whether an arbitrator would, if this situation had lasted for some years,
in the event of a dispute again decide in favour of France.

-ocr page 56-

partly frustrated by the facts. Delbez states: it is partly set aside
(écarté) or even refuted in a certain number of recent institutions,
and, according to certain authors, a tendency exists to substitute
for the rule of exclusive use that of use in common^®). Delbez
points out that the territorial principle is infringed upon when
territorial jurisdiction is shared (atténuations au principe) or when
only a nominal jurisdiction is left (renversement du principe). The
territorial jurisdiction is shared, in the case of extra-territorial
jurisdiction, and in the case of conflicting territorial jurisdictions.
It is, however, the second exception, by which an abstract right of
sovereignty is created with which we are concerned here.
. Thus in 1878 Great Britain acquired from Turkey the right to
occupy and administer the Island of Cyprus; a nominal sovereignty
remained with the Sultan. In the same year Austria-Hungary
acquired the right to occupy and administer the Turkish Provinces
of Bosnia-Herzogowina for an unlimited period. Article 25 of
the Treaty of Berlin was only signed by the Turkish delegates
when they were satisfied that the occupation was to be provisional
and not to affect the sovereign rights of the Sultan. The famous
letter of the Austrian Emperor of October 5, 1908, declared that
the Emperor extends his rights of sovereignty over Bosnia and
Herzogowina. In 1883, by Article 3 of the Treaty of Ancon, Chile
was to occupy the Peruvian Provinces of Tacna and Arica for
ten years from the ratification of the Treaty in 1884, quot;upon the
expiration of which term (expirado este plazo!), a plebiscite will
decide by popular vote whether the territory... is to remain
definitely under the dominion and sovereignty of Chile or is to
continue to constitute a part of Peruquot;. Other striking examples
of sovereignty as a
nudum jus are the leases garanted by China to
Germany, Russia, England and France in 1898 and 1899. According
to these treaties China retained
expressis verbis the sovereignty
over the leased territories; the exercise of her sovereign rights was
left to the lessee, as appears from for instance Article 3 of the

35) Delbez loc. cit. p. 705, where G. Scelle is quoted (Précis de droit des gens.
Principes et systématique, p. 77): The use of a territory is never exclusive
and the evolution of international relations trends more and more to a use
in common.

-ocr page 57-

Shantung Treaty with Germany which contains the following
words: quot;um einem etwaigen Entstehen von Konflikten vorzubeu-
genquot;. To the like effect was the treaty between China and Russia
of March 27, 1898, by which Port Arthur and Talienwan with
Kwantung were leased to the latter Power for 25 years. Article 1
states, that quot;this act of lease, however, in no way violates the
sovereign rights of H.M. the Emperor of China to the above
mentioned territoryquot;. That this
nudum jus is by no means merely
formal and that these leases are not, as has been said®quot;), simply
disguised cessions, is proved by the fact that China exercised her
right of sovereignty in a treaty with Japan in 1905, by giving her
consent to the conveyance of the territory from Russia to Japan.
Again in 1915 China gave her consent to the extension of the term
of the lease to 99 years.

The creation of nuda jura of sovereignty was not restricted to
the old world; in fact article 3 of the Hay-Varilla Treaty of No-
vember 18, 1903, between the United States of America and
Panama, by which the latter Power granted to the former in per-
petuity a zone of territory for the purpose of constructing a canal
across the Isthmus of Panama, runs: The Republic of Panama
grants to the United States all the rights, power and authority
within the zone mentioned and described in Article 2 . .. which the
United States would possess and exercise if it were the sovereign
of the territory ... to the entire exclusion of the exercise by the
republic of Panama of any such sovereign rights, power and author-
ity, And in the same year the United States of America leased
to the same effect lands from Cuba for the construction of coaling
and naval stations®'').

It was, however, after the Great War, that a number of arrange-
ments were instituted whereby the sovereignty over a certain terri-
tory was assigned to one State, whereas the exercise of sovereign
rights was assigned to another. The Treaty of Sèvres provides a
provisional régime for Smyrna®®): Turkish sovereignty is mani-

36)nbsp;Von Liszt, p. 161. See also Lauterpacht, p. 181-190.

37)nbsp;See Article III of this treaty of February 3, 1903. This treaty might,
however, be considered as being of a private law character.

38)nbsp;Fauchille. I, I, 347.

-ocr page 58-

fested only by the maintenance of the flag (art. 69): but Greece
exercises, under Articles 70, 71, 72 and 73, the full range of
sovereign rights. According to Article 49 of the Treaty of Versailles,
Germany renounces in favour of the League of Nations, in the
capacity of trustee (considérée ici comme fidéi-commissaire), the
government of the territory of the Saar-Basin. At the end of a term
of 15 years from the coming into force of the treaty, the inhabitants
of the said territory shall be called upon to indicate the sovereignty
under which they desire to be placed. quot;C'est un territoire entière-
ment soustrait au gouvernement de l'Allemagne. Cette Puissance
en conserve la souveraineté, mais elle n'y a l'exercice d'aucun des
droits de la souveraineté. L'exercice des droits de la souveraineté
appartient à la Société des Nations, agissant par la Commission de
Gouvernementquot;, wrote the president of the said Commission to the
Secretary-General of the League of Nations, on July 4, 1921.

Again the creation of the institution of mandated territories is
a striking example of the separation of sovereignty and the exercise
of sovereign rights. However much debated the question who is
entitled to sovereignty over these territories may be, it is nearly
generally recognized, that it is not the Mandatory Power, who,
however, exercises sovereign rights under the supervision of the
Permanent Commission provided for in Article 22 of the Covenant
of the League of Nations.

The number of these examples might be multiplied; the separation
of sovereignty from the exercice of the rights of sovereignty remains
none the less an exception. What these cases prove, is, that the
occupation of a certain territory by a State does not necessarily
correspond to an acquisition of territorial sovereignty by that State.
It thus appears that the principle is infringed upon in two ways:
on the one hand it appears that the principle that the taking of
possession should be effective, is not always strictly applied and on
the other hand it appears that the full range or sovereign rights may
be exercised by a Power who is not the sovereign. For this reason it
seems that international law does not justify Judge Huber in extending
the requirement that an occupation with a view to the acquisition
of sovereignty should be effective, to other titles of acquisition. In
fact a title based on, for instance, a treaty of cession and a title.

-ocr page 59-

based on the exercice of social and economic functions of the State,
are
incommensurabilia. The former is essentially legal: the latter
is essentially moral, no matter whether it be supported by the
principle that state morality does not allow a powerful State to
annex territory, which she is not in need of, to the disadvantage
of other States, or by the principle that the general interest requires
the development of territories quot;inhabited by peoples not yet able
to stand by themselves under the strenuous conditions of the modern
worldquot;.

P^rf^lctquot;quot;^ Whereas Judge Huber's extension of the requirement of effective-
® ness to other titles of acquisition must be rejected as insufficiently
founded in international law, the learned Arbitrator develops, more
or less implicitly, a theory which may now be considered.

It has been stated, that the Arbitrator, in examining the United
States title based on discovery, first considers the hypothesis, that
discovery gives a perfect title to sovereignty over the discovered
country and afterwards the hypothesis, that discovery gives only
an inchoate title, to be consummated by effective occupation within
a reasonable time.

The second view seems to have been first developed in doctrine
by VattePquot;), who states in Chapter XVIII: When a nation finds
a country uninhabited and without an owner, it may lawfully take
possession of it and after it has sufficiently made known its will in
this respect, it cannot be deprived of it by another nation. Thus
navigators going on voyages of discovery, furnished with a com-
mission from their sovereign, and meeting with islands or other
lands in a deserted state, have taken possession of them in the
name of their nation, and this title has been usually respected,
provided it was soon after followed by real possession (pourvu
qu'une possession réelle l'ait suivi de près).

It was, as far as we can ascertain. Sir Robert Phillimore, who
first introduced the word quot;inchoate titlequot;. In his Commentaries

39) That state practice used the inchoate title even in the first part of the
17th century is evidenced by the instrument, by which possession was
taken of Saint Helena, See p. 86.

-ocr page 60-

upon International Law, I, 227, this author states: quot;Discovery,
according to the acknowledged practice of nations, whether originally
founded upon comity or strict right, furnishes an inchoate title to
possession in the discovererquot;, and again on 229: quot;The fact of author-
ised discovery may be said to found the right to occupyquot;. In the
Netherlands Counter Memorandum p. 16^20 a number of eminent
authors and jurists are quoted, who agree with this opinion
In this connection, what the Arbitrator states on p. 33 is of im-
portance: Even if she (Spain) had acquired a title she never in-
tended to abandon, it would remain to be seen whether continuous
and peaceful display of sovereignty by any other Power at a later
period might not have superseded even conventional rights.

It appears from this, that the Arbitrator only recognizes one
perfect title, the title based on effective occupation. Any other title,
whether based on discovery or on cession, is only an inchoate title.
The Arbitrator thus extends the use of the term quot;inchoate titlequot;,
which has thus far only denoted in legal literature the effect of
mere discovery, to other titles of acquisition. Even (effective) occu-
pation is only a perfect title, if the display of state authority is
commensurate with the local conditions: examining the facts, im-
mediately preceding the cession, and alleged by the Netherlands to
prove the effectiveness of its occupation, the Arbitrator lays
downquot;*^): These facts at least constitute a beginning of establish-
ment of sovereignty by continuous and peaceful display of state
authority, or a commencement of occupation of an island, not yet
forming a part of the territory of a State; and such a state of things
would create in favour of the Netherlands an inchoate title for
completing the conditions of sovereignty. Such an inchoate title,
based on display of state authority, would, in the opinion of the
Arbitrator, prevail over an inchoate title derived from discovery.

Although writers on international law do not use the word
quot;inchoate titlequot; save with reference to discovery, it seems that this
view is in accordance with state practice. The claim, based on

40)nbsp;The quoted literature was partly used in the British case in the Venezuela
British Guiana Boundary Arbitration.

41)nbsp;Award, p. 61-62.

-ocr page 61-

effective possession prevailed in the Venezuela-British Guiana
Boundary Arbitration; this appears from the Treaty in which the
principles to be applied by the arbitrators were laid down. The
same view prevails in the Austro-Hungarian Arbitration regarding
the Meerauge Lake, in the Alaskan Boundary Arbitration under
the treaty of 1903, and in the Brasil-British Guiana Boundary
Arbitration; again in the Bulama Arbitration effective possession
prevailed over a cession by native chiefs; the Hague Tribunal
decided in 1909 in favour of Sweden not only on the ground that
Swedens lobster fisheries off the banks of Grisbamp;darna were of the
greater importance by far, but also on facts showing display of
state activity, such as large expenditure for expensive equipments
for fishing purposes and in connexion with the erection of buoys
and lighthouses and with surveys and soundings. And in the Anglo-
German dispute of 1911 regarding the southern boundary of the
Walfishbay territory the unchallenged and continued possession
of Great-Britain was taken as quot;evidence of a wish to acquire and
of an effective occupation by which in any case British sovereignty
could have been established over the zone in disputequot;-*^).

In all these cases the title based on effective occupation pre-
vailed, because it was deemed stronger than any other title. Where
a claim based on effective occupation fails, the better of two im-
perfect titles prevails; this was the case in the Clipperton Award.
In Jessup's hypothesis a Power acquiring by cession a rock, simply
in order to prevent another Power from taking possession of it,
only has an imperfect right, valid merely because no other Power
will exercice state authority there. A theory of intertemporal law,
undoubtedly highly disturbing, is wholly superfluous. Reasoning
along this line only, the Arbitrator in the Miangas Arbitration would
have come to the same conclusions without recourse to the theory
of intertemporal law and without drawing an uncritical distinction
between the creation and maintenance of rights, which were rightly
attacked from several sides.

42) In the Dutch Venezuelan case of Aves Island; the contrary view prevailed.
The Award is severely criticised by de Lapradelle-Politis. (Again the
Venezuelan Columbia Boundary arbitration of 1922.)

-ocr page 62-

2. The Title to Sovereignty.

In the term quot;inchoate titlequot;, denoting an imperfect right vested
in the country on behalf of which the discovery was made, the
word title is used in the meaning of right. The .Arbitrator speaks
of a title of acquisition as well as of the acquisition of a title. It is
obvious, that the word title is indiscriminately used to denote both
a right and the juridical fact on which the right is based.

Title in According to Roman law property could be transmitted either by
Roman law ff^Qf^cipatio Or by in jure cessio or by traditio. In contradistinction
with both other meanings of transmission
traditio is causal. Not
every
traditio had transference of property as a consequence. In the
first place the
tradens must be willing to transmit property: for this
reason
traditio based on a contract of lease for instance, could not
transmit property. But even on the ground of a contract of sale or
gift, property is only transmitted if the
tradens is the owner. If
this is not the case, his successor will only acquire juridical posses-
sion; he acquires
pro emptore, pro donato and his possession be-
comes ownership only by means of
usu-capio'^^). Besides the fact
that the
tradens must be entitled to transmit property, Roman law
requires a
justa causa traditionis. If this causa (the contract of sale
or gift) is not valid, the property is not transmitted.

This causa is the title of acquisition of property.

For usu'Capio a possessio animo domini is required and this pos-
sessio animo domini
is to be acquired bona fide and must be based
on a
justa causa possessionis or justus titulus. Only in the case of
the non-fulfilment of the formal requirements or of a deficiency in
the right of the
tradens, would the successor not become the owner.
A valid contract of sale or of gift is a
titulus verus: if a causa, not
recognized by law, is presumed to be a title
{titulus putativus),
this presumption is only exceptionally valid and then only in case
of a justifiable mistake^'*).

•43) If the tradens subsequently becomes the owner, his successor also becomes
the owner; the
tradens cannot vindicate the thing, because his successor is
protected by the
exceptio rei venditae et traditae.

44) Von Czyhlarz, Lehrbuch der Institutionen des Römischen Rechts, 18th. ed.,
p. 140.

-ocr page 63-

I^iverging This brief survey may indicate that in Roman law the titulus is

Meanings ground on which the right of property is based (der Erwerbs-
grund). As to this point Black's Law Dictionary remarks: quot;Title
is the means whereby a person's right to property is established.
Title may be defined generally to be the evidence of right which
a person has to the possession of property. The word quot;titlequot; cer-
tainly does not merely signify the right which a person has to the
possession of property, because there are many instances in which
a person may have the right to the possession of property, and at
the same time have no title to the same. In its ordinary legal
acceptation, however, it generally seems to imply a right of pos-
session also. It therefore appears, on the whole, to signify the
outward evidence of the right, rather than the mere right itself.
Thus, when it is said that the quot;most imperfect degree of title con-
sists in the mere naked possession or actual occupation of an estatequot;,
it means that the mere circumstance of occupying the estate is the
weakest species of evidence of the occupier's right to such pos-
session. The word is defined by Sir Edward Coke thus:
titulus est
justa causa possidendi quod nostrum est,
that is to say the ground,
whether purchase, gift, or other such ground of acquiry;
quot;titulusquot;
being distinguished in this respect from quot;modus acquirendiquot;, which
is the traditio, i.e. delivery or conveyance of the thingquot;.

The Concise Law Dictionary, Osborn, gives s.v. title: the right
to ownership of property; quot;a vestitive factquot; (Salmond); the Diction-
naire de Droit International Public et Privé par Charles Calvo,
says: titre (droit, qualité) Acte écrit, pièce authentique qui établit
ou confère un droit, une qualité: titre de propriété, titre de rente,
titre de noblesse. But as second meaning: droit sur lequel on s'appuie
pour posséder, pour demander ou pour faire une chose. Titre est
aussi synonyme de qualité, qualification qu'on donne aux personnes
pour exprimer certaines relations d'époux, d'acquéreurs etc. And the
judicial dictionary by F. Stroud states: quot;The word quot;titlequot; has
different meanings. In one sense it may import whether a party
has a right to a thing which is admitted to exist; or it may mean,
whether the thing claimed does in fact existquot;.

It is obvious that, as a legal term only, the word title is used in
different meanings, deviating from the original meaning. On the

-ocr page 64-

whole it would seem that in those European countries, in which
municipal law has recourse to the fundamental notions of Roman
law, the term is used according to the Roman law terminolgy, in
the sense of juridical fact, whereas in Anglo-American countries the
meaning of right prevails. Accordingly, quot;title of acquisitionquot; cor-
responds to the former, and quot;acquisition of titlequot; to the latter
meaning.

The term is accordingly rightly used by de Louter'^®), when
stating that a treaty of cession constitutes only a title, which is to
be completed by execution. The term was, of course, rightly used
in the arbitral award of March 24, 1922 of the Swiss Federal
Council in the controversy between Columbia and Venezuela, p. 34:
Les titres sur lesquels les Parties basent leur souveraineté sont
donc différents, en ce sens que pour les sections un (Goajira);
trois (San Faustino); six (premier tronçon), ces titres sont exclu-
sivement d'anciens documents coloniaux espagnols; que pour les
sections deux et quatre l'accord des Parties a servi de titre et que
l'arbitre espagnol s'est abstenu de statuer; etc.
A second meaning in which the term title is generally used on
the European continent is that of an instrument, in which a right
is embodied. The term has been used in this sense also for many
centuries.

According to Du Cange T. VIII, p. 114: Titulos vocamus in-
strumenta chartarum, quae praediorum possessionem firmant, quove
jure teneantur, indicant. This is derived from titulus in the meaning
of limes: Videmus igitur modo per terminos territoriales, et limitum
cursus et titulos, id est inscriptis lapidibus, plerumque fluminibus,
nec non aris lapideis claudi territorium, atque dividi ab alterius
territorio civitatis . . . Nam titulus proprie lapis inscriptus, vel ipsa
lapidis inscriptio.

In this meaning it would seem, that in Anglo-American countries
the term quot;title deedquot; is preferred.

As already stated. Judge Huber uses title in both meanings. On
p. 16 it is said that quot;it is customary to examine which of the states
claiming sovereignty possesses a title cession, conquest, occu-

45) de Louter, Het stellig volkenrecht, p. 367.

-ocr page 65-

pation, etc. — superior to that which the other state might possibly
bring forward ... it cannot be sufficient to establish the title by
which territorial sovereignty was validly acquired at a certain
momentquot;. In both places title is used in the sense af a juridical
fact, on which the claim is based. But one juridical fact as such
can not, of course, outweigh another juridical fact. On p. 60, for
instance, a résumé is given of the different titles (of discovery, of
contiguity, of recognition) and it is said: quot;The title of discovery
(title-juridical fact) exists only as an inchoate title (title-right),
as a claim to establish sovereignty by a fact of occupation. It is
obvious that a title in the sense of a juridical fact cannot be super-
seded by another titlequot;. The fact of discovery, alleged by the United
States as successor of Spain, is not obhterated by the fact of con-
tinuous and peaceful display of state authority. When the Arbitrator
speaks on p. 61 of the quot;relative strength of titlesquot; this can only
mean the relative strength of the juridical consequence, assigned
by international law to certain facts. The Netherlands title prevails
over the United States title because international law assigns greater
consequences to the fact of effective possession than to the fact of
discovery. In conjunction with what has been said above, it follows
from this that the distinction between the creation and the existence
of a right, made by the Arbitrator, is unnecessary.

The question, however, whether the fact of discovery ever con-
ferred a right, will be considered in a subsequent chapter.

C. The Notification of the Treaty of Paris, 1898.

1. The Notification under Consideration.

On February 3. 1899, the Minister of the United States at The
Hague notified the conclusion of the Treaty of Paris to the Nether-
lands Minister for Foreign Affairs in the following terms:

Sir:

I have the honor to send Your Excellency herewith two copies
of the President's Message relating to the Treaty of Peace be-

-ocr page 66-

tween the United States and Spain signed at the City of Paris
on December 10 1898.

Accept, Mr. Minister, the renewed assurance of my high
consideration.

(signed) STANFORD NEWE.

To this the Netherlands Government answered on February
8, 1899:

Monsieur le Ministre,
J'ai l'honneur de Vous accuser réception de Votre office du
3 de ce mois, par lequel Vous avez bien voulu me faire parvenir
deux exemplaires du Message du Président des États-Unis
d'Amérique concernant le traité de paix, signé à Paris le 10
décembre dernier, entre ces États et le Royaume d'Espagne.

En Vous remerciant de cet envoi, je saisis cette occasion.
Monsieur le Ministre, pour Vous renouveler l'assurance de ma
haute considération.

(signé) W. H. DE BEAUFORT.

From this correspondence it is evident that the Netherlands
Government did not make any reservation in regard to sovereignty
over the island.

Whereas in the United States Memorandum nothing is said on
the subject, the Counter Memorandum^) states that quot;although the
Netherlands Government had the most explicit notice of Spanish
sovereignty over the island in the boundaries fixed in the Treaty
of Paris between the United States and Spain, concluded Decem-
ber 10, 1898, they did not make any protestations respecting
sovereignty to the island until 1906quot;. In the conclusions of this
document, however, the United States did not argue, that the Ne-
therlands had lost its right to the island, because it had not lodged
a protestation. The Arbitrator, on the other hand, being of opinion,
that the point required further elucidation, put questions to the
litigating Parties on the subject.

It is stated in the Netherlands Explanations, p. 16: quot;The treaty

1) U.S. Counter Mem. p. 72.

-ocr page 67-

(of Paris) being a treaty of peace between the United States and
Spain by which, as was publicly known, the Philippine Islands (and
of course no more than the Spanish possessions in that region)
were to be ceded to the United States, the Netherlands Govern-
ment of that time did not, as far as can be seen, make a special
study of the treaty and dit not at once notice the error in the
delineation. Very soon, however, in 1906, the dispute concerning
the island arosequot;, whereas the United States, after referring again to
quot;the most explicit notice of these linesquot;, answered'-'): quot;And cer-
tainly, after such notice, laches on the part of any nation asserting
a claim would be evidence of weakness or of the unfounded char-
acter of the claimquot;.

Thus the situation is clear: on the one hand it can hardly be
said, that the Netherlands had quot;the most explicit noticequot; of the
Island of Miangas having been ceded by Spain to the United States;
the delineation was fixed by certain meridians of longitude and
parallels of latitude. The boundary lines, drawn so as to run in
non-territorial waters, consequently appear to have been drawn,
not as territorial frontiers, but merely to include in, or to exclude
from the cession, certain islands of the Philippine Archipelago.
Whatever the United States may contend in the Further Written
Explanations p. 3 sqq., the exclusion from the cession of the Islands
Cagayan de Joló and Sibutu points to the fact that these lines
were not correctly drawn and the United States seems to have
recognized this by buying the islands from Spain in 1900. On the
other hand the Netherlands
Government state, that they quot;did not
at once note the error in the delineationquot; (from which it may be
presumed, that they would have made a formal protestation, if the

error had been noticed).

The Arbitrator is thus called upon to decide, what is the effect
of the absence of protestation by the Netherlands Government.
Before considering, whether the
Arbitrator's opinion concerning the
silence of a Power to which a treaty has been notified, is in accor-
dance with the principles of international law, some preliminary
remarks may be submitted.

Wr. Expl. p. 24. Again the point is referred to in the U.S. Rejoinder
p. 41.

-ocr page 68-

2. Notification in general.

It is to be noted that there is no general agreement amongst
jurists as to the legal character of notification in international law.
Even in connection with the acquisition of territory the word is
used in two distinct ways: the erection of a flag, an inscription on
a pillar, the reading of a proclamation, etc., on the territory of
which possession has been taken, has often been described by the
word notification''). In its technical sense, however, notification
is a communication expressly made by one Government to another
Government.

Is any such communication to be considered as a notification?
It would seem, that again a distinction must be made: a communi-
cation from one Government to another is made either to produce
some legal effect or merely to meet the requirements of international
comity ■•). Suppose two States have concluded a treaty, which is
rejected by the Parliament of one of them; the State, whose Par-
liament has rejected the treaty may or may not communicate the
rejection to the other State: it makes no difference with respect to-
the legal consequences as regards the relation between them. But
it is obvious, that non-communication would be inconsistent with
the principles of the
comitas gentium, Oppenheim says; quot;Noti-
fication is the technical term for the communication to other States
of certain facts and events of legal importancequot; quot;La notification
est l'acte par lequel un Etat porte à la connaissance d'un ou de
plusieurs autres Etats un fait déterminé auquel peuvent se rattacher
des conséquences juridiquesquot; is Anzilotti's definitionquot;). According

3)nbsp;An example is the notification of the occupation of St. Helena, p. 86.
In this sense the word notification was used by Lord Stowell in the
case of the Fama (1804): quot;In newly discovered countries, where a title
is meant to be established for the first time, some act of possession iamp;
usually done and proclaimed as a notification of the factquot;. (Westlake,
International Law I, p. 102).

4)nbsp;An a priori distinction between notification and communication is im-
possible, as the legal importance may only appear afterwards.

5)nbsp;L. Oppenheim, International Law I, 488.

6)nbsp;D. Anzilotti. Cours de Droit International, p. 345. Later on Anzilotti

-ocr page 69-

to Röderer') it is quot;die von einem Völkerrechtssubjekt an ein an-
deres gerichtete Verständigung über den bevorstehenden oder er-
folgten Eintritt einer rechtserheblichen Tatsachequot;. The example
given above, however, illustrates the point: the rejection of the
treaty is certainly quot;an event of legal importancequot;, but the com-
munication is juridically irrelevant. The juridical importance of
the communication itself and not that of the fact communicated
determines the character of the notification, and this is the real
meaning of the writers above mentioned, for their distinction be-
tween obligatory and facultative notifications bears on the legal
character of the notification itself. Cavaglieri®) states:
quot;La noti-
fication est une déclaration officielle d'un Etat à l'adresse d'un
autre ou de plusieurs autres Etats, par laquelle certains faits sont
communiqués. Le but de la notification est de provoquer une réaction
juridiquement importantequot;. It would thus seem, that a notification
is a communication of juridical importance from one Government
to another Governmentquot;). Accordingly von Liszt lays stress on

states: Son effet propre est celui de porter légalement les faits qui en
sont l'objet à la connaissance de l'Etat à qui elle est adressée.

7)nbsp;G. Röderer in Strupp's Wörterbuch, s.v. Notifikation; he adds: Ihrer Form
nach handelt es .sich um einen einseitigen, nach aussen gerichteten Staats-
akt von internationaler Bedeutung, die auf dem Gebiete der sog. Staaten-
courtoisie liegend oder eine völkerrechtliche i.e.S. des Wortes sein kann.

8)nbsp;Cavaglieri, R. d. C. A. D. I. 1929, p. 515.

9)nbsp;For our purpose political notification need not be considered. An example
of this is the declaration of President Monroe, issued on December 2,
1823, by which the American continents were declared henceforth not
to be considered as subjects for future colonisation by any European
Powersquot;, as interpreted by President Polk on December 22, 1845:...
quot;It is due alike to our safety and our interests, that the efficient protection
of our laws should be extended over our whole territorial limits, and
that it should be distinctly announced to the world as our settled policy,
that no future European colony or dominion shall, with our consent, be
planted or established on any part of the North American continent
(Kraus, Die Monroedoktrin, p. 409). By this Message the European
Powers were warned away from territories, which, according to inter-
national law, are no man's land.

Another instructive example is the famous Note of Tchitcherine of
November 4. 1924, where, appealing to the principle of contiguity, he
says: Le Gouvernement Fédéral de l'Union, faisant usage de ses droits

-ocr page 70-

the legal importance of the communication, when he says: Die
eingetretene oder bevorstehende Aenderung der Rechtslage ist den-
jenigen Staaten zu notifizieren, deren Rechte durch die Aenderung
berührt werden.

Obligatory Notification is either obligatory or facultative.

notificationnbsp;^^^ ^^^^^^nbsp;1824quot;) between the Netherlands

and Great Britain mutual notification with regard to establishments
in the Malay Archipelago was made obhgatory. Between 1843 and
1880 nearly four hundred treaties and conventions with native
princes were accordingly notified by the Netherlands to the British
Government.

Under Article XXXIV of the Congo Act of Berlin, in 1885,
notification became one of the constitutive elements of a good title
to territorial sovereignty over tracts of land on the African coast
and to the establishment of a protectorate there. Notification was
to accompany the respective act and to be addressed to the other
Signatory Powers of the Act, in order to enable them, if need be,
to make good any claims of their own.

It remains to be seen, however, whether the Conference was
applying a rule of positive international law. quot;Notification is not
yet wholly sanctioned by practicequot;, ran the report of the commis-
sion, charged by the Conference with the draft of Articles XXXIV

souverains sur ces territoires (certain islands, among others Wrangel
Island, which, according to the Sowjet Government, constitute the con-
tinuation of the continental plateau of Siberia), exigera satisfaction des
Gouvernements qui soutiendraient l'organisation de semblables violations
(de ses droits territoriaux) .... ou qui les laisseraient impunies, contraire-
ment aux principes généraux du Droit International etc. (De Lapradelle,
La Frontière, p. 68).

Again, in this class falls the notification addressed by the British
Government to the other Powers concerned with regard to the special
relations with Egypt quot;as matters in which the rights and interests of the
British Empire are vitally involved. In pursuance of this principle, they
will regard as an unfriendly act any attempt at interference in the affairs
of Egypt by another Power, and they will consider any agression against
the territory of Egypt as an act to be repelled with all the means at
their commandquot;.

10)nbsp;Von Liszt, Das Völkerrecht, p. 169.

11)nbsp;Staatsblad van het Koninkrijk der Nederlanden, 1824, 39.

-ocr page 71-

and XXXV: she considered that it would be quot;a useful innovation
in public lawquot;; and the British representative, in his anxiety after
the Conference to prove that quot;international duties on the African
coasts remain such as they have been hitherto understoodquot;, went
so far as to say that the requirement of notification in the Final
Act was quot;rather an act of courtesy than a rule of lawquot; In this
the British representative was in agreement with Twiss'®), who
says: quot;A State may indeed notify to other States any important
additions to its territorial limits, which it may have acquired either
by occupation or by cession, but such notifications are matters
of courtesy for mutual convenience, and the announcement of the
fact of any such acquisition is not obligatory upon the State who
makes itquot;.

The Final Act, signed by the plenipotentiaries of Great Britain,
Germany, Austria-Hungary, Belgium, Denmark, Spain, the United
States, France, Italy, the Netherlands, Portugal, Russia, Sweden,
Norway and Turkey, was not, however, ratified by the United
States. Moreover it has been repealed by the Convention of Saint
Germain of September 10. 1919. between Great Britain, Belgium,
the United States, France. Italy, Japan and Portugal, to which
Germany, Austria, Hungary, Bulgaria and Turkey undertook to
agree. This convention does not contain any stipulation correspond-
ing to Article XXXIV of the Berlin Act.

Is it to be inferred from this that the obligation respecting
notification was virtually abolished since it only remains in the
case of Denmark, the Netherlands, Norway, Spain, Sweden and
perhaps Russia, and also in the case of the Powers signatories of
the Convention of Saint Germain in so far as concerns the States
just mentioned? Or has the useful innovation of the Berlin Act
been applied so generally that it can be said to have become a
customary rule of international law?

The latter question is answered in the negative by Lindley,
^hose opinion, however, does not seem to hold good. After stating
that, since the Conference of Berlin, a few acquisitions outside the

12)nbsp;Lindley, p. 294.

13)nbsp;Twiss, Int. Law, § 19.

-ocr page 72-

territories dealt with in the Final Act have been notified, he mentions
the special international agreements by which notification has been
provided for: the agreement of March 7, 1885 between Great
Britain and Germany on the one hand and Spain on the other
with reference to the Sulu Archipelago, the arrangement between
Germany and Spain in December of the same year with regard to
the Caroline and Palaos Islands, following the mediatorial recom-
mendations of Pope Leo XIII in the same year, and the Anglo-
German Agreement of July 1, 1890, by which the contracting
Powers promised to notify to one another all treaties that might be
made in territories intervening between the Benue and Lake Chad.
Lindley then concludes as follows quot;): quot;These isolated special agree-
ments, when taken in conjunction with the fact that, apart from
the region dealt with in Article XXXIV, notifications have been
the exception rather than the rule, serve to emphasize the point
that such notifications were not required by the general lawquot;.

This conclusion seems, however, premature: it might with equal
reason be said, that the useful innovation of the Congo Conference
was adopted in the treaties referred to by Lindley and that thus
a customary rule has been established. Not only have recent occu-
pations of
territorium nullius generally been notified^®), but the
same may also be said of every change in territorial status.

In 1885 Germany took possession of the north coast of New
Guinea and of certain of the adjacent islands; Great Britain
subsequently extended her protectorate in New Guinea and the
German Government received a notification of this extension from
the British Ambassador.

Japan notified to the European Powers the decree of August
22, 1910, by which she annexed Corea; France notified the
annexation of Madagascar in 1896 and the establishment of her
protectorate over Morocco by the treaty of March 30, 1912; Great
Britain did the same upon converting her
de facto protectorate
over Egypt into a
de jure protectorate on December 18, 1914 as
a consequence of the intention manifested by the Khedive, Abbas

14)nbsp;Lindley p. 295.

15)nbsp;Fauchille I. ii, 553.

-ocr page 73-

Hilmi, to join the Turks, whose suzerainty over Egypt was only
nominal. Again a change in the territorial status of Egypt was
effected by Great Britain on February 27, 1922 and the
latter Power notified the other Powers, that she had terminated
her protectorate over Egypt and recognized that country as an
independent sovereign State, reserving, however, for future dis-
cussion the questions of the security of communications through
Egypt, the defence of Egypt, the protection of foreign interests and
of minorities, and the Soudan.

Norway notified to foreign Powers the occupation of Jan
Mayen and Bouvet Island^quot;), after the controversy with Great
Britain in 1928 had been settled; and the Royal Resolution of July
10, 1931 by which this country declared the occupation of quot;Eirik
Raudes Landquot; was notified to the Powers whom Norway regarded
as interested.

In 1894 the first Danish settlement on the east coast of
Greenland was established and the fact was communicated to the
Swedish and Norwegian Governmentsquot;).

These examples may suffice to show that, at all events since the
•Congo Conference, a general practice may be said to have existed
amongst States of notifying a change of territorial status and that
notification to the interested Powers has, in particular, become one
of the essential steps in the taking of possession of a
territorium
nullius,

SmedaP«) answers the question, whether notification of an
occupation has become customary in international law, in the nega-
tive, quot;because the opinion that the validity of an occupation depends
on the fact that notification has been given, is not sufficient war-
rantquot;. Smedal, however, seems to forget, that notification is only

16)nbsp;Smedal, p. 41.

17)nbsp;The Permanent Court of International Justice, however, considered that
Denmark had a title to sovereignty over the whole of Greenland and
that in notifying the establishment of the settlement of Angmagssalik
Denmark only notified the extension of an already existing sovereignty.
This method of Denmark is, however, certainly not customary in inter-
national Law.

18)nbsp;Smedal, p. 40.

-ocr page 74-

one of the constitutive elements and that the requirement of
effectiveness is at least equally important.

It is interesting to note, that in regard to this notification Judge
Huber shares the opinion of Lindley and Smedal. We read on p. 59
of the Award:

quot;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.

Such notification, like any other formal act, can only be condition
of legality as a consequence of an explicit rule of law. A rule of
this kind adopted by the Powers in 1885 for the African continent
does not apply
de piano to other regions, and thus the contract with
Taruna of 1885, or with Kandahar-Taruna of 1889, even if they
were to be considered as the first assertions of sovereignty over
Palmas (or Miangas) would not be subject to the rule of noti-
ficationquot;.

International law prescribes notification in many other cases:
According to Article 84 of the Hague Convention for the peaceful
settlement of international disputes, if two Powers agree to refer
to arbitration a question concerning the interpretation of a treaty
to which other Powers besides themselves are parties, they are
bound to notify all such other Powers. The Hague Convention
of October 18, 1907, concerning the commencement of hostilities,
lays down in Article 1 that as between the Signatory Powers,
hostilities are not to commence without quot;un avertissement préalable
et non-équivoquequot; and in Article 2 that the state of war is to be
notified without delay to neutral Powers. One of the most important
obligatory notifications in international law is that required by
Article 18 of the Covenant of the League of Nations, according to
which every treaty or international engagement entered into by
any member of the League shall be forthwith registered with the
Secretariat and as soon as possible be published by it. This, of
course, implies the notification of treaties and engagements to the
Secretariat.

Facultative Whereas notification of the occupation of territorium nullius
notification gggjjjg j^g ^ constitutive element of a valid title to territorial

-ocr page 75-

sovereignty — it certainly is so under the Act of Berlin —, the
same cannot be said of the notification of other changes in terri-
torial status. Thus the notification of the annexation of Corea by
Japan in virtue of a treaty of cession concluded with the Emperor
of Corea in August 1910 cannot be said to be a constitutive element
of Japan's title. The legal importance of the notification, however,
appears from its termsquot;):

Treaties concluded by Corea with foreign Powers cease to
binding, and Japan's existing treaties are extended to Corea.
Consequently, foreigners are allowed to reside and trade in all
parts of Corea, and there to enjoy the same rights and privileges
as in Japan proper. At the same time, the right of extra-terri-
toriality which foreigners have hitherto enjoyed in Corea comes
definitely to an end from to-day. The Japanese Government
beheve that they are entirely justified in regarding such right of
extra-territoriality as ended upon the termination of Corea's
Treaties in consequence of the annexation, considering, that the
continuance of that system would inevitably prove a serious
obstacle and interfere with the unification of the administration
of Corea. Moreover, it seems only natural that foreigners, being
allowed to enjoy in Corea the same rights and privileges as in
Japan proper, should be called upon to surrender the right of
extra-territoriality which is not granted to them in Japan proper.
It cannot be denied, that notification to other Powers of such
changes is advisable. It is especially advisable that a change in
territorial status should be notified to neighbouring States; the
Anglo-Dutch treaty of 1824 can thus be easily explained. The
notification of the Treaty of Paris is of the same character: though
nowhere prescribed, it was advisable: it stated that in all matters
relating to the Philippines the Netherlands Government henceforth
were to address the United States Government. For similar reasons
changes in the headship and in the form of Government of a State,
the appointment of a new Secretary for Foreign Affairs and the
hke, are usually notified.
The notification informs the notified Power of certain facts or

19) Lindley, p. 308.

-ocr page 76-

events, because, as Oppenheim states, quot;States cannot be considered
subject to certain duties without knowledge of the facts or eventsquot;.
The notified States are thus enabled quot;if need be, to make good
any claims of their ownquot;. Thus, under Article XXXIV of the Act
of Berlin, a notified State which did not make a reservation within
a reasonable time, must be understood as not having any objection.
International law, however, does not fix a period, within which
such reservations must be recorded. The question was considered
by the Congo Conference. A motion to fix the period was, however,
rejected on grounds of international courtesy. But, as Fauchille
rightly remarks: on the contrary, international courtesy requires a
prompt reply Fauchille accordingly proposes a period of one
year. But this is not supported by positive international law; more-
over this period would be too long in some and too short in other
cases; it would seem that it must differ in different cases.

3. Protestation in general.

In general, it thus appears that notification is closely connected
with another unilateral act, namely, protestation. In the case under
consideration Judge Huber refers not only to the notification of
the Treaty of Paris but also to the silence of the Netherlands
Government. Accordingly it remains to be seen what effect is
assigned by international law to the absense of protestation.

J. Kunz in Strupp's Wörterbuch des Völkerrechts assigns an
absolute value to the maxim:
Qui tacet consentire videtur^^). It is,
however, questionable, whether this is in accordance with inter-
national law. Cavaglieri'quot;) admits, that the particular nature of
international relations, the perfect liberty enjoyed by States as to
the manner in which they manifest their will, justify a broad
application of the principle, broader at all events than in civil law.
But he denies the absolute value assigned to the maxim by Kunz.
Kunz's opinion is characterized as going too far as it would oblige
the States to make continual protestations. Cavaglieri thus limits

20)nbsp;Fauchille I, II. 553.

21)nbsp;Wörterbuch II, p. 329.

22)nbsp;Cavaglieri, loc. cit. p. 513.

-ocr page 77-

the principle by adding: dum loqui potuit et debuit. In this Ca-
vaglieri is in accordance with Strupp^®), who speaks of a quot;qualified
silencequot;, and proposes the same addition to the maxim. Both writers
come to the conclusion that a general rule cannot be formulated,
because the juridical consequences can only be determined having
regard to the actual circumstances^^). Cavaglieri holds that if
notification is obligatory, silence imports
de jure abandonment of
any conflicting claim. If notification is facultative the absence of
response would create a presumption of recognition and conse-
quently the burden of proof would rest with the State which
should have responded. In the case of a fact which is common
knowledge no effect can be assigned to notification. As regards
this point Cavaglieri agrees with BruePquot;''), who states that when
a notification has been made without being followed by a pro-
testation, consent can be presumed with more certainty than in a
case of non-notification. It would seem, however, that even this
limited application of the maxim is unjustifiable: the consequence
would be that every State would be bound always to protest against
any notification in order to avoid a presumption of recognition.
This would not only impede international relations; it would ulti-
mately lead to a general practice of protestation on receipt of any
notification.

Another point to be considered is the form in which a protestation
is to be made. Both Cavaglieri''quot;) and BrueP^) admit that pro-
testation in international law is not bound to take a definite form.
The protestation can be the result of an uninterrupted conduct
of a State in regard to a certain situation or pretension of another
State, as Cavaglieri puts it, or of conclusive acts (Bruel and Kunz).
A written and precisely formulated note is undoubtedly preferable.

23)nbsp;K. Strupp, Grundzüge des positiven Völicerrechts. 1932, p. 170.

24)nbsp;Also Cavaglieri in Rivista di Diritto Internazionale, 1926.

25)nbsp;Erik Brüel, Den folkeretlige Protest in Nordisk Tidsskrift for Inter-
national Ret, Vol. III (with translation in French).

26)nbsp;Ree. des Cours 1929, p. 517.

27)nbsp;loc. cit. p. 83.

-ocr page 78-

4. Conclusions.

The foregoing outlines the considerations to be taken into account
in appraising the importance to be attached to the notification of
the Treaty of Paris by the United States Government to the Ne-
therlands.

It appears, that this notification can neither be classed as an act
of international courtesy, nor as an obligatory notification, such as
is required under the Act of Berlin. It falls under the head of the
facultative notifications, which, according to Oppenheim, are
quot;usually madequot;.

If the Island of Miangas had been territorium nullius in 1898,
the United States would by occupation of the island and notification
to the Netherlands Government have acquired an incontestible title
to sovereignty over the island as regards the latter Power.

If at that date the Netherlands had only had a nominal title to
the island, not supported by any effective display of sovereignty,
the United States claim in 1906, which was as purely nominal as
any claim possessed by Spain before the cession
{nemo plus juris
transferre potest quam ipse habet)
would have prevailed over the
Netherlands claim because the United States claim was strengthened
by the notification, whereas the Netherlands claim was weakened
by non-protestation.

The third possibility need not be considered, for if the Nether-
lands claim in 1898 was (and could be proved to be) based upon
effective possession, a claim based on cession by a third Power,
even if accompanied by notification, was invalid, the cession being
a
res inter alios acta.

The Arbitrator expresses the same idea in the following way^®):
Whilst it is conceivable that a conventional delimination duly
notified to third Powers and left without contestation on their
part may have some bearing on a inchoate title not supported
by any actual display of sovereignty, it would be entirely con-
trary to the principles laid down above as to territorial sovereignty
to suppose that such sovereignty could be affected by the mere

28) Award, p. 23.

-ocr page 79-

silence of the territorial sovereign as regards a treaty which has
been notified to him and which seems to dispose of a part of
his territory.

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. The United States declares that Palmas
(or Miangas) was Spanish territory and denies the existence of
Dutch sovereignty; the Netherlands maintain the existence of
their sovereignty and deny that of Spain. Only if the examina-
tion of the arguments of both Parties should lead to the con-
clusion that the Island of Palmas (or Miangas) was at the
critical moment neither Spanish nor Netherlands territory, 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.

This is the — conditional — result arrived at, from the point of
view of the notification, which is the only point of view considered
by the Arbitrator. The result ceases to be conditional as soon as
the Arbitrator acquires the conviction that the Netherlands title
was based on an effective display of state activity^quot;).

There remains, however, the point of view of the protestation,
which the Arbitrator does not consider. The uninterrupted conduct
of the Netherlands, the conclusive acts, constituting a valid pro-
testation, can be proved and are not denied by the United States
Government. The Arbitrator says on p. 55: quot;The events falling
between the Treaty of Paris, December lOth, 1898 and the rise
of the present dispute in 1906, cannot in themselves serve to indicate
the legal situation of the island at the critical moment when the
cession of the Philippines by Spain took placequot;. This is certainly
true. He even adds, that quot;there is no essential difference between

29) J. P. A. François in his Handboek van het Volkenrecht, p. 373, reaches
the same conclusion, on different grounds.

-ocr page 80-

the relations between the Dutch authorities and the Island of Palmas
(or Miangas) before and after the Treaty of Parisquot;. The weight
attaching to the acts demonstrating the display of Netherlands state
activity during the period 1899—1906 is an entirely different matter;
these acts constitute the protestation required by international law.

-ocr page 81-

CHAPTER II.
THE UNITED STATES TITLE.
A. The Title by Discovery.

The United States title is based in the first place on discovery.
In connection with this title different questions must be considered.
In the first place the question arises: Was the island discovered
on behalf of Spain? According to the Netherlands Government,
it is not established that the island of Miangas was discovered
by Spain, nor that that country acquired it in any other manner.
And even if it were proved that the island was discovered on behalf
of Spain, it is submitted by this Government, that the mere fact
of discovery did not vest in Spain a definite title to sovereignty.
Accordingly, this question must next be considered and if the answer
be in the negative, a third question arises: If the mere fact of
discovery did not vest a definite title in Spain, what, if any, is the
legal consequence of this fact?

1. The Discovery of the Island.

As to the question, whether Spain did or did not discover the
^ quot;quot; island in question, the United States Government hold that it is
^^yond doubt that the Spaniards discovered and even took pos-
quot;^•^Wago session of the Phihppines. About the middle of March 1521, the
expedition of Magellan, having set out from Seville on September
20, 1519, reached the group of islands, nowadays known as the
Philippines, but which Magellan named the Islands of St. Lazarus,
because the group had been sighted on the day sacred to that saint.
The great navigator actually landed on the Island of Matan, where
he was treacherously killed by the natives. Not until 1542 did Lopez

1) Mere geographical discovery it not a juridical act. The United States
refers* to discovery in its technical sense: either made by duly authorised
navigators or afterwards approved by the Government.

-ocr page 82-

de Villalobos name the islands the Islas Felipinas; they were
pacified in 1571 by Lopez de Legaspi.

The Island of The records of these and other voyages of about the same time,
Miangas communicated by the Spanish to the United States Government,
make it probable that the Island of Miangas was seen by the
Spaniards; the island appears on a map, produced as early as 1595
by Jan Huygen van Linschoten (1. das Palmeiras), where it is,
according to the United States Government, charted as an island
of the Philippine group. The United States hold that both the
group in general and the Island of Miangas in particular were thus
discovered by Spain and that the island in dispute, as a part of
the group, was in possession of Spain in 1898, and consequently,
likewise as a part of the group should now belong to the United
States.

The The Netherlands Government are, on the other hand, of opinion,
'coSuol^ that the discovery was made on behalf of Portugal, as on the older
maps of the Portuguese Lopo Homem (155'4), Diogo Homem
(1568) and Bertholameu Laso (1590) the island appears under
Portuguese names'^); this is also the case with van Linschoten's
chart. As regards Magellan's voyage it is impossible that this
navigator on his voyage from Sarangani southward should have
sighted the island. Moreover it should be borne in mind, this
Government submit, that the common feature of all these oceanic
islands is that they bear palmtrees, so that the name Palmas or
Palmeras may have been applied to several islands.

The Award The Arbitrator makes a distinction between the discovery of the
Island of Miangas as such, and its discovery as a part of the
Philippines®). The latter point will, following the example of the
Award, be dealt with in relation to the argument of contiguity. As
regards the first point, the Arbitrator deems it probable that the
island seen when the Palaos Islands were discovered, is identical
with the Island of Palmas (or Miangas). This opinion is based
on a communication from the Spanish Government, which, how-

2)nbsp;Neth. Mem. p. 9.

3)nbsp;Award, p. 24.

-ocr page 83-

ever, does not give any details as to the date of the expedition,
the navigators or the circumstances in which the observations were
made; the communication is not supported by extracts from the
original reports on which it is based. quot;For the purpose of the present
affair it may be admittedquot;, the Arbitrator concludesquot;), quot;that the
original title derived from discovery belonged to Spain, for the
relations between Spain and Portugal in the Celebes Sea during
the first three quarters of the 16th century may be disregarded for
the following reasons: In 1581, i.e. prior to the appearance of the
Dutch in the regions in question, the crowns of Spain and Portugal
were united. Though the struggle for separation of Portugal from
Spain had already begun in December 1640, Spain had not yet
recognised the separation when it concluded in 1648 with the
Netherlands the Treaty of Münster. ... This treaty contains special
provisions as to Portuguese possessions, but only in regard to such
places as were taken from the Netherlands by the Portuguese in
and after 1641. It seems necessary to draw from this fact the con-
clusion that, for the relations
inter se of the two signatories of the
Treaty of Münster, the same rules had to be applied both to the
possessions originally Spanish and to those originally Portuguese ...
It is therefore not necessary to find out which of the two nations
acquired the original title, nor what the possible effects of sub-
sequent conquests and cessions may have been on such title before
1648quot;. From this reasonable conclusion it appears that the discovery
of the island consists in the fact that it was quot;seenquot; only, for it
does not appear that a landing was made or any contact with the
natives established. The question has now to be considered, what
the consequences of this discovery were.

2. Discovery as creative of a definite Title.

It has been said above that the Arbitrator considers two hypo-
theses. viz. 1° that discovery as such in the beginning of the
sixteenth century conferred sovereignty upon the State on behalf
of which it was made and 2° that discovery only vested in that
State an inchoate title to be completed by an effective taking of

Ibid., p. 25-26.

-ocr page 84-

possession within a reasonable time. The former of these two
hypotheses is only hesitatingly accepted by the Arbitrator: quot;If
the view most favourable to the American arguments is adopted
— with every reservation as to the soundness of such view — 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 Parisquot; The
same doubt is expressed on p. 30: quot;If title arising from discovery,
well-known and already a matter of controversy at the period in
question, were meant to be recognized by the treaty, it would prob-
ably have been mentioned in express termsquot;; and again on p. 60:
quot;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 occu-
pationquot;. That the Arbitrator's doubt is fully warranted is clearly
proved by Goebel's brilliant study on the struggle for the Falkland
Islands, to which we shall refer later.

International law at that epoch recognized the former hypothesis
according to the United States and the latter according to the
Netherlands.

First (U.S.) On p. 19 of the United States Memorandum attention is drawn

hypothesis ^^ several historical facts with regard to the discovery of the Phil-
ippine Islands by Spanish explorers and the establishment and
maintenance of Spanish sovereignty in the Philippine Archipelago;
on p. 51 et seq. with an appeal to Westlake and Hall is referred
to quot;the obvious principle applicable to any act, that the effect of
the act is to be determined by the law of the time when it was
donequot;. The American Agent quotes Hall's discussion of the quot;prin-

5) Ibid., p. 26-27.

-ocr page 85-

ciples applicable to the earlier cases and the later tendency to exact
more solid grounds for title than those sanctioned in the pastquot;. Also
Moore's International Law Digest, Justice Story's Commentaries
on the Constitution of the United States, the Delagoa Bay Arbi-
tration, the Netherlands Venezuela Arbitration concerning Aves
Island, and the decision of Pope Leo XII in the case between Spain
and Germany regarding the Caroline Islands are quoted.

From these facts the conclusion is drawn ®) that Spain acquired
a title to the Island of Palmas by discovery and that that title has
never been questioned. Moreover a number of international arrange-
ments bearing on the sovereign rights of Spain and, accordingly,
of the United States, are invoked to prove, that title by mere dis-
covery was generally recognized during the period in question:
the Bull issued by Pope Alexander VI, on May 4, 1493, by which
the Pope granted to Spain and Portugal quot;certain islands and main-
lands discovered and to be discovered by each within specified
limitsquot;; the Treaty of Zaragoza of April 22. 1529, concluded be-
tween Spain and Portugal, to setde the controversies between the
two nations respecting the Molucca Islands; the Treaty of Madrid
of January 13, 1750, between the same Powers; the Treaty of
Paris between England, France and Spain of February 10, 1763,
and finally that of Münster of January 30, 1648.

In their Counter Memorandum the Netherlands Government
maintain that there is in the United States Memorandum
quot;a singular
lack of evidence as to actual facts that might constitute the basis
of a claim of American territorial rights^). There is no evidence
of any assertion or exercise of Spanish jurisdiction over Palmas,
and consequently it must be assumed, that the foundation of the
claim is deemed by the United States to be discovery alonequot;®).

^^ submitted by the Netherlands Government ») that, irrespect-
^ypothêsis'^ ^ve of the epoch at which the discovery was made, it is a well
established principle of international law that discovery alone does

6)nbsp;U.S. Mem. p. 130.

7)nbsp;Neth. Count. Mem. p. 7.

8)nbsp;Ibid. p. 13.

9)nbsp;Neth. Count. Mem. p. H.

Se

-ocr page 86-

not confer a perfect title to territorial jurisdiction or sovereignty.
Grotius' Mare Liberum Chapter II and the above quoted passage
from Vattel are referred to, and also a letter of King Charles I
of Spain, written in 1523 to his ambassador, Don Juan de Zuniga,
showing that the sighting or discovery of land did not constitute
a legal tide, but that to constitute a title it was necessary that the
land should be actually possessed. quot;Even Powers having the greatest
interest in maintaining that discovery by itself was sufficient to
confer sovereigntyquot;, it is stated on p. 14, quot;did not defend the view
that discovery alone was sufficient to constitute a complete titlequot;.
In this connection the case of the Falkland Islands, the Delagoa
Bay Arbitration, the mediation regarding the Caroline Islands and
the Bulama Arbitration are quoted.

To corroborate their argument, the Netherlands Government
quote a number of authors, who share the opinion, that the fact
of discovery only gives an inchoate title, that is to be completed
within a reasonable time. Among them is Westlake, who, however,
seems to hold a different opinion: quot;En considérant ces questions de
détailquot;, this author states^quot;), quot;j'admettrai que la découverte peut
seulement conférér ce que l'on a appelé un commencement de titre,
à compléter par l'occupation dans un délai raisonnable; mais j'ad-
mettrai aussi que, si elle confère un pareil titre, ce n'est point par
suite d'une vertu propre à la découverte, mais parce que le procédé
d'un autre Etat, qui s'emparerait trop tôt du pays découvert, serait
tellement peu amical que l'on pourrait à bon droit le considérer
comme un acte d'hostilitéquot;. quot;Indeedquot;, the Netherlands Counter
Memorandum adds, quot;in those times of continuous strife it was
political considerations, and not principles of International Law,
that fixed the extent of a title based on discoveryquot;. There would
however seem to be a contradiction here: if political considerations
alone determined the extent of a title based on discovery, the fact
of discovery would give neither a perfect nor an inchoate title: it
could not confer more rights than the delimitation of a hinterland
does nowadays. It was the subsequent fact of taking possession.

10) Rev. d. D. I. et de Lég. Comp. XXIII, p. 256. In the Neth. Count. Mem.
the text is quoted in French.

-ocr page 87-

which conferred a title upon the country on behalf of which the
discovery was made.

It seems in fact, that international law, even in remote times,
always recognised that only an effective taking of possession con-
ferred a right of territorial sovereignty. In this connection two
points arise which will successively be dealt with: it will be shown
in the first place that both before and since international law can
be said to have existed, the Pope as well as temporal princes strictly
observed this principle; in the second place the question arises:
When can taking of possession be said to be effective? The latter
question will be answered in Chapter III.

/J,^nbsp;One of the best known territorial arrangements in history is

^nbsp;the famous bull Inter Caetera, issued on May 4, 1493, which was

designed to put an end to the everlasting controversies between
the only two colonising Powers of that period, Portugal and Spain.
These controversies reached a climax when Columbus, after having
discovered and taken possession of the new continent on October
12, 1492, in the name of Jesus Christ for the Castilian Crown,
reached Lisbon on March 4, 1493 and soon after was solemnly
received by King Ferdinand and Queen Isabella of Spain at Bar-
celona. According to Portugal, the newly discovered country, the
quot;land of cloves and goldquot;, supposed to be India, had been assigned
to that country by the bull
Romanus Pontifex issued in 1452, by
which Alfonso V of Portugal was authorised to attack and sub-
jugate all countries inhabited by infidels, and by the bull
Imper Non
of January 8. 1454. by which Pope Nicholas V granted to the same
sovereign all the regions discovered and to be discovered, south
of Cape Bojador and Cape Non toward Guinea, and all regions
on the south coast and on the east
quot;usque ad Indosquot;. And on Sep-
tember 12. 1484. Innocent VIII confirmed the previous bulls in
similar language, thus confirming the Portuguese claim to Africa
and the Indies.

By the bull Inter Caetera Pope Alexander VI granted to Fer-
dinand and Isabella all islands and continents to the West of a
line, running frome pole to pole a hundred leagues west of the
Azores and Cape Verde:

-ocr page 88-

with the proviso, however, that none of the islands or con-
tinents found and to be found, discovered and to be discovered,
beyond the said line towards the west and south, were in the
actual possession of any Christian King or Prince up to the latest
birthday of our Lord Jesus Christ from which the present year
one thousand four hundred and ninety-three begins. And we
make and appoint you and your heirs and successors Lords
thereof with full and free power, authority and jurisdiction of
every kind; with this provisio however, that by this our gift, grant
and assignment no right acquired by any Christian prince, who
may be in actual possession of the said islands and continents is
hereby to be understood to be withdrawn or taken away.
The proviso, that the actual possession of Christian princes is
to be respected seems to lead to the conclusion, that the bull had in
view in the first place the conversion of heathens and infidels in
the regions to be colonised. Several times the bull lays stress on
the fact that the Spanish monarchs were to undertake the Christiani-
sation of the inhabitants of the newly discovered countries '' ) and
shortly after the issue of the bull the title of quot;Catholic Kingquot; was
conferred upon King Ferdinand.

11) Inter cetera divinae Majestati beneplacita opera, et cordis nostri deside-
rabilia, illud profecto potissimum extitit, ut fides Catholica, Christiana
religio, nostris praesertim temporibus exaltetur, ac ubilibet amplietur et
dilatetur, animaruraque salus procuretur, ac barbaricae nationes depri-
mantur et ad fidem ipsam reducantur.

... Sane accepimus, quod vos dudum animum proposueratis aliquas
insulas et terras firmas remotas et incognitas ac per alios hactenus non
repertas quaerere et invenire, ut illarum incolas et habitatores ad colen-
dum Redemptorem nostrum et fidem Catholicam profitendum reducere-
tis,... Qui tandem (Divino auxilio facta extrema diligentia in mare
Oceano navigantes) certas insulas remotissimas et etiam terras firmas,
quae per alios hactenus repertae non fuerant, invenerunt, inquibus quam
plurimae gentes pacifice viventes, et ut asseritur nudi incedentes, nec
camibus vescentes inhabitant, et ut praefati Nuncii vestri possunt opinari,
gentes ipsae in insulis, et terris praedictis habitantes credunt unum Deum
Creatorem in Coelis esse, ac ad fidem Catholicam amplexandum et
bonis moribus imbuendum satis apti videntur, spesque habetur quod si
erudirentur, nomen Salvatoris Domini nostri Jesu Christi in terris et
insulis praedictis fateretur, ac praefatus Christophorus in una ex prin-

-ocr page 89-

One of the chief powers of the Pope as the head of Christendom
has been the propagation of the Christian faith. It would seem, that
the division of the new world into two parts assigned to monarchs
with the mission to undertake the conversion of the natives,
benefitted both parties: the Church by the propagation of Christia-
nity, the monarchs by the extension of their political power.

The Pope solemnly declares that he makes the grant to the
monarchs:

of our own accord, not on account of any petition of theirs,
or of anyone else on their behalf, but of our own pure liberality,
sure knowledge, and fullness of Apostolic power, and with the
authority of Almighty God, bestowed on us through blessed
Peter, and of the vicarship of Jesus Christ which we hold upon
earth.

It would seem, as if the Pope, foreseeing that the Kings of Spain
and Portugal would interpret the bull as first and foremost a
political document, had been anxious to deprive them of this
possibility. quot;The legal quality of the act of the Popequot;, Goebelquot;)
states, quot;by no means limited its political significance. Indeed, the
political purpose which the grant was made to serve almost im-
mediately tended to give the matter a pseudolegal significance that
in no way coincided with the original purposes of the grant. In
other words, the bull
Inter Caetera, instead of being construed as

cipalibus insulis praedictis. jam unam turrim satis munitam, in qua certos
Christianos. qui secum iverant, in custodiam, et ut alias insulas et terras
firmas remotas et incognitas inquirerent posuit, construi et aedifican fecit.

... Unde omnibus diligenter et praesertim fidei Catholicae exaltatione
et dilatatione (prout decet Catholicos Reges et Principes) consideratis
more progenitorum vestrorum clarac memoriae Regum, Terras hrmas et
insulas praedictas, illarumque incolas et habitatores vobis divina favente
dementia subjicere, et ad fidem Catholicam reducere proposuistis.

... Nos igitur hujusmodi vestrum sanctum et laudabile propositum
plurimum in Domino commendantes. ac cupientes ut illud ad debitum
finem perducatur, et ipsum nomen Salvatoris nostri m partibus illis
inducatur. hortamur vos, quamplurimum in Domino... ut cum expeditio-
nem hujusmodi omnino prosequi... intendatis, populos in hujusmodi m-
suhs et terris degentes ad Christianam religionem suscipiendum inducere
vehtis et debeatis,... (From Ango et ses pilotes, by Eugène Guenm).

12) J. Goebel. The Struggle for the Falkand Islands, p. 84.

-ocr page 90-

a charge to convert the heathen, was treated as a grant of
territoryquot;.

Nys points out^^) that the Spanish monarchs at least did not
regard the bull as a special favour bestowed on them by the Pope,
as on June 19, 1493, at a public consistory, Diego de Lopez re-
proached the Pope in the name of his master. King Ferdinand, for
the wars which afflicted Italy and for the conduct of the pontifical
sovereign, which ruined the faith. That the relations between the
Holy See and the King of Spain were at that moment not so
cordial as might be supposed from the bull
Inter Caetera may also
be inferred from the conclusion of the Treaty of Tordesillas on
June 7, 1494, by which the Kings of Portugal and Spain on their
own account moved the line of demarcation 270 leagues to the
west; twelve years were to elapse before this treaty was confirmed
by the bull
Ea Quae of Pope Julius II.

The power of the Popes as the vicars of Christ to assign territo-
ries, inhabited by heathens and infidels, to Christian Princes was
originally derived from a forged document, the so-called Donation
of Constantine the Great to Pope Silvester I, which vested in the
Pope the sovereignty over Italy and the western kingdoms and over
all islands. Schultequot;) bases the bull of Nicholas V, granting the
Portuguese the rights in Africa, upon the assertion of the papal
right to send to non-Catholic peoples and countries Catholic
governors who had the right to enslave the population if necessary
for their conversion. As early as 1344 Clement VI had granted
the Canary Islands or Fortunatae Insulae to Louis of Spain as a
tributary of the Apostolic See upon his promise to convert the
islanders to the worship of Christ The same duty is emphasised
in the bulls
Romanus Pontifex and Imper Non. And St. Thomas
Aquinas defends the papal right to conquer the countries inhabited
by infidels, because the faithful become God's childrenquot;).

13)nbsp;E. Nys, La ligne de démarcation d'Alexandre VL in Rev. d. D. L et de
Lég. Comp. XXVH, p. 488.

14)nbsp;Schulte, Die Macht der Römischen Päpste, p. 20; quoted from Goebel.

15)nbsp;Lindley, The acquisition and Government of backward territory in inter-
national law, p. 125.

16)nbsp;quot;quia infideles merito suae infidelitatis mercntur potestatem amittere super
fideles qui transferuntur in filios Dei.quot;

-ocr page 91-

It is obvious that the assignment of territories already discovered
and to be discovered to the Kings of Portugal and Spain would
only fulfil the Pope's purpose, namely the conversion of the natives,
if effective possession was taken of these territories, for only in
that case could missionary activity be undertaken under the pro-
tection of the temporal power.

In the view of those peoples and princes who did not regard the
Pope as the head of Christianity and who consequently were not
impressed by the threat of excommunication
latae sententiae of the
bull to those navigators who without a special license from the
Portuguese and Spanish Kings entered the regions assigned to
those princes, neither the bull nor the Treaty of Tordesillas were
of more effect than any other territorial delimitation contracted

between third Powers.

quot;The Peruvian Incaquot;, Lindley relatesquot;), quot;was not unreasonable
when, hearing of the Pope and his commission to the Spaniards
for the first time, he told Pizarro that the Pope must be crazy
to talk of giving away countries which do not belong to himquot;.
And Henry VII of England is sending out John Cabot and his
three sons for the first time in 1495. issued letters patent by which
Cabot is given full authority to discover and find new regions:
Plenam potestatem navigandi ad omnes partes, regiones et sinus
maris orientalis. occidentalis et septentrionalis. sub insignis et vexil-
lis nostrisquot; and. quot;subjugare. occupare. possiderequot; on behalf of the
King such lands as they might discover. Thus even a catholic Prince
acted wholly in disregard of the papal bull.

In 1501 the same Monarch issued letters patent to an Anglo-
Portuguese company, by which the company was authorized to
enter into, take possession of and conquer the regions assigned
them, with power to resist and drive away invaders.

'-etter,

Fresh letters patent delivered to the company in 1502. recognizing
the authority of the sovereigns of Portugal and Spain are exceedingly
interesting, particularly because the navigators were warned to
keep away from lands already discovered and in the possession of

Lindley. p. 127.

-ocr page 92-

other princes. After conferring the authority to take possession of.
subjugate and govern newly found lands, the charter continued:
Provided always, that they shall by no means enter or encroach
upon those countries, nations, regions or provinces, heathen or
infidel, which have previously been found by the subjects of our
most dear brother and cousin the King of Portugal, or of any
other Prince, friend or neighbour of ourselves, and which already
are in possession of the said Princes.

The provision giving a right to oust intruders, is a most cogent
proof that the English King recognized possession as the only true
source of right

In consequence of Drake's voyage round the world the Spanish
ambassador at the English court, Mendoza, protested most ener-
getically. Elizabeth's answer is wellknown:

quot;She understood not, why hers and other Princes subjects
should be barred from the Indies, which she could not perswade
her selfe the Spaniard had any rightfull title to by the Byshop
of Romes donation, in whom she acknowledged no prerogative,
much lesse authority in such causes, that he should bind Princes
which owe him no obedience, or infeoffe as it were the Spaniard
in that new World, and invest him with the possessions thereof,
and that only on the ground that the Spaniards have touched
here and there, have erected shelters, have given names to a
river or promontory: acts which cannot confer property. So that
this donation of
res alienae which by law is void, and this
imaginary proprietorship, ought not to hinder other Princes from
carrying on commerce in these regions and from establishing
colonies where Spaniards are not residing, without the least
violation of the Law of Nations, since without possession,
prescription is of no availquot;.

English On June 11, 1578, letters patent were issued to Sir Humphrey
Gilbert, authorizing him to discover and view countries quot;not actually
possessed of any Christian Prince or people... the same to have,
hold, occupie and enjoy to himquot; with the power to expel any

18) Goebel, p. 58.

-ocr page 93-

invadersquot;. In the same form was the charter given to Sir Walter
Raleigh in 1584.

From these facts it may be assumed that English law in the six-
teenth century regarded the claims of the Spanish and Portuguese
to exclusive rights in the new continent as defensible only in so
far. as these claims were supported by actual possession.

As late as the 17th century the same principle was acted upon
by Great Britain: this appears from the first Virginia charter of
1606 and the charter of New England of 1620. and as late as 1670
the Hudson's Bay Company was granted a charter by Charles II.
assigning to the Company all the lands and territories around
Hudson's Bay, quot;which are not now actually possessed by any of our
Subjects, or by the subjects of any Christian prince or statequot;

^■■ench In France the same principle was accepted in the letters patent
granted by King François I to de Roberval in 1540 with regard
to quot;esdits pays de Canada et Ochelagua, et autres circonjacens,
mesmes en tous pays transmarins (et maritimes), inhabitez ou non,
possédez et donnez par aucuns princes chrestiensquot;. Settlements
are to be made quot;et jusque en la terre de Saguenay, et tous autres
pays susdits, affin d'en iceulx converser avec lesdits peuples
estranges, si faire se peulx, et habiter esdites terres et pays, y
construire et edifier villes et fortsquot;, etc. And de Roberval is in-
structed to quot;descendre et entrer en iceulx, et les mettre en notre

19)nbsp;Lindley, p. 58. This does not alter the fact that the British Government
put forward extravagant claims based on the mere seeing of the coast,
if it served its turn. Drakes exploration of the American coast from
37« to 48° was basis of the British claim against the Netherlands con-
tention of settlement of New Amsterdam. The sword decided in favour

20)nbsp;cUbel^^n^'his above mentioned study: -The Struggle for the Falkland
Islandsquot; points out that this protection of possession is quite m accord-
ance with the theory of English law, which, based on the fundamenta
principle of seisin, could not conceive of an original acquisU.on of
territorial sovereignty, the available land of England being subject to
the system of tenure. The whole feudal system being based on the
theory that all the known property of the world
was vested in an over
lord and that the cfommmm over it was exercised by h.m only mediately

-ocr page 94-

main, tant par voye damittie ou amyables compositions, si faire se
peulx, que par force darmes, main forte et toutes autres voyes

or immediately, sovereignty could only be had by derivation, either by
enfeoffment, by cession or by conquest. This accounts for the fact that
the English Kings only recognized claims based on actual possession.

From the point of view of Roman law on the other hand occupatio
was a method of original acquisition, acquisition of res nullius. (G. Inst.
II, 66). Referring to Czyhlarz' commentary on Digest 41, Goebel proves
(p. 72) that quot;occupation in private law is the acquisition in fact and
not the mere casual exercise of power over a thing, for the latter is no
more than a precedent step to the completed act, and is consequently
without enduring legal significancequot;.

Bartolus de Saxoferrato combines the Roman law and the current
view of the feudal law. He states, that a (feudal) superior may give the
right of occupation as has frequently been done by the Pope. In such
a case, if the person to whom the right is given, fails to occupy, he loses
his right. The doctrines of the Tractatus de Insula (island being a
technical term for newly discovered land) were embodied in the accepted
body of Roman law. It is, therefore, proper to assume, Goebel concludes,
that they were well known to the Holy See at the time when the bull
Inter Caetera was issued.

Goebel then draws attention to the capitulacion or charter and the
patent granted by the Spanish Monarchs to Columbus, their mandatory,
preceeding the bull. These documents both speak of discovery and
acquisition
(ganar): in this way the King expected to gain a title to
sovereignty and Columbus accordingly left some of his followers on the
Island of Hispaniola. (In the famous code of Alfonso the Wise (1265),
known as the Siete Partidas,
occupace is translated by poblar, a con-
clusive proof, that as far as the Spanish law was concerned, occupation
was synonymous with colonization). The instructions issued to Columbus
on May 29, 1493 show the change effected by the bull. At the very
outset they lay upon the admiral the charge of converting the Indians
to the Christian faith. Also in the following patents the power to make
discoveries is given, but nothing is said of the taking of possession.
Obviously the papal bull is regarded as a political instrument and as a
title to sovereignty. But this can only be true as far as Spain and
Portugal are concerned and as soon as the English entered upon their
policy of colonial expansion, the Spanish King had to fall back upon
his former principle, namely, that only effective occupation could give
title. The same apphes to Spain and Portugal in the interpretation of
the papal grant: As the bull
Ea Quea had only drawn a line of demar-
cation in the Western hemisphere a conflict in the eastern was bound
to follow. After the successful circumnavigation of the globe by Magellan

-ocr page 95-

d'hostilité, — de assaillir villes, chasteaulx, forts et habitations, et
d'en construire et en ediffier, ou faire construyre et en édifier daul-

a conflict arose as to the sovereignty over the Moluccas. Both Portugal
and Spain claimed that these territories had been assigned to them.
According to his instructions Magellan had concluded treaties with
different chieftains by which the latter had recognized the Suzerainty
of the King of Spain; and accordingly possession was taken. The Por-
tuguese on the other hand, claimed a right of prior discovery, corroborated
by reference to the bull
Praccelsac Dcvotionis. issued by Leo X on
November 3, 1514, by which the rights granted by the bull of Nicholas V
were extended
ubicumquc ct in quibuscumque partibus ctiam nostris tem-
poribus [orsan ignotis.

It is exceedingly interesting to notice, that the instruction of Charles V
to his ambassador Juan de Zufiiga of December 18, 1523, represents
exactly the same point of view that the Netherlands Government was
to take four hundred years later in the present, Miangas controversy and
nothing is more natural than this Governments reference to the instruc
tion, on p. 14 of the Counter Memorandum:

Having alleged several acts showing actual possession of the islands
by Spain and having denied any such acts on behalf of the King of

Portugal, the instruction continues:

And, in proof thereof (to continue the above), our present pos-
session. which had been public and without any opposition by the
said Most Serene King of Portugal, was sufficient. And this possession
of ours has been continued with his knowlegde, sufference and good
grace, and had been likewise known and suffered by the Most Serene

King Don Manuel, his father...

It could not be denied that Malucco had been found and taken
possession of first by us. a fact
supposed and proved by our peaceful
and uninterrupted possession of it until now; and the contrary not
being proved legally, our intention in the past and present is inferred

and based upon this possession ...nbsp;, .. ,

Furthermore it was declared on our behalf, that, although Malucco
had been discovered by ships of the King of Portugal - a thmg by
no means evident - it could not. on this account, be made to appear
evident, or be said that Malucco had been found by him. Neither was
the priority of time, on which he based his claims, proved nor that
it was discovered by his ships; for it was evident, that to find required
possession, and that which was not taken or possessed could not be
said to be found, although seen or discovered... , ^ ^ .

From the above it followed clearly that the finding of which the
said treaty speaks, must be understood and is understood effectually.
It is expedient to know, by taking and possessing it, that which is

-ocr page 96-

très, esdits pays, et y mettre habitateursquot; In the same year
Jacques Cartier was charged by the same Monarch to go to Canada
and Hochelagua quot;avec bon nombre de navires, et de toutes quahtés,
arts et industrie, pour plus avant entrer esdits pays, converser avec
les peuples diceux, et avec eux habiter (si besoin est)quot;^). In
1603, King Henry IV, having quot;reconeu..., combien peut être
fructueuse, commode et utile à nous, à nos Etats et sujets, le de-
meure, possession et habitation d'iceux (le territoire de la Cadie)quot;
instructed de Monts to quot;surtout peupler, cultiver et faire habiter
lesdites terres, le plus promptement, soigneusement et dextrement.

found; and consequently the Most Serene King of Portugal, nor his
ships can in no manner be spoken of as having found Malucco at
any time, since he did not take possession of it at all, nor holds it
now, nor has it in his possession in order that he may surrender it
according to the stipulations of the said treaty.

And by this same reasoning it appeared that Malucco was found
by us and by our ships, since possession of it was taken and made
in our name, holding it and possessing it and having power to sur-
render it, if supplication is made to us...

Furthermore the right of our ownership and possession was evident
because of our just occupation. At least it could not be denied that
we had based our intention on customary law, according to which
newly-found islands and mainlands, belong to and remain his who
occupied and took possession of them first, especially if taken pos-
session of under the apostolic authority, to which — or according to
the opinion of others, to the Emperor — it is only conceded to give
this power. Since we, the said authorities, possessed these lands more
completely than any other, and since the fact of our occupation and
possession was quite evident, it followed clearly and conclusively that
we ought to be protected in our rule and possession, and that when-
ever anyone should desire anything from us, he must sue us for it;
and in such suit must be the occasion for examining the virtue and
strength of the titles, the priority, and the authority of the occu-
pation alleged by each party to the suit.

The elaborate quotation from Goebel's book seems justified on the
mere ground that no study on the subject of discovery can claim any
degree of completeness, which does not take it fully into account.

21)nbsp;A. Gourd, Les chartes coloniales et les constitutions des Etats-Unis de
l'Amérique du Nord, I, p. 208 sqq.

22)nbsp;Ibid., p. 218.

-ocr page 97-

que le temps, les lieux et commodités, le pourront permettrequot;
And in 1678 Louis XIV charged La Salle quot;à former des habitations
sur lesdites terres (la partie occidentale de notre pais de la Nouvelle
France)quot; Again the charter of 1626 to the Compagnie des Isles
de l'Amérique grants a monopoly, after receiving that the grantees
have discovered and occupied some of the islands in the West-
Indies

Eiutch In the charter of the Dutch East-India Company no such pro-
visions are to be expected, the Company being a mere trading
company. In fact, neither the charter of 1602, nor the Placaet
on discovery of 1614 mentions the necessity of an effective occu-
pation. Actual authority was only exercised in so far as was
necessary for the protection of trade; the Company never aimed at
the acquisition of territorial sovereignty. None the less, effective
possession was taken of those islands, which the Company intended
to reserve as its own sphere of influence.

It should be borne in mind that in the beginning of the 17th
century the eighty years war between the United Provinces and
Spain (and Portugal, that country having been annexed by Spain
in 1580) was in full swing. This may on the one hand account
for the lack of provision on the subject in the Company's charter,
the Spanish and Portuguese being the only competitors of the Dutch
in the Archipelago at that time. Between these Powers the right of
the stronger prevailed. As soon as Portugal became independent a
truce was concluded with that country (1641) and consequently
effective possession was taken
e.g. of the Island of Solor, known
to be desired by the Portuguese^quot;). On the other hand Grotius,
who was counsel for the East-India Company, was of opinion, that
heathens and infidels could not be dispossessed of their territories.
This may also serve to explain the absence of provisions in the
charter.

That effective occupation is an essential constituent of a title

23)nbsp;Ibid., p. 231 sqq.

24)nbsp;Ibid., p. 283.

25)nbsp;Lindley, p. 96.

26)nbsp;J. E. Heercs, Corpus Diplomaticum I, p. 246.

-ocr page 98-

to territorial sovereignty was a fact well known in the United
Provinces; this is evidenced by the act, whereby possession was
taken of Saint Helena on April 15, 1633 by Jacques Specx, retired
governor-general of the Dutch East Indies. The notification (Noti-
ficatie op pilaer aengeslagen) states, that quot;possession and dominion
were taken on behalf and in the name of the United Provinces of
the Island of Saint Helena, with all lands, hills, cliffs and islets
appertaining thereto, with a view to its fortification, occupation,
population and protection against any hostile invasion, at the earliest
opportunityquot;. (Op dato 15en Aprillis Ao 1633 hebben den E. Heer
Jacques Specx, oudt Gouvernr Generael, wegen den Staet der Ver-
eenichde Nederlanden in India, t'saempt den Breeden Raedt van
de presente alhier gearriveerde Nederlantse vloote ... de possessie
ende eygendom van dit eylandt, van oudts genaempt St, Helena,
soo als t'zelve jegenwoordich leght, met alle zyne aenlangende
gronden, heuvelen, clippen ende rotsen, voor den Staedt der Ver-
eenichde Provintien aengenomen, omme t'zelve ten besten ende
voordeel van den gemten Nederlandtschen Staet ter eerster gele-
gentheyt te verstercken, besetten, peupleren ende tegen alle jnva-
sien van vyanden te beschermen) '^'''j.

Doctrine Grotius, who, of course, denies the legal character of any Papal
bull says:

Si dicent inventionis praemio eas terras sibi cessisse, nec jus,
nec verum dicunt. Invenire enim non illud est oculis usurpare,
sed apprehendere... ad titulum dominii parandum eam demum
sufficere inventionem quae cum possessione conjuncta est (Mare
Liberum c. 2).
In the same chapter Grotius holds:

Praeterea inventio nihil juris tribuit, nisi in ea quae ante inven-
tionem nullius fuerant. Atqui Indi, cum ad eos Lusitani venerunt,
etsi partim idolatrae, partim Mahumetani erant, gravibusque pec-

27) Ibid., p. 257. This act is remarkable from another point of view also:
it shows, that state practice recognized an inchoate title long before
Vattel referred to it. The island was discovered by the Portuguese in
1502, who, however, had abandoned it. It was again abandoned by the
Dutch in 1651.

-ocr page 99-

catis involuti, nihilominus publice atque privatim rerum posses-
sionumque suarum dominium habuerunt, quod illis sine justa
causa eripi non potuit.. . Imo credere infideles non esse rerum
suarum dominos, haereticum est: et res ab illis possessas illis ob
hoc ipsum eripere furtum est et rapina, non minus quam si idem
fiat Christianis.

Again in his De Jure Belli ac Pacis Grotius denies that a claim
to land inhabited by a native population, based on discovery, is a
just cause of war (II,
Xll, 9 6 10), even though the possessors be
evil men, with wrong notions of God and dull intellects. As regards
this point Grotius is fully in accordance with Franciscus a Victoria,
who in his Relectio de Indis holds the opinion, that discovery could
not give a title to sovereignty. He maintains that no papal bull could
grant such a title and that the American continent, being owned
by the native population, could not be considered as
territorium
nullius.
He consequently had to found the Spanish title on conquest.
But Las Casas even rejected this title, holding, in 1542, that the
conquest of the Indies from the natives was unlawful, tyrannical
and unjust, and Gentilis, in 1588, maintained, that only a war for
commercial purposes could be considered as a
justum bellum: the
Spaniards, however, aimed at the acquisition of territory-«). Another
of Grotius' predecessors is the German jurist Gryphiander to whose
Tractatus de Insulis (1623) Grotius often refers. Goebel relates''quot;),
that to Gryphiander
invenire denotes not merely the sighting of
the land, but sighting and effective occupation (invenire = in
venire, entering upon). This writer uses
inventio in the sense in
which other writers use
occupatio and his lengthy discussion in
c. 21 as to
apprehensio, together with the animus sibi habendi and
the status of the island as
terra nullius being the requisites for the
acquisition of sovereignty, clearly shows, that he has in view
effective occupation.

^quot;quot;elusion It would not be difficult to show, that in the 17th and 18th
centuries the principle of
uti possidetis was in general as strictly

28)nbsp;Lindley. p. 12-13.

29)nbsp;Goebel, p. 117-118.

-ocr page 100-

observed as in the 15th and 16th centuries. It is to be seen from
Article V of the Treaty of Münster and Article X of the Treaty
of Utrecht, both referred to in the present case, that the principle
was applied in those treaties which are generally regarded as the
basis of modern international law. At all events it appears both
from state instruments and doctrine of the period with which the
Arbitrator had to deal, that, under international law, the mere fact
of discovery never conferred a right to territorial sovereignty.

3. Discovery as creative of an inchoate Title.

Thus, the creation of a definite title vested by the mere fact of
discovery does not appear to be supported by international law
as it was understood in the 16th century.

It may, however, for clearness' sake once more be recalled, that
it is not on this ground, that the Arbitrator rejects the United
States claim to the island in dispute. From the Arbitrator's point of
view the Spanish title, if any, would have been lost, because Spain
did not comply with the change in international law, viz. the re-
quirement that occupation must be effective.

Thus the second hypothesis must be considered, viz., that dis-
covery only creates an inchoate title, to be completed by effective
possession within a reasonable period. It has been seen on p. 86,
that state practice made use of inchoate titles as early as 1633; only
a careful examination of earlier acts by which possession was taken
of different regions would provide an answer to the question,
whether this practice can be said to be founded in international law.

SmedaPquot;) demonstrates that the doctrine is especially supported
by Anglo-Saxon jurists, that it has been received more reservedly
on the European continent (France) and that it is rejected in Ger-
many by Heilborn. It is remarkable that this situation corresponds
to the colonizing activity displayed by Great Britain, France and
Germany respectively.

Dudley-Field and Fiore suggest a period of twenty-five years,
Fauchille, on the other hand, one of one year®'). These time limits

30)nbsp;Smedal, p. 48.

31)nbsp;Fauchille, I, ii, 552i.

-ocr page 101-

are wholly arbitrary as has been pointed out above on p. 17; a
general rule can not be laid down. In general the quot;reasonable
periodquot; is accepted, however vague the term may be. Smedal relates
that Great Britain claimed a right to Bouvet Island on the ground
of a rediscovery in 1825, more than one hundred years before®^).
This could hardly be called a reasonable period; at all events the
inchoate title in these circumstances would seem devoid of sense.

In the present case it was admitted, that the Island of Miangas
was discovered in the first quarter of the 16th century; possession
had not yet been taken in 1898. The Arbitrator, however, admits
the possibility, that Spain at that date still had an inchoate title
to the island. If this is to be considered as a reasonable delay, it
might be asked what is an unreasonable delay.

The point is, however, of no practical importance in the present
case, as such inchoate title cannot prevail over a title supported by
effective display of state authority.

B. The Title of Contiguity.

It is said in the Award that the United States 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. As to this point
the Arbitrator states on p. 60, that the title of contiguity, under-
stood as a basis of territorial sovereignty, has no foundation in
international law.

1. Professor Jessup's Criticism.

Professor Jessup, however, denies, that the American title is
based on the principle of contiguity. Before considering whether
and, if so, to what extent international law recognizes a title based
on this principle, the preliminary question must be answered, whether

32) Smedal, p. 49.
1) Award, p. 14.

-ocr page 102-

the United States Government put forward a claim based on such a
principle.

Jessup^) in fact says: The Arbitrator seems to have misappre-
hended the American theory, since he suggests that the United
States definitely based a claim to sovereignty on the principle of
contiguity. On the contrary it is stated in the American Memo-
randum ®):

Perhaps it may be said that definite, comprehensive rules of
international law have not been formulated with regard to the
rights accruing to a nation by reason of the geographical situation
of territory. . . However, attention may be drawn to some prin-
ciples which have been laid down by writers, principles to which
importance has been attached in international transactions.
quot;Indeedquot;, Jessup adds, quot;they were practically estopped from
doing so by the opposing statement of Secretary of State Webster
in 1852, when disputing the Peruvian claim to the Lobos Islandsquot;

The passage left out by Jessup in quoting the United States
Memorandum runs as follows:

Nevertheless, this subject has frequently been discussed by
writers on international law and by arbitral tribunals, and it has
played an important part in international relations. In considering
this subject it is pertinent again to bear in mind the difference
in international practices between the present time and a remote
period two or three centuries in the past. The Philippine Archi-
pelago is a group of islands, and for that reason theories that
have been evolved with regard to islands situated off the main-
land of a nation's territory may not be directly applicable to the
situation under consideration. The Island of Palmas which lies
off the coast of the much larger island of Mindanao is itself one
of the Philippine Group.

The American Agent refers to the quot;principles laid down by
writersquot; and to a number of cases which turned on the geographical
position, the whole taking exactly twenty pages of the United States

2)nbsp;loc. cit. p. 742.

3)nbsp;U.S. Mem. p. 111.

4)nbsp;J. B. Moore. A digest of international law, I, p. 265.

-ocr page 103-

Memorandum. In the conclusions of this Memorandum it is ex-
pressly stated, that quot;Spain possessed title to the island in 1898 as
an island of the Philippine group, and the island as a part of that
group now belongs to the United Statesquot;. It is difficult to see, why
the American Agent should have taken the trouble to quote such
abundant references, if he did not intend to support a claim based
on a principle to which the reference applies.

None the less the American Agent seems not to have intended
to invoke the principle of contiguity. Such is evidenced by his
Report®), where we read:

In support of the views indicated above (the passage on p. Ill
of the United States Memorandum) citation was made to numer-
ous writers on international law and to international precedents.

The Arbitrator does not explain his own conception of what
he calls the quot;notion of contiguityquot; or of the term contiguity on
which he states that the United States founded its claim. He
declares that quot;the title of contiguity, understood as a basis of
territorial sovereignty, has no foundation in international lawquot;.
The statement of the Memorandum of the United States that
quot;perhaps it may be said that definite, comprehensive rules of
international law have not been formulated with regard to the
right accruing to a nation by reason of the geographical situation
of territoryquot; and the reference to international precedents, are
convincingly borne out, it is believed, by the citations of author-
ities and precedents.

It is by no means clear, what the United States Memorandum
really means. As the authorities and precedents quoted all refer
to the principle of contiguity, it is only natural, that the Arbitrator
was of opinion that the United States claim was based on it. It
appears from the Netherlands Counter Memorandum that the Neth-
erlands Government shared this view, but neither the subsequent
United States Further Written Explanations nor the Rejoinder
refer to the subject.

Jessupquot;) explains, that the United States did not go so far as
to appeal to the strict theory of contiguity:

5)nbsp;Report of Fred. K. Nielsen, p. 26—27.

6)nbsp;loc. cit. p. 742.

-ocr page 104-

quot;The American position, for which there seems to be consider-
able authority, was roughly as follows: 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; 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 the other islands in-
cluded Palmas Island. In other words this part of the American
argument is closely bound up with the apt quotation from the
Venezuelan argument in the British Guiana Boundary Arbitra-
tion, which was set forth at length in that part of the Memoran-
dum which deals with discovery and occupation (Am. Mem.
p. 101'—102). The Venezuelan Government there developed
with adequate examples the sound rule that occupation to be
effective need not extend to every nook and corner of the ter-
ritory. It was noted that down well into the nineteenth century
one could have traversed vast areas of American and Canadian
wilderness, seeing no white man and constantly being in danger
of unsubjected savages.

In like manner, the American argument suggested, rather
tentatively indeed, that they obviously could not show specific
acts of Spanish administration in every inch of the Philippines,
but that it was sufficient merely to show the occupation and
control of the unitquot;.

What Jessup forgets, is, that quot;the absence of contrary
evidencequot; is the
conditio sine qua non of his argument and that
on the contrary the Netherlands claim is essentially based on
the continuous and peaceful display of activity over the island.
In this connexion it is interesting to quote three jurisconsults
invoked in the United States Memorandum, p. 112:
Heffter. discussing territorial sovereignty, says:

quot;Finally effective occupation of the main thing will also include
the dependencies
when they are not separately heldquot;.

In the same sense Pradier-Fodere says:

quot;Effective occupation of the main thing necessarily includes
its dependencies
when they are not held by anotherquot;.

-ocr page 105-

Dana, in one of his notes to Wheaton's Elements of Inter-
national Law declares to be quot;appurtenantquot; to the coast of the
mainland, adjacent islands even though they are not formed by
alluvium or increment. He says:

quot;Islands adjacent to the coast of the main land, though not
formed from it by alluvium or increment, are considered as
appurtenant,
unless some other power has obtained title to them
by some of the recognized modes of acquisitionquot;.
(Writer's
italics).

And even the passage quoted from Calvo') seems to operate
against the United States argument rather than in favour of it:

quot;The possession and occupation of the mainland carries with
it that of the adjacent islands, even when no positive act of
ownership has been exercised over them. As regards these islands,
it may be said that if any foreign State tried to colonize them
it would give a just cause of complaint and even of war to the
State to which they are appurtenant, by persisting in an intention
to take possession of them.

The possession of islands situated at a certain distance from
the mainland is acquired in the same ways as that of any other
territoryquot;.

It is obvious that, as regards the Island of Mindanao, at a dis-
tance of 48 seamiles, the Island of Miangas is rather to be described
as quot;at a certain distancequot; than as quot;adjacentquot;, and that consequently,
according to Calvo, it would be impossible to base a title to the
Island of Miangas upon the geographical situation. Only if the
Netherlands Government were unable to prove the effectiveness
of their occupation of the island would any purpose have been served
by the quoting of these writers and the American Agent must be
assumed to have judged that this would be the case. This is in
accordance with Jessup's conclusion quot;): quot;Judge Huber, however, was
dealing with this argument in the light of his conclusion that the
Dutch had proved quot;continuous and peaceful display of state
authority during a long period of time quot;on Palmas Island, and under

7)nbsp;U.S. Mem. p. 114.

8)nbsp;loc. cit. p. 744.

-ocr page 106-

this hypothesis control implied from geographic propinquity un-
doubtedly should not prevailquot;. The essential point therefore turns
out to be not the geographical position, but the effectiveness of the
Netherland's occupation of the Island of Palmas. Thus only does
it seem possible to justify Jessup's reproach when he says that quot;it
seems that the Government of the Netherlands was not willing to
combat the proposition thus stated. Their argument on this point
was rather directed toward destroying the straw man of strict title
based on contiguity and, more pertinently, toward proving that on
the basis of geographical and geological evidence, Palmas could not
be considered part of the Philippines any more than part of the
Nanusa (Dutch) Islands, from which it was only six miles more
distantquot; »).

It is evident, that the Arbitrator, on the one hand, considering
that the Netherlands had exercised state authority over the island
for a long period and on the other hand having before him, not
the interpretation of Professor Jessup, but only the above quoted
passage of the United States Memorandum and the conclusion^quot;):
quot;Spain possessed title to the island in 1898 as an island of the
Philippine group, and the island as a part of that group now belongs
to the United Statesquot;, could not attach much legal weight to this
part of the American contention.

2. The Arbitrator's Opinion.

The following passage of the Award is illustrative of the Arbi-
trator's opinionquot;):

Although States have in certain circumstances maintained that
islands relatively close to their shores belonged to them in virtue
of their geographical situation, it is impossible to show the exist-
ence of a rule of positive international law to the effect that
islands situated outside territorial waters should belong to a State
from the mere fact that its territory forms the
terra firma (nearest
continent or island of considerable size). Not only would it seem

9) ibid. p. 743.

10)nbsp;U.S. Mem. p. 130.

11)nbsp;Award, p. 39.

-ocr page 107-

that there are no precedents sufficiently frequent and sufficiently
precise in their bearing to establish such a rule of international
law, but the alleged principle itself is by its very nature so
uncertain and contested that even Governments of the same State
have on different occasions maintained contradictory opinions as
to its soundness. The principle of contiguity, in regard to islands,
may not be out of place when it is a question of allotting them to
one State rather than another, either by agreement between the
Parties, or by a decision not necessarily based on law; but as
a rule establishing
ipso jure the presumption of sovereignty in
favour of a particular State, this principle would be in conflict
with what has been said as to territorial sovereignty and as to
the necessary relation between the right to exclude other States
from a region and the duty to display therein the activities of a
State. Nor is this principle of contiguity admissible as a legal
method of deciding questions of territorial sovereignty; for it is
wholly lacking in precision and would in its application lead to
arbitrary results. This would be especially true in a case such
as that of the island in question, which is not relatively close to
one single continent, but forms part of a large archipelago in
which strict delimitations between the different parts are not
naturally obviousquot;.

The Arbitrator is thus in agreement with the Netherlands con-
tention

If the contention of the United States Government were to
be understood to be that Spain discovered the Philippine islands,
and that Miangas by its contiguity to the Philippine group was
embraced in this discovery, and that the subsequent effectual
occupation or other lawful means of acquisition of the Philippine
islands naturally extended its legal effect to the island of Mian-
gas. the Netherlands Government maintain that any such con-
tention would be unfounded.

This Government hold that, geographically speaking, Miangas
is to be considered as a link in the chain of islands extending from
northern Celebes through the Sangihe- and Talaud islands to south-

12) Neth. Count. Mem. p. 40.

-ocr page 108-

eastern Mindanao, and that, geographically, there is no sharp divi-
sion between the Philippine islands and the Netherlands Indonesian
archipelago. For this reason it cannot be maintained that the island
quot;constitutes an inseparable satellite, bound to the Philippine islands
and perforce following the evolution of the latterquot;.

According to the United States Memorandum^®) an illustration
of consideration given to geographic situation is found in the Treaty
of Paris of February 9, 1920, by which Spitsbergen was assigned
to Norway. This seems, however, rather to illustrate the extreme
weakness of this part of the American contention. Undoubtedly the
relative proximity to Norway (the island lies about 600 miles away)
was a ground for assigning the island to Norway rather than to
another Power, but Norway acquired a title by treaty and this
example rather tends to prove, that relative proximity in itself has
no legal effect. As to this point the Netherlands Government
statequot;): The decision to assign the territory to Norway was a
matter of political expediency, freely agreed to by the interested
powers

13)nbsp;U.S. Mem. p. 124.

14)nbsp;Neth. Count. Mem. p. 44.

15)nbsp;If geographical contiguity has no legal consequences, it cannot be denied
that is has important political consequences. This is clearly shown by the
case of the
Anna, again wrongly referred to in the United States Memor-
andum, p. 124. The capture of this ship was effected at the mouth of the
river Mississippi, and, as it was contended in the claim, within the bound-
aries of the United States. The question arose as to what was to be deemed
the shore, since there were a number of mud islands composed of earth
and trees carried down by the river. quot;It is contendedquot;. Sir William Scott
laid down in his judgment (1805), quot;that these are not to be considered as
any part of the territory of America, that they are a sort of no man's land ...
It is argued that the line of territory is to be taken only from the Balise,
which is a fort raised on main land by the former Spanish possessors. I am
of a different opinion; I think that the protection of territory is to be reckoned
from these islands: and that they are the natural appendages of the coast
on which they border, and from which indeed they were formed. Their
elements are derived immediately from the territory, and on the principle
of alluvium and increment, on which so much is to be found in the books
of law. Quod vis fluminis de tuo praedio detraxerit, amp; vicino praedio
attulerit, palam tuum remanet, even if it had been carried over to an

-ocr page 109-

It would hardly be necessary to dwell upon the subject, if it were
not for the interesting discussion devoted to it by the Arbitrator.
Having explained that in the exercise of territorial sovereignty there
are necessarily gaps, intermittence in time and discontinuity in space,

adjoining territory. Consider what the consequence would be if lands of
this description were not considered as appendant to the main land, and
as comprized within the bounds of territory. If they do not belong to the
United States of America, any other power might occupy them, they might
be embanked and fortified. What a thorn would this be in the side of
America! It is physically possible at least that they might be so occupied
by European nations, and then the command of the river would be no
longer in America, but in such settlements. The possibility of such a
consequence is enough to expose the fallacy of any arguments that are
addressed to .shew, that these islands are not to be considered as part of

the territory of America.quot;

The political importance of the principle was again recognized by the
German Ambassador in London in 1885, whose note to Earl Granville run
as follows: quot;Although... in the abstract, the whole independent portion
of New Guinea formed in principle quite as justifiable an object of German
as of English undertakings, the Imperial Government desired nevertheless
to recognize as justified the wish of the Australians that no foreign Power
should settle on the south coast of New Guinea in the region of the Torres
Straits opposite Queenslandquot; (76 S.P. 790). The same appears in the
Franco-British Agreement of April 8. 1904, in which it was said, that quot;it
(Morocco) appertains to France, more particularly as a Power whose
dominions are conterminous for a great distance with those of Morocco, to
preserve order in that country, and to provide assistance for the purpose of
all administrative, economic, financial and military reforms which it may
requirequot;. In the same arrangement the interests of Spain arising from quot;her
geographical positionquot; were recognized (101 S.P. 1053). In the same year
Great Britain ceded to France the islands of Los. opposite Kanakry; both the
Marquess of Lansdowne and Mr. Delcassé agreed, that the geographical
situation of these islands bound them closely up with French Guiana and that
their possession by another Power would constitute a serious menace to that
colony (Fauchille. I. ii, 552«). And in explaining the Anglo-Iapanese
treaty of 1905 by which certain Japanese rights in Corea were recognized,
the British Foreign Minister said: quot;It has become evident, that Corea,
owing to its close proximity to the Japanese Empire and its inabdity to
stand alone, must fall under the control and tutelage of Japanquot; (Lindley,
op cit p 218). And the United States recognized the political consequen-
ces arising from Japans proximity to the Chinese Empire in the Notes
exchanged with Japan on November 2. 1917. quot;The Governments of the

7

-ocr page 110-

the learned Judge continues^®): quot;This phenomenon will be parti-
cularly noticeable in the case of colonial territories, partly unin-
habited or as yet partly unsubdued. The fact that a State cannot
prove display of sovereignty as regards such a portion of territory
cannot forthwith be interpreted as showing that sovereignty is
inexistent. Each case must be appreciated in accordance with the
particular circumstancesquot;.

This statement seems, prima [acie, at variance with the principles
laid down in the doctrinal section of the Award, for here the
Arbitrator admits the existence of sovereignty as a right only. It
only proves, however, that these principles have, and can only
have, a relative validity, as has been pointed out above, p. 47—49.

In this connection the following passage is illustrative of the
extreme scrupulousness displayed by the Arbitratorquot;):

quot;As regards groups of islands, it is possible that a group may
under certain circumstances be regarded as in law a unit and that
the fate of the principal part may involve the rest. Here, however,
we must distinguish between, on the one hand, the act of first taking

United States and Japanquot;, is is stated, quot;recognize that territorial propin-
quity creates special relations between countries, and consequently the
Government of the United States recognize that Japan has special inter-
ests in China, particularly in that part to which her possessions arc
contiguousquot;. quot;Territorial propinquityquot;, by Quincy Wright in A. J. XII,
p. 519. And only recently the Japanese invasion of Jehol was explained on
the ground of the contiguity of this province to the Manshukwo Republic.
But nowhere is the delimitation between claims based on political or
economic grounds and those based on legal grounds more distinctly
drawn than by Baron Lambermont in his arbitral award of August 17,
1889 (R.D.I. XXII, p. 353): „Si des considérations basées sur l'intérêt
économique et administratif ou sur des convenances politiques peuvent
mettre en lumière les avantages ou les inconvénients qu'offrirait une
solution conforme aux vues de l'une ou de l'autre des parties, de telles
raisons ne tiennent pas lieu d'un mode d'acquisition reconnu par le droit
international... Nous sommes d'avis que ni la dépendance géographique,
ni la dépendance commerciale, ni l'intérêt politique proprement dit ne
mettent aucune des parties en position de réclamer, à titre de droit, la
cession des douanes et de l'administration de l'île de Lamuquot;.

16)nbsp;Award, p. 40.

17)nbsp;ibid., p. 40.

-ocr page 111-

possession, which can hardly extend to every portion of territory,
and, on the other hand, the display of sovereignty as a continuous
and prolonged manifestation which must make itself felt through
the whole territoryquot;.

This is obviously an answer to the reference in the United States
Memorandum, p. 113, where Lawrence
is quoted^®):

quot;The whole of an island, unless it be very large, and even a group
of very small islands, may be acquired by one act of annexation and
one settlement. Thus, in 1885, Great Britain and Germany took
possession of the Louisiade Archipelago and the Marshall Islands,
respectively. Both groups are situated off the eastern end of New
Guinea, and were taken in consequence of the acquisitions made on
that island. In each case one formal act of annexation was held
sufficient for the entire groupquot;.

It appears that the Arbitrator has fully dealt with every separate
argument of the litigating Powers. This reference, however, does
not apply, because the Island of Miangas is quot;a somewhat isolated
island, and therefore a territory clearly delimited and individualised.
It is moreover an island permanently inhabited, occupied by a
population sufficiently numerous for it to be impossible that acts
of administration could be lacking for very long periodsquot; i»).

In rejecting a claim based on the geographical position. Judge
Huber thus seems in accordance with Mr. Fish's contention in the
Navassa case, that the utmost to which the argument amounts quot;is a
claim to a constructive possession, or rather to a right of possession:
but in contemplation of international law such a claim to a right of
possession is not enough to establish the right of a nation to exclusive
territorial sovereignty, which, according to Mr. Webster in the
Lobos Islands case, must be supported by quot;unequivocal acts of
absolute sovereignty and ownershipquot; quot; and with Quincy Wright's
conclusion, quot;that territorial propinquity has furnished a legal
justification for the acquisition of territorial sovereignty, but only
in regions unoccupied or occupied only by savages

18)nbsp;U.S. Mem. p. 113.

19)nbsp;Award, p. 40.

20)nbsp;Quincy Wright in A. J. XII, p. 519 sqq.

-ocr page 112-

CHAPTER III.
THE NETHERLANDS TITLE.

A. Extinction of a previous Spanish Title.

Whereas the United States title to the Island of Miangas is
essentially based on a right arising out of discovery and confirmed
by treaty, the Netherlands title is essentially based on continuous
and peaceful display of state activities during a long period. The
Netherlands Government maintain, in fact, that the Netherlands
have had a valid title to the Island of Miangas from the beginning
of the eighteenth century, if not before, and that they developed,
strengthened and completed their title in the following centuries,
especially in the latter part of the nineteenth century; and that
when the Treaty of Paris was concluded (1898), the island formed
part of the Netherlands territory.

The Netherlands Government submit'), that quot;while the main-
tenance of sovereignty, on account of the variety of special relations
existing internally in the territory of a colonial power, docs not
in all circumstances require the permanent presence of its officials
in every part or island of its territory, the belonging of Miangas
to native states under Netherlandsquot; sway, the successive acts of
paramountcy, conventions with native principalities, acts of admin-
istration etc. of the Netherlands, begun in a period when neither
Spain nor any other power exercised sovereignty over that region,
and continued afterwards and until 1898 without any protestation
by any foreign Government, converged in validly establishing
Netherlands sovereigntyquot;.

It has been pointed out above, p. 69, that the Netherlands con-
tend, that it is a well established principle of international law that
discovery alone does not confer a full tide to territorial jurisdiction
or sovereignty''), and that the United States hold the contrary

1)nbsp;Neth. Mem. p. 21.

2)nbsp;Neth. Count. Mem. p. 14.

-ocr page 113-

view. The Netherlands Government, fully aware of the contro-
versy as to this point, consequently took up two different positions
to support their claim, one of them being based on their own
assertion, the other being only an alternative argument, in case
the Arbitrator should hold that the discovery of the island by
Spain was established and share the American view as to the con-
sequences of that fact®).

1. Abandonment.

The latter argument being closely connected with that of the
United States, may be considered first. Attention may be drawn
to the conclusion of the Netherlands Memorandumquot;'):

Even if it were found that in former times another power had
exerted some kind of authority over the island, any title based
thereon has lapsed by the unchallenged action of the Nether-
lands in later years. The Netherlands therefore also base their
rights on the principle of prescription, having exercised their
authority over Miangas (Palmas) for a long series of years
without any protest or interference.

Whereas this conclusion expressly refers to the principle of

3)nbsp;quot;The weakness of the Netherlands Governments case is evidenced not
alone by the variety of its claims, but by their conflicting nature - the
U.S. Count. Mem. states on p. 84. quot;Sovereignty is fundamentally claimed
on the basis of contracts made by a trading company with native chiefs.
A title claimed by virtue of such contracts would seem to imply con-
tentions with respect to an original title, because it would scarcely be
contended that savage chiefs could dispose of the sovereign rights pos-
sessed by a member of the family of nations. Sovereignty is claimed on
the basis of a contention that Spain abandoned the Island of Palmas
which was subsequently occupied by the Dutch. A contention of this
kind of course negatives any assertion of an original title and concedes
a prior title .n Spain. Sovereignty is claimed on the basis of prescription.
A contention of this kind is of course also at variance with the claim
of an original title and admits the existence of a prior title .

But this reproach is unjustifiable. It is common in international con-
troversies for one Party to put forward different constructions of its
claim to meet any possible construction of the other Party. The recent
Greenland case is a clear illustration of this truth.

4)nbsp;Neth. Mem. p. 22.

-ocr page 114-

prescription, it would seem that the Counter Memorandum has
abandoned this position and invokes the abandonment by the
Spaniards of their title. The conclusion runs as follows®):nbsp;,

While the Netherland Government consider that the United
States Government did not submit any evidence of having ever
had as much as an inchoate title to Miangas, they are of opinion
that, even if Spain had any title, the facts and considerations
submitted by the Netherland Government in their first memoran-
dum, amphfied in the present memorandum, show that such
title, if it ever existed, has been lost.

That the Netherlands Government here adduce an original title,
vested in the Netherlands after the abandonment of the island by the
Spaniards, is proved by the following passage of this documentquot;):
Whatever title Spain may have had before 1660, she must have
lost it between 1660 and 1670, during the governorship of Don
Manrique de Lara (1653—1663) and of Don Diego Salcedo
(1663—1668). When, in 1662, Chinese invaders from Formosa
threatened Luzon itself and the very capital Manila, the
Governor-Captain (Governor-General) took the measure,
disastrous for a Spanish title to Miangas, if such a title existed,
of recalling the Spanish troops from their isolated station at
Ternate (in the Moluccas), from the Western part of Mindanao,
and from all the southern Philippine Islands. The whole of Ter-
nate theu passed under the authority of the Dutch, who remained
there as sole occupants.

The action to which the Netherlands Government refers, was
taken in consequence of the attack on the Philippines and especially
on its capital Luzon, planned by the famous adventurer Kue Sing,
son of a Chinese fisherman and a Japanese mother, known in
Netherlands colonial history as Koxinga, whose father, having
taken advantage of the revolutionary troubles afflicting China as
a consequence of the Manshu invasion in 1644, had gathered great
wealth. Being expelled from the southern part of China, where he
held an independent position, the son conquered the Dutch pos-

5)nbsp;Neth. Count. Mem. p. 46.

6)nbsp;Neth. Mem. p. 10.

-ocr page 115-

sessions on Formosa and having strengthened his position, made
up his mind to conquer the Philippine Archipelago. Being aware
of Koxinga's intentions the Spanish Governor concentrated all
available soldiers to defend the capital and even those in the Mo-
luccas were withdrawn from the fortifications.

On the other hand, in a letter from the Provincial Prelacy of
the Franciscan Order of Minors of the Province of St. Gregory
the Great of the Philippines reproduced by the United States, the
withdrawal from the Moluccas is said to have taken place in 1666
Don Francisco Atienza Ibafiez. Captain General of the Royal
Armada, on dismantling in 1666 all the fortified places of the
Molucas Islands, made before the Dutch Governor of Malayo
with free and full authority which he had for that purpose, the
required and necessary legal protest in order that the Dutch
should not occupy them nor would he consent that others should
do so: for although armed force was withdrawn the King our
Master retained personal dominion, lordship, authority and
ownership which, as legitimate lord and master he held in all
the places, forts and fortifications in that territory before the
above-mentioned withdrawal.

Again in a report of the Dutch Resident of Menado ) it is
stated, that in 1677 the Spaniards were driven from the Sangi
Islands by the Dutch East India Company: the statement in the
United States Agent's Report on p. 29 that Spain was obliged to
Withdraw from the Moluccas for the defence of Manila in 1648,

is obviously wrong.nbsp;...

The Power who appeals to abandonment is, however, m a diffi-
cult position, because it must prove not only actual relinquishment
of sovereignty by the other party, but also the intention to abandon
it. In the well known cases
relating to abandonment in international
law, the superseded party has always denied that he has departed
^ine 5pe
redeandi. This was the argument of the English in the
Santa Lucia case and in the case of the Falkland Islands: and of
the Spanish in the case of British Honduras. And in the Anglo-

7)nbsp;F. Wr. Expl. p. 66.

8)nbsp;Neth. Expl. p. 54.

-ocr page 116-

French case concerning the Egyptian Soudan, France claimed,
that the Fashoda district had become
tes nullius. having been
abandoned by the Egyptian Government, and was consequently
open to occupation by Major Marchand; but the English Govern-
ment contended that the British title had merely been rendered
dormant by the military successes of the Mahdi. Strictly speaking
the intention to abandon can only appear from either a unilateral
act or treaty, by which the region in question is ceded.

According to the Arbitrator, the question of abandonment does
not applyquot;):

As it is not proved that Spain, at the beginning of 1648 or in
June 1714, was in possession of the Island of Palmas (or Mian-
gas), there is no proof that Spain acquired by the Treaty of
Münster or the Treaty of Utrecht a title to sovereignty over
the island which, in accordance with the said Treaties, and as
long as they hold good, could have been modified by the Nether-
lands only in agreement with Spain.

It is, therefore, unnecessary to consider whether subsequently
Spain by any express or conclusive action, abandoned the right,
which the said treaties may have conferred upon her in regard
to Palmas (or Miangas).

Again, if at any time the mere fact of discovery conferred terri-
torial sovereignty, such a title cannot, according to the Arbitrator,
at the present time suffice to prove sovereignty over the Island of
Palmas (or Miangas)

... in so far as there is no sovereignty, the question of an
abandonment properly speaking of sovereignty by one State
in order thrft the sovereignty of another may take its place does
not arise.

2. Prescription.

It has been pointed out above on p. 14, that the Arbitrator
partly bases his decision on the title of prescription, invoked in the
Netherlands Memorandum and apparently abandoned in the
Counter Memorandum of this Government. In fact the title of

9) Award, p. 32.

10) Ibid. p. 27.

-ocr page 117-

prescription is no less a matter of controversy in international law
than that of discovery. The main argument of those jurisconsults
who deny the existence (not the desirability) of this institution in
international law is the impossibility of fixing a period during which
adverse holding should have to confer a title A distinction must,
however, be made between an appeal to prescription and an appeal
to the
immemorabilis or vetustas, which are different institutions.
quot;The frontiers of the States are based in the first placequot;, Fauchille
states quot;on an immemorial and uncontested possession. The fact
that a State has, for a long time and without any protest having
been lodged, exercised sovereign power over a territory as far as
certain limits, suffices to establish the boundaries of that territory.
In this case there is something like a tacit agreement between the
States.quot; quot;The importance of the
immemorabilis, of the vetustasquot;,
Cavaglieri adds quot;is naturally very great in a system of relations
where the accomplished fact has the value of a juridical title and
the violence of war is the source of the rights of sovereignty of
most Statesquot;. The appeal to continuous and peaceful display of
sovereignty, as made by the Netherlands Government relates rather
to the notion of
immemorabilis or vetustas than to that of prescription
which seems inseparable from the idea of a fixed period of time:
recourse to the
immemorabilis is had quot;to create a presumption of
legality in favour of a possession which has lasted so long that the
constitutive legal title can no longer be found or that it is no longer
known whether such a title ever existed or whether, if it did, it
was legalquot;quot;).

11)nbsp;To the like effect: Strupp. Grundzuge. 1932. p. 169, with an appeal to
G. Jellinek's Normative Kraft des Faktischen.

12)nbsp;Fauchille, I. ii, 100.

13)nbsp;Cavaglieri. loc. cit. p. 387.

14)nbsp;Ibid. p. 406. It was laid down in the Meerauge Arbitration that: Im-
memorial possession is possession which has continued for so long that
it is impossible to produce proof of a different situation and no person
can remember having heard such a situation spoken of. Such possession
should in addition be uninterrupted and uncontested. It goes without
saying, that such possession should also have continued up to the
moment when the dispute arose and a
compromis was concluded. (Rev.

D. I. VIII, 207).

-ocr page 118-

The Netherlands title based on prescription is contested at length
in the United States Counter Memorandum^®). quot;Obviously, if the
Netherlands Government assert a title grounded on prescription,
the burden of proof rests upon them to prove the existence of a rule
or principle in international law by which title by prescription is
recognized, and further to prove by competent evidence the perform-
ance of such acts by the Netherland Government as may be
prescribed by any such rule or principle for the establishment by a
nation of title to territory by prescriptionquot;. After having cited
numerous lawwriters who deny the existence of such a principle, the
United States Government continues ):

It does not seem to be necessary to argue that a title by
prescription grounded on possession, open, notorious, continuous,
uninterrupted and known to Spain cannot be substantiated by
the Netherland Government in the light of the acts upon which
they predicate their claim to sovereignty.

That these acts are deemed by the United States Government
insufficient to establish an effective occupation, has been pointed
out above and in any case they do not, according to this Govern-
ment, fulfil quot;the legal requirement of convincing evidence of the
highest character to establish acts to dispossess a prior sovereignquot;.

Two remarks may be made in connection with this question. In
the first place: it may be recalled that the United States Govern-
ment, denying the existence of a principle of prescription in inter-
national law in the Miangas Arbitration, took up a contrary position
in the controversy with Great-Britain relating to the Alaskan
frontier (Arbitral Award of October 20, 1903) and in that with
Mexico concerning the territory of El Chamizal, decided on June
15, 1911, In discussing the United States title based on the geo-
graphical position, professor Jessup admits that the United States
were estopped from invoking this principle by their attitude in the
case of the Exjbos Islands; with as much right it could be said,
that this Government in the present controversy, were estopped from
denying the existence of the principle of prescription.

15)nbsp;U.S. Count. Mem. p. 84.

16)nbsp;Ibid. p. 96.

-ocr page 119-

In the second place: this principle, according to most of the law-
writers who recognize its existence, is essential to the stability of
the international order. Byt what is really essential here is, that a
situation that has existed for a long time, should have a legal basis.
This was recognized as a quot;well-established principle of international
lawquot; in the Grisbâdarna case by the Permanent Court of Arbitration
in 1909. This principle was again recognized in the Meerauge Arbi-
tration between Austria and Hungary (Award 1903) and in the
Award of the King of Italy of June 6, 1904 in the controversy
between Brasil and Great-Britain. In most of the cases which are
alleged to prove the recognition of prescription in international law,
it was a situation existing from time immemorial which was recognized
as legally valid. Only the case of the Venezuela British Guiana
Boundary Arbitration can be said to refer to prescription, because
a period of fifty years was fixed in advance. The principle was
expressly rejected in the dispute between Honduras and Nicaragua
(Compromis, and Arbitral Award by the King of Spain of December
23, 1906: de Martens II. XXXV, p. 569.)

Under these circumstances it would seem that an appeal to
prescription in international law must be rejected, but that an appeal
to the
immemorabilis or vetustas must be recognized.

B. An original Netherlands Title (Display of state activity.)

The Netherlands title based on continuous and peaceful display
of state activity is a very complicated one and cannot be understood
without a short historical introduction.

1. Historical Introduction.

On their arrival in the East Indian Archipelago in 1596 the Dutch
navigators did not find one barbarous or semi-barbarous population,
but a great number of different peoples some of which had reached
a high degree of civilisation. In the beginning of our era the archi-
pelago was colonized by the Hindus, who settled on the coasts of
the innumerable islands and mixed with the original population. In
the course of the seventh century one of these Hindu-Indian states.
Criwidjaja, lying on that part of the Island of Sumatra nowadays

-ocr page 120-

known as the Residency of Palembang, developed into a powerful
kingdom. Even before 692 the state of Malayu, at present Djambi,
was reduced to the position of a vassal state of ^riwidjajathe
latter state gradually developing not only into a political, but also
a scientific centre and extending its influence about the middle of
the eigth century even to Java^®). Here again different kingdoms
arose: in the latter part of the ninth century the town of Jawa,
capital of a Javanese kingdom, exercised suzerainty over twenty
eight smaller neighbouring kingdoms^quot;). In the eastern part of the
island a powerful kingdom, the Kediri Kingdom, arose about the
end of the tenth century under the Igana dynasty, which subdued
the Island of Bali and even attacked, though without success, the
Kingdom of Qlriwidjaja. The last of the Singosari kings who suc-
ceeded to the Igana kings, Kartanegara, was, however, more
successful in this respect and the (^riwidjaja Kingdom, pressed
from the north by the rising Khmer state, had to cede in 1275 the
principality of Malayu, which became a vassal state of Java. About
the same time Kublai Khan tried to establish his suzerainty over
the archipelago but after a long struggle the Chinese were ousted
and under King Hayam Wuruk (1350—1389) the whole archipel-
ago, except, the northern part of Celebes, but including the Malayan
peninsula was brought under the suzerainty of the Javanese King-
dom of Madjapahit which, however, amounted to the recogni-
tion by the subdued princes of Javanese supremacy, the payment
of tribute and the exclusion of foreign influences

At the end of the fourteenth century the town of Malaka on the
Malayan peninsula develops into an important commercial centre,
and from this point the Mahometan faith spreads over the sea-
port towns of the whole archipelago. Political, economic and
religious controversies afflicted this part of the world when in

17)nbsp;N. J. Krom, Hindoe-Javaansche Geschiedenis, p. 113.

18)nbsp;N. J. Krom, in Neerlands Indië, p. 264.

19)nbsp;N. J. Krom, Hindoe-Javaansche Geschiedenis, p. 167.

20)nbsp;F. W. Stapel, Geschiedenis van Nederlandsch-Indië, p. 18.

21)nbsp;J. C. van Eerde, De Madjapahitsche Onderhoorigheden, in Tijdschrift
van het Aardrijkskundig Genootschap, 1911, p. 219.

22)nbsp;N. J. Krom, in Neerlands Indië, p. 269.

-ocr page 121-

1509 the Portuguese under Diego Lopez de Sequeira appeared in
Sumatra. In 1511 the Portuguese vice-roy of Goa, d'Albuquerque,
attacked the town of Malaka, which was taken and fortified and
remained the centre of Portuguese activity for one hundred and
thirty years'^''). From here commercial relations were established
with Hitoe, Batjan, Ternate and Tidore; taking advantage of the
endless differences between the native kings the Portuguese, by
concluding contracts of alliance and friendship with one party or
another, established a footing in the Moluccas; in 1522 the King
of Ternate even induced the Portuguese to build a fortress on his
island to protect him against his enemies; in return they were given
a monopoly of the trade in spices.

In 1521 the Spaniards under Magellan made their appearance in
the Archipelago and as both parties contended that the Moluccas
lay in the part of the world assigned to them by the bull
Inter
Caetera,
fierce competition arose, which was nominally settled in
1529, but in fact lasted till 1546. The relations between the
Portuguese and the native princes, which had been very cordial up
to this time (the dying King of Ternate even left, in 1545, his king-
dom to the King of Portugal, and his successor. Sultan Hairoen, in
the same year was installed as a vassal of His Most Faithful
Majesty), became less friendly. In 1574 the Portuguese were even
driven from the island of Ternate and the fortress was destroyed.
Whereas the Lusitanian kingdom waned and in 1580 was even
annexed by the Spanish Crown, the English power arose and began
to make itself felt in this part of the world also. Frances Drake in
1579 and 1580 visited the Philippines, the Moluccas and Java,
Thomas Cavendish followed in 1588 and James Lancaster in 1592.
In 1605 they were the chief competitors of the Dutch on the Island
of Banda, concluding commercial treaties with the Orangcays, who,
by former contracts with the Dutch, had conceded them the mono-
poly of the spicetrade

In fact the possession of the spice islands and the consequent
monopoly of the trade were the principal aim of the competing

23)nbsp;J. E. Heeres. in Neerlands Indie, p. 277.

24)nbsp;Ibid. p. 297.

-ocr page 122-

powers. In the course of the sixteenth century the Dutch had
gradually acquired the carryingtrade of Europe. The spices brought
from the Indies by the Portuguese were taken to all parts of the
continent; soon after the annexation in 1580 the Portuguese har-
bours, however, were closed to the Dutch, who since 1568 had
been at war with Spain. As a consequence of this measure the
Dutch had to discover the route to the Indies for themselves; a
trading company was erected in 1594, the quot;Compagnie van Verrequot;,
which dispatched four vessels under the command of Pieter Keyser
and Cornells de Houtman who arrived at Bantam in West Java
on June 23, 1596. After presenting their letters-patent, in which
Prince Maurice of Nassau offered a treaty of friendship, a contract
for commercial purposes was concluded on July 1 having visited
Bali the Dutch vessels returned to Holland, where as a consequence
of this expedition a number of commercial companies were formed.
Between 1595 and 1602 no less than 14 expeditions were made;
in the latter year these companies were united in the East-India
Company. From Bantam, the principial office in the archipelago,
relations were established with Borneo, Soembawa and other islands;
collisions with the Portuguese could not be avoided. Their fortress
on Lei Timor was taken and a treaty of alliance was concluded
with the Hitu princes, the enemies of the Portuguese, in February
1605. In May of the same year the Portuguese fortress on Tidore
was taken, which, not being occupied by the Dutch, was taken in
the next year by the Spaniards from the
Philippines; the Ter-
natese who had assisted the Dutch in the previous year, were
forced to recognize the Spanish King as their suzerain. In 1607
again, a fortress was erected on Ternate by the Dutch, who were
recognized by the native prince as his protectors. A contract was
concluded on May 26='«), in which the inhabitants of Sarangani
and Mindanao are mentioned as subjects of the Crown of Ternate.

In 1609 the Island of Batjan was conquered. In the same year
a fleet was despatched to the Isles of Banda under Pieter Verhoeff,
who was instructed to acquire the spice islands for the Company.

25)nbsp;J. E. Heeres, Corpus Diplomaticum I, p. 3.

26)nbsp;Ibid. p. 61.

-ocr page 123-

Ill

quot;either by treaty or by forcequot;. Knowing that a truce between Spain
and the Dutch Republic would most probably be concluded with
the provision that neither party should be allowed to navigate to
those territories which were either in the possession of or con-
nected by treaty with the other party the Company instructed
its officials quot;to conclude contracts of friendship, alliance and con-
ditions of commerce and traffic with the Indian Kings and Princesquot;.
But Verhoeff in fulfilling this task was treacherously killed; the
Bandanese were severely punished and a contract was concluded
on August 10, 1609, in which the monopoly of the Company was
recognized and the sovereignty over Banda Neira was ceded. The
political character of this contract is incontestable.

2. The political Contracts.

Two conclusions may be drawn from this brief survey: The con-
clusion of treaties with native chiefs was by no means an innovation
introduced by the Dutch in this part of the world; it had been the
general practice of the Portuguese and the Spanish in former times;
it was done by the English in the same period. Nor did these
treaties, in so far as they were not merely commercial in character,
but were real political agreements establishing the relation of
sovereign and vassal, constitute an innovation, since such relations
were as old as the history of the Archipelago. Even up to the
present time traces of such relations of public law are left in the
form of apanage or official landed propertyquot;quot;).

The treaties concluded by the Company at the beginning of
its existence with the native princes were without doubt treaties
between equals'^): offensive and defensive alliances were made,
because the Portuguese and the Spanish were common enemies;
both parties were at liberty to exercise their religion without
hindrance •quot;quot;'): nearly always a provision was made that run away
slaves were to be exchanged by both partiesquot;), and the Com-

27)nbsp;Ibid. p. 66.

28)nbsp;On the conception of suzerainty, see infra p. 118.

29)nbsp;Cf. Encyclopaedic van Nederlandsch-Indic s.v, Contractcn. p. 526.

30)nbsp;]. E. Hecres. Corpus Diplomaticum I and II, passim.

31)nbsp;Ibid, passim.

-ocr page 124-

/

pany was granted a place to build a depository for merchandise or
ammunition, the native prince stipulated customs advantages or
some other equivalent.

Only when the treaty provisions were repeatedly violated or
when required by commercial interests was possession taken as a
result of conquest (Jacatra in 1619, and Banda in 1621)^) or
territory ceded as compensation for the expenses of a war, engaged
by the Company at the request of some Prince or Sultan, who as
a consequence of endless family entanglements was in danger of
losing his crown. This happened in the case of the Sultan of Ma-
taram in 1675 and in that of the Sultan of Bantam in 1682. In
these cases tracts of land or places on the coast were acquired,
which made possible a stricter maintenance of the monopoly; the
native nobility, although officers of the Company, were left to
themselves. The shortsighted authorities, not understanding that
a prosperous population served commercial interests better than an
exhausted population, was guided by the principle that a poor
population was easier to govern and disapproved of the use of ships
of the Company in 1675 for the supply of rice to Batavia where
famine was imminent: the ships were to be used for the traffic of
the Company and not quot;for the feeding of the population with whom
we are not concernedquot; This quot;policy of non-interferencequot; was
not only followed in the 17th and 18th centuries; even in 1861 the
colonial secretary wrote: quot;I consider every extension of authority
as a step towards our ruinquot; and in 1872 this official declared that
increase of territory was quot;neither our wish nor aimquot;®^).

In the 19th century direct authority was exercised only in the
Isle of Java and at some places on the coast of Sumatra: by a
resolution passed at the Hague in 1833 non-interference was pre-
scribed to the officials quot;under penalty of losing their positionsquot;
and in 1846 the Netherlands representative in the Lampongs district
was charged quot;even in case of rebellion or troubles carefully to
refrain from menaces which might necessitate extraordinary meas-

32)nbsp;E. B. Kielstra, De vestiging van het Nederlandsche Gezag in den Indi-
schen Archipel, p. 91.

33)nbsp;Ibid. p. 12.

34)nbsp;Ibid. p. 41.

-ocr page 125-

ures or measures the non-execution of which would diminish the
Government's authorityquot;. The Resident of Timor on an official
journey in 1881 was even made prisoner and had to be ransomed;
ihe criminals, however, were not punished^®).

Van Asbeck points out®quot;), that the relation between the East-
Indian Government and the native princes about the middle of the
19th century is characterized by

1.nbsp;The recognition of Dutch paramountcy, the princes under-
taking to maintain relations with no foreign Power except
the Netherlands,

2.nbsp;The procuring of certain advantages in order to prevent other
powers from settling in the territory,

3.nbsp;The liberty of the princes to watch their own interests.

Not until the very end of the 19th century and the beginning
of the 20th century, did the Dutch East-Indian Government exert
a powerful influence in all the parts of the Archipelago. Not until
the 20th century was the Netherlands colonial empire deliberately
built up: from that time onwards under the Netherlands authority,
firmly based on the Indian constitutional law, the different parts
of this mosaic of political forms: directly and indirectly governed
regions, regions under a strong western influence or hardly any
such influence at all, regions with representative systems,
monarchies, priest-governments, republics, etc.) began to develop
into a unit quot;). Most of the native princes are nowadays linked to the
Dutch East-Indian Government by the so-called quot;Short Declara-
tionquot;, in which the prince

1.nbsp;states that his country forms part of the Dutch East Indies
and consequently is under Netherlands authority.

2.nbsp;promises, not to establish relations with foreign Powers.

35)nbsp;F. M. van Asbeck. Onderzock naar den )uridischen wercldbouw, p. 41.

36)nbsp;Id. pag. 46.

37)nbsp;F. M. van Asbcck. Samenhang van internationaal en koloniaal recht.
p. 31. Very instructive on this point are Th. H. M. Loze, De Indlschc
Zelfbesturcnde Landschappen in het nicuwe staatsbestel. p. 62 sqq. and
B. Schrleke. The effect of Western Influence on native Civilisations in
the Malay Archipelago, p. 195-203.

-ocr page 126-

3. promises, to discharge all regulations and orders, issued by
the Government in regard to the territory.

Under these circumstances these self governing territories can no
longer be looked upon as foreign territory. That description was
right and in accordance with circumstances in the time of the Dutch
East-India Company; it still had some shadow of truth in the 19th
century, when formally the native princes were treated like any
other foreign prince, when a formal declaration of war was sent
to Bali in 1848, when an ultimatum was sent to Lombok in 1894,
when the Netherlands Government did not consider their sovereignty
infringed by foreign expeditions sent to punish the Atchin Prince
for piracy (the United States expedition in 1831 and the British
expedition in 1844) But even up to the present day the fiction
of a contract is maintained by the Constitutional Law of 1925®®).

In order rightly to understand the political contracts filed by the
Netherlands Government in the present case, those instruments
must be considered within this historical setting. The East-India
Company, in the beginning a trading company only and endeav-
ouring to establish a trading monopoly, which could only be
realised by the cooperation of the native princes, established offices
and fortresses and concluded contracts wherever it had commercial
interests, in the Archipelago, in China and Japan, on the Coro-
mandel and Malabar coasts, in Ceylon and in Persia, at the Cape
and in Madagascar. In the period between 1596 and 1675 at least
369 treaties were concluded. These interests being spread over half
the globe and requiring on the one hand an ever increasing number
of officials and on the other an ever increasing control over its
allies by reason of the keen competition of, first, the Portuguese,
Spanish and English, and later, the French, Danish and Swedish,
an increasing exercise of authority was bound to follow. Nowhere
is this more clearly illustrated than in the Moluccas. In 1607, when
a treaty was concluded between the Company and the King of
Ternate, this king was the overlord of the Sangi princes, the island

38)nbsp;Van Asbeck, Onderzock, etc. p. 50.

39)nbsp;Article 34 par. 1. The Governor General concludes treaties with Indian
Princes and Peoples.

-ocr page 127-

of Miangas belonging to one of them. In 1677 the relations between
these princes and their overlord were broken and a direct relation
was established between the Princes of Taboekan and Taroena
and the Company, by means of a contract between these princes
and the Dutch Governor of Ternate, Robertus Padtbrugge, by
which the prince received the principality as a fief of the Company.
From Article 13 of this contract, filed as Appendix G in the
Netherlands Memorandum, it appears that at least some direct
relation with the Company had existed since 1670. In 1681, Padt-
brugge suppressed an insurrectionary movement in the Sangi
Islands; in 1697 new treaties with Taboekan and Taroena were
concluded. Direct influence was again exerted by the Company in
1701, when a difference between these princes was settled by
commissioners of the Company, who also issued prescriptions to
stop quot;the extremely harsh and cruel treatment inflicted by the
nativesquot; on those who committed the crimes of murder and man-
slaughter*quot;) (de noyt gehoorde onmenschelyke corminele justitie
over ecnen
geperpetreerden dootslag die in dit gewest (God betert)
dagelyx vry in swang gaet); the contracts of 1720 and 1758 (Ap-
pendices P and Q) are much like the previous ones; being concluded
with the new kings after the previous king's death, they strikingly
emphasize the personal relation between the kings and the Com-
pany. On the other hand they show a gradually increasing influence
on the part of the Company's Governors. After the liquidation of
the Company contracts were concluded with the State of the
Netherlands in 1828, 1885 and 1899 (Appendices V. W and Y),
more in accordance with modern ideas, but all based on the fun-
damental conception of the Netherlands as the paramount power
and the native state as vassal.

According to the Special Agreement of 1925 the High Con-
tracting Powers desire quot;to terminate in accordance with the prin-
ciples of international law and any applicable treaty provisionsquot;
the differences with respect to the Island of Miangas. The Nether-
lands Government contend that the treaties with these native

■W) Neth. Mem. p. 13.

-ocr page 128-

princes must be taken into account; the United States, on the other
hand, considers them as irrelevant from the point of view of inter-
national lawquot;^). In fact the United States Counter Memorandum

41) This was already a matter of controversy between the High Contracting
Parties before the conclusion of the Special Agreement of January 23,
1925.

In the draft of an agreement, submitted by the Note of July 25, 1921,
from the Secretary of State to the Netherlands Legation at Washington
it was said, that the Parties desire quot;to terminate in accordance with the
principles of international law and any applicable treaty provisionsquot;
the differences with respect to the Island of Miangas. The Note of the
Netherlands Minister at Washington to the Secretary of State, dated
January 9, 1924, answers: quot;With regard to the text of the drafted agree-
ment, Jonkheer van Kamebeek has instructed me to suggest the omission
in the preamble of the words: quot;any applicable treatyquot; as the immediately
preceding words quot;the principles of international lawquot; already embrace
applicable treaties. If in addition to the principles of international law
special mention be made of applicable treaties then conventions of any
kind, international custom as evidence of a general practice adopted as
law, and, to a certain extent, the writings of eminent jurists should also
be mentioned. This, however, would be needlessly prolixquot;. But this is
deemed unadvisable. quot;As you are awarequot;, runs the United States Note
of February 1, 1924, quot;the Government of Spain considered that its
sovereignty over the Island of Palmas was as complete as its sovereignty
over the other islands in the Philippine Archipelago, and that Las Palmas
Island was comprehended within the Archipelago ceded to the United
States by Spain in the Treaty of December 10, 1898quot;. On April 1, 1924
the Netherlands Minister at Washington stated again: quot;As far as the
words quot;any applicable treatiesquot; in the preamble of the drafted agreement
are concerned, Jonkheer van Karnebeek's opinion has remained unchanged
that these words.... if maintained, could give rise to doubt whether it is
meant to exclude sources of international law, other than applicable
treaties, and to limit the free judgment of the arbiter in so far that he
is allowed to test the case only in general maxims of international law
and on treaty provisionsquot;. The intention was elucidated in the Nether-
lands Note of August 5, 1924: quot;It being well understood that the Royal
Government will be absolutely free to present to the Arbitrator arguments
based on agreements between the Colonial Government and Native Chiefs
and other agreements of this kind: that the American Government will
be absolutely free to urge the rejection of such arguments and that the
Arbitrator will be absolutely free to accept or to reject them...quot; (U. S.
Mem. p. 167). Thus the American draft prevailed; it would seem, how-
ever, that the Netherlands point of view is according to international law.

-ocr page 129-

speaks on p. 19 rather disdainfully of quot;these more or less amusing
tribal relationship of which so much is made in the Netherland
Memorandumquot; and again on p. 33 of this document of quot;the novel
question as to what capacity some savage king, rajah or prince
might have to barter away a nation's sovereignty to a trading
concernquot;.nbsp;^

From what has been said about these contracts it follows, that
a distinction must be made: As long as contracts are concluded of
a merely commercial character, even though on the basis of a treaty
of alliance and friendship, these contracts are concluded between
equals and have a standing in international law; as soon as these
principalities' external relations are handed over to the Company,
their independence is infringed upon; from that moment every
contract is a form of internal arrangement. The first contract of
this character, relating to Miangas, is that of 1677; it establishes
the relation of vassal and suzerain; the vassal promises not to
receive in his country Spanish. Portuguese, French, English, Danish
or Swedish subjects; the Company's friend will be his friends, the
Company's enemies his enemies; no war will be carried on, no
peace will be concluded without the Company's assent. And differen-
ces between the allies or between the King and his nobility will
be settled by the Governor. It would seem, that any people which
concedes such rights to a foreign nation, loses its existence in the
sense of international law, and not only those quot;not recognized as
members of the community of nationsquot;. This notion being in itself
vague, must be all the more carefully applied to those countries,
which at a certain period, were the much desired allies of competing
European powers.

In the present question, the Arbitrator holds the following
opinionquot;): As regards contracts between a State or a Company
such as the Dutch East India Company and native princes or chiefs
of peoples not recognized as members of the community of nations,
they are not. in the international law sense, treaties or conventions
capable of creating rights and obligations such as may, in inter-
national law. arise out of treaties. But. on the other hand, con-

42) Award, p. 44-45.

-ocr page 130-

tracts of this nature are not wholly void of indirect effects on
situations governed by international law; if they do not constitute
titles in international law, they are none the less facts of which that

law must in certain circumstances take account......The form

of the legal relations created by such contracts is most generally
that of suzerain and vassal, or of the so-called colonial protectorate.

But, the United States Government say quot;Suzerainty does not
connote sovereigntyquot;quot;'). To this the Netherlands Government
reply as followsquot;quot;): The word suzerainty quot;denotes a supremacy
over a certain territory, sometimes of a feudal character, which,
while inconsistent with independence of that territory with regard
to foreign relations of that territory, leaves room for several of the
attributes of sovereignty as to internal administration. The monarch
who is suzerain in respect of the vassal, is the sovereign with regard
to the outside worldquot;. It is difficult to define the precise import
of the term suzerainty: quot;The degree of control on one side and
of dependency on the otherquot;, Brierly states'*®), quot;may vary in-
definitely, and in any case it must be deduced from the events or
treaties which created the relationship, and not from the term used
to describe itquot;. The fatal consequences of the latter method are
clearly shown by the discussion preceding the South African War
of 1899quot;quot;quot;') As to this point the Arbitrator lays down:

43)nbsp;U.S. Mem. p. 86.

44)nbsp;Neth. Count. Mem. p. 76.

45)nbsp;J. L. Brierly, The Law of Nations, p. 67.

46)nbsp;J. Westlake, Collected Papers, p. 442.

47)nbsp;As a matter of fact the word quot;suzeraintyquot; is extremely vague. The
Netherlands Government, aware of this vagueness, speaks of a relation
quot;sometimes of a feudal characterquot;. Like quot;fiefquot; and quot;vassalquot;, the word
quot;suzeraintyquot; is borrowed from feudal terminology and strictly speaking
does not apply to relationships such as are described in the documents
of the present case or in the historical survey. Kleintjes 5th ed., p. 58.
mentions the word quot;leenmanquot; (vassal) a misleading term. This is cer-
tainly true, but if the relationship between suzerain and vassal is judged
according to the contract and not according to its more or less arbitrarily
fixed import, the question whether such terms can be applied to rela-
tionships such as here contemplated becomes a mere matter of opinion,
or rather of terminology, of no practical importance.

It might still be contended, that a native chief in signing a contract

-ocr page 131-

In order to regularize the situation as regards other States,
this organisation requires to be completed by the establishment
of powers to ensure the fulfilment of the obligations imposed
by international law in regard to its own territory. And thus
suzerainty over the native State becomes the basis of territorial
sovereignty as towards other members of the community of
■ nations. It is the
sum-total of functions thus allotted either to
the native authorities or to those of the colonial Power which
decides the question whether at any certain period the conditions
required for the existence of sovereignty are fulfilled. It is a
question to be decided in each case whether such a regime is
to be considered as effective or whether it is essentially fictitious,
either for the whole or a part of the territoryquot;quot;«).
This point of view is not only in conformity with the principles
laid down by the Arbitrator in the doctrinal part of the Award,
but also with the attitude taken up by the United States relating
to two small islands lying just outside the line drawn by the treaty
of Paris. The relevant note states that the two islands quot;have not

could not judge its scopc: this, however, is not so. because the contracts
of the East-Indian Company were nearly always drawn both in Dutch
and in the language of the native prince: in the Malayan text, e.g. the
word quot;pindjemanquot; is used for fief (Encyclopaedic van Nederlandsch-
IndK? s.v. contracten), which is undoubtedly clearly understood.

The United States Mem. p. 102 refers to Rivier, Principes du Droit des
Gens I. p. 188-189: quot;The pretended contracts
of purchase or exchange
made with savage chiefs for the purpose of giving to the occupation the
external appearance of an acquisition by way of cession are devoid of
Juridical value for the sole reason that one of the contracting parties
does not have the freedom of Intention required for consent, a fact of
which the other party is not Ignorant. Even if one wished to admit from
this point of view the validity of these acts. It would need to be rejected
for another reason, to wit, that the chiefs, real or pretended, who make
the arrangements do not and cannot have territorial sovereignty as the
public law of civilized states conceives It and that consequently they do
not know how to transfer if. This may apply to the contracts concluded
in the 19th century with African and other chiefs, it dlt;^s not apply to
the contracts concluded by the East-lndlan Company In the 17th .and

18th centuries.
48) Award, p. 45.

-ocr page 132-

hitherto been directly administered by Spain, but have been success-
fully claimed by Spain as a part of the dominions of her subject,
the Sultan of Sulu. As such they have been administered by Sulu
agencies, under some vague form of resident supervision by Spanish
agencies, which latter have been withdraw as a result of the recent
warquot;

One final remark may be made. Both Parties agree, that a title
should be judged according to the conceptions of international law
at the time of its origin. Applying this principle the Netherlands
Government refers to the already quoted Article V of the Treaty
of Münster: quot;Et seront compris sous ledit Traicté tous Potentats,
Nations ô Peuples, avec lesquels lesdits Seigneurs Estats, ou ceux
de la Société des Indes Orientales 6 Occidentales en leur nom,
entre les limites de leursdits Octroys sont en Amitié et Alliancequot;.

Undoubtedly in 1648 both the Netherlands and Spain recognized
the contracts concluded with native chiefs and according to the
Netherlands Government this conclusively disposes quot;of the
American argument, that no value can be attached to such con-
ventionsquot; The Arbitrator wholly approves of this argument
and accordingly concludes®'): The Arbitrator can therefore not
exclude the contracts invoked by the Netherlands from being taken
into consideration in the present case.

3. The Status of the East-India Company.

It has been stated several times in the previous pages, that the
East India Company concluded treaties with native princes, thus
establishing the relationship of suzerain and vassal, which has
gradually established Netherlands sovereignty over the territory.

This again is a much contested point. quot;A claim of sovereignty
over territory can not in law be predicated on the acts of individuals
which are not committed in behalf of a sovereign. A claim to terri-
tory on which sovereignty can be based must be a claim of
territorial sovereignty, and must be a claim made by a sovereign.

49)nbsp;Ibid. p. 45.

50)nbsp;Neth. Count. Mem., p. 29.

51)nbsp;Award, p. 46.

-ocr page 133-

because no one but a sovereign can assert such a claimquot;. So runs
the United States contention ). Again, the Netherlands description
quot;is intended to imply that the Dutch East India Company might
be regarded in international law as a sovereign and the rajah as
a vassal. It is not believed that the company could have any such
standing in international law, and in any event it is submitted that,
if the company had a standing such as is explained in the Nether-
land Government's note, that would have no bearing on the Nether-
land Government's sovereignty over the Island of Palmasquot;quot;).

The real status of the East India Company can only be under-
stood if compared with that of the colonizing companies established
mainly in the second half of the 19th century. A brief survey of
the treaties concluded with native chiefs in this period, either by
officials or by chartered companies, will show, that the main pur-
pose of these treaties was the acquisition of territorial rights for the
countries they represent.

After the conclusion of a treaty, a protectorate is established;
sometimes the external sovereignty only is ceded to the protecting
state (Great Britain in 1886 on the Somali coast and France in
Senegal); sometimes also the internal sovereignty was partly
superseded by the sovereignty of the protecting state (Great Britain
on the West coast of Africa in 1868 and 1875); sometimes the
whole of external and internal sovereignty was ceded (Great Britain
in Bechuanaland); sometimes again the powers of the protecting
state have gradually increased (France in Madagscar), but invari-
ably the final stage is annexation. In this period treaties were often
concluded by chartered companies, but with the proviso that the
sovereign rights accrued to the State, which granted the charter.
Very instructive from this point of view is the Schutzbrief, granted
by the German Emperor on May 17, 1885 to the German New
Guinea Company, in which was granted quot;das Recht zur Ausübung
landeshoheitlicher Befugnisse unter unserer Oberhoheitquot;. Several
provisions securing the sovereignty of the State are also embodied
in the charter issued by the Portuguese Government in 1891 to the

52)nbsp;U.S. Mem. p. 105.

53)nbsp;Ibid. p. 90.

-ocr page 134-

Moçambique Company, and when in 1897 the charter was renewed,
the royal decree stated that quot;by the provisions of the present
decree the sovereign rights of the nations are in no way lessened,

but rather confirmedquot;.

The same applies to the British North-Borneo Company (charter
of November 1, 1881), the National African Company, afterwards
the Royal Niger Company (charter of 1886), the Imperial British
East-Africa Company (charter of 1888) and the British South-
Africa Company (charter of 1889). Lindley after a lengthy dis-
cussion of these charters comes to the conclusion that, quot;although
the British Government of the day disclaimed any sovereign power
over the territories dealt with in the British North-Borneo charter,
it is impossible to resist the conclusion, that the rights and responsi-
bilities of external sovereignty rested with the British Crown as
soon as it had granted the charter and that the charters of the
African companies placed them even more completely under the
control of the British Government, especially with relation to
foreign affairsquot;®quot;). From the point of view of international law
there is no difference between the territories of the companies and
the protectorates.

It must further be noted, that none of these charters grant an
exclusive trading monopoly; nearly all contain provisions with
respect to the treatment of the native population.

The position of the Dutch East-India Company was very
different. It was constituted by the fusion of several small com-
panies, of which the Compagnie van Verre has already been men-
tioned, and all of a purely private character. As a matter of fact,
the newly established company, which was given a charter on
March 20, 1602, was a trading company only and the rights of a
public character assigned to it, were only subservient to commercial
purposes. This clearly appears from Article 35 of the charter, by
which it was provided quot;that the aforesaid Company shall be per-
mitted to conclude with the aforesaid Princes alliances and con-
tracts in the name of the States General, to build fortresses and
strongholds, to appoint Governors, soldiers and officers of justice.

54) Lindley. p. 99-109.

-ocr page 135-

... all in order to promote trade. The aforesaid Governors, Officers
of Justice and soldiers shall make an oath of allegiance to the
States General and to the Company, as far as concerns trade and
trafficquot;quot;^®).

From this the connection between the State and the Company
is undeniable; at all events in concluding treaties with native princes
the Company acted as the agent of the Netherlands State®«).

55)nbsp;hem, dat die vande voorsz. Compagnie sullen vermogen beoosten de Cape
van bonne Esperance, mitsgaders in ende door de engte van Magellanes.
met de Princen en de Potentaten verbintenissen ende Contracten te maken
opten naem van de Staten gnael der Vereenichde Nederlanden, ofte
hooge Overicheyt desselver. Mitsgaders aldaer eenige forteressen, ende
versckertheden te bouwen, Gouverneurs, volck van oorloge, ende Offi-
ciers van Justitie, ende tot andere nootelycke diensten, tot conservatie
vande plaetsen. onderhoudinge van goede ordre, politie ende Justitie,
eensamentlyck tot voorderinge vande neringe, te stellen. Behoudelyck dat
de voorscreven Gouverneurs, Officiers van Justitie, ende volck van
Oorloge sullen eedt van getrouwicheyt doen, aende Staten generael. ofte
hooge Overicheyt voorsz., ende aende Compaignie, soo veel die neringe
ende traffique aengaet. (J. A. van der Chys. De Stichting der Ver-
eenigde Oost-Indische Compagnie, p. 110).

Article VI of the Charter moreover stales, that if the Committee of
XVII cannot agree in important matters, the final decision is given by

the States-General. (Ibid. p. 101.)

56)nbsp;In his award of June 6. 1904. with regard to the boundary between the
colony of British Guiana and the United States of Brazil. H.M. the King
of Italy expressly recognizes the powers of sovereignty exercised by the

West India Company:

... That, however, the right of the British State as the successor to
Holland, to whom the colony belonged, is based on the exercise of rights
of Jurisdiction by the Dutch West-India Company, which, furnished with
sovereign powers by the Dutch Government, performed acts of sovereign
authority over certain places in the zone under discussion, regulating the
commerce carried on for a long time there by the Dutch, submitting It
to discipline, subjecting It to the orders of the Governor of the Colony,
and obtaining from the natives a partial recognition of the power of
that official.

That like acts of authority and Jurisdiction over traders and native
tribes were afterwards continued In the name of British sovereignty when
Great Britain came Into possession of the colony belonging to the Dutch
... etc. (Manley O. Hudson, Cases and other materials on International

law, 1929, p. 23).

-ocr page 136-

From the strictly juridical point of view the territory, acquired by
the Agent, accrues to the State. In the beginning the treaties were
according to this view concluded in the name of the paramount
power In ratifying the appointment of Pieter Both, the first
Governor-General of the East-Indies, the States-General speak
of quot;the fortresses and places, which We and Ours in the East-
Indies hold and possess, with the inhabitants, military and others,
in Our territoryquot;®®). But soon the Company by means of the
enormous profits, developed into a quot;State within the Statequot; and
in 1644, before the Treaty of Miinster made an end of the war
with Spain, the Comittee of XVII contended that the possessions
in the East-Indies were their private property, not the property of
the State, and that they would be able to sell them, if they chose,
even to the King of Spain®®). From this one instance it is obvious,
that the influence of the States-General was reduced to a negative
quantity and that, practically speaking, the Company was inde-
pendent and sovereign. From this moment dates the conflict be-
tween the interests of the Company-merchant and the Company-
Sovereign, in which the former always prevailed. Fortresses were
built all over the Archipelago, but authority was only exercised in
the immediate surroundings and only in so far as commerce required
itquot;quot;). What the authorities in the Netherlands aimed at was a
colonie d'exploitation (trading station); only broad-minded Gov-
ernors-General like Jan Pieterszoon Coen, the founder of Batavia,
insisted on the establishing of settlements; only as far as this
policy prevailed, was a colonie de population (colony proper)
established, which became the basis of Netherlands sovereignty in
the present day*quot;).

57)nbsp;Hceres, Corpus Diplomaticum I. passim.

58)nbsp;Van der Chys, p. 120. The instructions from the States General to this
Governor General show the preponderant influence of the State in this
period (Mijer, Verzameling van regeeringsinstructien voor Nederlandsch-
Indië. artt. 2. 8. 13, 24 etc.)

59)nbsp;Ibid.

60)nbsp;Kielstra. p. 13.

61)nbsp;The building of mere trading stations cannot be said to be an effective
occupation. In the course of the negotiations of 1826—1827 between the
United States and Great Britain (Oregon Dispute), it was contended on

-ocr page 137-

A prosperous trade was the only thing aimed at and if possible,
a trade monopoly: it was obviously forgotten, how eagerly the
monopoly of the King of Spain was contested both by English and
Dutch merchants at the time of the foundation of the East-India
Companies

On the one hand, the difference from the 19th century com-
panies is evident: on the other hand the conclusion is, that the
East-India Company, in spite of itself, laid the foundations of the
Netherlands colonial empire.

The Netherlands Government contend*quot;), that the Netherlands
authorities quot;did during two centuries everything in their power to
render clear and perfect their titles to that insular region of Indo-
nesia, part of which is the subject-matter of this Memorandum.
Both in the
north-eastern part of Selebes with its adjacent islands,
and in the northern part of the Moluccas, the Netherlands not
only kept up their position of effective occupation and administra-
tion, but even improved itquot;. This contention must, however, be
considered cum
grano salis. Just as neither Spain's discovery of the
Philippines, nor her effective occupation of them, establishes her
title to the Island of Palmas, so also a display by the Netherlands
of state activity in this region does not confer a title to
that Island. It therefore remains to be considered whether the
Netherlands' display of state authority over the island can be said
to constitute an effective occupation.

4. The Effectiveness of the Occupation.

It has been demonstrated above that discovery is recognized as

behalf oT the United States that quot;mere factories, established solely for
the purpose of trafficking with the natives, and without any view to
cultivation and permanent settlement, cannot of themselves give a good
title to dominion and absolute propertyquot;. The United States claim, was
none the less, at least partly, based upon the establishment of the
factory of Astoria (Twiss. The Oregon Question examined, p. 316).

62)nbsp;See Certayne reasons, why the English merchants may trade into the
East-Indias. etc. in De Jonge. De Opkomst I. p. 287, in which the fellow-
countrymen of Selden vehemently defend the freedom of the high seas.
This document was used as a precedent by the Dutch merchants.

63)nbsp;Neth. Mem. p. 15.

-ocr page 138-

conferring sovereignty upon the State on behalf of which it is made,
provided it is accompanied by an effective occupation. In the
present case, in the first place the question must be considered what
facts both contending Parties can adduce to prove the effectiveness
of their display of authority over the Island of Miangas and in
the second place, whether these facts, if any, constitute an effective
occupation in the sense of international law.

By Spain On p. 97 of the United States Memorandum it is said: quot;There
is at least some evidence of Spanish activities on the islandquot;. This
obviously refers to a Report of Mr. M. C. Alvarez, dated June 19,
1919,quot;quot;) in which is said, that quot;later the Spanish Government sent
a gunboat to the island returning a number of slaves, recaptured
from the Moros. The Spanish gunboats continued to visit the island
twice a year thereafter, and occasionally took natives to Sarangani
and Mati. American whalers also visited the island on their way
to Liroeng to winter, and left the impress of their blood on the
natives. The Spaniards finally appointed a man to collect the
cedula taxquot;.

Again the affidavit of Mr. Frank W. Carpenter, dated March
10 1926, is reproducedquot;®), in which a visit of General Leonard
H. Wood to the island about the year 1903 is mentioned.

As these points are of importance to substantiate the effectiveness
of the Spanish possession of the island, the Arbitrator, conformably
to Article III of the Special Agreement of January 23. 1925, re-
quested the United States Government to supply him with explana-
tions bearing on these points. As regards the Report of Mr. Alvarez
the result was, that quot;after a careful investigation and an exhaustive
research on the subject no document containing the data desiredquot;
was found in the Philippine archivesquot;quot;). And Mr.
Carpenter had
to recognize that his affidavit quot;contains a statement that is probably
not as accurate as it should have beenquot;. General Wood appears
to have made two visits to the island in 1906quot;'). Moreover the
Spanish Government as the result of their investigation of their

64)nbsp;U.S. Count. Mem. p. 110.

65)nbsp;U.S. Count. Mem. p. 113.

66)nbsp;Furth. wr. expl. p. 53.

67)nbsp;Furth. wr expl. p. 54.

-ocr page 139-

former title to the island communicated to the United States De-
partment of State that quot;precise data of acts of dominion which
Spain may have exercised in this island have not been foundquot;quot;®).

The Arbitrator thus needs must come to the conclusion that the
United States quot;have however not established the fact that
sovereignty so acquired was effectively displayed at any timequot;quot;®).
By the The Netherlands connection with the Island of Miangas dates
etherlands (^.q^jjnbsp;jj^g East-India Company concluded political

treaties with the Kings of Taboekan and Taroena. to whom the
island belonged. Previous relations were probably still more indirect:
the contracts with the King of Ternate. the overlord of the Sangi
princes, dated 1607, 1609, 1629 and 1638quot;), by which a pro-
tectorate over Ternate was established, do not show any display
of state authority over the island.

In 1697 the contracts of 1677 were renewed; soon after a direct
contact with the island was established. In order to avoid an
occupation by the British, who were known to be in search of the
alleged riches of the quot;Meangis Islandsquot;, three vessels were sent
by the Governor of the Moluccas in 1700 in search of the islands;
one of them, the Laricque. commanded by Jan de Hooft, visited the
Island of Miangas, finding the population in possession of the
quot;prince's flagquot;. In 1701 commissioners of the Company made an
inquiry in order to determine which islands were under the King
of Taroena and under the King of Taboekan respectively and to
learn quot;to whom belongs the Island Meangyquot;. On this occasion it
was decided that it belonged quot;solely to the King of Taroenaquot;quot;).
Furthermore the regulations referred to on p. 115 were laid down
and expressly made applicable to Miangas.

In 1726 the Kings of Taboekan and Taroena again quarreled
about the question to whom the island belonged. In conformity
with the conventions of 1697 the dispute was submitted to the
Netherlands authorities, not as arbitrators, but as the representatives
of the paramount power. The question was decided by the Governor

68)nbsp;U.S. Mem. p. 144.

69)nbsp;Award, p. 57.

70)nbsp;Heeres. Corpus Diplomaticum.

71)nbsp;Neth. Mem. p. 13.

-ocr page 140-

of Ternate and the island, this time, was assigned to the King of
Taboekan. The convention of 1720 with this prince was followed
by similar conventions of 1726 and 1758; two collective conventions,
directed against the pirates of Magindanao and Maloelang and
against the selling of Christians to them, were concluded with the
six Sangihe princes in 1771; a similar collective convention was
concluded in 1779quot;).

The Netherlands Memorandum concludes on p. 16:

The facts and public documents reviewed in this Chapter can
only lead to one conclusion: this continuous series of activities
and conventions proves that the Dutch authorities exercised a
real and uninterrupted paramountcy over the native state to the
territory of which Miangas belonged, whereas Spanish rule,
interest and ambition were absent in this region since at least
1700.

This is certainly true, but these facts and documents do not
prove any display of state authority over the Island of Miangas
itself. They at the utmost prove that the Netherlands quot;incessantly
extended their political influence and consohdated their titles i n
these regionsquot;quot;). Again the Report of Resident Van Delden
of 1825 mentions quot;the distant Island of Melangisquot; as belonging
to Taboekan; in 1828 a new convention was concluded by the
Netherlands Government with Taboekan and Taroena. mentioning
Miangas as part of its territory. None of these facts, however,
prove any direct contact with the island; the constant renewal of
the conventions merely shows the wish of the Netherlands
Government to preserve their sphere of influence and not. as the
Arbitrator statesthat the regime of suzerainty has been ef-
fective. Up to this time the Netherlands only possessed a nominal
title to the Island of Miangas.

Only subsequently, and conformably to what has been said above
concerning the abandonment of the quot;policy of non-interferencequot;,
does it appear that the Netherlands East Indies authorities estab-

72)nbsp;Ibid. p. 16.

73)nbsp;Ibid. p. 17.

74)nbsp;Award, p. 42.

-ocr page 141-

lished direct contact with the island. In 1888 the government-
steamer
Havik, on board of which was the Resident of Manado.
visited the island; in 1889 a headman was appointed by this official
as quot;captain lautquot;; a native official of the Nanusa Islands was in
1892 instructed to make the inhabitants of Miangas leave their
scattered dwellings and build a regular village, which was done
in due course; in 1895 the Resident of Manado on board the
government-steamer
Raaf again paid a visit to the island. On this
occasion the interests of the population were discussed; in 1896
again the Resident visited Miangas, accompanied by a clergyman
who baptised 257 people. A coat of arms was put up. In 1898
a protestant missionary school and a church were erected; a series
of measures have since been taken to improve food conditions,
sanitary conditions, education, etc. During the Spanish-American
war a Netherland man-of-war patrolled the waters round the island,
in order to protect the neutrality of the Netherlands'®).

After the war, in 1900, a visit was paid to the island by the
civil officer of the Sangihe and Talaud Islands. When in 1904 a
typhoon destroyed a great part of the settlements and plantations
of Miangas relief measures were taken by the Resident of Manado
and in 1905 the population, consisting of 450 souls, were all
baptised'quot;). After 1907, the Netherlands authorities regularly
visited and administered the island, but the Netherlands Govern-
ment refrain from giving details relating thereto, because the
dispute with regard to the sovereignty of the island had arisen in
the meantime.

From the facts above mentioned the following conclusion is
drawnquot;): quot;The Netherland Government submit that while the
maintainance of sovereignty, on account of the variety of special
relations existing internally in the territory of a colonial power,
does not in all circumstances require the permanent presence of
its officials in every part or island of its territory, the belonging
of Miangas to native states under Netherland sway, the successive

75)nbsp;Neth. Mem. p. 19.

76)nbsp;Ibid. p. 20.

77)nbsp;Ibid. p. 21.

-ocr page 142-

acts of paramonutcy, conventions with native principalities, acts
of administration etc. of the Netherlands, begun in a period when
neither Spain nor any other power exercised sovereignty over that
region, and continued afterwards and until 1898 without any pro-
testation by any foreign government, converged in validly establish-
ing Netherland sovereigntyquot;. The United States also takes the view,
that quot;the maintenance of sovereignty over the territory of a colonial
power does not in all circumstances require a permanent presence
of officials in every part or islands of its territoryquot;'®). The same
view was already expressed in the note addressed by the Depart-
ment of State to the Netherland Government of April 15, 1914
quot;Considering the time and circumstances of the discovery of the
Island of Palmas, its relatively small importance, its proximity to
the larger island of Mindanao, the character of its people and the
nature of the government throughout the Philippine Archipelago
as a whole, it was not necessary, in the opinion of this Government,
for Spain, in order to sustain its sovereignty, to maintain some
separate administration over this small islandquot;. But the above
mentioned facts are either denied or characterized as quot;utterly
unsupported assertionsquot;. quot;It may be assumedquot;, the United States
Counter Memorandum runs®quot;), quot;that it would not be contended
that there has ever been any degree of intensity of Netherland
administration in the Island of Palmasquot;.

Here may be recalled the principles relating to territorial
sovereignty, laid down by the Arbitrator: quot;Territorial sovereignty
is both a right and a duty, for it serves to assure to human activities
in all points the minimum of protection of which international law
is the guardianquot;. If this is taken as the criterion, the facts prior to
1885, adduced by the Netherlands Government, are insufficient to
confer a title of sovereignty. The Arbitrator states®'): quot;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

78)nbsp;U.S. Count. Mem. p. 82.

79)nbsp;U.S. Mem. p. H2.

80)nbsp;U.S. Count. Mem. p. 66.

81)nbsp;Award, p. 58.

-ocr page 143-

establishment of the suzerainty of a colonial power over a native
statequot;. But the facts adduced and relating to the period from 1677
to 1885 cannot be said to show a progressive intensification of state
control. The Netherlands claim is only different from the Spanish
claim at that epoch, in so far that the Netherlands can prove
that they never entirely neglected the existence of the island. It
should not be forgotten, that the Colonial Secretary Baud in 1843
could not answer a question of the British Government concerning
the exact limits of the Netherlands possessions in the Archipelago.
And the address of Resident Stakman in 1889 at Liroeng, in which
he said that wars between native princes would henceforth cease
and that the burying of persons alive would be forbidden, does
not testify to any degree of intensity of Netherlands state control
in earlier timesquot;®). Under these circumstances the Arbitrator's
conclusion that the Netherlands suzerainty has been effective, is
unjustified.

In 1885, however, in accordance with the increase of interest in
Europe in questions of territorial sovereignty in connection with
the establishment of protectorates in Africa and elsewhere, the
Netherlands Government intensified their control in the remote
parts of the Archipelago. As concerns the special part in question
this is shown by the facts enumerated above. If any other Power
had had a right over the island, based on effective state activity,
a collision could not have been avoided, just as it could not be
avoided by the simple visit to the island of General Wood.
, Even in the years immediately preceding the cession by Spain,
the degree of intensity of Netherlands state control was very small
indeed. It. however, meets the requirements of international law.

About the end of the 19th century two different points of view
were put forward as to the effectiveness of an occupation. Both in
the Delagoa Bay Arbitration and in the controversy relating to
Mashonaland in 1889, Portugal relied on the erection of fortresses,
in order to exclude foreign Powers, as quot;that act which is in law
of all acts of possession the most decisivequot;. This opinion was shared

82) Neth. Expl. p. 104—105. Even head-hunting (koppensnellen) was still
customary at that time; ibid. p. 125).

-ocr page 144-

by Lord Salisbury: quot;Forts maintained in a condition of efficiency
are undoubtedly a conclusive testimony that the territory on which
they stand is in the mihtary occupation, and under the effective
dominion of the Power to which they belongquot;. This point of view
refers only to the right to exclude other Powers, but not to the
duty, to which Judge Huber rightly refers. The opposite view,
finds expression in Bluntschli The taking of possession consists
in the fact of organizing politically the recently discovered country,
joined with the intention of exercising power there in the future.
This view was taken by Prince Bismarck at the opening of the
Congo Conference: quot;Pour qu'une occupation soit considérée comme
effective, il est, de plus, à désirer que l'acquéreur manifeste, dans
un délai raisonnable, par des institutions positives, la volonté et
le pouvoir d'y exercer ses droits et de remplir les devoirs qui en
résultentquot;, and again by the Pope, acting as a mediator in 1885 in
the case of the Caroline Islands: quot;Le Gouvernement espagnol, pour
rendre effective la souveraineté, s'engage à établir le plus tôt pos-
sible, dans cet Archipel, une administration régulière avec une force
suffisante pour sauvegarder l'ordre et les droits acquisquot;. (Cp. Article
10 of the Convention of Saint Germain-en-Laye of 1919). This,
of course, regards the Archipelago as a unit; a mere political control
must be deemed sufficient for the less important islands. This view
also prevailed in the first paragraph of Article IV of the Treaty of
February 2. 1897 between Great Britain and Venezuela, laying
down the rules by which the Arbitrators should be guided: The
Arbitrators may deem exclusive political control of a district, as well
as actual settlement thereof, sufficient to constitute adverse holding
or to make title by prescription.

From this it appears, that a general rule as to the effectiveness
of an occupation does not and cannot exist. This clearly appears,
if uninhabited islands or Arctic regions, habitable only during a
certain part of the year, are taken into account

Everything depends on the circumstances of the special case under

83)nbsp;J. C. Bluntschii: Le droit international codifié § 278; Vattel's view is
literally expressed by § 281.

84)nbsp;Smedal. p. 34.

-ocr page 145-

consideration. A mere control at intervals would seem sufficient for
uninhabited countries, a temporary control for temporarily inhabited
countries. A densely inhabited country requires a greater intensity
of state control than a country inhabited by a small population.
In the case of an island such as Miangas, inhabited by a native
population only, a native administration under the control of the
Netherlands Government would seem sufficient. An organization,
however rudimentary, is proved to exist on the island. Visits of
Netherlands officials are proved to have taken place at intervals
and incidents, such as the flag-incident of 1924 and the visit of
General Wood, immediately came to the knowledge of the Nether-
lands Government.

It therefore cannot be denied, that the Netherlands in the course
of the last quarter of the 19th century established their title to
sovereignty over the Island of Miangas.

-ocr page 146-

CHAPTER IV.
FORMAL QUESTIONS.

A. The Special Agreement.

The Special Agreement of January 23, 1925, by which Her
Majesty the Queen of the Netherlands and the United States of
America agreed to refer the decision of the differences with respect
to the sovereignty over the Island of Miangas to the Permanent
Court of Arbitration at The Hague, is based upon the Arbitration
Treaty, concluded by the High Contracting Parties on May 2,
1908 and renewed on May 9, 1914, March 8, 1919 and February
13, 1924.

With reference to the questions to be treated in this chapter the
following provisions of the Agreement are of importance:

Article I:

The arbitral tribunal shall consist of one arbitrator.

The sole duty of the Arbitrator shall be to determine whether
the Island of Palmas (or Miangas) in its entirety forms a part of
territory belonging to the United States of America or of Nether-
lands territory.

The two Governments shall designate the Arbitrator from the
members of the Permanent Court of Arbitration. If they shall be
unable to agree on such designation, they shall unite in requesting
the President of the Swiss Confederation to designate the Arbi-
trator.

Article II:

Within six months after the exchange of ratifications of this
special agreement, each Government shall present to the other party
two printed copies of a memorandum containing a statement of its
contentions and the documents in support thereof.

Within six months after the expiration of the period above fixed
for the delivery of the memoranda to the parties, each party may,
if it is deemed advisable, transmit to the other two printed copies

-ocr page 147-

of a counter-memorandum and any documents in support thereof
in answer to the memorandum of the other party.

Article III:

After the exchange of the counter-memoranda, the case shall be
deemed closed unless the Arbitrator applies to either or both of the
parties for further written explanations.

The party addressed shall be allowed for reply three months
from the date of the receipt of the Arbitrator's request, which date
shall be at once communicated to the other party and to the Inter-
national Bureau. Such reply shall be communicated to the other
party and within thirty days thereafter to the Arbitrator.... and
the opposite party may if it is deemed advisable, have a further
period of three months to make rejoinder thereto, which shall be
communicated in like manner.

Article V:

The Arbitrator shall decide any questions of procedure which
may arise during the course of the arbitration.

The ratifications of the Agreement were exchanged at Washing-
ton on April 1, 1925. On September 19. 1925. both Parties asked
Dr. Max Huber, whether he would be disposed to act as sole
arbitrator. The answer being in the affirmative, on October 16 and
23, 1925 the International Bureau of the Permanent Court of
Arbitration transmitted to the Arbitrator the Memoranda of the
United States and of the Netherlands; on April 23 and 24, 1926 the
Counter Memoranda of the Netherlands and of the United States
were transmitted in the same way. Further written explanations,
asked for by the Arbitrator, were received from the Netherlands
and the United States on March 24 and on April 22, 1927. On
October 21. 1927 a Rejoinder was filed by the United States only,
the Netherlands Government having declared that they renounced
the right to submit a Rejoinder, making however the express reser-
vation that they maintained the points of view which the American
Explanations contested. On April 4. 1928 three copies of the Award

-ocr page 148-

were deposited by the Arbitrator with the International Bureau of
the Permanent Court of Arbitration at The Hague.

Both in the documents of the Parties and in the Award various
formal questions are dealt with — questions of procedure as well
as questions of evidence. These questions will be considered here
only in so far as they are of general interest: from the point of
view of international law the conclusive weight of cartographical
material is of more interest than a thorough treatment of the in-
numerable maps adduced by the Parties. In connexion with the
distinction between questions of procedure and questions of evidence
it may be remarked that the principal point in the present case
relates to the necessity for and admissibility of evidence. This would
seem rather a question of procedure than of evidence and accordingly
must be treated under the former head.

#

B. Questions of Procedure.

The Netherlands Memorandum is preceded by a Note, reading
as follows:

In the following memorandum various documents are being
referred to. Authentic copies are available; they will be pro-
duced if desired by the Arbitrator. The more important of the
documents are annexed to the memorandum').
This note is severely criticized in the United States Counter
Memorandum''). It quot;indicates a procedure which it is believed may
be properly characterized as remarkable and without precedent in
international arbitrations. The treatment of evidence in cases before
international tribunals is not governed by the rigid rules which are
applied by domestic courts. Nevertheless, certain elementary prin-
ciples are of course common to both kinds of tribunals. It is cer-
tainly not conceivable that in proceedings before a tribunal in the
United States — and doubtless the same may be said with respect
to proceedings before tribunals in other countries — counsel would

1)nbsp;Tne Neth. Count. Mem. is preceded by a similar note: The books, maps
and documents referred to, of which latter authentic copies are available,
will be produced if desired by the Arbitrator.

2)nbsp;U.S. Count. Mem. p. 2.

-ocr page 149-

venture to refer to, much less endeavour to support contentions by
evidence either oral or documentary without producing such evi-
dence, or to make assertions to the effect that documents said to
exist, without being produced, will be produced, if desired by the
court. If any assertion is made in the Memorandum of either Gov-
ernment which is unspported by evidence, such assertion must of
course fall and be without effect, except in so far as the use of it
raises a presumption as to its character in view of the non-production

of evidence to support itquot;.

quot;If this view were not correctquot;, this document states, an arbitral

tribunal would be in the invidious position of being called upon
merely to record its judgment with respect to the correctness of
unsupported assertions advanced by either side in an arbitration,
whereas it is the function of a tribunal to determine a controversy
in the light of evidence and by the application of proper rules or
principles of lawquot;. To substantiate this view extracts of judicial
opinions of American courts are quoted in the United States Re-
joinder (p. 119-124).

The Arbitrator, before deciding the point pursuant to Article V
of the Special Agreement, requests an explanation from the Ne-
therlands with regard to this view.

quot;In the opinion of the Netherlands Governmentquot;, runs the ans-
wer»), quot;the necessity of evidence arises if the judge or arbitrator
finds that the parties arc divided with regard to certain facts which
in his opinion can be considered doubtful, and which he thinks
material and not known to him or to be ascertained by himself. He
may accept as true the statements of either party when, in the
light of the whole case, such statements seem to him sufficient or
when the contestation of such statements by the other Party does
not seem to him to be sufficiently
well-founded. On the other hand
he may ask for evidence about any point, even when it has not
been contested, if he thinks it necessary to do so . The opinion
that an arbitrator has quot;the greatest freedom to adopt such ru^s
of evidence as seem to him most conducive to reaching a ,ust
decisionquot; is based on Article 49 of the Convention for the pacific

3) Neth. Expi. p. 7.

-ocr page 150-

settlement of international disputes of 1899 and on Article 69 of
the same Convention of 1907, which latter reads: Le tribunal peut,
en outre, requérir des agents des Parties la production de tous
actes et demander toutes explications nécessaires.

quot;It seems quite naturalquot;, the Netherlands Government con-
tinuequot;), quot;that art. 63 of the latter convention should say that, when
introducing their memoranda, quot;les Parties y joignent toutes pièces
et documents dans la causequot;. It is of course a question what in every
particular cas are the quot;pièces et documentsquot; concerned. Article III
of the Special Agreement makes the Arbitrator quot;master of the
situationquot;: he is not obliged to accept a statement which in his
eyes is not sufficiently substantiated and which he deems important
for the decision. The article enables the Arbitrator to take into
account such facts as he considers material; if he deems the evi-
dence insufficient he can always call for evidencequot;.

Whereas in the Netherlands contention the civilian is speaking,
the United States contention gives the view of the common law
lawyer, in whose ears the former opinion is quot;heresyquot;quot;). It must,
however, be borne in mind that the present case is an arbitration
under the Permanent Court of Arbitration and that the rules for
the Arbitrator's conduct are to be found in the Hague Convention
of 1907. From the above quoted articles and from Article 72, para-
graph 1 (Les membres du tribunal ont le droit de poser des ques-
tions aux agents et aux conseils des parties et de leur demander des
éclaircissements sur les points douteux), it appears that the Nether-
lands Government opinion is in accordance with the Hague Con-
vention, drafted in its turn in accordance with the civil procedure,
generally followed on the European Continentquot;).

Under Article V of the Special Agreement the Arbitrator decides,
that quot;it would seem to be contrary to the broad principles applied
in international arbitrations to exclude a
limine, except under the
explicit terms of a conventional rule, every allegation made by a

4)nbsp;Neth. Expl. p. 9.

5)nbsp;Jessup, loc. cit. p. 750.

6)nbsp;According to Fuglsang this provision is borrowed from the Russian draft
convention on the procedure of international arbitration. (Der Amerika-
nisch-Holländische Streit um die Insel Palmas, p. 65.)

-ocr page 151-

Party as irrelevant, if it is not supported by evidence, and to exclude
evidence relating to such allegations from being produced at a
later stage of the procedure... The authorization given to the
Arbitrator by Article III of the Special Agreement to apply to the
Parties for further written explanations would be extraordinarily
limited if such explanations could not extend to any allegations
already made and could not consist of evidence which included
documents and maps ... It is for the Arbitrator to decide both
whether allegations do or — as being within the knowledge of the
tribunal — do not need evidence in support and whether the evi-
dence produced is sufficient or not; and finally whether points left
aside by the Parties ought to be elucidated'quot;'). Judge Huber's
opinion coincides with that of Judge J. C. Bancroft Davis in the
Caldera Cases: quot;In the means by which justice is to be attained
the court is freed from the technical rules of evidence imposed by
the common law. and is permitted to ascertain truth by any method
vk^hich produces moral convictionquot; quot;). And in the case of the North
Atlantic Fisheries Arbitration between the United States and Great
Britain the former Power agreed to a procedure conforming to the
Netherlands view in the present casequot;).

It may thus be deemed established, that failing special provisions,
an Arbitrator under a special agreement is wholly master of the
situation; he is even to decide quot;points left aside by the Partiesquot;.
quot;This libertyquot;. Judge Huber states'quot;), quot;is essential to him. for he

7)nbsp;Award, p. 19-20.

8)nbsp;Neth. Expl. p. 7.

9)nbsp;Whereas Act VI of the Special Agreement of January 27, 1909 runs: A?
soon as may be and within a period not exceeding seven months from
the date of the exchange of notes making this agreement binding, the
printed case of each of the Parties hereto, accompanied by printed copies
of the documents, the official correspondence and all other evidence on
which each Party relies, shall be delivered in duplicate, etc.. Article VII
reads: If in the ease or counter-case (exclusive of the accompanymp
evidence) cither Party shaR have specified or referred to any documents,
correspondence or other evidence in its own exclusive possession without
annexing a copy, such Party shall be bound, if the other Party shall
demand it within thirty days after the delivery, to furnish to the Party
applying for it a copy thereof, etc.

10)nbsp;Award, p. 20.

-ocr page 152-

must be able to satisfy himself on those points which are necessary
to the legal construction upon which he feels bound to base his
judgment. He must consider the totality of the allegations and
evidence laid before him by the Parties, either
motu propria or at
his request and decide what allegations are to be considered as
sufficiently substantiatedquot;. The United States certainly could also
have basei their claim on the lack of formal protestation on the
part of the Netherlands Government in response to the notification
of February 3, 1899. For one reason or another the United States,
however, preferred not to base a claim on this ground. None the
less, this point is dealt with by the Arbitrator.

In the light of the extensive powers conferred upon the Arbi-
trator we must consider the Netherlands contention with reference
to the measures taken on the Island of Miangas in 1895: quot;If facts
like these are stated to have been done by them (the Netherlands
Government) or their agents, such statements do not require corro-
boration by further evidence: such statements are evidence in
themselvesquot;quot;This is indeed a peculiarly spirited attitudequot;, the
United States remarks^''), quot;the like of which, if it were ever here-
tofore assumed by any litigant before a domestic court or before
an international court, has not come to the notice of the United
States... It is not clear what may be the function of a judge,
under such a procedure, if he were to act on the theory that he
must accept the allegations of one party as constituting at once
allegations and evidencequot;. It is again for the Arbitrator to estimate
the value of assertions made by a Government in regard to its own
acts. The Netherlands Government, however, go fartherquot;): quot;The
Netherlands Government do not think reasonable a thesis by which
an Arbitrator should be bound to discard statements made in the
name of the Government of a given State, and presented under the
cover of a letter signed by or on behalf of the responsible Minister
of the Crownquot;. This of course, the United States has never con-
tended. What it contends isquot;), that it quot;does not consider that.

11 )nbsp;Neth. Count. Mem, p. 76.

12)nbsp;Rej. p. 7.

13)nbsp;Neth. Expl. p. 11.
H)nbsp;Rej. p. 13.

-ocr page 153-

because documents in an arbitration are transmitted to an arbitral
tribunal with stationery signed by or on behalf of a responsible
Minister of the Crown, the allegations in the pleading must be
treated as facts. Whether they are facts is a judicial question for
the determination of the tribunal in the light of the evidence pro-
duced to support such allegationsquot;. This is of course different:
moreover the Netherlands argument does not hold good, because
the responsibility of the Minister is a purely internal matter which
cannot be invoked in an international arbitration.

The divergence of view relating to the production of evidence is
seen not only in the content of the documents filed by both parties,
but also in their form.

The Netherlands Government take the position that the first
memoranda are'®) quot;statements of the case independent of one
another and that only the
counter-memoranda could take into
account the point of view of the other party and that it was only
by the
counter-memoranda that each party knew the attitude of the
other party towards his own statementsquot;. After the exchange of
the
counter-memoranda the Arbitrator could request further expla-
nations on those points, which he deems insufficiently elucidated.

According to the United States Government the pleadings might
have been limited to the Memorandum; Article II of the Special
Agreement states, that it shall contain quot;a statement of its con-
tentions and the documents in support thereofquot;; it therefore not
only develops the United States argument, but also contests the
Netherlands argument as far as it is known from the previous

diplomatic correspondence.

It is true, that the Netherlands Government would have been in
the stronger position, if the Arbitrator had not asked for further
explanations; in that case they coUld have contested both the United
States contentions and the reply to their own. whereas the United
States Government could only contest the Netherlands contentions;
as the Arbitrator made use of his authority, the practical difference
between their relative positions is very small. Moreover it is
questionable, whether the previous diplomatic correspondence should

15) Neth. Expl. p. 11.

-ocr page 154-

be taken into consideration'®); if it should not, the Netherlands
attitude is the only possible one. Only if the Special Agreement
contains provisions differing from those of the Hague Convention
of 1907, are such provisions to prevail over the broad principles of
that Convention. The Special Agreement in the present case, how-
ever, does not contain any such provisionquot;).

C. Questions of Evidence.

One of the questions in the present case was the identification
of the island, which, according to the United States, had been
recognized throughout the world for nearly four centuries as
grouped with the Philippine Islands to which it belonged as a
Spanish possession until 1898, when sovereignty over it passed to
the United States... It is established by maps and by early docu-
ments, one dating back to the year 1689. On the other hand it is
said by the same Government, that it seemed probable that the
Netherlands Government quot;had confused the Island of Palmas with
the small group of islands (the Nanusa Islands), designated on
some maps as quot;Meangisquot; Islands. Again it is said, that the name
Miangas appears to be one by which the Netherlands Government
have only recently designated the island. Moreover, it appears in

16)nbsp;h is denied by the Neth. Count. Mem. p. 8: ...it is submitted that that
diplomatic correspondence and the arguments of the two parties advanced
at that time, do not constitute the basis for the Judgment on the validity
of the claim submitted to the arbitrator. The Netherlands opinion is In
conformity with J. H. Ralston, The Law and Procedure of international
Tribunals. 1926, p. 191,

17)nbsp;Fuglsang on p. 54 draws attention to Article II of the Special Agreement
which in the Dutch text runs: eene memorle..., waarin vervat zljn eene uit-
eenzetting van hare aanspraken, ctc., whereas the English text reads: a
memorandum, containing a statement of its contentions, etc. According to
the Dutch text the Netherlands Government put forward their claims (aan-
spraken) only, whereas the United States Government, according to the
Engli.sh text, put forward their contentions, which include both their claims
and their contestation of the other Party's arguments. As the Special
Agreement contains no provision making one of the two texts authoritative,
they are certainly of equal authority.

-ocr page 155-

different documents and on different maps with a different spelling:
Menangus, Mianguis, Meangis, Melangis, etc. Moreover names
like St. Juan, Mata, Hunter Island, Haycock Island and others were
at different times applied to the same island, as well as that of
Palmas.

Dampier mentions the quot;Islands Meangisquot; in his book, published
in 1698 as islands quot;abounding with gold and clovesquot;; the map,
published by Covens and Mortier at Amsterdam in the beginning
of the 18th century, shows a single island with the inscription quot;'t
regte Po Menangusquot;. which proves that a doubt with respect to
the name was settled. The island appears under similar names in
different documents filed by the Netherlands Government. These
differences are, in the Arbitrator's view, sufficiently explained by
the statements of linguistic experts, produced by the Netherlands
Government. The island in dispute is a single, distant, isolated
island; it therefore cannot be identified with the alleged quot;iles Mean-
gisquot; or islands designated by a similar name; the attempt to do so
may be explained by quot;the desire to locate somewhere the Meangis
Islands, famous since Dampier's voyagequot; quot;).

This reasoning sounds very convincing indeed; nevertheless the
fact that the question as to the identification of the island could
arise, proves that both documents and maps are to be used with
the greatest caution.

quot;Maps of course are evidencequot;, the United States Rejoinder
states'quot;), quot;with rcspect to the discovery of the Island and the
general recognition of Spanish sovereignty over it prior to 1898.
It is unnecessary to observe that maps as historical records prepared
by experts have had a very conspicuous use in the arbitral settle-
ment of territorial disputes. In an arbitration concerned with a
portion of the world where there arc numerous islands with which,
as the Nethcrland Government explain with respect to their island
possessions, there is little or no interference by the sovereign with
Jocal affairs... the use of maps would seem peculiarly pertinent
and important. They record the recognition of sovereignty estab-

gt;8) Award, p. 48.
19) U.S. Rc]. p. 32.

-ocr page 156-

lished through international covenants and historical forces of
various kindsquot;.

It is certainly true that a map drawn by the explorer of a certain
region can prove the discovery of an island such as Miangas; every
subsequent map, however, is only of importance, if it relies on
new data and does not only copy a previous map. It is obvious,
that of the approximately 1.000 maps examined by the United
States Government only very few fulfil this condition.

Only maps relying on original data can afford evidence of the
quot;general recognitionquot;, to which this Government refer. That the
Island of Miangas was not generally recognized to belong to Spain
is proved by the maps and documentary evidence adduced by the
Netherlands Government. Moreover it should be borne in mind,
that even a trustworthy cartographer with the best possible instru-
ments can only locate an island such as Miangas; he can observe
and reproduce its shape, but he can never observe its name or the
sovereignty under which it is, if no evidence exists in the form of
some sign such as a cairn or a flag; information given by native
inhabitants must be accepted with extreme caution and is only of
value, if confirmed by official information. Strictly speaking, a map
is only evidence of the opinion of its author; it will only be of
value in an international procedure, if it can be proved that the
data on which the cartographer relies have been obtained from a
Government. If a Spanish cartographer could be proved, in assign-
ing sovereignty over the island on a map, to have relied on official
Dutch data, or a Netherlands cartographer on official Spanish data,
a map designating sovereignty over the island would be of value.
But in this case value attaches rather to the admission of the
Government than to the map.

This is wholly in accordance with Judge Huber's general
remark'quot;): If the Arbitrator is satisfied as to the existence of
legally relevant facts which contradict the statement of cartographers
whose sources of information are not known, he can attach no
weight to the maps, however numerous and generally appreciated
they may be. In the present case the Arbitrator explains at some

20) Award, p. 36.

-ocr page 157-

length that not only maps of ancient date, but also modern, even
official or semi-official maps seem wanting in accuracy. Under these
circumstances it is not surprising that the role played by maps in
the present arbitration is by no means in proportion to the trouble
taken by the litigating Parties.

Whereas the questions of evidence so far considered have received
the attention of both Parties, there is one question of general
importance, which is raised by the Netherlands Government but
fully dealt with by the Arbitrator only.

quot;The admission of the existence of territorial sovereignty early
in the 18th century and the display of such sovereignty in the 19th
century and particularly in 1906, would not lead, as the Netherlands
Government appears to suppose, by analogy with French, Dutch
and Gsrman civil law, to the conclusion that, unless the contrary
is proved, there is a presumption for the existence of sovereignty
in the meantime. For the reasons given above, no presumption(s)
of this kind are to be applied in international arbitrations, except
under express stipulations. It remains for the Tribunal to decide
whether or not it Is satisfied of the continuous existence of
sovereignty, on the ground of evidence as to its display at more or
less long intervalsquot;quot;').

In the next paragraph, however, the Arbitrator states, that there
is no reason to suppose, when the Resident van Delden, in a Report
of 1825, mentioned the island quot;Melangisquot; as belonging to Taboekan,
that these relations had not existed between 1726 and 1825. quot;Thisquot;,
professor Jessup says, quot;seems little different from presuming their
continuancequot; '■quot;).

Two observations may here be made: In the first place: Is there
really a gap in the documentary evidence laid by the Netherlands
Government before the Tribunal relating to the Island of Miangas
and extending over nearly a century? To the Netherlands Memo-
randum are annexed contracts of 1758, 1771, 1779 and 1782 (Ap-
pendices Q—U), either with the King of Taboekan or with the

21)nbsp;ibid. p. 53.

22)nbsp;Jessup, loc. cit. p. 745.

-ocr page 158-

Sangi princes collectively. It is true that the Island of Miangas
is not expressly mentioned in these contracts; they prove none the
less the continuance of the suzerainty of the East-India Company
over the Sangi states to which the island belongs. And when, for
instance, under the contract filed as Appendix A, the King of
Taboekan has to put at the disposal of the East-India Company
150 men to fight the pirates of Magindanao, this stipulation would
seem also to concern the Island of Miangas and thus proves a
display of sovereignty over the island. Regulations of the kind
would seem no less direct than the regulations of 1701, in which
the island is expressly mentioned.

In the second place Jessup's remark does not apply, because
what the Arbitrator rejects is a presumption as to the existence
of sovereignty, whereas in the next paragraph a presumption of
the contrary is equally rejected'quot;). The Arbitrator is quot;master of
the situationquot;; he apparently will not allow any presumption to
interfere with his freedom to form his own opinion as to the value
of the opposing contentions.

23) According to de Visscher. loc. cit. p. 748, the rejection of the praesumptio
juris is perfectly compatible with the praesumptio facti in the next para-
graph. Prof, de Visscher characterises Jessup's remark as quot;peu justifiéequot;.

-ocr page 159-

CHAPTER V.
CONCLUSIONS.

A. Importance of the Award.

It cannot be denied, that the material importance of the Island
of Miangas is by no means in proportion to the trouble taken by
the litigating Powers and to the time taken to settle the dispute.

None the less, the island will henceforth have its place in the
history of international law, for the questions on which Judge
Huber's opinion was invoked, are closely concerned with the funda-
mental principles on which international law is based and has been
based since it began to play its role in the history of law.

In general disputes with respect to territorial sovereignty have
arisen from the remotest times up to the present day. Notwithstand-
ing this there is probably no subject in the domain of international
law which is less definitely regulated. As an illustration of this
fact, it is only necessary to point to the Award itself which begins
with a section devoted to doctrine in which the principles of terri-
torial sovereignty are laid down. From this point of view Judge
Huber's clear-cut Award is a valuable contribution to the develop-
ment of international law on the subject of territorial sovereignty.

It is therefore not surprising that the Judgment of the Permanent
Court of International Justice in the Greenland case did Judge
Huber the honour of quoting his Award. As a matter of fact the
Court refers but rarely cither to the opinions of jurists or to pre-
vious international decisions. Its judgments consequently take the
form of more or less apodictical statements, which, however, as
a result of their general acceptance, acquire the value of signposts
pointing the direction in which international law is to develop. It
is therefore important to compare the Judgment of the Permanent
Court in the Greenland case both with the Award and with the
conclusions reached in this treatise.

-ocr page 160-

B. Miangas and Greenland.

According to the Arbitrator territorial sovereignty involves the
duty of assuring to human activities the minimum of protection of
which international law is the guardian. The Arbitrator admits that
the degree of effectiveness required for an occupation necessarily
varies; if this is taken into account, the facts and events alleged
by the Netherlands Government are deemed by the Arbitrator
sufficient to prove that the Netherlands occupation has been
effective.

In the course of this treatise it has been shown that these facts
and events, except in the years immediately preceding the cession,
can hardly be said to constitute an effective occupation, and that
at all events they do not satisfy the principle laid down by the
Arbitrator. If on the other hand the facts and events are considered
on which the Danish Government relies in order to prove — and
which, according to the Court, constitute — an effective occupation
of the whole of Greenland, it must be admitted at all events that
the Netherlands' display of state authority over the Island of
Miangas was more intense than that of Denmark over the whole
of Greenland. As a matter of fact the recognition of Denmark's
sovereignty over Greenland almost amounts to the recognition of
a nominal sovereignty.

It has been stated in Chapter I, that both the Congo Conference in
1885 and the Convention of Saint Germain of 1919 were, as regards
the effectiveness of occupation, rendered almost nugatory by
subsequent state practice. This practice has now received the sanc-
tion of the Judgment of the Permanent Court of International
Justice. Whereas in private circles in Denmark the Danish title
was considered insufficient, because it was not supported by an
effective display of state authority sufficient to constitute a valid
title to the whole of Greenland, it nowhere appears from the Judg-
ment, that Great Britain, the United States or Japan ever informed
the Danish Government that the recognition sought by Denmark
could only be given, if effective possession was taken. The dissent-
ing opinions of Judges Anzilotti, Schiicking and Wang are. as
regards the effectiveness of the occupation, more in accordance

-ocr page 161-

with the opinion of Judge Huber. None the less: Roma locuta, causa
finita.

C. Final Conclusions.

The conclusions of this treatise may thus be summarized as
follows:

It is probable, that Spain discovered the Island of Miangas, but
it nowhere appears, that Spain ever effectively occupied the island.

According to the Arbitrator, the Spanish definite title of dis-
covery, if it ever existed, was lost, because Spain did not fulfil the
requirements, added by international law in later years. A Spanish
inchoate title, if it still existed in 1898, could not prevail over the
definite Netherlands title derived from the continuous and uninter-
rupted display of state activity.

The present study leads to the conclusion, that the mere fact
of discovery never conferred a title to territorial sovereignty and
that, even if it ever conferred an inchoate title, this title has lapsed,
because the discovery was not followed by a taking of effective
possession within a reasonable delay. The Arbitrator's theory of
intertemporal law and its corrolary, the distinction between the
creation and the existence of rights, must be rejected

The title of contiguity, understood as a basis of territorial
sovereignty, has no foundation in international law. On this point
the conclusion reached is wholly in accordance with the Award.

We agree therefore that the United States title does not hold
good.

The title of prescription, recognized by the Arbitrator, is not
founded in international law; on the other hand an appeal to
pos-
sessio immemorialis
is warranted.

According to the Arbitrator there has been an actual display of
state authority on the part of the Netherlands since 1677. or at
all events since 1700. and the title thus acquired prevails over an
inchoate title of Spain, supposing that such a title could be said to

1) It is interesting to note that Judge Anzilottis dissenting opinion does not
appeal to any such theory as Judge Huber's theory of intertemporal law.

-ocr page 162-

exist in 1898. According to the view taken in the present treatise
the facts and events alleged by the Netherlands Government did not
create a definite, but only an inchoate title; this title however was
strengthened by effective occupation in the years preceding the
alleged cession of the Island of Miangas to the United States by
Spain.

As Spain had no title to the island in 1898, she could not transfer
it to the United States.

The Netherlands title could not be affected by the notification
of the treaty of cession to the Netherlands Government. As regards
this point, we are wholly in agreement with the Award.

Accordingly the final conclusion reached in this treatise is in
agreement with Judge Huber's decision, namely, that the Island of
Palmas (or Miangas) forms in its entirety a part of Netherlands
territority.

-ocr page 163-

BIBLIOGRAPHY.

List of Works referred to in the Text.

A d r i a n i, N.: Het Eiland Miangas, in de Indische Gids,
XXXVIII.

Anzilotti, D.: Cours de Droit International, Paris, 1929.
Asbeck, F. M. van: De Juridische Wereldbouw. Amsterdam.
1916.

-- Samenhang van internationaal en koloniaal recht, Bata-

. via 1931.

B 1 u n t s c h 1 i, J. C.: Le Droit International codifié, Paris, 1874.
Brierly. J. L.: The Law of Nations, 2nd ed.. Oxford, 1930.
B r ü e 1, E.: Den Folkeretlige Protest in Nordisk Tidsskrift for In-
ternational Ret, Vol. VII.
C a 1 v o. Ch.: Dictionnaire de Droit International public et privé.
Berlin and Paris, 1885.

—- Le Droit International, théorique et pratique. Paris. 1884.

Cange. C. du: Glossarium mediae et infimae Latinitatis. Niort.
1883.

Cavaglieri. A.: Règles Générales du Droit de la Paix, in
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--II decorso del tempo cd i suoi effetti nei rapporti giuridici

intcrnazionali, in Rivista di Diritto Internazionale. 1926.
Chys, J. A. van der: De Stichting der Vercenigdc Oost-In-

dische Compagnie, Leiden 1856.
Cobbett, Pitt: Cases on International Law. 5th ed.. London.
1931.

C 2 y h 1 a r z. v.: Lehrbuch der Institutionen des Römischen Rechts.

18th ed.. Vienna. 1924.
Delbez. L: Du territoire dans ses rapports avec l'Etat, in Rev.

gén. Dr. Int. Publ., 1932.
Donati. D.: Stato e Territorio. in Rivista di Diritto Internazio-
nale, 1924.

-ocr page 164-

F a u c h i 11 e. P.: Manuel de Droit International Public, 8th ed.,
Paris, 1922—1926.

Fenwick, Ch. G.: International law, London, 1924.

Field, David D u d 1 e y : Outlines of an International Code,
2nd ed., New York, 1876.

Fontaine, H. La: Pasicrisie internationale, Bern, 1902,

François, J. P. A,: Handboek van het Volkenrecht, Zwolle,
1931,

F u g 1 s a n g, W,: Der Amerikanisch-Holländische Streit um die
Insel Palmas, Berlin, 1931.

Gemma: Appunti di diritto internazionale, Bologna, 1923.

Goebel, J.: The Struggle for the Falkland Islands, New Ha-
ven, 1927.

G o 11 s c h a 1 k. P.: The earliest diplomatic documents on America,
Berlin. 1927.

Gourd, A.: Les Chartes Coloniales et les Constitutions des
Etats-Unis de l'Amérique du Nord, Paris, 1885.

Grotius, H.: De iure belli ac pacis (1625), Leiden, 1919.

- Mare liberum (1608), New York, 1916.

G u é n i n, E.: Ango et ses Pilotes, Paris, 1901.

Heeres, }. E.: Corpus Diplomaticum Neerlandico-Indicum. Ver-
zameling van Politieke Contracten en verdere Verdragen
door de Nederianden in het Oosten gesloten, van Privi-
legebrieven aan hen verleend, enz. in Bijdragen tot de
Taal-, Land- en Volkenkunde van Nederlandsch-Indië
1907 en 1931.

Hudson, Manley O.: Cases and other materials on Inter-
national Law, St. Paul, 1929.

Hyde, Ch. Ch.: International Law, chiefly as interpreted and
applied by the United States, Boston, 1922.

Kiel s tra. E. B.: De vestiging van het Nederlandsche gezag
in den Indischen Archipel. Haarlem. 1920.

Kleintjes, Ph.: Staatsinstellingen van Nederlandsch-Indië,
5th. ed., Amsterdam. 1927.

Kraus, H,: Die Monroedoktrin, Berhn, 1913.

Krom, N. J„ Het Hindoe-tijdperk, in Neerlands Indië, Amster-
dam, 1929.

-ocr page 165-

Hindoe-Javaansche Geschiedenis, The Hague, 1926.

Lapradelle, A. de — et N. Politis: Recueil des Arbi-
trages Internationaux, I, Paris, 1905 and II, Paris, 1924.

Lapradelle, P. G. de: La Frontière, Paris, 1928.

L a u t e r p a c h t. H.: Private Law Sources and Analogies of
International Law, London, 1927.

Lindley, M. F.: The Acquisition and Government of backward
territory in international law, London, 1926.

Liszt, F. von: Das Völkerrecht, 12th ed., Berlin, 1925.

Louter, J. de: Het stellig Volkenrecht, The Hague, 1910.

Loze, T h. H. M.: De Indische zelfbesturende Landschappen in
het Nieuwe Staatsstelsel, The Hague, 1929.

Martens, F. de: La Conférence du Congo à Berlin et la poli-
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Moore, J. Bassett: A Digest of International Law, Washing-
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M y e r. P.: Verzameling van regeeringsinstructiën over Neder-
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Oppenheim, L: International Law. 3rd ed., London, 1920.

Phillimore, Sir Robert: Commentaries upon International
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P r a d i e r-F o d é r é. P.: Traité de Droit International Public,
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-ocr page 166-

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- The Oregon Question examined, London, 1846.

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- The Collected Papers, Cambridge, 1914.

Wright, Quincy: Territorial Propinquity, in A. J, XII.

-ocr page 167-

CONTENTS.

Page

Chapter

I. GENERAL SURVEY

A.nbsp;Exposition of the Case........

L The Facts............

2.nbsp;The Award...........

3,nbsp;Analysis of the Award.......

B.nbsp;Territorial Sovereignty and its Title ....

1.nbsp;Territorial Sovereignty........

2.nbsp;The Title to Sovereignty.......

C.nbsp;The Notification of the Treaty of Paris, 1898 .

1.nbsp;The Notification under Consideration . .

2.nbsp;Notification in general........

3.nbsp;Protestation in general....... .

4.nbsp;Conclusions............

IL THE UNITED STATES TITLE

A.nbsp;The Title by Discovery........

1.nbsp;The Discovery of the Island......

2.nbsp;Discovery as creative of a definite Title .

3.nbsp;Discovery as creative of an inchoate Title .

B.nbsp;The Title of Contiguity........

1.nbsp;Professor Jessup's Criticism......

2.nbsp;The Arbitrator's Opinion.......

HI. THE NETHERLANDS TITLE

A.nbsp;Extinction of a previous Spanish Title . . .

L Abandonment..........

2. Prescription..........

B.nbsp;An original Netherlands Title {Display of stat
activity) .........' . . .

1.nbsp;Historical Introduction.......

2.nbsp;The political Contracts......

3.nbsp;The Status of the East-India Company .

-ocr page 168-

Chapternbsp;PaQ^

IV. FORMAL QUESTIONS

A.nbsp;The Special Agreement.........134

B.nbsp;Questions of Procedure.........136

C.nbsp;Questions of Evidence.........142

V. CONCLUSIONS

A.nbsp;Importance of the Award.........147

B.nbsp;Miangas and Greenland.........148

C.nbsp;Final Conclusions...........149

-ocr page 169-

STELLINGEN.

I.

De souverciniteit over de mandaatgebieden berust bij deze ge-
bieden zelf.

II.

Het tractaat, dat geratificeerd is door het Staatshoofd buiten de
grenzen van diens consitutioneele bevoegdheid, is verbindend.

III.

De Zelfbestuursregels 1927 hadden, als betreffende eene inwen-
dige aangelegenheid van Nederlandsch-Indië, bij ordonnantie vast-
gesteld moeten worden.

IV,

Artikel 128 van de Indische Staatsregeling behoeft geen aanvul-
ling om de mogelijkheid te openen tot het vernietigen van mede-
bewind-verordeningen van Inlandsche gemeenten.

V.

Het Pond Sterhng is van den gouden standaard gedrongen, om-
dat het Britsch economisch systeem en dan voornamelijk in dit
systeem de loonen, totaal onbewegelijk zijn gebleven.

VI.

Het huwelijk, door eene Nederlandsche in het buitenland gesloten
binnen drie honderd dagen sinds de ontbinding van haar vorig
huwelijk, is daarom niet ongeldig.

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