Internationaal recht – The Island of the Palmas

Facts

The United States and the Netherlands both laid claim to the ownership of the island of Palmas. The United States claimed that it was part of the Philippines, because the islands had been ceded by the Treaty of Paris in 1898. The United States, as successor to the rights of Spain over the Philippines, based its title in the first place on discovery. The existence of sovereignty thus acquired was not merely confirmed by the most reliable cartographers and authors and even by treaty, particularly the Treaty of Münster of 1648, which was agreed to by Spain and the Netherlands. Nothing had occurred to cause the acquired title to disappear in international law, therefore, the principle of contiguity belongs to the Power having sovereignty over the Philippines.

The Netherlands argued that the fact of discovery by Spain was not proved, nor yet any other form of acquisition and even if Spain had at any moment had a title, such title had been lost. Therefore, the principle of contiguity is nonexistent. In addition, the Netherlands represented by the East India Company, possessed and exercised rights of sovereignty from 1677 or even prior to 1648. 

This sovereignty arose out of conventions entered into with native princes of the island of Sangi, Establishing the sovereignty of the Netherlands over the territories of these princes, including Palmas. The state of affairs is claimed to be set up by international treaties.

The two main issues in this case were:

1. Did the inchoate title claimed by the United States prevail over a continuous and peaceful display of sovereignty exercised by the Netherlands?
2. Did a title of contiguity have foundation in international law?

The decision

The arbitrator determined that Spain held a title when Spain “discovered” the island of Palmas. However, for a sovereign to maintain its initial title via discovery, the discoverer had to actually exercise authority over the island. Spain did not exercise authority over the island after making an initial claim after discovery. As a result, Spain could not grant what it did not hold. Therefore, the Treaty of Paris could not grant the island of Palmas to the United States if Spain had no actual title to it.

If Spain had actually exercised authority, there would have been conflicts between the two countries, but there is no evidence of this. Thus, a title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display of sovereignty. Peaceful and continuous display of territorial sovereignty is as good a title. The territorial sovereignty of the Netherlands was not contested by anyone from 1700 to 1906. Therefore, the island of Palmas belonged to the Netherlands.

The arbitrator also determined that the title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law. 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). In other words, the mere proximity was not an adequate claim to land.

¹ A cartographer is someone who will measure, analyze and interpret geographical information to create maps and charts for political, cultural and educational purposes.
² Inchoate means being only partly in existence, imperfectly formed or formulated, not yet completed or fully developed