The first arbitral case concerning an opposed Philippine land took place long before the Permanent Court of Arbitration (PCA) decided on July 12, 2016, in favor of the Philippines in the United Nations Convention on the Law of the Sea case. It transpired during the American colonial occupation and was tried when the global body was still known as the League of Nations.
In 1898, Spain ceded the country to the United States under the Treaty of Paris, and included Las Palmas, an island 197 kilometers south of Samal. Known as Miangas to Indonesians, the Netherlands (Dutch) also claimed sovereignty over it. To resolve the ownership, the claimants submitted the dispute to the PCA by signing a pact on January 23, 1925. The case was decided on April 4, 1928, with Max Huber, a Swiss lawyer, as the sole arbitrator. This is ‘one of the most influential precedents dealing with island territorial conflicts.’
Central to the case was the question of whether the island was part of the U.S. territory under the Paris treaty or under the Netherlands when Indonesia was still a Dutch colony.
The Philippine view was premised on (i) the geographic contiguity of the island to the Philippines; (ii) the discovery by Spain; and (iii) its inclusion in the 1989 Treaty of Paris. Netherlands, on the other hand, invoked its claim of the landmass by the continuous and peaceful display of sovereignty based on pacts signed as early as 1677 with the ruling princes of adjacent regions.
The ‘point of strategy’ adopted by the U.S. in the claim was explained in a November 7, 1924, article (‘U.S. and Holland Dispute Island’) in The Evening Star (Washington, D.C.), stating:
‘There is believed to be considerable hazard in changing the boundary and placing Las Palmas outside the Philippines, thus creating the possibility of its becoming a foreign fortified point or not, of course under the Dutch but when, as the game progresses in the Far East, the Dutch may no longer be the power with which to reckon.’
The arbitral court said the U.S. stance of contiguity and discovery was not proved and if Spain had a title to show, it is still under contest. The Netherlands, meanwhile, held that its possession and exercise of sovereignty of the atoll is an extension of the accords the East India Company, a Dutch company, signed with the indigenous ruler to even out the Dutch rule over the territory.
The court stated that Spain could not lawfully give the island to the U.S. under the 1989 treaty because it did not possess an actual title, adding that for a sovereign to uphold its initial title thru discovery, ‘the discoverer had to actually exercise authority even by as simple an act as planting a flag on the beach,’ an act that Spain did not bother to execute.
The arbitrator also pointed out that if there were discordant claims between the Dutch and the Spaniards, there would have been conflict, adding that an actual title, even if existent, cannot supplant the sovereignty exercised by the Dutch over the island ‘from 1677 or even prior to 1648,’ a territorial claim that was not challenged.
In précis, ‘a title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display of sovereignty… [which] is as good as title. However, discovery alone, without a subsequent act, cannot suffice to prove sovereignty over the island. The territorial sovereignty of… Netherlands, was not contested by anyone from 1700 to 1906 so the title of discovery was, at best, an inchoate title and does not prevail over the Netherlands claims of sovereignty.’
Three precedents were created in resolving the island territorial dispute: (i) a title based on contiguity has no standing in international law; (ii) a title by discovery is only an incipient title; and (iii) the claim by the sovereign that exercises authority is greater than a title based on mere discovery. Huber also distinguished between the creation of rights and the existence of rights.
