Las Palmas Revisited

Ivan Borromeo Elum Public International Law
Las Palmas Arbitration Revisited, H. Harry L. Roque, Jr.
Context
The continued dispute between the Philippines and Indonesia as to which territory Las Palmas
should belong to.
Facts:
- In 1994, the Philippines and Indonesia held its first ever Senior Officials Meeting on the De-
limitation of the Maritime Boundary between the two States.
- Official representatives agreed that both countries would delimit the location between 120"
and 129" 30" East Longitude.' Thts includes the area of the Philipines and Indonesia where
the island of Palmas may be found.
- This was followed by a second bilateral consultation between the two countries, held on 9 No-
vember 2000. The discussion was exploratory and no further agreements were forged.
- On 20 December 2002, the Third Meeting of the Philippine Indonesian Joint Commission for
Bilateral Cooperation was held in Mania. The Indonesian panel gave notice to the Philippine
panel that Indonesia has enacted a new Baselines Law, which amended its law enacted in
1960.
- The new Indonesian Baselines Law uses the island of Palmas (also known as Miangas) as a
base point in drawing Indonesia’s straight archipelagcic baselines. This provision emphati-
cally contradicts Indonesia’s commitment with the Philippine government to delimit the area
where the island of Palmas is found only after and pursuant to the negotiations, and in keeping
with UNCLOS. Prior to the passing of said law, the two countries, recognizing that the island
of Palmas would be a contentious issue in delimiting their territories, agreed to do so bilater-
ally and in consultation with the other. This was the very reason why the two countries en-
tered into the delimitation talks in the first place.
- If the new baseline coordinates drafted by Indonesia were followed, the Philippines would
lose not only Palmas Island but also some 15,000 square miles of archipelagic and territorial
waters 12 These are Philippine territories currently defined under the Treaty of Paris.
Reasons Why Philippines Should Claim Las Palmas

- It is very close to the strategic axis linking the Pacific and Indian oceans. It will enable the
Philippines, possibly in cooperation with Indonesia, to establish archipelagic sea-lanes and
control, monitor and maintain surveillance of sensitive maritime jurisdictions. Many popula-
tion centers, industrial zones and ports are accessible from that area.
- It is close to the critical spawning areas of economically important fish like the yellow fin
tuna. The area has also been declared as a maritime eco-region by the WWF because of its
distinct and outstanding biodiversity.
- The area in dispute is also a “warm pool” of the world’s oceans making it suitable for large
scale ocean terminal plants. The author also said that the aforementioned reasons, plus the
sheer amount of area that the Philippines will lose, warrant a re-examination of the 1928 Las
Palmas Arbitration which is the root of Indonesia’s claim to Las Palmas.
Criticisms Toward The 1928 Arbitration

- The author cited Jessup’s criticisms of the substantive and procedural aspects of Huber’s arbi-
tration (The Swiss arbitrator Max Huber succinctly summarized the conflicting claim to the
island when he sad “It lies within the boundaries of the Philippines as ceded by Spain to the
United States m 1898 [by the Treaty of Paris])
- According to Jessup, the use of Intertemporal Law is non- sequitur and is without precedent.
- Jurisprudence abounds in international law which respects the Principle of Acquired Rights or
applies the law at the time of the creation of a right. (The United States and The Netherlands
agreed to resort to arbitration under the auspices of the Permanent Court of Arbitration (PCA).
NOTE: The case could not be brought to the Permanent Court of International Justice (PCIJ)
because the United States was not a member of the League of Nations and consequently, of
the PCIJ)
- Thus, a State’s title over territory cannot be extinguished simply by virtue of the rise of a con-
temporary norm. If this was the case, the retroactive effect of law would be highly disturbing
in that every State would have to re-examine its title to each part of its territory to determine
whether a change in the law has necessitated a reacquisition. (In Spain’s case, when it ac-
quired Las Palmas by virtue of discovery which was valid in 16th century international law, it
already acquired a right over said territory regardless of the evolution underwent by interna-
tional law.)
- As to Huber’s ruling that US failed to show effective occupation, Jessup criticized this using
the Theory of Constructive Possession which provides that the possession of the whole is
tantamount to the possession of the parts of the whole. In occupying Mindanao, Spain also
occupied Las Palmas as part of the Philippine archipelago. Jessup also criticized Huber’s re-
jection of the Principle of Contiguity which is actually recognized in international law and has
been prominently practiced in 1928 (time off the arbitration) especially in dealing with a des-
olate, uninhabited island. (Evidence: Evidence contemplated for submission were the collec-
tion of the cedulas or residence tax from the inhabitants of the islands, as well as reports from
the different catholic sects in the island)
- Other authorities like Lauterpacht and O’Connell join Jessup in criticizing the arbitration and
Netherlands’ claim to Las Palmas.
United States’ Standing To Arbitrate

- Both The Netherlands and the United States assumed, and Huber recognized, that the United
States’ standing to arbitrate, otherwise defined as a personality to advance a right, is by virtue
of Spain’s cession of the entire Philippine archipelago to the United States through the Treaty
of Paris on December 10, 1898.
- However the standing to arbitrate or personality to advance a right in the 1928 Arbitration
based only on Spain’s 1898 cession of title is not valid. While acquiring title through cession
is a valid, the United States’ title is only as good as its predecessor.
- It has become clear that as of title date of the signing of the Treaty of Paris, Spain no longer
had title to the Philippine Archipelago. Consequently, Spain transferred nothing to the United
States.
- Spain could not halve legally ceded the island of Palmas, or any other parts of the Philippine
to the United States, not only because of its lack of title, but also because Filipinos had already
established the Republic on June 12,1898, before the signing of the Treaty of Paris.
Non-Transferability of Arbitral Awards

- Consent freely given is the core for any arbitration. (Evidence: Convention for the Pacific Set-
tlement of International Disputes)
- Successor States are not bound by obligations entered into by its predecessor and they are at a
complete liberty WON to undertake such obligations since they are a completely new entity.
- The only exception to this would be obligations in relation to territorial boundaries pursuant to
a treaty. However, Las Palmas was awarded to the Netherlands by virtue of an arbitration to
which the Philippines was not a party of. It is therefore not bound by Huber’s ruling. The
Philippines has also never acknowledge that it has automatically succeeded the US is said ar-
bitration.
Conclusion
- The author concluded by saying that even assuming that Indonesia’s title to Las Palmas is in-
disputable pursuant to the 1928 Arbitration, this does not justify the former’s use of said island
in its 2002 Baselines Law as a base point for drawing its archipelagic baselines. This is be-
cause Netherlands, as Indonesia’s predecessor-in- interest, never alleged in the arbitration that
Las Palmas formed part of the Indonesian archipelago.
- Assuming, for the sake of argument that Indonesia’s title to Palmas is beyond dispute because
of the Palmas arbitration, it does not, however, justify Indonesia’s act in its 1992 baselines
law utilizing the island as a base point for the drawing of its archipelagic baselines. This is be-
cause Indonesia’s predecessor-in- interest, Netherlands, did not allege, in the Palmas arbitra-
tion, that the island formed part of the Indonesian archipelago. Accordingly, Palmas should be
treated as an island independent of the Indonesian archipelago and properly enclaved.
- Therefore, Las Palmas should be treated as an island independent of the Indonesian archipel-
ago if not an actual part of the Philippines.
Pertinent provisions/Evidences/Relevant Points:

1. On the principle of territory, keeping up with the International law:
Art. 17,UNCLOS. “1. An archipelagic state may draw straight archipelagic baselines joining the
outermost points of the outermost islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an area in which the ratio of the area of
the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
2. On disputes over sovereignty of Las Palmas (US vs Netherlands; quoted)

The Arbitration of Differences Respecting Sovereignty Over the Island of Palmas (or Miangas),
(Netherlands v. U.S.) 22 AM J. INT’L L. 867, 875 (1928). “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, occupation, etc. - superior to that which the
other state might possibly bring forward against it. However, if the contestation is based on the
fact that the other party has actually displayed sovereignty, it cannot be sufficient to establish the
title by which territorial 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.
3. On PCA’s authority to settle the dispute between Netherlands and USA

Both the Netherlands and the United States were signatories to the Convention for The Pacific
Settlement of International Disputes, adopted 27 July 1899 which established the Permanent
Court of Arbitration.
Permanent Court of Arbitration Optional Rules for Arbitrating Disputes Between Two States (ef-
fective October 20, 1992), Article 15, par. 2 “If either party so requests at any appropriate stage
of the proceedings, the arbitral tribunal shall hold hearings for the presentation of evidence by
witnesses, including expert witnesses, or for oral argument. In the absence of such a request, the
arbitral tribunal shall decide whether to hold such hearings or whether the proceedings shall be
conducted on the basis of documents and other materials.
4. On the issue of the Philippines achieving independent statehood on June 12, 1898
The creation of any state is evaluated on the basis solely of the elements of statehood as defined
by the Montevideo Convention: a permanent population, a defined territory, n government, and
capacity to engage in formal relations with others ”. On the basis of historical accounts, the
Philippines satisfied all such criteria by December 18, 1898, if not in fact sooner than such a
dates.
5. On the evidence of Consent freely given as a core for any arbitration.

The Powers who have recourse to arbitration sign a special Act ('Compromis'), in which the sub-
ject of the difference is clearly defined, as well as the extent of the Arbitrators' powers. This Act
implies the undertaking of the parties to submit loyally to the Award.
6. On Indonesia’s violation of UNCLOS, as regards to the creation of new baselines

Pursuant to art 310 of the UNCLOS. the Philippines declared that its signing the Convention
does not in any way impair or prejudice the sovereign rights of the country under and arising
from the Constitution of the Philippines. (Phil Int’L 30 (1982).Dean Merlin Magallona of the
University of the Philippines maintains that the boundaries contained in the Treaty of Paris are
still the basis of the maritime territory of the Philippines)

Las Palmas Revisited

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Las Palmas Revisited

Uploaded by

Copyright:

Available Formats

Ivan Borromeo Elum Public International Law

Las Palmas Arbitration Revisited, H. Harry L. Roque, Jr.

Reasons Why Philippines Should Claim Las Palmas

Criticisms Toward The 1928 Arbitration

United States’ Standing To Arbitrate

Non-Transferability of Arbitral Awards

Pertinent provisions/Evidences/Relevant Points:

2. On disputes over sovereignty of Las Palmas (US vs Netherlands; quoted)

3. On PCA’s authority to settle the dispute between Netherlands and USA

5. On the evidence of Consent freely given as a core for any arbitration.

6. On Indonesia’s violation of UNCLOS, as regards to the creation of new baselines

You might also like