Island of Palmas Case (United States v. The Netherlands) case briefIsland of Palmas Case (United States v. The Netherlands) (Scott, Hague Court Reports 2d 83 (1932), (Perm. Ct. Arb. 1928), 2 U.N. Rep. Intl. Arb. Awards 829)

Procedural History:Arbitration of territorial dispute.

Overview:-The United States (P) claimed that the Island of Palmas was part of the Philippines but the Netherlands (D) claimed title as well. -The United States (P) claimed the Island of Palmas was part of the Philippines and had been ceded by Spain by the Treaty of Paris in 1898. -The United States (P), as successor to the rights of Spain over the Philippines, based its claim of title in the first place on discovery. The Netherlands (D) claimed that it had possessed and exercised rights of sovereignty over the island from 1677 or earlier to the present.

Issue:Can an inchoate title prevail over a definite title founded on continuous and peaceful display of sovereignty?

Rule:-An inchoate title cannot prevail over a definite title found on continuous and peaceful display of sovereignty.

Analysis: The arbitrator examined evidence of contracts made by the East India Company and the Netherlands (D). The Netherlands (D) also based its claims on conventions it had with the princes and native chieftains of the islands. Spain was found not to have had dominion over the island at the time of the Treaty of Paris in 1898.Outcome:-An inchoate title cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The continuous and peaceful display of territorial sovereignty is as good as title. Discovery alone, without any subsequent act, cannot suffice to prove sovereignty over the island. There is no positive rule of international law that islands situated outside territorial waters should belong to a state whose territory forms the nearest continent or large island. No one contested the exercise of territorial rights by the Netherlands (D) from 1700 to 1906. The title of discovery, at best an inchoate title, does not prevail over the Netherlands, (D) claim of sovereignty.

Case Concerning the Temple of Preah Vihear

Introduction

The Preah Vihear Temple more than being a unique architectural masterpiece at the Thai-Cambodian border is also a source of an endless dispute between both countries. The issue concern the sovereignty over the Temple and its surrounding area. The International Court of Justice (hereinafter ICJ or the Court) released a first judgment in 1962 and an interpretation of this ruling in 2013. Nevertheless, some questions and concerns have still remained unanswered. A situation which could eventually lead to future border incidents among both countries.On 11 November 2013, the ICJ released its interpretation on its 1962 ruling on the case of the Preah Vihear Temple. As it did in 1962, the ICJ ruled in favour of Cambodia: “The Court therefore concludes that the first operative paragraph of the 1962 Judgment determined that Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear, […] and that, in consequence, the second operative paragraph required Thailand to withdraw from that territory the Thai military or police forces, or other guards or keepers, that were stationed there”.[1. Request of Interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand), 2013 I.C.J. 36 (November 11).]

Historical Background the 1962 Judgment

The Preah Vihear Temple is an ancient Hindu temple, situated in the Dangrek Mountains at the border between the Kingdom of Cambodia and the Kingdom of Thailand. The Temple, built between the 9th and 11th century, is dedicated to the Hindu deity Shiva and beholds great cultural and religious value. It is also a famous tourist attraction. For these reasons, the United Nations Educational Scientific and Cultural Organisation (UNESCO) inscribed the Preah Vihear Temple on the World Heritage List following a request from Cambodia in 2008.

This sanctuary has been since the mid-twentieth century a source of conflict precisely because of its unique and controversial location between both countries.

It all started in 1954 when Cambodian soldiers encountered Thai military personnel stationed on the Temple immediately after Cambodia regained its independence from France. Cambodia protested and notified Thai authorities that the Temple was on the Cambodian territory but Thailand refused to withdraw its troops. So Cambodia brought – on the grounds of the violation of its territorial sovereignty over the Preah Vihear Temple and its vicinity – the case before the International Court of Justice in 1959. The mandate of this judicial organ of the United Nations (UN) located in The Hague, Netherlands is to settle on the grounds of international law legal disputes submitted to it by a state.The Court after confirming its jurisdiction on the case in a first judgment released on 26 May 1961 released a judgement on the merits on 15 June 1962. It concluded that “[T]he Court, by nine votes to three, find that the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia; finds in consequences, by nine vote to three, that Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory”.[6. Ibid.]

The Heart of the Dispute

The core issue in this dispute is the sovereignty over the region of the Preah Vihear Temple. The origin of this controversy can be found in the Convention of 13 February 1904 and the Treaty of 23 March 1907 between France and Siam (what was formerly known as Thailand) concerning the Return of Battambang and Angkor to Cambodia. The Convention of 1904 set up a first Franco-Siamese Mixed Commission which was in charge to delimit the frontier. However a further boundary settlement under the Treaty of 23 March 1907 brought various districts within Cambodia which became the new frontier region.

In its article 4, the 23 March 1907 Treaty indicated that a second Franco-Siamese Mixed Commission composed of French and Siamese officers appointed by both countries would be created. Its duty would be to demarcate the shared border, especially needed for the Dangrek sector which had not been done by the first Mixed Commission.

Once the border was demarcated by this second Mixed Commission, the Siamese government requested from the French officers to first draw and then map the border as the final stage of the delimitation process. The resulting maps from these French officers, showing Preah Vihear Temple on the Cambodian side, were completed at the end of 1907 and communicated to Siam in 1908. Though never officially accepted by the first Franco-Siamese Mixed Commission and the Siamese government, during decades these maps were used by Siamese officials and were given wide publicity by being communicated to “the leading geographical societies in important countries, and to other circles regionally interested; to the Siamese legations accredited to the British, German, Russian and United States Governments”.

In 1961 when the case was brought before the ICJ, Thailand argued that those maps were not legally binding because they had not been accepted by the first French-Siamese Mixed Commission (which was dissolved when maps were released) and also because Thailand had never officially accepted them. Thailand claimed that if it had done so, this was only because of a “mistaken belief that the frontier indicated [in the maps] corresponded with the watershed line. Based on Thailand’s passive attitude for years the Court concluded of its “tacit acceptance” of the maps. The judges affirmed that in public international law a mistake is not admissible as an argument if the party that challenges it contributed to it by its own conduct or if that same party could have avoided the mistake.The Court in its 1962 judgment therefore concluded in favour of Cambodia, taking into account the frontier demarcated by the second French-Siamese Mixed Commission’s and the resulting maps produced by the French officers. It thus became unnecessary in the view of the judges to consider whether the mapped border did in fact correspond to the true watershed line or not.

The Request for Interpretation

In its 1962 decision the Court failed to clearly identify the concept of ‘vicinity’ or surrounding area of the Temple. This lack of precision in the term ‘vicinity’ left the door open for tensions in the surrounding area of the Temple.

In 2008 Cambodia applied for the inscription of the Preah Vihear Temple in the World heritage list drawn up by the UNESCO. But Thailand who first approved this application then strongly contested it in the light of nationalist feelings raising among the Thai opposition.

Once added to the World Heritage List, tensions increased and a number of armed incidents took place within the disputed area. The outbreaks of violence between Thai and Cambodian armies focused on the territorial sovereignty of the area surrounding the Temple but not about the Temple itself as the ICJ had clearly already ruled on this matter. The crux of the dispute was concerning the ‘vicinity’ of the Temple as the 1962 ruling referred to it. Within this disputed zone – the surrounding area of the Temple – of 4.6 square kilometres, armed incidents at this Cambodian-Thai border between 2008 and 2011 caused the death of 20 soldiers and 3 civilians on the Cambodian side, and 16 soldiers and 2 civilians on the Thai side, as well as numerous wounded civilians and soldiers.

Under this situation, Cambodia formally complained on February 2011 with a letter to the the UN Security Council. The letter claimed that the fighting violated the 1991 Paris Peace Agreement, the U.N charter, and the 1962 ruling of the ICJ. The UN called for a permanent ceasefire and expressed its support for the Association of Southeast Asia Nations (ASEAN) to find a solution. As the ASEAN was unable to mediate the conflict, Cambodia ultimately decided to file a request at the ICJ for the interpretation of its 1962 ruling.

The Judgment of 11 November 2013

On 11 November 2013 more than 50 years after the first ICJ ruling, the Court released its interpretation of the 1962 judgment.

The Court accepted jurisdiction because of the ongoing “disputes between Cambodia and Thailand on the meaning and scope of the 1962 ruling”

First of all, that a dispute did indeed exist over the territorial sovereignty on the area in which the Temple was located, and that the Court was not engaged at that time in delimiting the frontier. Maps were used by the Court to settle the dispute about the sovereignty over the region of the Temple in 1962 rather than determining a boundary settlement.Secondly, the Court adds that the question was also to know if both parties had adopted the maps, that is why the Court had observed the behaviour of the parties with regard to these maps and others practices, including the tacit recognition of them by Siam officials. The Court in 1962 had considered that maps were accepted from both sides due to their passive attitude. This silent acceptance of the maps produced by the treaty settlement in 1904 therefore lead the Court to pronounce as a matter of treaty interpretation in favour of the line mapped at the beginning of the 20th century.

Thirdly, the Court explains that the case concerned only the sovereignty in the region of the Temple of Preah Vihear – the vicinity – and not on the whole disputed border region.

The Court in 2013 affirmed its first ruling and “[D]eclares, by way of interpretation, that the Judgment of 15 June 1962 decided that Cambodia had sovereignty over the whole territory of the promontory of Preah Vihear […] and that, in consequence, Thailand was under an obligation to withdraw from that territory the Thai military or police forces, or other guards or keepers, that were stationed there.”

The International Court of Justice here slightly clarified the situation. The 2013 interpretation confirmed Cambodia’s sovereignty over the Temple but also – and this is a new consideration – defined the disputed area and thus the expression ‘vicinity’ of the Temple as the whole territory of the promontory. The Court said that back in 1962 it “did not address the issue of sovereignty of any other area beyond the limits of the promontory of Preah Vihear”.

As the Court has however not ultimately ruled on the entire disputed area between Cambodia and Thailand, questions arise as to see if both countries will finally resolve the border issue over the rest of the disputed area.

Implications for the Future

The 2013 decision clarified the expression ‘vicinity’ used in the 1962 judgment and defined it as the whole the promontory in which the Temple is situated. However the 4.6 square kilometers disputed area is still contested because the promontory is just a small part of it.

The Court did not pronounce on the border itself or regarding the larger area, mostly because in international public law and interstate border disputes, judges estimated it not to be their prerogative and thus leaving this delicate process to the concerned states. International Courts are – most of the time – prone to interpret an existing treaty in the light of the actual situation because the treaty as to a boundary is an interstate agreement which is generally dispositive for the court. And this is what the ICJ has done here when considering that both Thailand and Cambodia consented to the treaties on the boundaries established between 1904-1907 and that the maps drawn after – due to the passive attitude of the parties – had entered the treaties. The Court therefore interpreted them and brought some clarifications on the current situation but not enough to solve the controversy related to the whole disputed area.

Even if the ICJ 2013 interpretation is definitely a step forward in resolving Cambodia and Thailand’s border dispute, a legal vacuum over the remaining surrounding area of the Preah Vihear Temple still exists. And while Cambodia and Thailand have agreed to respect the latest ICJ ruling urging their respective armed forces to keep calm, the recent crisis in Thailand raised a few questions over the temporary stability initiated by the Court. Namely, a few days after the Thai military coup on 22 May 2014, Thai forces erected a 130 meters long fence within the disputed area. The situation at the border will therefore continue to be an issue between Cambodia and Thailand as long as there is not a new and definitive consensus among both countries.

MINQUIERS AND ECREHOS CASE

Judgment of 17 November 1953

The Minquiers and Ecrehos case was submitted to the Court by virtue of a Special Agreement concluded between the United Kingdom and France on December 29th, 1950. In a unanimous decision, the Court found that sovereignty over the islets and rocks of the Ecrehos and the Minquiers groups, in so far as these islets and rocks are capable of appropriation, belongs to the United Kingdom.

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In its Judgment, the Court began by defining the task laid before it by the Parties. The two groups of islets in question lie between the British Channel Island of Jersey and the coast of France. The Ecrehos lie 3.9 sea miles from the former and 6.6 sea miles from the latter. The Minquiers group lie 9.8 sea miles from Jersey and 16.2 sea miles from the French mainland and 8 miles away from the Chausey islands which belong to France. Under the Special Agreement, the Court was asked to determine which of the Parties had produced the more convincing proof of title to these groups and any possibility of applying to them the status of terra nullius was set aside. In addition, the question of burden of proof was reserved: each Party therefore had to prove its alleged title and the facts upon which it relied. Finally, when the Special Agreement refers to islets and rocks, in so far as they are capable of appropriation, it must be considered that these terms relate to islets and rocks physically capable of appropriation. The Court did not have to determine in detail the facts relating to the particular units of the two groups.The Court then examined the titles invoked by both Parties. The United Kingdom Government derives its title from the conquest of England by William Duke of Normandy in 1066. The union thus established between England and the Duchy of Normandy, including the Channel Islands, lasted until 1204, when Philip Augustus of France conquered continental Normandy. But, his attempts to occupy also the islands having been unsuccessful, the United Kingdom submitted the view that all of the Channel Islands, including the Ecrehos and the Minquiers, remained united with England and that this situation of fact was placed on a legal basis by subsequent treaties concluded between the two countries. The French Government contended for its part that, after 1204, the King of France held the Minquiers and the Ecrehos, together with some other islands close to the Continent and referred to the same medi�val treaties as those invoked by the United Kingdom.

The Court found that none of those treaties (Treaty of Paris of 1259, Treaty of Calais of 1360, Treaty of Troyes of 1420) specified which islands were held by the King of England or by the King of France. There are, however, other ancient documents which provide some indications as to the possession of the islets in dispute. The United Kingdom relied on them to show that the Channel Islands were considered as an entity and, since the more important islands were held by England, this country also possessed the groups in dispute. For the Court, there appears to be a strong presumption in favour of this view, without it being possible however, to draw any definitive conclusion as to the sovereignty over the groups, since this question must ultimately depend on the evidence which relates directly to possession.

For its part, the French Government saw a presumption in favour of French sovereignty in the feudal link between the King of France, overlord of the whole of Normandy, and the King of England,his vassal for these territories. In this connection, it relies on a Judgment of the Court of France of 1202, which condemned John Lackland to forfeit all the lands which he held in fee of the King of France, including the whole of Normandy. But the United Kingdom Government contends that the feudal title of the French Kings in respect of Normandy was only nominal. It denies that the Channel Islands were received in fee of the King of France by the Duke of Normandy, and contests the validity, and even the existence, of the judgment of 1202. Without solving these historical controversies, the Court considered it sufficient to state that the legal effects attached to the dismemberment of the Duchy of Normandy in 1204, when Normandy was occupied by the French, have been superseded by the numerous events which occurred in the following centuries. In the opinion of the Court, what is of decisive importance is not indirect presumptions based on matters in the Middle Ages, but the evidence which relates directly to the possession of the groups.

Before considering this evidence, the Court first examined certain questions concerning both groups. The French Government contended that a Convention on fishery, concluded in 1839, although it did not settle the question of sovereignty, affected however that question. It is said that the groups in dispute were included in the common fishery zone created by the Convention. It is said also that the conclusion of this Convention precludes the Parties from relying on subsequent acts involving a manifestation of sovereignty. The Court was unable to accept these contentions because the Convention dealt with the waters only, and not the common user of the territory of the islets. In the special circumstances of the case, and in view of the date at which a dispute really arose between the two Governments about these groups, the Court shall consider all the acts of the Parties, unless any measure was taken with a view to improving the legal position of the Party concerned.

The Court then examined the situation of each group. With regard to the Ecrehos in particular, and on the basis of various medi�val documents, it held the view that the King of England exercised his justice and levied his rights in these islets. Those documents also show that there was at that time a close relationship between the Ecrehos and Jersey.

From the beginning of the nineteenth century, the connection became closer again, because of the growing importance of oyster fishery. The Court attached probative value to various acts relating to the exercise by Jersey of jurisdiction and local

administration and to legislation, such as criminal proceedings concerning the Ecrehos, the levying of taxes on habitable houses or huts built in the islets since 1889, the registration in Jersey of contracts dealing with real estate on the Ecrehos.

The French Government invoked the fact that in 1646 the States of Jersey prohibited fishing at the Ecrehos and the Chausey and restricted visits to the Ecrehos in 1692. It mentioned also diplomatic exchanges between the two Governments, in the beginning of the nineteenth century, to which were attached charts on which part of the Ecrehos at least was marked outside Jersey waters and treated as res nullius. In a note to the Foreign Office of December 15th, 1886, the French Government claimed for the first time sovereignty over the Ecrehos.Appraising the relative strength of the opposing claims in the light of these facts, the Court found that sovereignty over the Ecrehos belonged to the United Kingdom.

With regard to the Minquiers, the Court noted that in 1615, 1616, 1617 and 1692, the Manorial court of the fief of Noirmont in Jersey exercised its jurisdiction in the case of wrecks found at the Minquiers, because of the territorial character of that jurisdiction.Other evidence concerning the end of the eighteenth century, the nineteenth and the twentieth centuries concerned inquests on corpses found at the Minquiers, the erection on the islets of habitable houses or huts by persons from Jersey who paid property taxes on that account, the registration in Jersey of contracts of sale relating to real property in the Minquiers. These various facts show that Jersey authorities have, in several ways, exercised ordinary local administration in respect of the Minquiers during a long period of time and that, for a considerable part of the nineteenth century and the twentieth century, British authorities have exercised State functions in respect of this group.

The French Government alleged certain facts. It contended that the Minquiers were a dependency of the Chausey islands, granted by the Duke of Normandy to the Abbey of Mont-Saint-Michel in 1022. In 1784 a correspondence between French authorities concerned an application for a concession in respect of the Minquiers made by a French national. The Court held the view that this correspondence did not disclose anything which could support the present French claim to sovereignty, but that it revealed certain fears of creating difficulties with the English Crown. The French Government further contended that, since 1861, it has assumed the sole charge of the lighting and buoying of the Minquiers, without having encountered any objection from the United Kingdom. The Court said that the buoys placed by the French Government at the Minquiers were placed outside the reefs of the groups and purported to aid navigation to and from French ports and protect shipping against the dangerous reefs of the Minquiers. The French Government also relied on various official visits to the Minquiers and the erection in 1939 of a house on one of the islets with a subsidy from the Mayor of Granville, in continental Normandy.

The Court did not find that the facts invoked by the French Government were sufficient to show that France has a valid title to the Minquiers. As to the above-mentioned facts from the nineteenth and twentieth centuries in particular, such acts could hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets. Nor were those acts of such a character that they could be considered as involving a manifestation of State authority in respect of the islets.

In such circumstances, and having regard to the view expressed above with regard to the evidence produced by the United Kingdom Government, the Court was of opinion that the sovereignty over the Minquiers belongs to the United Kingdom.

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Availing themselves of the right conferred on them by Article 57 of the Statute, Judges Basdevant and Carneiro, while concurring in the decision of the Court, appended to the Judgment statements of their individual opinions. Judge Alvarez, while also concurring in the decision of the Court, made a declaration expressing regret that the Parties had attributed excessive importance to medieval evidence and had not sufficiently taken into account the state of international law or its present tendencies in regard to territorial sovereignty.