REPARATION FOR INJURIES SUFFERED

SERVICE OF THE UNITED NATIONS

IN

THE

FACTS: The United Nations (UN) requested an advisory opinion

from the International Court of Justice (ICJ) on two primary
questions.
(1)

Whether, when an agent of the UN is injured while performing

duties relating to an individual State, the UN may bring an
international claim against the States government for damages
caused to either (a) the UN or to (b) the victim.

In the event of an affirmative answer to the first question, the UN

also requested an answer on the following question:
(2)

When both the UN and an individual State have an interest in

the same international claim, does the UNs interest in bringing
the claim outweigh the States interest in either providing
diplomatic protection for its offending national, or bringing the
claim itself, depending on the factual circumstances present?

The Organizations is a political body, charged with political

tasks of an important character, and covering a wide field namely,
the maintenance of international peace and security, the
development of friendly relations among nations, and the
achievement of international cooperation in the solution of
problems of an economic, social, cultural or humanitarian
character; and in dealing with its Members it employs political
means.
It is difficult to see how such a convention could operate except upon
the international plane and as between parties possessing
international personality.
The Organization was intended to exercise and enjoy, and is in fact
exercising and enjoying, functions and rights which can only be
explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon
an international plane.
-

ISSUE: WON the Organization has international personality.

HELD: YES.

RATIO: Questions to be asked:

(1)

WHETHER
THE
CHARTER
HAS
GIVEN
THE
ORGANIZATION SUCH A POSITION THAT IT POSSESSES,
IN REGARD TO ITS MEMBERS, RIGHTS WHICH IT IS
ENTITLED TO ASK THEM TO RESPECT.

In other words, does the Organization possess international

personality?
To answer this question, which is not settled by the actual terms of
the Charter, we must consider what characteristics it was intended
thereby to give to the Organization.
-

The Charter has not been content to make the Organization

created by it merely a center for harmonizing the actions of
nations in the attainment of these common ends.
It has equipped the center with organs and has given it
special tasks.
It has defined the position of the Members in relation to the
Organization by requiring them to give it every assistance in
any action undertaken by it, and to accept and carry out the
decisions of the Security Council; by authorizing the General
Assembly to make recommendations to the Members; by
giving the Organization legal capacity and privileges and
immunities in the territory of its Members; and by
providing for the conclusion of agreements between the
Organization and its Members.

Practice in particular the conclusion of conventions to which the

Organization is a party has confirmed this character of the
Organization, which occupies a position in certain respects in
detachment from its Members, and which is under a duty to remind
them, if need be, of certain obligations.

PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF SOL 2015

It is at present the supreme type of international

organization, and it could not carry out the
intentions of its founders if it was devoid of
international personality.
It must be acknowledged that its Members, by entrusting
certain functions to it, with the attendant duties and
responsibilities, have clothed it with competence
required to enable those functions to be effectively
discharged.

1(a): The Organization has the capacity to bring a claim for this
damage.
-

Measure of the reparation: should depend upon the amount of the

damage which the Organization has suffered as the result of the
wrongful act or omission of the defendant State and should be
calculated in accordance with the rules of international law.
1(b): TRADITIONAL RULE: diplomatic protection is exercised by
the national State does not involve the giving of a negative answer to
Question 1 (b).
1)
2)

3)

CONCLUSION: the Organizations is an international person.

-

That is not the same as saying that that it is a State, which it

certainly is NOT, or that its legal personality and rights and
duties are the same as those of a State.
Still less is it the same thing as saying that it is a superState, whatever that expression may mean.
It does NOT even imply that all its rights and duties must be
upon the international plane, any more than all the rights
and duties of a State must be upon that plane.

(2)

WHETHER THE SUM OF THE ITNERNATIONAL RIGHTS

OF THE ORGANIZATION COMPRISES THE RIGHT TO
BRING THE KIND OF INTERNATIONAL CLAIM (against as
State to obtain reparation in respect of the damage caused by
the injury of an agent of the Organization in the course of the
performance of his duties).

Whereas s State possesses the totality of international rights and

duties recognized by international law, the rights and duties of an
entity such as the Organization must depend upon its purposes
and functions as specified or implied in its constituent documents
and developed practice.

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This rule applies to claims brought by a State.

Even in inter-State relations, there are important exceptions
to the rule, for there are cases in which protection may be
exercised by a State on behalf of persons not having its
nationality.
The rule rests on two bases:
a)
The defendant State has broken an obligation
towards the national State in respect of its nationals.
b) Only the party to whom an international obligation
is due can bring a claim in respect of its breach.

Under international law, the Organization must be deemed to have

those powers which, though not expressly provided in the Charter,
are
conferred upon it by necessary implication as being essential to the
performance of its duties.

WHAT IT MEANS: it is a subject of international law and capable of

possessing international rights and duties, and that it has capacity to
maintain its rights by bringing international claims.

CONCLUSION: the Members have endowed the Organization with

capacity to bring international claims when necessitated by the
discharge of its functions.

As the claim is based on the breach of an international

obligation on the part of the Member held responsible by
the Organization, the Member cannot contend that this
obligation is governed by municipal law, and the
Organization is justified in giving its claim the character of
an international claim.
When the Organization has sustained damage resulting from
a breach by a Member of its international obligations, it is
impossible to see how it can obtain reparation unless it
possesses capacity to bring an international claim.

Having regard to its purposes and functions already referred

to, the Organization may find it necessary, and has in fact
found it necessary, to entrust its agents with important
missions to be performed in disturbed parts of the world.
Many missions, from their very nature, involve the agents in
unusual dangers to which ordinary persons are not exposed.
For the same reason, the injuries suffered by its agents in
these circumstances will sometimes have occurred in such a
manner that their national State would not be justified in
bringing a claim for reparation on the ground of diplomatic
protection, or, at any rate, would not feel disposed to do so.
Both to ensure the efficient and independent performance of
these missions and to afford effective support to its agents,
the Organization must provide them with adequate
protection.

For this purpose, the Members of the Organization have entered into
certain undertakings, some of which are in the Charter and others
in complementary agreements.

The Court must stress the importance of the duty to render

to the Organization "every assistance" which is accepted by
the Members in Article 2, paragraph 5, of the Charter.
The
effective
working
of
the
Organizationthe
accomplishment of its task, and the independence and
effectiveness of the work of its agentsrequire that these
undertakings should be strictly observed.

In order that the agent may perform his duties satisfactorily, he

must feel that this protection is assured to him by the Organization,
and that he may count on it.
-

To ensure the independence of the agent, and, consequently,

the independent action of the Organization itself, it is
essential that in performing his duties he need not have
to rely on any other protection than that of the
Organization (save of course for the more direct and
immediate protection due from the State in whose territory
he may be).
In particular, he should not have to rely on the protection of
his own State.
If he had to rely on that State, his independence might well
be compromised, contrary to the principle applied by Article
100 of the Charter.
And lastly, it is essential thatwhether the agent belongs to
a powerful or to a weak State; to one more affected or less
affected, by the complications of international life; to one in
sympathy or not in sympathy with the mission of the agent
he should know that in the performance of his duties he is
under the protection of the Organization.
This assurance is even more necessary when the agent is
stateless.

The capacity of the Organization to exercise a measure of functional

protection of its agents arises by necessary intendment out of the
Charter.
The obligations entered into by States to enable the agents of the
Organization to perform their duties are undertaken not in the
interest of the agents, but in that of the Organization.
-

When it claims redress for a breach of these obligations, the

Organization is invoking its own right, the right that the
obligations due to it should be respected.
On this ground, it asks for reparation of the injury suffered,
for "it is a principle of international law that the
breach of an engagement involves an obligation to
make reparation in an adequate form."
In claiming reparation based on the injury suffered by its
agent, the Organization does not represent the agent, but is
asserting its own right, the right to secure respect for
undertakings entered into towards the Organization.

2: When the victim has nationality, cases can clearly occur in which
the injury suffered by him may engage the interest both of his
national State and of the Organization.
-

In such a case, there is no rule of law which assigns priority

to the one or to the other, or which compels either the State
or the Organization to refrain from bringing an international
claim.
The Court sees no reason why the parties concerned should
not find solutions inspired by goodwill and common sense,
and as between the Organization and its Members it draws
attention to their duty to render "every assistance" provided
by Article 2, paragraph 5, of the Charter.

Although the bases of the two claims are different, that does not
mean that the defendant State can be compelled to pay the
reparation due in respect of the damage twice over.
The risk of competition between the Organization and the national
State can be reduced or eliminated either by a general convention or
by agreements entered into in each particular case.
When the agent bears the nationality of the defendant State: The
action of the Organization is in fact based not upon the nationality of
the victim but upon his status as agent of the Organization.
-

Therefore it does not matter whether or not the State to

which the claim is addressed regards him as its own
national, because the question of nationality is not pertinent
to the admissibility of the claim.
In law, therefore, it does not seem that the fact of the
possession of the nationality of the defendant State by the
agent constitutes any obstacle to a claim brought by the
Organization for a breach of obligations towards it occurring
in relation to the performance of his mission by that agent.

SUMMARY OF OPINIONS: With respect to questions 1(a) and

1(b), the Court established a distinction according to whether the
responsible State is a Member or not of the United Nations.
1(a)
1(b)

Affirmative.
By 11 votes against 4 that the Organization has the
capacity o bring an international claim whether or not
the responsible State is a Member of the United
Nations.
By 10 votes against 5 that when the United Nations as
an organization is bringing a claim for reparation for
damage caused to its agent, it can only do so basing its
claim upon a breach of obligations due to itself;
respect for this rule will usually prevent a conflict
between the action of the United Nations and such
rights as the agents national State may possess;
moreover, this reconciliation must depend upon
considerations applicable to each particular case, and
upon agreements to be made between the Organization
and individual States.

In such an event, competition between the State's right of

diplomatic protection and the Organization's right of
functional protection might arise, and this is the only
case with which the Court is invited to deal.

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CONDITIONS OF ADMISSION OF A
MEMBERSHIP IN THE UNITED NATIONS

STATE

TO

FACTS: The General Assembly of the United Nations asked the

Court to give an advisory opinion on the question concerning the
conditions of admission of a State to membership in the
United Nations (Art. 4 of the Charter).
Is a Member of the United Nations which is called upon, in
virtue of Article 4 of the Charter, to pronounce itself by its vote,
either in the Security Council or in the General Assembly, on
the admission of a State to membership in the United Nations,
juridically entitled to make its consent to the admission
dependent on conditions not expressly provided by paragraph 1
of the said Article? In particular, can such a Member, while it
recognizes the conditions set forth in that provision to be
fulfilled by the State concerned, subject its affirmative vote to
the additional condition that other States be admitted to
membership in the United Nations together with that State?
HELD: NO.
RATIO: The request for an opinion does NOT refer to the actual
vote.
-

Although the Members are bound to conform to the

requirements of Article 4 in giving their votes, the General
Assembly can hardly be supposed to have intended to ask
the Court's opinion as to the reasons which, in the mind of a
Member, may prompt its vote.
Such reasons, which enter into a mental process, are
obviously subject to no control.
Nor does the request concern a Member's freedom of
expressing its opinion.
The Court is NOT called upon either to define the meaning
and scope of the conditions on which admission is made
dependent, or to specify the elements which may serve in a
concrete case to verify the existence of the requisite
conditions.

Falls
outside
the jurisdiction
of this Court as
the questions
put must be
regarded as a
political one?

The
Court
should
NOT
deal with a
question

The Court cannot attribute a political

character to a request which, framed in
abstract terms, invites it to undertake an
essentially judicial task, the interpretation of a
treaty provision. It is not concerned with the
motives which may have inspired this request,
nor with the considerations which, in the
concrete cases submitted for examination to
the Security Council, formed the subject of the
exchange of views which tool; place in that
body. It is the duty of the Court to envisage
the question submitted to it only in the
abstract form which has been given to it;
nothing which is said in the present opinion
refers, either directly or indirectly, to concrete
cases or to particular circumstances.
That is a mere affirmation devoid of any
justification. According to Article 96 of the
Charter and Article 65 of the Statute, the
Court may give an advisory opinion on any

PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF SOL 2015

couched
in
abstract terms?
The
Court
cannot reply to
the question as
it involves an
interpretation
of the Charter?

Nowhere is any provision to be found

forbidding the Court, "the principal judicial
organ of the United Nations", to exercise in
regard to Article 4 of the Charter, a
multilateral treaty, an interpretative function
which falls within the normal exercise of its
judicial powers.
Accordingly, the Court holds that it is
competent, on the basis of Article 96 of the
Charter and Article 65 of the Statute.

REQUISITE CONDITIONS TO BE ADMITTED TO THE

MEMBERSHIP IN THE UNITED NATIONS: an applicant
must:
(1)
(2)
(3)
(4)
(5)

Be a State;
Be peace-loving;
Accept the obligations of the Charter;
Be able to carry out these obligations; and
Be willing to do so.

All these conditions are subject to the judgment of the Organization.

-

considerations extraneous to the conditions laid down

therein, they would undoubtedly have adopted a different
wording.

legal question, abstract or otherwise.

The judgment of the Organization means the judgment of

the two organs mentioned in paragraph 2 of Article 4, and,
in the last analysis, that of its Members.
The question put is concerned with the individual attitude of
each Member called upon to pronounce itself on the
question of admission.

The Court considers that the text is sufficiently clear;

consequently, it does not feel that it should deviate from the
consistent practice of the Permanent Court of International Justice,
according to which there is no occasion to resort to preparatory work
if the text of a convention is sufficiently clear in itself.
-

Does not preclude the Members of the Organization from advancing

considerations of political expediency, extraneous to the conditions
of Article 4? But paragraph 2 is concerned only with the procedure
for admission, while the preceding paragraph lays down the
substantive law.
-

These conditions constitute an exhaustive enumeration and are not

merely stated by way of guidance or example.
-

The provision would lose its significance and weight, if other

conditions, unconnected with those laid down, could be
demanded.

Does NOT represent only an indispensable minimum: Such an

interpretation would be inconsistent with the terms of paragraph 2
of Article 4, which provide for the admission of "tout Etat
remplissant ces conditions""any such State".
-

It would lead to conferring upon Members an indefinite and

practically unlimited power of discretion in the imposition
of new conditions.
Such a power would be inconsistent with the very character
of paragraph I of Article 4 which, by reason of the close
connection which it establishes between membership and
the observance of the principles and obligations of the
Charter, clearly constitutes a legal regulation of the question
of the admission of new States.
Moreover, the spirit as well as the terms of the paragraph
preclude the idea that considerations extraneous to these
principles and obligations can prevent the admission of a
State which complies with them.
If the authors of the Charter had meant to leave Members
free to import into the application of this provision

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The Court furthermore observes that Rule 60 of the

Provisional Rules of Procedure of the Security Council is
based on this interpretation.
It does not, however, follow from the exhaustive character of
paragraph I of Article 4 that an appreciation is precluded of
such circumstances of fact as would enable the existence of
the requisite conditions to be verified.
Article 4 does not forbid the taking into account of any
factor which it is possible reasonably and in good faith to
connect with the conditions laid down in that Article.
The taking into account of such factors is implied in the very
wide and very elastic nature of the prescribed conditions; no
relevant political factor that is to say, none connected with
the conditions of admissionis excluded.

This procedural character is clearly indicated by the words

"will be effected", which, by linking admission to the
decision, point clearly to the fact that the paragraph is solely
concerned with the manner in which admission is effected,
and not with the subject of the judgment of the
Organization, nor with the nature of the appreciation
involved in that judgment, these two questions being dealt
with in the preceding paragraph.
Moreover, this paragraph, in referring to the
"recommendation" of the Security Council and the
"decision" of the General Assembly, is designed only to
determine the respective functions of these two organs
which consist in pronouncing upon the question whether or
not the applicant State shall be admitted to membership
after having established whether or not the prescribed
conditions are fulfilled.
The political character of an organ cannot release it from the
observance of the treaty provisions established by the
Charter when they constitute limitations on its powers or
criteria for its judgment. To ascertain whether an organ has
freedom of choice for its decisions, reference must be made
to the terms of its constitution.
In this case, the limits of this freedom are fixed by Article 4
and allow for a wide liberty of appreciation.

SECOND PART OF THE QUESTION: to demand on the part of a

Member making its consent to the admission of an applicant
dependent on the admission of other applicants.

Such a demand clearly constitutes a new condition,

since it is entirely unconnected with those prescribed in
Article 4.
It is also in an entirely different category from those
conditions, since it makes admission dependent, not on the
conditions required of applicants, qualifications which are
supposed to be fulfilled, but on an extraneous consideration
concerning States other than the applicant State.
The provisions of Article 4 necessarily imply that every
application for admission should be examined and voted on
separately and on its own merits; otherwise it would be
impossible to determine whether a particular applicant
fulfils the necessary conditions.
To subject an affirmative vote for the admission of an
applicant State to the condition that other States be
admitted with that State would prevent Members from
exercising their judgement in each case with
complete liberty, within the scope of the prescribed
conditions. Such a demand is incompatible with the letter
and spirit of Article 4 of the Charter.

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CASE CONCERNING EAST TIMOR

(PORTUGAL v. AUSTRALIA)
Judgment of 30 June 1995
In its Judgment on the case concerning East Timor (Portugal v.
Australia), the Court, by 14 votes to 2, found that it could not
exercise the jurisdiction conferred upon it by the declarations made
by the Parties under Article 36, paragraph 2, of its Statute to
adjudicate upon the dispute referred to it by the Application of the
Portuguese Republic.

possibility of establishing a provisional arrangement for the joint

exploration and exploitation of the resources of an area of the
continental shelf. A Treaty to this effect was eventually concluded
between then on 11 December 1989, whereby a Zone of
Cooperation was created in an area between the Indonesian
Province of East Timor and Northern Australia. Australia enacted
legislation in 1990 with a view to implementing the Treaty; this law
came into force in 1991.
__________

Following the intervention of the armed forces of Indonesia in the

Territory and the withdrawal of the Portuguese authorities, the
question of East Timor became the subject of two resolutions of the
Security Council and of eight resolutions of the General Assembly.
The incorporation of East Timor as part of Indonesia was recognized
by Australia de facto on 20 January 1978.
On 15 December 1978, the Australian Minister of Foreign Affairs
declare that negotiations which were about to begin between
Australia and Indonesia for the delimitation of the continental shelf
between Australia and East Timor, when they start, will signify de
jure recognition by Australia of the Indonesian incorporation of East
Timor;: he added: The acceptance of this situation does not alter
the opposition which the Government has consistently expressed
regarding the manner of incorporation. The negotiations in
question began in February 1979.
Prior to this, Australia and Indonesia had, in 1971-1972, established
a delimitation of the continental shelf between their respective
coasts; the delimitation so effected stopped short on either side of
the continental shelf between the south coast of East Timor and the
north coast of Australia. This undelimited part of the continental
shelf was called the Timor Gap.
The delimitation negotiations which began in February 1979
between Australia and Indonesia related to the Timor Gap; they did
not come to fruition. Australia and Indonesia then turned to the

PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF SOL 2015

On the record before the Court, it is clear that the Parties re in

disagreement, both on the law and on the facts, on the question
whether the conduct of Australia in negotiating, concluding and
initiating performance of the 1989 Treaty was in breach of an
obligation due by Australia to Portugal under international law.
Indeed, Portugals Application limits the proceedings to these
questions. There nonetheless exists a legal dispute between Portugal
and Australia. The objection of Australia must therefore be
dismissed.

Summary of the Judgment

FACTS: Following internal disturbances in East Timor, on 27
August 1975, the Portuguese civil and military authorities withdrew
from the mainland of East Timor to the island of Atauro. On 7
December 1975, the armed forces of Indonesia intervenes in East
Timor. On 8 December 1975, the Portuguese authorities departed
from the island of Atauro, and thus left East Timor altogether. Since
their departure, Indonesia has occupied the Territory, and the
Parties acknowledge that the Territory has remained under the
effective control of that State. Asserting on 31 May 1976 the people of
East Timor had requested Indonesia to accept East Timor as an
integral part of the Republic of Indonesia, on 17 July 1976,
Indonesia enacted a law incorporating the Territory as part of its
national territory.

formulated complaints of fact and law against Australia which the

latter has denied. By virtue of this denial, there is a legal dispute.

Procedural history (paras. 1-10)

In its Judgment the Court recalls that on 22 February 1991 Portugal
instituted proceedings against Australia concerning "certain
activities of Australia with respect to East Timor". According to the
Application Australia had, by its conduct, "failed to observe -- the
obligation to respect the duties and powers of [Portugal as] the
administering Power [of East Timor].. and... the right of the people
of East Timor to self-determination and the related rights". In
consequence, according to the Application, Australia had "incurred
international responsibility vis-a-vis both the people of East Timor
and Portugal". As the basis for the jurisdiction of the Court, the
Application refers to the declarations by which the two States have
accepted the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of its Statute. In its Counter-Memorial, Australia raised
questions concerning the jurisdiction of the Court and the
admissibility of the Application. In the course of a meeting held by
the President of the Court the Parties agreed that these questions
were inextricably linked to the merits and that they should therefore
be heard and determined within the framework of the merits. The
written proceedings having been completed in July 1993, hearings
were held between 30 January and 16 February 1995. The Judgment
then sets out the final submissions which were presented by both
Parties in the course of the oral proceedings.
Australia's objection that there exists in reality no dispute
between the Parties (paras. 21-22)
The Court goes on to consider Australia's objection that there is in
reality no dispute between itself and Portugal. Australia contends
that the case as presented by Portugal is artificially limited to the
question of the lawfulness of Australia's conduct, and that the true
respondent is Indonesia, not Australia. Australia maintains that it is
being sued in place of Indonesia. In this connection, it points out
that Portugal and Australia have accepted the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of its Statute,
but that Indonesia has not.
The Court finds in this respect that for the purpose of verifying the
existence of a legal dispute in the present case, it is not relevant
whether the "real dispute" is between Portugal and Indonesia rather
than Portugal and Australia. Portugal has, rightly or wrongly,

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Australia's objection that the Court is required to

determine the rights and obligations of Indonesia (paras.
23-35)
The Court then considers Australia's principal objection, to the effect
that Portugal's Application would require the Court to determine the
rights and obligations of Indonesia. Australia contends that the
jurisdiction conferred upon the Court by the Parties' declarations
under Article 36, paragraph 2, of the Statute would not enable the
Court to act if, in order to do so, the Court were required to rule on
the lawfulness of Indonesia's entry into and continuing presence in
East Timor, on the validity of the 1989 Treaty between Australia and
Indonesia, or on the rights and obligations of Indonesia under that
Treaty, even if the Court did not have to determine its validity. In
support of its argument, it refers to the Court's Judgment in the case
of the Monetary Gold Removed from Rome in 1943. Portugal
agrees that if its Application required the Court to decide any of
these questions, the Court could not entertain it. The Parties
disagree, however, as to whether the Court is required to decide any
of these questions in order to resolve the dispute referred to it.
Portugal contends first that its Application is concerned exclusively
with the objective conduct of Australia, which consists in having
negotiated, concluded and initiated performance of the 1989 Treaty
with Indonesia, and that this question is perfectly separable from
any question relating to the lawfulness of the conduct of Indonesia.
Having carefully considered the argument advanced by Portugal
which seeks to separate Australia's behaviour from that of the
Indonesia, the Court concludes that Australia's behaviour cannot be
assessed without first entering into the question why it is that
Indonesia could not lawfully have concluded the 1989 Treaty, while
Portugal allegedly could have done so; the very subject-matter of the
Court's decision would necessarily be a determination whether,
having regard to the circumstances in which Indonesia entered and
remained in East Timor, it could or could not have acquired the
power to enter into treaties on behalf of East Timor relating to the
resources of its continental shelf. The Court could not make
such a determination in the absence of the consent of
Indonesia.

The Court rejects Portugal's additional argument that the rights

which Australia allegedly breached were rights erga omnes and that
accordingly Portugal could require it, individually, to respect them
regardless of whether or not another State had conducted itself in a
similarly unlawful manner.

with its consent" (Monetary Gold Removed from Rome in 1943,

I.C.J. Reports 1954, p. 32).

In the Court's view, Portugal's assertion that the right of peoples to

self-determination, as it evolved from the Charter and from United
Nations practice, has an erga omnes character, is irreproachable.
The principle of self-determination of peoples has been recognized
by the United Nations Charter and in the jurisprudence of the Court;
it is one of the essential principles of contemporary international
law. However, the Court considers that the erga omnes character of
a norm and the rule of consent to jurisdiction are two different
things. Whatever the nature of the obligations invoked, the Court
could not rule on the lawfulness of the conduct of a State when its
judgment would imply an evaluation of the lawfulness of the conduct
of another State which is not a party to the case. Where this is so, the
Court cannot act, even if the right in questions is a right erga omnes.

The Court accordingly finds that it is not required to consider

Australia's other objections and that it cannot rule on Portugal's
claims on the merits, whatever the importance of the questions
raised by those claims and of the rules of international law which
they bring into play.

Conclusions (paras. 36-37)

The Court recalls in any event that it has taken note in the Judgment
that, for the two Parties, the Territory of East Timor remains a nonself governing territory and its people has the right to selfdetermination.

The Court goes on to consider another argument of Portugal which,

the Court observes, rests on the premise that the United Nations
resolutions, and in particular those of the Security Council, can be
read as imposing an obligation on States not to recognize any
authority on the part of Indonesia over East Timor and, where the
latter is concerned, to deal only with Portugal. Portugal maintains
that those resolutions would constitute "givens" on the content of
which the Court would not have to decide de novo.
The Court takes note of the fact that, for the two Parties, the
Territory of East Timor remains a non-self governing territory
and its people has the right to self-determination, and that
the express reference to Portugal as the "administering Power" in a
number of the above-mentioned resolutions is not at issue between
them. The Court finds, however, that it cannot be inferred from the
sole fact that a number of resolutions of the General Assembly and
the Security Council refer to Portugal as the administering Power of
East Timor that they intended to establish an obligation on third
States to treat exclusively with Portugal as regards the continental
shelf of East Timor. Without prejudice to the question whether the
resolutions under discussion could be binding in nature, the Court
considers as a result that they cannot be regarded as "givens" which
constitute a sufficient basis for determining the dispute between the
Parties.
It follows from this that the Court would necessarily have to rule
upon the lawfulness of Indonesia's conduct as a prerequisite for
deciding on Portugal's contention that Australia violated its
obligation to respect Portugal's status as administering Power, East
Timor's status as a non-self governing territory and the right of the
people of the Territory to self-determination and to permanent
sovereignty over its wealth and natural resources. Indonesia's rights
and obligations would thus constitute the very subject matter of such
a judgment made in the absence of that State's consent. Such a
judgment would run directly counter to the "well-established
principle of international law embodied in the Court's Statute,
namely, that the Court can only exercise jurisdiction over a State

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Page 6 | Bantay

ISLAND OF LAS PALMAS CASE

BRIEF FACT SUMMARY. Both the United States (P) laid claim to
the ownership of the Island of Palmas. While the U.S. (P)
maintained that it was part of the Philippines, the Netherlands (D)
claimed it as their own.
SYNOPSIS OF RULE OF LAW. A title that is inchoate cannot
prevail over a definite title found on the continuous and peaceful
display of sovereignty.
FACTS. Both the United States (P) laid claim to the ownership of
the Island of Palmas. While the U.S. (P) maintained that it was part
of the Philippines, the Netherlands (D) claimed it as their own. The
claim of the U.S. (P) was back up with the fact that the islands had
been ceded by Spain by the Treaty of Paris in 1898, and as successor
to the rights of Spain over the Philippines, it based its claim of title
in the first place on discovery. On the part of the Netherlands (D),
they claimed to have possessed and exercised rights of sovereignty
over the island from 1677 or earlier to the present.
The subject of the dispute is the sovereignty over the Island of
Palmas (or Miangas). It results from the evidence produced by
either side that Palmas (or Miangas) is a single, isolated island, not
one of several islands clustered together. It lies about halfway
between Cape San Augustin (Mindanao, Philippine Islands) and the
most northerly island of the Nanusa (Nanoesa) group (Netherlands
East Indies).
The origin of the dispute is to be found in the visit paid to the Island
of Palmas (or Miangas) on January 21st, 1906, by General Leonard
Wood, who was then Governor of the Province of Moro.
This visit led to the statement that the Island of Palmas (or
Miangas), undoubtedly included in the "archipelago known as the
Philippine Islands", as delimited by Article III of the Treaty of Peace
between the United States and Spain, dated December 10lh, 1898
(hereinafter also called "Treaty of Paris"), and ceded in virtue of the
said article to the United States, was considered by the Netherlands
as forming part of the territory of their possessions in the East
Indies. There followed a diplomatic correspondence, beginning on
March 31*1, 1906, and leading up to the conclusion of the Special
Agreement of January 231, 1925.
ESTABLISHED FACTS:
1.

2.

The Treaty of Peace of December 10*'', 1898, and the Special

Agreement of January 23"', 1925, are the only international
instruments laid before the Arbitrator which refer precisely,
that is, by mathematical location or by express and unequivocal
mention, to the island in dispute, or include it in or exclude it
from a zone delimited by a geographical frontier-line. The
scope of the international treaties which relate to the
"Philippines" and of conventions entered into with native
Princes will be considered in connection with the arguments of
the Party relying on a particular act.
Before 1906 no dispute had arisen between the United States
or Spain, on the one hand, and the Netherlands, on the other,

PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF SOL 2015

3.

4.

in regard specifically to the Island of Palmas (or Miangas), on

the ground that these Powers put forward conflicting claims to
sovereignty over the said island.
The two Parties claim the island in question as a territoiy
attached for a very long period to territories relatively close at
hand which are incontestably under the sovereignty of the one
or the other of them.
It results from the terms of the Special Agreement (Article I)
that the Parties adopt the view that for the purposes of the
present arbitration the island in question can belong only to
one or the other of them. Rights of third Powers only come into
account in so far as the rights of the Parties to the dispute may
be derived from them.

ARGUMENTS:
UNITED STATES

THE NETHERLANDS

The united States, as successor

to the rights of Spain over
Philippines, bases its title in the
first place on discovery. The
existence of sovereignty thus
acquired is, in the American
view, confirmed not merely by
the most reliable cartographers
and authors, but also by treaty,
in particular by the Treaty of
Minister, of 1648, to which
Spain and the Netherlands are
themselves Contracting Parlies.
As, according to the same
argument, nothing has occurred
of a nature, in international law,
to cause the acquired title to
disappear, this latter title was
intact at the moment when, by
the Treaty of December 10,
1898,
Spain
ceded
the
Philippines to the United States.
In these circumstances, it is, in
the American view, unnecessary
to establish facts showing the
actual display of sovereignty
precisely over the Island of
Palmas (or Miangas). The
United
States
Government
finally 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.

According to the Netherlands

Government, on the other hand,
the fact of discovery by Spain is
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.
The principle of contiguity is
contested. The Netherlands
Government's main argument
endeavours to show that the
Netherlands, represented for
this purpose in the first period
of colonisation by the East 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 of 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 (or Miangas).
The state of affairs thus set up is
claimed to be validated by
international treaties.

ISSUE. Can a title which is inchoate prevail over a definite title

found on the continuous and peaceful display of sovereignty?
HELD. (Huber, Arb.). NO. A title that is inchoate cannot prevail
over a definite title found on the continuous and peaceful display of
sovereignty. The peaceful and continuous display of territorial
sovereignty is as good as title. However, discovery alone without
subsequent act cannot suffice to prove sovereignty over the island.
The territorial sovereignty of the Netherlands (D) was not contested
by anyone from 1700 to 1906. The title of discovery at best an
inchoate title does not therefore prevail over the Netherlands (D)
claims of sovereignty.
DISCUSSION. Evidence of contracts made by the East India
Company and the Netherlands (D) was examined by the arbitrator.
The claims made by the Netherlands (D) were also based on the
premise of the convention it had with the princes and native
chieftains of the islands. Hence, at the time of the Treaty of Paris in
1898, Spain was found not to have dominion over the island.
y 4,700 private U.S. claims, ordered payment by Iran (D) to U.S.
nationals amounting to over $2.5 billion.
ARBITRATORS REMARKS ON SOVEREIGNTY IN ITS
RELATION TO TERRITORY: Sovereignty in the relations
between States signifies independence. Independence in regard to a
portion of the globe is the right to exercise therein, to the exclusion
of any other State, the functions of a State.
-

Territorial sovereignty is, in general, a situation recognized and

delimited in space, either by so-called natural frontiers as recognized
by international law or by outward signs of delimitation that are
undisputed, or else by legal engagements entered into between
interested neighbors, such as frontier conventions, or by acts of
recognition of States within fixed boundaries.
-

Page 7 | Bantay

The development of the national organization of States

during the last few centuries and, as a corollary, the
development of international law, have established this
principle of the exclusive competence of the State in regard
to its own territory in such a way as to make it the point of
departure in settling most questions that concern
international relations.
The special cases of the composite State, of collective
sovereignty, etc., do not fall to be considered here and do
not, for that matter, throw any doubt upon the principle
which has just been enunciated. Under this reservation it
may be stated that territorial sovereignty belongs always to
one, or in exceptional circumstances to several States, to the
exclusion of all others.
The fact that the functions of a State can be performed by
any State within a given zone is, on the other hand, precisely
the characteristic feature of the legal situation pertaining in
those parts of the globe which, like the high seas or lands
without a master, cannot or do not yet form the territory of a
State.

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 titlecession 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.
This demonstration consists in the actual display of State
activities, such as belongs only to the territorial sovereign.

Titles of acquisition of territorial sovereignty in present-day

international law are either based on an act of effective
apprehension, such as occupation or conquest, or, like cession,
presuppose that the ceding and the cessionary powers or at least one
of them, have the faculty of effectively disposing of the ceded
territory.
-

In the same way natural accretion can only be conceived of

as an accretion to a portion of territory where there exists an
actual sovereignty capable of extending to a spot which falls
within its sphere of activity.
It seems therefore natural that an element which is essential
for the constitution of sovereignty should not be lacking in
its continuation.
So true is this, that practice, as well as doctrine, recognizes
though under different legal formulae and with certain
differences as to the conditions requiredthat the
continuous and peaceful display of territorial sovereignty
(peaceful in relation to other States) is as good as a title.
The growing insistence with which international law, ever
since the middle of the 18th century, has demanded that the
occupation shall be effective would be inconceivable, if
effectiveness were required only for the act of acquisition
and not equally for the maintenance of the right.
If the effectiveness has above all been insisted on in regard
to occupation, this is because the question rarely arises in
connection with territories in which there is already an
established order of things. Just as before the rise of
international law, boundaries of lands were necessarily
determined by the fact that the power of a State was
exercised within them, so too, under the reign of
international law, the fact of peaceful and continuous
display is still one of the most important considerations in
establishing boundaries between States.

The principle that continuous and peaceful display of the functions

of State within a given region is a constituent element of territorial
sovereignty is not only based on the conditions of the formation of
independent States and their boundaries (as shown by the
experience of political history) as well as on an international
jurisprudence and doctrine widely accepted; this principle has
further been recognized in more than one federal State, where a
jurisdiction is established in order to apply, as need arises, rules of
international law to the interstate relations of the States members.
-

This right has as corollary a duty: the obligation to protect

within the territory the rights of other States, in particular
their 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

PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF SOL 2015

This is the more significant, in that it might well be

conceived that in a federal State possessing a complete
judicial system for interstate mattersfar more than in the
domain of international relations properly so-calledthere
should be applied to territorial questions the principle that,
failing any specific provision of law to the contrary, a. jus in
re once lawfully acquired shall prevail over de facto
possession however well established.

Manifestations of territorial sovereignty assume, it is true, different

forms, according to conditions of time and place.
-

Territorial sovereignty, as has already been said, involves the

exclusive right to display the activities of a State.
-

the minimum of protection of which international law is the

guardian.
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 limited their effect by the principles of prescription
and the protection of possession.
International law, the structure of which is not based on any
super-State 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 manifestations.

Although continuous in principle, sovereignty cannot be

exercised in fact at every moment on every point of a
territory.
The intermittence and discontinuity compatible with the
maintenance of the right necessarily differ according as
inhabited or uninhabited regions are involved, or regions
enclosed within territories in which sovereignty is
incontestably displayed or again regions accessible from, for
instance, the high seas.
It is true that neighboring States may by convention fix
limits to their own sovereignty, even in regions such as the
interior of scarcely explored continents where such
sovereignty is scarcely manifested, and in this way each may
prevent the other from any penetration of its territory.
The delimitation of Hinterland may also be mentioned in
this connection.
If, however, no conventional line of sufficient topographical
precision exists or if there are gaps in the frontiers otherwise
established, or if a conventional line leaves room for doubt,
or if, as e.g. in the case of an island situated in the high seas,
the question arises whether a title is valid erga omnes, the
actual continuous and peaceful display of State functions is
in case of dispute the sound and natural critrium of
territorial sovereignty.

Page 8 | Bantay

It is evident that Spain could not transfer more rights than she
herself possessed.
One observation, however, is to be made. Article III of the Treaty
of Paris, which is drafted differently from the preceding Article
concerning Porto Rico, is so worded that it seems as though the
Philippine Archipelago, within the limits fixed by the Article, was at
the moment of cession under Spanish sovereignty.
-

As already stated the Island of Palmas lies within the lines

traced by the Treaty.
Article III may therefore be considered as an affirmation of
sovereignty on the part of Spain as regards the Island of
Palmas (or Miangas), and this right or claim of right would
have been ceded to the United States, though the
negotiations of 1898, as far as they are on the record of the
present case, do not disclose that the situation of Palmas
had been specifically examined.

It is recognized that the United States communicated, on

February 3, 1899, the Treaty of Paris to the Netherlands,
and that no reservations were made by the latter in respect
to the delimitation of the Philippines in Article III.
-

The question whether the silence of a third Power, in regard

to a treaty notified to it can exercise any influence on the
rights of this Power, or on those of the Powers signatories of
the treaty, is a question the answer to which may depend on
the nature of such rights.

ISSUE: [1] WON 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.
[2] Whether and to what extent the territorial sovereignty of Spain
was manifested in or in regard to the Island of Palmas for Miangas,).
RATIO: [1] for the purpose of the present affair it may be admitted
that the original title derived from discovery belonged to Spain.
VIEW: discovery does not create a definitive title of sovereignty, but
only an "inchoate" title, such a title exists, it is true, without external
manifestation.
-

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 applied (the socalled intertemporal law).

As it is not proved that Span, at the beginning of 1648 or in June

1714, was in possession of the Island of Palmas (or Miangas), there is
no proof that Spain acquired by the Treaty of Munster 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 Netherlands 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).

Moreover even if she had acquired a title she never intended

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 further to be evident that Treaties concluded by
Spain with third Powers recognizing her sovereignty over
the "Philippines" could not be binding upon the Netherlands
and, as such Treaties do not mention the island in dispute,
they are not available even as indirect evidence.

[2] The documents laid before the Arbitrator contain no trace of

Spanish activities of any kind specifically on the Island of Palmas.
-

Neither is there any official document mentioning the Island

of Palmas as belonging to an administrative or judicial
district of the former Spanish Government in the
Philippines.

RE: telegram from General Wood to the Bureau of Insular Affairs:

The fact that not the ordinary provincial agencies but the navy were
in charge of the inspection of the islands in the south, together with
another incidentally mentioned by Major General E. S. Otis; in a
report of August 31st. 1899, namely the existence of a state of war or
at least of subdued hostility amongst the Moros against Spanish rule,
leads to the very probablethough not necessaryconclusion that
the complete absence of evidence as to display of Spanish
sovereignty over the Island of Palmas is not due to mere chance, but
is to be explained by the absence of interest of Spain in the
establishment or the maintenance of her rule over a small island
lying far off the coast of a distant and only incompletely subdued
province.
RE: evidence from MAPS: only with the greatest caution can account
be taken of maps in deciding a question of sovereignty, at any rate in
the case of an island such as Palmas (or Miangas).

RE: letter emanating from the Provincial Government of the

Philippines: these statements, which suppose the existence of Mata,
are not based immediately on information taken on the spot, but are
rather conjectures of the author as to what seems probable.

RE: letter of the Dutch missionary Stellar: These facts, supposing

they are correct, are no proof of a display of sovereignty over Palmas
(or Miangas) ; rather the contrary.

If the Spanish naval authorities to whom the administrative

inspection of the southern Philippine Islands belonged, were
convinced that the Island of Palmas was Spanish territory,
the refusal of the native chief to accept the Spanish flag
would naturally have led either to direct action on the Island
in order to affirm Spanish sovereignty, or, if the Netherlands
rights had been invoked, to negotiations such as were the
sequel to General Wood's visit in 1906.

PUBLIC INTERNATIONAL LAW | CASE DIGESTS | AUF SOL 2015

Any maps which do not precisely indicate the political

distribution of territories, and in particular the Island of
Palmas (or Miangas) clearly marked as such, must be
rejected forthwith, unless they contributesupposing that
they are accurateto the location of geographical names.
Moreover, indications of such a nature are only of value
when there is reason to think that the cartographer has not
merely referred to already existing mapsas seems very
often to be the casebut that he has based his decision on
information carefully collected for the purpose.
Above all, then, official or semi-official maps seem capable
of fulfilling these conditions, and they would be of special
interest in cases where they do not assert the sovereignty of
the country of which the Government has caused them to be
issued.
A comparison of the maps submitted to the Arbitrator shows
that there is doubt as to the existence or the names of

Page 9 | Bantay

several islands which should be close to Palmas (or

Miangas), and in about the same latitude.
RE: title arising out of contiguity: The conditions of acquisition of
sovereignty by the Netherlands are therefore to be considered as
fulfilled. It remains now to be seen whether the United States as
successors of Spain are in a position to bring forward an equivalent
or stronger title. This is to be answered in the negative.
-

The title of discovery, if it had not been already disposed of

by the Treaties of Munster 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 occupation.
An inchoate title however cannot prevail over a definite title
founded on continuous and peaceful display of sovereignty.
The title of contiguity, understood as a basis of territorial
sovereignty, has no foundation in international law.
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 "held and possessed" by Spain in
1648, the rights of Spain to be derived from the Treaty of
Munster would have been superseded by those which were
acquired by the Treaty of Utrecht.
Now if there is evidence of a state of possession in 1714
concerning the island of Palmas (or Miangas), such evidence
is exclusively in favour of the Netherlands.
But even if the Treaty of Utrecht could not be taken into
consideration, the acquiescence of Spain in the situation
created after 1677 would deprive her and her successors of
the possibility of still invoking conventional rights at the
present time.