INTERNATIONAL LAW
The lsland of Palmas (Arbitral Award of 4 April 1928)
Topics: Territoriality and sovereignty
Articles: Treaty of Paris (1928)
Facts: Palmas is a small island near both Indonesia and the Philippines.
The actual discovery of the island was made by Spain. However, since
Spain ceded (afgestaan) the island to the United States through the Treaty
of Paris in 1898, the United States claims sovereignty over the island. They
also argue that since the island is closer to the Philippines than to
Indonesia, the United States may exercise sovereignty over Palmas
anyway because of its sovereignty over the Philippines. The Netherlands
claims sovereignty over the island since, according to the Netherlands, it
has actually exercised that sovereignty since the 17th century.
Legal question: Does Palmas fall under the sovereignty of the
Netherlands or the United States?
Consideration: Although Spain had actually discovered the island, this
does not mean that they automatically obtain sovereignty over the island.
Especially not in view of the fact that Spain did not perform any act
afterwards that made that sovereignty clear at all, such as planting a
Spanish flag on the beach. What someone does not have, he cannot give
away. The cession of the island by Spain to the United States in the Treaty
of Paris in 1898 is therefore meaningless. The other argument of the
United States, that because the island is closer to the Philippines than to
Indonesia and therefore the sovereignty of the United States can be
assumed, is also incorrect. In international customary law, no rule can be
indicated that endorses this. Since there is evidence that the Netherlands
has indeed exercised de facto (real) sovereignty over Palmas since the
17th century and Spain did nothing about this and did not claim
sovereignty itself, the Netherlands does indeed have sovereignty over
Palmas.
Legal rule: There is no rule of customary international law that regards
the proximity (nabijheid) of an island to another group of islands as a sign
that that one island also belongs to that group of islands. Moreover, it is a
clear sign if one country exercises de facto sovereignty without the
'discoverer' protesting against it, for centuries.
Reparation for Injuries (Advisory Opinion of 11 April 1949)
Topics: Legal personality of the United Nations
Articles: Art. 2 UN Charter
Facts: The United Nations requested an advisory opinion from the Court
on the following issue. A number of persons had been killed in the service
of the United Nations. The question now was whether the United Nations
as an organization had the right to file a claim against the responsible
government for either damage suffered by the United Nations itself, or
damage suffered by the victim or his successors through him/her.
Legal question: Does the United Nations as an organization have the
legal personality to file a claim for damage suffered either by itself or by
the victim?
, Consideration: The Court unanimously concluded that the United Nations
is indeed able to file a claim for damage suffered by itself or the victim
against a State that caused this by violating its obligations towards the
United Nations under international law. The powers given by the members
of the United Nations can only be interpreted as granting international
legal personality to the United Nations as an organization. The functions
that the United Nations has been granted can only be performed if this
international legal personality would be implicitly granted. The United
Nations has international rights and obligations and the possibility to
effectuate these rights and obligations by being able to file international
claims. The United Nations also has the possibility to protect its
'agents' and therefore to file this claim on their behalf.
Legal rule: The United Nations as an organization has implicit
international legal personality by virtue of the powers granted by its
members, and is therefore able to file international claims for itself and its
'agents'.
Armed Activities ORC v. Rwanda (Judgment of 3 February 2006)
Subject: Act of aggression
The facts: On 28 May 2002, the government of Congo filed a complaint
against the Republic of Rwanda, alleging a gross violation of human rights
and international humanitarian law by Rwanda. The government of Congo
considered that the corrupt consequences were the result of a violent act
of aggression on the territory of Congo, which violated the
sovereignty and territorial integrity of Congo. Rwanda had shot down a
Boeing 727, killing 40 civilians. Furthermore, Rwanda had been guilty of
murdering, raping, crucifying and cutting the throats of 3.5 million
Congolese. Congo repeatedly asked the Court to recognise that Rwanda
had effectively violated the UN Charter, Articles: Art. 2, paragraphs 3 and
4, and various other instruments of international law.
Court: The Court begins with the question of coverage. The Court rules
that, in determining whether a State has the jurisdiction of the
Court, the attitude of a State must be seen as an ambiguous indication of
the will of that State to accept the jurisdiction of the Court in a voluntary
and unquestionable manner. The Court rules that Rwanda’s continued
opposition to the jurisdiction of the Court includes the failure to accept
jurisdiction. The Court further rules that the fact that Rwanda did not
appear before the Court cannot be interpreted as an attitude as described
above, because it appeared precisely to contest jurisdiction. The Court
rules that the mere fact that in this case there are rights and
obligations that apply to everyone (erga omnes) does not mean that
the Court has jurisdiction. The Court rules that this also applies to the
relationship between jus cogens and decisions for the jurisdiction of the
Court. The Court confirms that the jurisdiction of the Court under the
Statute is always based on the consent of the parties.
The SS Lotus (Judgment of 7 September 1927)
Topics: Jurisdiction and customary law
The lsland of Palmas (Arbitral Award of 4 April 1928)
Topics: Territoriality and sovereignty
Articles: Treaty of Paris (1928)
Facts: Palmas is a small island near both Indonesia and the Philippines.
The actual discovery of the island was made by Spain. However, since
Spain ceded (afgestaan) the island to the United States through the Treaty
of Paris in 1898, the United States claims sovereignty over the island. They
also argue that since the island is closer to the Philippines than to
Indonesia, the United States may exercise sovereignty over Palmas
anyway because of its sovereignty over the Philippines. The Netherlands
claims sovereignty over the island since, according to the Netherlands, it
has actually exercised that sovereignty since the 17th century.
Legal question: Does Palmas fall under the sovereignty of the
Netherlands or the United States?
Consideration: Although Spain had actually discovered the island, this
does not mean that they automatically obtain sovereignty over the island.
Especially not in view of the fact that Spain did not perform any act
afterwards that made that sovereignty clear at all, such as planting a
Spanish flag on the beach. What someone does not have, he cannot give
away. The cession of the island by Spain to the United States in the Treaty
of Paris in 1898 is therefore meaningless. The other argument of the
United States, that because the island is closer to the Philippines than to
Indonesia and therefore the sovereignty of the United States can be
assumed, is also incorrect. In international customary law, no rule can be
indicated that endorses this. Since there is evidence that the Netherlands
has indeed exercised de facto (real) sovereignty over Palmas since the
17th century and Spain did nothing about this and did not claim
sovereignty itself, the Netherlands does indeed have sovereignty over
Palmas.
Legal rule: There is no rule of customary international law that regards
the proximity (nabijheid) of an island to another group of islands as a sign
that that one island also belongs to that group of islands. Moreover, it is a
clear sign if one country exercises de facto sovereignty without the
'discoverer' protesting against it, for centuries.
Reparation for Injuries (Advisory Opinion of 11 April 1949)
Topics: Legal personality of the United Nations
Articles: Art. 2 UN Charter
Facts: The United Nations requested an advisory opinion from the Court
on the following issue. A number of persons had been killed in the service
of the United Nations. The question now was whether the United Nations
as an organization had the right to file a claim against the responsible
government for either damage suffered by the United Nations itself, or
damage suffered by the victim or his successors through him/her.
Legal question: Does the United Nations as an organization have the
legal personality to file a claim for damage suffered either by itself or by
the victim?
, Consideration: The Court unanimously concluded that the United Nations
is indeed able to file a claim for damage suffered by itself or the victim
against a State that caused this by violating its obligations towards the
United Nations under international law. The powers given by the members
of the United Nations can only be interpreted as granting international
legal personality to the United Nations as an organization. The functions
that the United Nations has been granted can only be performed if this
international legal personality would be implicitly granted. The United
Nations has international rights and obligations and the possibility to
effectuate these rights and obligations by being able to file international
claims. The United Nations also has the possibility to protect its
'agents' and therefore to file this claim on their behalf.
Legal rule: The United Nations as an organization has implicit
international legal personality by virtue of the powers granted by its
members, and is therefore able to file international claims for itself and its
'agents'.
Armed Activities ORC v. Rwanda (Judgment of 3 February 2006)
Subject: Act of aggression
The facts: On 28 May 2002, the government of Congo filed a complaint
against the Republic of Rwanda, alleging a gross violation of human rights
and international humanitarian law by Rwanda. The government of Congo
considered that the corrupt consequences were the result of a violent act
of aggression on the territory of Congo, which violated the
sovereignty and territorial integrity of Congo. Rwanda had shot down a
Boeing 727, killing 40 civilians. Furthermore, Rwanda had been guilty of
murdering, raping, crucifying and cutting the throats of 3.5 million
Congolese. Congo repeatedly asked the Court to recognise that Rwanda
had effectively violated the UN Charter, Articles: Art. 2, paragraphs 3 and
4, and various other instruments of international law.
Court: The Court begins with the question of coverage. The Court rules
that, in determining whether a State has the jurisdiction of the
Court, the attitude of a State must be seen as an ambiguous indication of
the will of that State to accept the jurisdiction of the Court in a voluntary
and unquestionable manner. The Court rules that Rwanda’s continued
opposition to the jurisdiction of the Court includes the failure to accept
jurisdiction. The Court further rules that the fact that Rwanda did not
appear before the Court cannot be interpreted as an attitude as described
above, because it appeared precisely to contest jurisdiction. The Court
rules that the mere fact that in this case there are rights and
obligations that apply to everyone (erga omnes) does not mean that
the Court has jurisdiction. The Court rules that this also applies to the
relationship between jus cogens and decisions for the jurisdiction of the
Court. The Court confirms that the jurisdiction of the Court under the
Statute is always based on the consent of the parties.
The SS Lotus (Judgment of 7 September 1927)
Topics: Jurisdiction and customary law
