Several decisions provide guidance regarding the rules that govern the ability of a nation to claim ownership of isolated uninhabited island features–the Clipperton[ii] and Isle of Palmas[iii] arbitrations and the decisions by the International Court of Justice (ICJ) in the Minquiers and Ecrehos[iv] and Gulf of Fonseca[v] cases. Clipperton is a remote and barren atoll 600 miles south of Mexico in the Pacific Ocean which was claimed by France for its guano in 1858, but then ignored for decades because the guano was not commercially exploitable.
After Mexico asserted jurisdiction over the atoll in the 1890s (claiming historic links traced back to earlier Spanish explorers), France and Mexico agreed to submit the ownership dispute to arbitration, selecting as arbitrator Victor Emmanuel, the Italian Emperor. When the decision was finally announced many decades later, in 1931, the award went to France, based primarily on its initial formal "discovery" of the atoll. The Emperor's opinion states that something more than mere discovery is normally needed to establish ownership–"effective occupation" is also required. And "effective occupation" usually requires a presence in the territory and some governmental structure capable of enforcing laws. But for uninhabited islets, these requirements are apparently reduced.
All that is necessary is that "from the first moment when the occupying State makes its appearance there," the territory is "at the absolute and undisputed disposition of that state. "[vi] As applied to the facts of Clipperton's history, France's claim would appear to have been flimsy even under these weak criteria, because U. S. citizens had explored Clipperton and Mexico had established a garrison there. [vii] Nonetheless, the Emperor felt the French claim had not been discredited by these events, and France was awarded title to the atoll. The Palmas Island case concerned an inhabited island, but the analysis given by Max Huber, the arbitrator to this dispute between the United States and the Netherlands, reinforces the principle that less is required to acquire ownership of uninhabited places.
The United States based its claim on Spain's earlier "discovery" and the island's "contiguity" or proximity to the main Philippine islands (which were then a colony of the United States). The Netherlands (which then controlled Indonesia) invoked its contact with the region and its agreements with native princes. The arbitrator favored the Dutch, based on their peaceful and continuous display of authority over Palmas. Spain's "discovery" did not confer title because it was not accompanied by any subsequent occupation or attempts to exercise sovereignty.
In that sense, the Palmas decision is inconsistent with Clipperton. Arbitrator Huber also rejected the U. S. claim based on "contiguity," concluding that international law does not support such a principle. [ix] The International Court of Justice addressed these issues in 1953 in the Minquiers and Ecrehos case. [x] Both France and the United Kingdom claimed title to a groups of islets and rocks between the British island of Jersey and the coast of France.
Each party produced ancient historical titles from the Middle Ages, but the Court found these materials to be inconclusive[xii] and instead focused on actual displays of authority during the 19th and 20th centuries. [xiii] Based on this evidence, the Court determined that the United Kingdom had exercised state functions over the features,[xiv] and that France had not established any similar assertions of authority during this period. The Court thus awarded title over all of them to the United Kingdom.
[xv] The Court also relied for its decision on the view that the Minquiers group were a "dependency" of the Channel islands (Jersey and Guernsey) and thus should be subject to the same sovereign authority. [xvi] A more recent case involving a dispute that bears some resemblance to the Spratlys is the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening),[xvii] decided by a chamber of the International Court of Justice in 1992.
This case involved a dispute over sovereign ownership of several small islands in the Gulf of Fonseca, which is located where the boundaries of El Salvador, Honduras, and Nicaragua meet. This area had been governed by a colonial power–Spain–until 1821 when the region became independent and established the Federal Republic of Central America. [xviii] This entity lasted until it disintegrated in 1839, when the presently existing states of Honduras, El Salvador, Nicaragua, Costa Rica, and Guatemala were established.
[xix] The Chamber ruled that the Fonseca islands were not terra nullius at that time, but instead were inherited by the new entities from Spain. It then focused on which of the new countries occupied the islands, what actions indicated the exercise of authority over them, and to what extent the other states acquiesced in the exercise of authority. [xx] Id. at 565, para. 345. The Chamber emphasized that it was not deciding whether occupation by one state over time could establish ownership in a case where a pre-existing title was held by another state.
Instead, the Chamber made clear that it was relying upon occupation and acquiescence as evidence of the recognition by the states of the region regarding which country had proper title over each of the disputed islands when the evidence regarding a pre-existing title was ambiguous. [xxi] Based on these principles, the Chamber awarded the island of El Tigre to Honduras because of its occupation of this island for more than 100 years, accompanied by some evidence of recognition by El Salvador that Honduras was authorized to exercise authority over the island.
The Chamber then turned to Meanguera Island (1586 hectares and long-inhabited) and Meanguerita Island (26 hectares and uninhabited, lacking fresh water). [xxiii] The Chamber found evidence of occupation ("effective possession and control") of these islands by El Salvador since 1854, and found no effective protests by Honduras. [xxiv] The Chamber's conclusion was thus that "Honduras was treated as having succeeded to Spanish sovereignty over El Tigre, and El Salvador to Spanish sovereignty over Meanguera and Meanguerita," with Meanguerita being viewed as an "appendage" to or "dependency" of Meanguera.
[xxv] How do these somewhat conflicting precedents apply to the current disputes over ownership of islets? Discovery alone does not give sufficient title, and some degree of "effective occupation" is needed. Although the requirements for "discovery" of remote uninhabited islands (in a terra nullius status) may be less strict than for populated territories,[xxvi] in cases of ambiguity and dispute a tribunal will look closely at evidence of occupation, exercise of authority, and acquiescence by other nations. Recognition by other countries is certainly relevant.
Although abandonment cannot always be presumed by nonuse, especially if it is not voluntary,[xxvii] tribunals will require effective exercise of authority in cases where evidence of discovery is disputed or ambiguous. The Clipperton, Palmas, Minquiers and Ecrehos, and Gulf of Fonseca precedents focus on "discovery" and–in particular–on "occupation" of small islets. Although they do not require too much activity when the islet is uninhabitable, they do indicate a need for some formal acts and a sufficient presence to let others know of the claim.
The Minquiers and the Gulf of Fonseca cases both stress recent occupation and control, and tend to ignore activities more than 100 years ago. In the Spratly dispute in the South China Sea, China has argued on occasion that Western requirements of formal declarations of sovereignty should not apply in Asia. But their suggested substitute–long contact with a region-may not always be sufficient, because it does not put others on notice that a claim of exclusion has been made.
Is "contiguity" or geographical proximity relevant to claims of sovereignty? In the South China Sea, Malaysia, the Philippines, and even Vietnam have argued that they are entitled to some or all of the Spratlys because these islands are near their main territories. Contiguity was rejected in both the Clipperton and Palmas decisions (it was not a factor in the Minquiers and Ecrehos case), but the argument continues to have a persistent practical appeal. China, of course, thoroughly rejects it. [xxviii]