¹ The text of the award is printed infra, p. 867.

² Text of the note in American Memorandum, App. p. 134. The “ Memorandum” is the first pleading filed in the arbitration.

³ Ibid, p. 138. The rest of the correspondence up to the signing of the arbitral agreement in 1925, will be found in subsequent pages of the same pleading.

⁴ The words “ ownership” and “ title” are used with full appreciation of their inaccuracy in international law, but the analogy of this case to private law cases of title to realty is striking.

⁵ It was provided that in case of failure to agree upon an arbitrator, the choice should be left to the President of the Swiss Confederation, who might very probably have selected the same distinguished jurist.

⁶ Award, p. 48 (infra, p. 901).

⁷ The arbitrator's full exposition of this point seems hardly necessary in view of the express admissions at pp. 11 and 29 of the Further Explanations of the United States. It seems slightly misleading to speak of the American alleged title as being “ immediately founded” on cession. (Award, p. 22 [infra, p. 879].) While this is doubtless true, it is immaterial and was never stressed in the American pleadings.

⁸ At pp. 19-51.

⁹ American Memorandum, p. 51 f .

¹⁰ Award, p. 25 (infra, p. 882). Netherlands Counter-Memorandum, p. 13.

¹¹ American Memorandum, p. 51, citing Westlake, Int. Law (1910), Part I, p. 114, and Sec. of State Upshur in 1843 (I Moore's Digest, p. 259).

¹² Ibid., p. 53.

¹³ See ibid., pp. 51-60.

¹⁴ pp. 13-20.

¹⁵ Particularly effective are the extracts from the British Case in the Guiana boundary arbitration. ibid., pp. 18-20.

¹⁶ Yale University Press, 1927

¹⁷ Goebel, Straggle for the Falkland Islands, p. 96.

¹⁸ Ibid., p. 117.

¹⁹ This point will later be adverted to in discussing contiguity or geographic propinquity, infra, p. 742. In any event, the American statement is expressive of what has hitherto generally been considered the law on the subject of discovery.

²⁰ Award, p. 28 (infra, p. 884).

²¹ Netherlands Counter-Memorandum, p. 21; cf. Goebel, op. cit., pp. xi and 64.

²² Netherlands Counter-Memorandum, p. 21. Cf. the usual doctrine that a boundary treaty or treaty of cession is an executed contract, settled in effect, and that therefore such & treaty is not affected by war.

²³ Award, p. 27 (infra, p. 883).

²⁴ The writer does not intend to express here an opinion upon the merits or the facts involved in the Mexican or Rumanian question. The Mexican Government has, it will be recalled, contended that American property owners in Mexico were under a misapprehension as to the nature of the rights accorded to them by the Mexican law in force at the time when the properties were acquired.

²⁵ American Memorandum, pp. 98 ff.

²⁶ Cf. Goebel, op. cit., pp. 412 ff.

²⁷ See infra p. 744, for discussion of prescription in international law.

²⁸ Netherlands Counter-Memorandum, pp. 36-39.

²⁹ See Award, p. 33 (infra, p. 888). This may be due to the weakness of the Dutch evidence on the point.

³⁰ See American Memorandum, pp. 62 ff.; Netherlands Counter-Memorandum, pp. 23 ff.; Award, pp. 28 ff. (infra, pp. 884 ff.)

³¹ See American Memorandum, pp. 60-62, and an interesting passage there quoted from the Venezuelan Counter-case in the British Guiana Boundary Arbitration.

³² Netherlands Counter-Memorandum, p. 9 and App. B, p. 86. A thorough and veryinteresting account of the effect of the Papal Bulls, their general acceptance in the fifteenth and sixteenth centuries by the Catholic countries, and the disregard of the Protestant states, is to be found in Goebel, op. cit., pp. 79 ff.

³³ See Award, pp. 14, 60 and 39-40 (infra, pp. 881, 893, 910).

³⁴ In his Tractatus de Insula, quoted in the American Memorandum at p. 112. Cf. Goebel, op. cit., pp. 74-76. See also the view of Gryphiander cited by Goebel in note 212, p. 118, and cf. ibid., p. 419, where the principle of territorial contiguity or propinquity is properly described as “ a rule complementary of the rule of occupation.”

³⁵ This statement was quoted by the Netherlands in their Counter-Memorandum, p. 43. This case might, however, be distinguished by the period in which it arose.

³⁶ American Memorandum, pp. 101-102.

³⁷ The argument on this point is not grouped with the principle contentions of the United States, but is placed at the end of the Memorandum following the rebuttal of the Dutch contentions.

³⁸ It does not seem appropriate in this article to weigh the relative merits of the mass of evidence supplied by both parties on this and similar points. The Netherlands relied mainly on geological and other scientific data, whereas the United States depended on historical and cartographical evidence. It would seem that for political purposes and where one seeks an actual rather than an ideal grouping, the latter type of evidence is more valuable. The Dutch arguments (Counter-Memorandum, p. 32) relative to the weakness of the Spanish hold on the savage Moro tribes of Mindanao, strengthen as much as weaken the Spanish claim to Palmas, since despite the fact that the authority of Spain was not clearly demonstrated at all times and in all parts of this large island, the Spanish title thereto is not in dispute. There are many regions in the world where small islands off shore are fully recognized as belonging to the littoral state though no acts of authority are actually displayed over long periods. It is, to be sure, an added difficulty when the island is as much as forty or fifty miles from one shore and not much further from other land. In such a situation cartographical and historical data would seem to be very important.

³⁹ Award, p. 40 (infra, p. 894). Cf. ibid, p. 58 (infra, p. 908), where the arbitrator declares regarding manifestations of Dutch authority that in such a region such manifestations “ cannot be expected to be frequent.”

⁴⁰ Award, p. 60 (infra, p. 910). But cf. infra, p. 745.

⁴¹ See infra, p. 748.

⁴² Award, pp. 36-38 (infra, pp. 891-893).

⁴³ Ibid., pp. 46-47. Despite the difficulties arising from slight differences in spelling, the arbitrator, in another connection, considered it unimportant that the Netherlands Government submitted certified copies of certain documents instead of facsimiles. Without imputing any insincerity to the Netherlands, it is difficult to agree with Judge Huber that “ There is no reason to suppose that typographical errors in the reproduction of texts may have any practical importance for the evidence in question.” Award, p. 42 (infra, p. 896). For analysis of the Dutch evidence see ibid., pp. 46-49 (infra, pp. 902-907).

⁴⁴ American Memorandum, pp. 1Q4 ff. For the full development of the Dutch contentions see their Counter-Memorandum, pp. 49-57.

⁴⁵ Award, p. 44 (infra, p. 897).

⁴⁶ Netherlands Counter-Memorandum, p. 49.

⁴⁷ Award, p. 44 (infra, pp. 897-898).

⁴⁸ The Netherlands Counter-Memorandum, pp. 51-54, cites numerous historical examples of contracts with natives. See especially their reference! to the United States' agreement of 1899 with the Sultan of Sulu and cf. Goebel, op. cit., p. 95, for similar Spanish contracts with “ vassals” in the Moluccas. Not much weight can be attributed, however, to the Dutch contentions that their “ vassals” were “ powerful states”; they surely had no such standing in international law.

⁴⁹ Counter-Memorandum, p. 54.

⁵⁰ Award, p. 45 (infra, p. 898).

⁵¹ Ibid.

⁵² Award, p. 53 (infra, p. 005).

⁵³ Ibid.

⁵⁴ The arbitrator apparently gave no credence to a private commercial report of 1919 on the status of Palmas Island, submitted in an affidavit by the United States. The reporter, who was merely describing the place from the viewpoint of its trading possibilities for his company, stated that the natives told him of visits of Spanish gunboats and the collection of the “ cedula tax.” These Spanish visits were also reported by the natives to Major Malone of the Philippine Constabulary on a visit in 1919; Major Malone's report and affidavit were also submitted by the United States; Memorandum, p. 209. The arbitrator asked the United States whether there were any Spanish records of these visits, but the American Government was unable to have such records, if they existed, located in the Spanish archives at Madrid. See American Further Explanations, p. 1. It can scarcely be said that the Dutch evidence of payment of tribute was any stronger.

⁵⁵ Award, p. 55 (infra, p. 906).

⁵⁶ Ibid., p. 58 (infra, p. 908).

⁵⁷ See their Memorandum, p. 19.

⁵⁸ In the Netherlands Memorandum (pp. 20-21), it was asserted that the boundary lines of the cession were wholly American made and imposed upon Spain. It was accordingly contended that the inclusion of Palmas Island was not a Spanish assertion of sovereignty. It is believed that this point was satisfactorily answered in the American Counter-Memorandum (pp. 78 f.) , and Rejoinder (pp. 33 ff). Attention was there called to the distinguished ability of the negotiators on both sides and to the statement of the Spanish Minister of State that the boundary lines were formulated “with the greatest geographical scrupulousness.” The arbitrator requested the United States to supply further data on the manner in which the boundary lines had been drawn. See American Further Explanations, p. 1.

⁵⁹ Award, p. 59 (infra, p. 909).

⁶⁰ Award, pp. 60-61 (infra, pp. 911-912).

⁶¹ This presents an interesting indication of the development of international arbitration from the days of the aimabte compositeur.

⁶² Netherlands Memorandum, p. 22.

⁶³ American Counter-Memorandum, p. 84.

⁶⁴ Ibid., p. 85. Other authorities are cited on the subsequent pages of this pleading. Cf. Goebel, op. cit., p. 415 ff.

⁶⁵ American Counter-Memorandum, pp. 90-94.

⁶⁶ See Award, p. 18 (infra, p. 877).

⁶⁷ Cf. the Pan American Pecuniary Claims Conventions of 1902, 1906 and 1910, which provide for the arbitration of any pecuniary claim which is of sufficient importance to warrant the expense of arbitration.

⁶⁸ P. 2 of this pleading.

⁶⁹ The American view is strongly expressed in the Rejoinder, pp. 11 ff. In the appendix to the same at pp. 119-124 the United States set out extracts from judicial opinions in the courts of this country, in which the impropriety of such a procedure is commented upon. Of course, the American rules are partly due to the existence of the jury system and they seem to have been introduced partly because the Netherlands Government relied on the procedure in Dutch courts.

⁷⁰ Counter-Memorandum, p. 76.

⁷¹ American Counter-Memorandum, p. 1.

⁷² See Award, pp. 19-20 (infra, pp. 877-878).

⁷³ See American Rejoinder, pp. 3 ff., and Netherlands Further Explanations, p. 11.

⁷⁴ See text of the inquiry in Netherlands, Explanations, p. 5.

⁷⁵ Ibid., p. 7.

⁷⁶ Ibid.

⁷⁷ On this point see Lauterpacht's excellent monograph Private Law Sources and Analogies of International Law.

⁷⁸ The influence of the British courts on prize law may be noted as an exception.

⁷⁹ Award, p. 19 (infra, p. 878).

⁸⁰ It seems unnecessary here to deal at length with the differing points of view upon the application by analogy of certain articles of the Hague Convention of 1907 which were not specifically mentioned in the special agreement.

⁸¹ There is, of course, no established international doctrine of “ judicial notice.”

⁸² Netherlands Explanations, pp. 5-6.

⁸³ See American Rejoinder, pp. 19-20. The Netherlands Government did not file a Rejoinder. Relative to the filing of the Rejoinder see Report of Fred K. Nielsen, American 4gent and Counsel, May 2, 1928. pp. 32 ff.