Introduction

Whilst many dream of claiming their own island slice of paradise, few would have ever done so with the same verve as Alexander Francis Ure. In 1970, Ure claimed the islands of Elizabeth and Middleton Reefs — some 80 miles north of Lord Howe Island — in order to exploit the substantial hydrocarbon deposits he believed to lie beneath.

In 2013, his descendant claimed that the islands were terra nullius at the time of the claim. Allegedly, this claim created proprietary rights in customary international law that would be recognised by the Commonwealth of Australia, notwithstanding the Commonwealth’s 1987 declaration that the islands were part of a national park.

The Federal Court and Full Federal Court have now both ruled that an individual’s occupation of terra nullius does not create any proprietary rights that are enforceable under international law, putting an end to the Ure family’s claims. This post considers the Full Federal Court’s decision in particular.

The initial proceedings in brief

The first decision of the Federal Court (Ure v Commonwealth [2015] FCA 241, see also Aaron Moss, ‘Private Ownership of Territory under International Law: Ure v Commonwealth [2015] FCA 241′) was not a trial but a hearing of a special case under the Federal Court Rules 2011 (Cth), with specific questions being submitted to the Court for determination.

Yates J made the following findings at first instance:

  • The allegation that a state had or hadn’t acquired sovereignty over the islands was justiciable, notwithstanding that the exercise of sovereignty over unclaimed territory is an act of state; but
  • The applicant could not establish that Mr Ure had ‘acquired any proprietary rights by operation of, and as a matter of, international law’ (extracted from the second question before the Court).

This second point, whether international law recognised a principle under which rights of occupation of terra nullius translate at the time of sovereignty into rights under municipal law, was the focus of the appeal.

The issues before the Full Court

There were four issues before the Full Court (Ure v Commonwealth [2016] FCAFC 8):

  1. whether the Full Court first needed to clarify the question before it — whether the question required a finding that Mr Ure had obtained rights by his claim that were a form of property under the Constitution of Australia’s compulsory acquisition power (section 51(xxxi)) or whether the finding was that he had obtained specifically proprietary rights,

Once that question was answered, the other three issues were whether the sources of international law as set out in article 38 of the Statute of the International Court of Justice (‘ICJ Statute’) provided a basis for Mr Ure’s claims:

  1. whether customary international law contained a rule allowing for the acquisition by an individual of rights under international law (see article 38(1)(b)). The appellant pointed to potential evidence of relevant state practice;
  2. whether there was a general principle of international law recognising a right of property in individuals over unclaimed territory (see article 38(1)(c)). The appellant referred to Roman law and natural law concepts which were claimed to underpin international law; and
  3. whether there was a relevant principle expounded in the ‘teachings of the most highly qualified publicists’ (see article 38(1)(d)). The appellant referred to early theorists such as Grotius and Vattel, as well as to natural law and Roman law concepts of property.

What was the relevant question to be answered?

The Full Court held that the questions to be answered by it were whether Mr Ure’s claim gave rise to a specifically proprietary right under international law (see paras [21]–[27]). This was necessary not only from a reading of the question, but also because the existence of proprietary rights under international law could not be destroyed by the Commonwealth’s subsequent claim of sovereignty, unlike non-proprietary rights. Had the rights been personal, they may have still been ‘property’ for the law of compulsory acquisition, but it would have been a moot point as the Commonwealth’s claim of sovereignty would likely have extinguished such rights at international law.

Was there a relevant rule of customary international law?                               

The Full Court held that there was no relevant rule of customary international law available to the appellant. Some minor state practice did not establish a general practice and the appellant could point to no opinio juris that transformed that custom into law.

The appellant referred to three potential indicia of international custom:

  1. The 1920 Treaty concerning the Archipelago of Spitsbergen (2 LNTS 7) (‘Spitsbergen Treaty), governing the sovereignty and usage rights of the Spitsbergen archipelago between Norway and the North Pole;
  2. state practice in relation to private claims to the island of Jan Mayen near Norway and how they were treated when Norway claimed sovereignty over the island in 1929; and
  3. the decision of the Supreme Court of Norway in Jacobsen v Norwegian Government (194) 7 ILR 109 (‘Jacobsen’) regarding the property rights of an individual on the same island of Jan Mayen.

The Full Court was alive to the necessity that a rule of customary international law requires firstly, general practice amongst states that is extensive and almost uniform and secondly, opinio juris — that in undertaking the general practice states feel that they are conforming to a legal norm. Thus, they dismiss the claims by the appellant that a rule of customary law could be discerned by demonstrating a general principle or resorting to scholarly materials. This blurring of lines between international law sources was properly rejected.

First, the Full Court evaluated the Spitsbergen Treaty, a multilateral instrument that provided for Norwegian sovereignty over the archipelago but with rights to access the archipelago granted to all other states parties. The appellant pointed in particular to the mechanism in article 6, which provided for a process of recognising and arbitrating claims that predated the Treaty. However, they could not point to any evidence that the states parties drafted article 6 out of any sense of obligation to recognise a rule of international law. Being a limited example of state practice, it did not assist the appellant (para [52]).

The Full Court then turned to the history of another polar island, Jan Mayen. In the early 20th century the island was visited by private citizens of Norway and the United States, several of whom claimed parts of it for their own. When in 1929 Norway claimed sovereignty over the island, they made clear that it was not intended to affect the civil rights of those claiming parts of the island. Similarly, the United States had previously told one of its citizens that if and when Norway asserted sovereignty over the island, it would consider a request to protect that citizen’s rights. However, the Full Court determined that these examples of state practice fell far short of showing that the two nations accepted and followed a custom that the occupation rights of individuals would be recognised by the state subsequently claiming sovereignty over the territory. Indeed, both states seemed careful in their notes to avoid asserting any such principle (para [112]).

On the other hand, the decision in Jacobsen was a valid example of state practice. In that decision, Norway’s Supreme Court had considered conflicting claims of private individuals over parts of Jan Mayen. The Full Court’s interpretation of that decision was that the Supreme Court of Norway recognised that a principle of international law (rather than civil law) under which occupation of terra nullius would translate into private ownership under civil law once sovereignty was asserted (see para [100]). The Full Court concluded (at para [109]) that the case:

  • was an example of state practice applying a rule ‘that claims before sovereignty could give rise to property rights which were required to be recognised’ after sovereignty was asserted; and
  • was an example of a domestic judicial decision recognising that same right under article 38(1)(d).

However, this was but one case. In comparison the Commonwealth was able to point to a number of examples where prior occupation of terra nullius was addressed under municipal rather than international law (Attorney- General for British Honduras v Bristowe (1880) 6 App Cas 143; Mabo v Queensland [No 2] (1992) 175 CLR 1). One judicial decision alone could not sustain a rule of customary international law.

Was there a general principle or a principle expounded by eminent jurists?

Mr Ure pointed to the works of eminent jurists like Grotius and Vattel, as well as the Roman law from which that era of international law arose. In particular, he pointed to the old Roman concept of occupation and claimed that it formed a part of modern international law.

The Full Court dismissed these arguments (para [160]). The era of international law as a Roman-derived, natural law ius gentium was over and the writings of theorists like Grotius were of only limited assistance in a modern era (para [150]). Such references did not assist Mr Ure’s cases or point to the existence of a substantial principle of international law.

Conclusions

The Full Court dismissed the appeal. He had succeeded in showing only a single example of state practice backed by opinio juris (the decision in Jacobsen), but this was not enough to prove a rule of customary international law. Similarly, he could not prove any general principle of international law.

However, the Full Court’s decision is of interest because it is a prime example of an Australian court’s willingness to engage with a wide variety of international legal materials. The methodology of the Full Court, primarily approaching different arguments and materials through the lens of article 38 of the ICJ Statute, provides a useful framework for when a court has to deal with a question of public international law. It is to be hoped that other courts will continue this trend.

Timothy Gorton was a founding Editor of the ILA Reporter.