FEDERAL COURT OF AUSTRALIA

Ure v The Commonwealth of Australia [2016] FCAFC 8

ORDERS

THE COURT ORDERS THAT:

1.    Paul Joseph Ure in his capacity as the Executor of the Estate of the Late Doreen Margaret Ure be substituted as the Appellant in these proceedings.

2.    The appeal be dismissed.

3.    The appellant pay the respondents’ costs as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. Introduction

1    The question in this appeal is whether the law of nations grants rights of private ownership to individuals over islands not yet claimed by any State. The islands in question are called Elizabeth and Middleton Reefs and they are located around eighty nautical miles north of Lord Howe Island. There is very little on these islands but, so the appellant alleges, there are hydrocarbon reserves associated with them with an estimated value of US$1.1 trillion.

2    As at the date of the trial, the appellant’s mother was the widow of the late Alexander Francis Ure (‘Mr Ure’) who died on or about 17 August 1993. Mrs Ure herself passed away on 11 July 2015, but the parties were content for her son, Mr Paul Ure, to represent her estate for the purposes of the appeal and the balance of the underlying proceeding. Mr Paul Ure received a grant of probate on 8 December 2015, after the appeal had been heard, a fact which was communicated to this Court on 3 February 2016, the day after the matter was listed for the delivery of judgment on 4 February 2016. Accordingly, an order substituting Mr Paul Ure, in his capacity as Executor of the Estate of the Late Doreen Margaret Ure, as the appellant will be made. The expression ‘the appellant’ and references to Mrs Ure in these reasons should be understood as referring to Mr Paul Ure in his capacity as her executor.

3    The appellant alleged that she had received Mr Ure’s rights to the islands by transmission under the terms of his will. One of the central allegations in the case is that, on or about 19 March 1970, Mr Ure took preliminary steps to occupy the islands and to exploit their resources on his own behalf and on behalf of a Mr Michael Chan. A number of particulars are given for this allegation including the erection of a sign on the bridge of a wrecked vessel (the Runic) resting on Middleton Reef above the high-tide line, reading:

‘This area bounded by 29°25' to 30° South and 159° to 159°10' East and adjacent waters is claimed by Alexander Ure and Michael Chan of 363 Pitt St Sydney 19-3-1970 St Joseph’s Day.’

4    The Commonwealth does not accept that Mr Ure’s actions on or about 19 March 1970 were effective to give him (or Mr Chan) any rights under international law. In its defence it alleges this to be so for a number of reasons. One of these involves a contention that it had asserted sovereignty over the islands before Mr Ure staked his claim so that the islands were not unoccupied. Another involves a denial that international law conferred any rights at all on Mr Ure on 19 March 1970 even if the islands were unoccupied.

5    Whether the Commonwealth asserted sovereignty over the islands before 19 March 1970 or not, there is no doubt that it did do so on 23 December 1987. On that day, the Elizabeth and Middleton Reefs Marine National Nature Reserve was proclaimed under the National Parks and Wildlife Conservation Act 1975 (Cth) (‘the National Parks Act’).

6    In November 2012, the declaration of the marine national park was revoked and, instead, the islands became included in the Lord Howe Commonwealth Marine Reserve. This occurred by proclamation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘the EPBC Act’).

7    In her proceeding, the appellant denied that either of the National Parks Act or the EPBC Act were effective to create the purported marine reserves. This submission was put, first, on the basis that the conditions precedent to the powers to declare them had not been satisfied under either Act. More importantly, it was put, secondly, that both statutes were constitutionally invalid because they are laws with respect to the acquisition of property which do not provide for just terms within the meaning of s 51(xxxi) of the Constitution. The property the appellant alleged was acquired were the rights which she alleged Mr Ure obtained under international law when, inter alia, he mounted the bridge of the Runic and posted his claim.

8    The appellant, therefore, sought a declaration that she was the owner of the rights she said arose by international law. She also sought declarations as to the constitutional validity of the National Parks Act and the EPBC Act.

9    This suit has not yet been fully tried. Instead, the parties co-operated for the purpose of stating a special case for the Court’s consideration pursuant to r 38.01 of the Federal Court Rules 2011 (Cth). Two questions were posed. The first question concerned the justiciability of the Commonwealth’s territorial assertions prior to 1970. No party seeks to disturb the trial judge’s conclusion on that issue and it is not before this Court. The second question, which is now before this Court on appeal, was concerned solely with the appellant’s contention that it is a rule of international law that individuals can acquire proprietary rights over terra nullius, which rights must be recognised by nation states. The special case was not concerned with the sufficiency, or otherwise, of Mr Ure’s actions on or about 19 March 1970 to have brought such rights into existence under international law, but only with the much narrower question of whether any such rights can even exist under international law.

10    The question, to which we will shortly turn, was premised on certain parts of the appellant’s allegations ultimately being proved. As in the Court below, therefore, this Court’s treatment of the short issue which arises proceeds on facts which are assumed rather than found.

11    The relevant pleading is the appellant’s amended statement of claim. Leaving out interlineations and underlining included pursuant to Court rules to assist in tracing the history of its amendment, the important paragraphs are as follows:

‘3    Middleton Reef is an island located in the Southwest Pacific Ocean, at approximately 29° 28' Latitude South and 159° 06' Longitude East.

4    Elizabeth Reef is an island located in the Southwest Pacific Ocean, at approximately 29° 57' Latitude South and 159° 03' Longitude East.

5    At no time prior to 19 March 1970 had any state, including the Commonwealth, acquired or claimed jurisdiction or sovereignty over Middleton Reef and Elizabeth Reef or the adjacent waters and seabed (collectively, the ‘Islands’), and the Islands were accordingly terra nullius.

6    At no time prior to 19 March 1970 had any state or person acquired or claimed any proprietary interest in or over the Islands, and or were the Islands the common heritage of mankind, and the Islands were accordingly res nullius.

7    On or about 19 March 1970, Alexander Francis Ure, for himself and on behalf of Michael Chan, claimed the Islands for themselves, and took preliminary steps to occupy them and exploit their resources, and accordingly acquired full proprietary rights in the Islands and adjacent waters and seabed (the ‘Property Rights’).

Particulars

On or about 19 March 1970 Alexander Francis Ure, for himself and on behalf of Michael Chan:

(a)    Erected a sign on the bridge of the Runic, a ship wrecked on Middleton Reef above the high-tide line, reading: ‘This area bounded by 29°25' to 30° South and 159° to 159°10' East and adjacent waters is claimed by Alexander Ure and Michael Chan of 363 Pitt St Sydney 19-3-1970 St Joseph’s Day.’.

(b)    Established a permanent mooring in Herald Haven, a safe-harbour inside Middleton Reef.

(c)    Drafted plans for the placement of navigational beacons to facilitate future visits and reduce the area’s navigational dangers.

(d)    Collected coral samples to determine whether there was a solid base to the Islands, and to analyse the coral’s load-carrying capacity and potential for use in manufacturing concrete.

(e)    Collected samples and conducted tests to determine the existence and value of mineral deposits in the area.

(f)    Made a preliminary assessment of the potential for commercial fishing in the waters adjacent to the Islands.

(g)    Inspected the Runic to determine its physical condition and commercial potential, concluding that the Runic was in adequate condition to provide accommodation for workers, tourists or guests, and that the wreck’s fuel tanks were in good working order and capable of storing large quantities of fuel oil for sale to fishing and shipping vessels in the area.

…

11    The Property Rights survived any subsequent assertion of jurisdiction or sovereignty over the Islands by the Commonwealth.

12    The Property Rights are ‘property’ within the meaning of s. 51(xxxi) of the Constitution of the Commonwealth of Australia.’

(original emphasis)

12    The question which was posed in the Special Case was Question Two and was in these terms:

‘If the applicant were to establish the allegations contained in paragraphs 3 to 6 of the Amended Statement of Claim; the particulars to paragraph 7 of the Amended Statement of Claim; and the further particulars provided by the applicant in the letter of 27 June 2013 and the Legal Memorandum (which allegations are disputed by the Commonwealth as indicated in the Amended Defence):

Can the applicant establish that, on or about 19 March 1970, Mr Alexander Ure in his capacity as a private individual, for himself and on behalf of Michael Chan, acquired any proprietary rights by operation of, and as a matter of, international law in:

(a)    any area of the Islands that lies above water at high tide (the land areas);

(b)    any area of the Islands that lies above water at low tide and under water at high tide (the intertidal zone areas); and/or

(c)    any area of seabed and superjacent waters within the Islands, but outside the areas described in paragraphs (a) and (b) above (the sea areas)?’

13    Some matters may be put aside immediately as not calling for resolution by this Court. The arguments advanced by the appellant before the trial judge and this Court on appeal did not distinguish between subparagraphs (a)-(c); that is to say, as finally advanced the appellant’s argument did not seek to draw upon, or distinguish between, the various ways in which international law treats seawaters, seabeds, land and littoral areas.

14    Likewise before the trial judge and in this Court, the parties accepted that Art 38(1) of the Statute of the International Court of Justice (‘the ICJ Statute’) was generally regarded as a complete statement of the sources of international law. Successive editions of Brownlie’s Principles of Public International Law have made this point, as have other well-known commentators: Jennings R and Watts A (eds), Oppenheim’s International Law (9th ed, Longman, 1992) Vol 1, p 24; Shaw MN, International Law (6th ed, Cambridge University Press, 2008) p 70; Ryngaert C, Jurisdiction in International Law (Oxford University Press, 2008) p 4 (a useful list drawn from footnote 19 of Wall P, ‘The High Court of Australia’s Approach to the Interpretation of International Law and Its Use of International Legal Materials in Maloney v The Queen [2013] HCA 28’ (2014) 15 MelbJIntLaw 228). Article 38(1) provides:

‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a.    international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b.     international custom, as evidence of a general practice accepted as law;

c.     the general principles of law recognized by civilized nations;

d.     subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’

15    Australian Courts have accepted that Art 38(1) sets out the sources of international law: Polyukhovich v Commonwealth (1991) 172 CLR 501 at 559 per Brennan J; Al-Kateb v Godwin (2004) 219 CLR 562 at 590 per McHugh J.

16    Before the trial judge, the principal thrust of the appellant’s case was that customary international law was the source of the rule for which she contended, i.e., Art 38(1)(b). In her written submissions, but not in her Senior Counsel’s address to the trial judge, there was limited reference to a memorandum dated 16 February 1996 prepared by Leigh Monroe, John Norton Moore and James Crawford. This was entitled ‘The Legal Status of Middleton and Elizabeth Reefs in International Law following the entry into force of the 1982 Law of the Sea Convention’. It was also this memorandum which was referred to in Question Two of the Special Case as ‘the Legal Memorandum’. The arguments in this memorandum were generally adopted at para 15 of the appellant’s submissions at trial (‘The applicant relies generally on the reasoning and references in the Legal Memorandum…’). At para 16 it was then said that that memorandum identified a ‘general principle of law practiced by civilized nations’, that is to say, a rule of international law under Art 38(1)(c). Much beyond the memorandum itself (the relevant portions of which are attached to the Special Case) the written submission did not go, except insofar as to say that the proposed general principle was derived from the Roman law concept of occupatio.

17    The learned trial judge rejected both cases. He concluded that the appellant had not proved the existence of the alleged rule of customary international law. No doubt reflecting the brief manner in which the argument in the memorandum had been advanced, his Honour rejected a case based upon it, concluding that it did not demonstrate the existence of a general principle of law practised by civilized nations within Art 38(1)(c).

18    Before this Court, on appeal, there was a substantial shift in emphasis. The appellant continued to contend that the rule was derived from customary international law, but it was now submitted, much more expansively, that it could also be derived as a general principle of law (under Art 38(1)(c)) and supported in both regards by the teachings of the most highly qualified publicists under Art 38(1)(d). The Commonwealth was content to meet these cases on appeal without complaint, although there may be much to be said for the view, particularly in the case of Art 38(1)(c), that this was largely a new case. In light of the Commonwealth’s willingness to deal with the arguments, there is no utility in determining whether this was indeed so. Out of deference to the trial judge we would observe, however, that the case in this Court under Arts 38(1)(c) and (d) bore little resemblance to any substantive submission put to his Honour.

2. The Issues

19    The issues before this Court are as follows:

First Issue: The Meaning of Question Two. Just as they were before the trial judge, the parties were not ad idem on what Question Two meant. The appellant submitted that it only required the Court to assess whether international law had conferred rights upon Mr Ure which were property within the meaning of s 51(xxxi) of the Constitution. There was no need for the appellant to show, in addition, that her rights under international law were also proprietary in nature. The Commonwealth, on the other hand, submitted that the question meant what it said and reflected the way in which the appellant had put her case. On this view of Question Two, the appellant needed to demonstrate not only that international law had conferred upon Mr Ure rights in relation to the islands, but also that these rights were proprietary in nature.

Second Issue: The Content of Customary International Law (Art 38(1)(b)). The appellant submitted that the existence of the rule as a rule of customary international law could be deduced from three instances. These were, first, the entry by a number of nations into the Treaty concerning the Archipelago of Spitsbergen, opened for signature 9 February 1920, 2 LNTS 7 (entered into force 14 August 1925) (‘the Spitsbergen Treaty’) which resolved the unusual situation which had, by then, developed in the Archipelago of Spitsbergen; secondly, the circumstances surrounding the island of Jan Mayen and the claims to it made by Mr Hagbard Ekerold and the Polarfront Company of New York against the Norwegian government in or around 1927; thirdly, the decision of the Supreme Court of Norway in Jacobsen v Norwegian Government (1940) 7 ILR 109 which, so it was said, accepted the existence of a property right in Mr Jacobsen, enforceable against the Norwegian Government, arising from his occupancy in 1921 of Jan Mayen before the assertion of Norwegian sovereignty in 1929. The appellant also submitted that it was relevant to keep in mind that cases in which the present issue could possibly arise were bound to be few in number, especially when it came time to assess the significance or otherwise of State practice.

Third Issue: General Principles of Law (Art 38(1)(c)). The appellant submitted that there was a general principle of law recognising a right of property in individuals over unoccupied territory. This was to be seen as derived from Roman law concepts and/or perhaps certain natural law principles. For the Commonwealth, it was submitted that this misconceived the nature of the inquiry under Art 38(1)(c), which was, instead, into whether there was a general principle discernible in municipal legal systems which could be seen as operating analogously in the international sphere.

Fourth Issue: Teachings of the most highly qualified publicists (Art 38(1)(d)). This argument was advanced to support the cases both under Art 38(1)(b) and (c). The appellant submitted that the rule of law for which she contended was recognised in Roman law and by jurists as distinguished as Grotius and Vattel (and others too). The Commonwealth, on the other hand, submitted that Art 38(1)(d) was a ‘subsidiary’ source of law which was not ‘self-standing’, but rather potentially ‘confirmatory of the primary sources’. More generally, the Commonwealth submitted that Grotius and Vattel (and the other commentators) were writing at a much earlier time when the law of nations was often seen as having a natural law foundation to it. International law in the modern era, it was submitted, did not operate that way.

20    It is convenient to deal with the issues in the order set out above. For reasons which will become clearer later in these reasons, it is also convenient to deal with the third and fourth issues together.

3. The Meaning of Question Two of the Special Case

21    At the hearing at first instance a debate arose between the parties as to the proper construction of the question. For the appellant, it was submitted that what the question was asking was whether, in the circumstances identified in the Special Case, rights were created under international law that would, if the Commonwealth were to acquire them, require the provision of just terms as a result of the operation of s 51(xxxi) of the Constitution. On this view of affairs, whether international law called these rights proprietary or not was beside the point. The true issue between the parties was whether the rights existed and whether, if they did, they fell within the protection of s 51(xxxi) because they were ‘property’ within the meaning of that placitum, i.e., as a matter of domestic constitutional law.

22    It would certainly have been possible for the appellant to conduct her case on such a basis and thereby to avoid a debate as to whether such rights as were afforded to her under international law were property rights, but this is not how her case was pleaded. The nomenclature of property rights has its origins in para 7 of her amended statement of claim (supra).

23    This allegation, by itself, was always frangible for it was open to a defence that whatever this right might have been it was inherently susceptible to destruction if and when the Commonwealth finally asserted sovereignty over the two islands. Those who cast para 7 foresaw this problem and made the further allegation at para 11 that the ‘Property Rights’ would, as a matter of international law, survive such an assertion of sovereignty (para 11 is also set out above).

24    It was these rights that were then alleged in para 12 to be ‘property’ within the meaning of s 51(xxxi). It follows that the appellant’s pleaded allegations about her rights had three steps:

(i)    she had rights deriving from international law which were proprietary in nature;

(ii)    those rights were not destroyed under international law by any subsequent assertion by the Commonwealth of sovereignty over the two islands; and

(iii)    the rights were property within the meaning of s 51(xxxi) the Constitution.

25    The appellant’s present contention that the ultimate issue is whether rights were conferred by international law and whether those rights were ‘property’ within the meaning of s 51(xxxi) is a more economical argument, no doubt, but it is not the argument that has been pleaded.

26    Of course, this Court is not hearing the appellant’s case, as pleaded, but rather merely determining the answer to Question Two of the Special Case. Nevertheless, in seeking to ascertain the true meaning of that question it is inevitable that it must be construed against the backdrop of the case formally advanced by the appellant. In particular, it is appropriate to construe the question upon the assumption that its answer should resolve an actual debate between the parties.

27    Viewed through that prism, there can be no doubt, as the learned trial judge correctly held, that Question Two is focussed on the rights created by international law and whether they are proprietary. This is the ordinary meaning of the words in Question Two, ‘acquired any proprietary rights by operation of, and as a matter of, international law’; it reflects the appellant’s pleaded case.

4. The Content of Customary International Law (Art 38(1)(b))

28    Under this heading the parties joined issue on two broad topics. The first was the question of what was necessary in order to establish a rule of customary international law. The second was what it was that could be drawn in that regard from the Spitsbergen Treaty and the events on the island of Jan Mayen concerning Mr Ekerold and Mr Jacobsen.

(a) How customary rule to be proved

29    The principles governing the ascertainment of rules of customary international law are well-established, at least in their central features. First, what Art 38(1)(b) refers to as ‘international custom’ is evidence of a general practice which is accepted as law. The endpoint of the inquiry into ‘international custom’ is, therefore, the twin inquiries into the existence of a ‘general practice’ and whether the practice reflects obedience to a perceived rule of law. This latter requirement is referred to as opinio juris.

30    Secondly, a ‘general practice’ within Art 38(1)(b) must be extensive and virtually uniform, although, as will be seen, there is some debate as to what that expression itself means. In North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3 at 43 [74] (‘North Sea Continental Shelf Cases’), the International Court of Justice (‘the ICJ’) observed that ‘an indispensable requirement’ in establishing a customary rule would be ‘that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked’.

31    Thirdly, the requirement of opinio juris was explained by the ICJ in the same case this way (at 44 [77]):

‘The essential point in this connection—and it seems necessary to stress it—is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; —for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.’

32    These requirements may interact with each other in complex ways. The requirement that the practice should be extensive and virtually uniform relates, of course, to acts which are opinio juris. But in a negative sense, a departure from a uniform practice may be generally treated as a breach of the rule and in such a case the disapproved departure tends to indicate the rule’s existence. So much was accepted by the ICJ in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 at 98 [186] (‘Nicaragua v United States of America’):

‘…The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.’

33    Fourthly, and this will be most relevant to the claims made by the appellant in relation to the Spitsbergen Treaty, the presence of a treaty rule may, in some circumstances, be evidence of the existence of a rule of customary international law. Yet in other circumstances it may not. The inquiry is very much specific to each treaty. In the North Sea Continental Shelf Cases the question was whether a particular means of determining boundaries on the continental shelf known as the ‘equidistance method’ was a rule of customary international law. The ICJ was called on to answer this question in 1969. At that time the Geneva Convention on the Continental Shelf had been open for signature and ratification since 1958. It utilised, in Art 6, a principle of equidistance to determine boundaries on the continental shelf. It was argued that Art 6 represented a rule of customary international law. The ICJ dealt with this submission as follows (at 42 [73] to 43 [74]):

‘73.    With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. In the present case however, the Court notes that, even if allowance is made for the existence of a number of States to whom participation in the Geneva Convention is not open, or which, by reason for instance of being land-locked States, would have no interest in becoming parties to it, the number of ratifications and accessions so far secured is, though respectable, hardly sufficient. That non-ratification may sometimes be due to factors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied: the reasons are speculative, but the facts remain.

74.    As regards the time element, the Court notes that it is over ten years since the Convention was signed, but that it is even now less than five since it came into force in June 1964, and that when the present proceedings were brought it was less than three years, while less than one had elapsed at the time when the respective negotiations between the Federal Republic and the other two Parties for a complete delimitation broke down on the question of the application of the equidistance principle…’

34    Non-ratification by States having no interest in the question was irrelevant on this view of affairs. On the other hand, the fact that a number of States had ratified the Convention was not sufficient.

35    In an appropriate case the opposite conclusion may be reached. In Nicaragua v United States of America, the ICJ had to consider whether there was a rule of customary international law prohibiting the use of force as a means for resolving international disputes. Nicaragua claimed that there was such a principle in customary international law and that the United States was in breach of it by supporting certain military and paramilitary actions against Nicaragua. There was certainly a treaty provision to that effect in the form of Art 2(4) of the Charter of the United Nations. The United States had, in its declaration of recognition under Art 36(2) of the ICJ Statute of the ICJ’s jurisdiction, made a reservation in respect of multilateral treaties, the effect of which was to remove from the ICJ’s jurisdiction, relevantly, ‘disputes arising under a multilateral treaty, unless … all parties to the treaty affected by the decision are also parties to the case’. Accordingly, the United States submitted that any breach of Art 2(4) of the Charter of the United Nations was beyond the ICJ’s jurisdiction, that being a multilateral treaty and there being other State parties to it, such as El Salvador, that would be ‘affected’ by a decision in respect of the alleged breaches of it. Nicaragua sought to meet that jurisdictional argument by contending that the existence of Art 2(4) proved the existence of a parallel rule of customary international law in respect of which the ICJ did have jurisdiction. The ICJ surveyed a number of international resolutions and declarations which had been supported and made by various States before it arrived at the conclusion that the principle embodied in Art 2(4) did, indeed, reflect a rule of customary international law.

36    As we apprehended the debate before this Court, none of the four points just discussed were substantively in dispute. What was in dispute, however, were two further arguments advanced by the appellant. These were:

(a)    in assessing what degree of uniformity or consistency in State practice was necessary to prove the existence of a rule of customary international law, it was important to keep in mind the comparatively few circumstances in which the question might arise; and

(b)    in assessing whether the customary rule existed, it was also relevant to consider the issue of general principles (Art 38(1)(c)) and the views of the commentators (Art 38(1)(d)).

37    As to (a), we would hesitate to say that it is impossible to demonstrate the existence of a rule of customary international from a small number of instances of State practice. We would accept the less prescriptive proposition that as the number of instances of State practice decreases the task becomes more difficult. This is consistent with the approach taken by the ICJ in the North Sea Continental Shelf Cases. There, the ICJ was faced with efforts by Denmark and the Netherlands to point to individual circumstances where the principle of equidistance had been applied between States. Of this the ICJ said (at 45 [79]):

‘…In only one situation discussed by the Parties does there appear to have been a geographical configuration which to some extent resembles the present one, in the sense that a number of States on the same coastline are grouped around a sharp curve or bend of it. No complete delimitation in this area has however yet been carried out. But the Court is not concerned to deny to this case, or any other of those cited, all evidential value in favour of the thesis of Denmark and the Netherlands. It simply considers that they are inconclusive, and insufficient to bear the weight sought to be put upon them as evidence of such a settled practice, manifested in such circumstances, as would justify the inference that delimitation according to the principle of equidistance amounts to a mandatory rule of customary international law,—more particularly where lateral delimitations are concerned.’

(emphasis added)

38    On its face, this appears inconsistent with ICJ’s earlier conclusion, referred to above, that the rule must be based on practice which is ‘extensive and virtually uniform’. We agree with Professor Akehurst that the resolution of this conundrum lies in understanding that the statement was ‘concerned, not with the number of precedents cited, but with the number of participating States and with the absence of inconsistency’: Akehurst M, ‘Custom as a Source of International Law’ (1974-75) 47 British Yearbook of International Law 1 at 13, fn 2. Thus, as he notes, it is at least theoretically possible that a customary rule might be created by a single instance. He cites the obiter remarks of the German Staatsgerichtshof in Lübeck v Mecklenburg-Schwerin as supporting this. This Court was provided with a copy of a translation of that decision which appears in Hackworth GH, Hackworth’s Digest of International Law (United States Government Printing Office, 1940) Vol I, pp 15-16. The passage is, relevantly, as follows:

‘…And if, as is generally recognized, no general rules can be drawn up as to the number of customary acts and their duration, one single case of usage does not suffice as a rule (Heilborn, work cited, page 38). Triepel does not assume anything different when he says, on page 99, work cited, that under certain conditions one single act of international practice based on usage may suffice for a conclusion as to the existence of a rule of international law to be ventured. In addition the usage must, if it is to lead to the formation of customary law, be confirmed by the proper organs of the state and can generate law only between those countries in the intercourse between which it has become customary. …

…The single confirmation of usage, such as may perhaps be found in the publication of the Mecklenburg Ordinance of October 10, 1874, in Travemünde, can however not be regarded as sufficient for the establishment of a customary international law because of the absence of further circumstances, even if we might wish to deduce from the rest of the case that at that time a conviction of the necessity for that usage existed among the leading Lübeck officials. That does not mean that the publication of the Mecklenburg Ordinance by Lübeck is without any significance for the litigation before us; that matter will be gone into below.’

(emphasis added)

39    The emphasised passage appears contradictory. Nevertheless, we believe that the point made by Akehurst is sound, at least theoretically. It would be that where the number of States for whom the relevant rule could ever arise was small the rule should not be defeated by reason of that fact alone. What seems to us to be more important is that the practice should be extensive and virtually uniform amongst those States for whom the rule would be meaningful. So, for example, in determining the operation of international rules about maritime boundaries, the failure of landlocked States to have a practice in that regard should be seen as largely irrelevant.

40    The possibility that a rule of customary international law might be generated in such circumstances should not be permitted to obscure the possibility’s own exiguity. The circumstances in which it might eventuate are likely to be rare. We agree with Professor Akehust when he says (Akehurst, op cit, p 53):

‘As regards the quantity of practice needed to create a customary rule, the number of States participating is more important than the frequency or duration of the practice. Even a practice followed by a few States, on a few occasions and for a short period of time, can create a customary rule, provided that there is no practice which conflicts with the rule, and provided that other things are equal; but other things are seldom completely equal, because there are various presumptions (e.g. the presumption in favour of the liberty of State action) which need to be taken into account.’

41    As to (b), we do not accept the appellant’s submission that the establishment of a rule of customary international law under Art 38(1)(b) can be advanced by seeking to demonstrate the existence of a general principle under Art 38(1)(c). These are distinct sources of international law which stand on their own. What is necessary to prove the existence of a customary rule is, instead, established by decisions such as the North Sea Continental Shelf Cases. If the material available is insufficient under Art 38(1)(b), that deficiency cannot be cured by resort to materials suggesting the existence of a similar rule within the rubric of a general principle under Art 38(1)(c). Nor do we accept that the teachings referred to in Art 38(1)(d) are likely to be able to demonstrate the existence of a customary rule if there is insufficient evidence of the custom.

(b) The Appellant’s Case on Custom

42    To make good her case on customary international law, the appellant relied largely upon the following matters:

(a)    the Spitsbergen Treaty;

(b)    Norway’s treatment of the claim of Mr Jacobsen over the island of Jan Mayen;

(c)    the manner in which Norway and the United States dealt with the claims of Mr Ekerold and the Polarfront Company over the same island.

43    It is useful to deal with these separately.

(i) The Spitsbergen Treaty

44    The Svalbard Archipelago consists of a number of islands located half-way between Norway and the North Pole. Although used as a whaling base in the 17th and 18th centuries, until 1920, no nation claimed sovereignty over it and it was regarded as terra nullius. Legally, this meant that there was no State with overarching authority or jurisdiction over the Archipelago and all States could avail themselves of its resources. This generated, in the first instance, a risk of overhunting. Indeed, the bowhead whale and walrus were almost totally exterminated: Numminen L, ‘A History of Functioning of the Spitsbergen Treaty’ in Wallis D and Arnold S (eds), The Spitsbergen Treaty: Multilateral Governance in the Arctic (Arctic Papers, 2011) Vol 1 at p 8. There were other problems too. In the late 19th century, coal mining companies from several Western nations converged upon the Archipelago to exploit apparent coal reserves in what was an entirely unregulated environment. Prior to 1914 it had become apparent, therefore, that there was an urgent need to manage the Archipelago’s natural resources, both animal and mineral. Some species were on the cusp of extinction and there were unresolved, and unresolvable, conflicts between various of the coal mining companies (ibid, p 9).

45    A conference was convened on 16 June 1914 to consider the problem. Present at the conference were the United States, Germany, Denmark, France, Great Britain, Norway, the Netherlands, Russia and Sweden. The conference was adjourned without success and further attempts to resolve the problem were then interrupted by World War I. Following the war, and as part of the Paris Peace negotiations, the Spitsbergen Treaty was concluded. This treaty recognised Norwegian sovereignty over the Archipelago. It was signed at Paris on 9 February 1920 and took effect on 14 August 1925. There were initially nine signatories: the United States, Great Britain, Denmark, France, Italy, Japan, Norway, the Netherlands and Sweden. The list is interesting because it does not include the polar nation, Russia, and included three nations not contiguous with the North Pole, France, Italy and Japan. In fact, Russia initially protested the treaty although it subsequently acceded to it. Later, a large number of other nations acceded to the treaty so that there are now 40 States party to it. These include Australia. Ironically, perhaps, most of the mining companies whose rivalry, in part, prompted the treaty were ruined because of the recession in the early 1920s and falling coal prices after World War I (ibid, p 8).

46    Article 1 recognised the sovereignty of Norway over the Archipelago. Article 3 gave the nationals of each High Contracting Party a right of access to the Archipelago for any purpose. Article 2 gave each signatory equal rights of fishing and hunting in the Archipelago, subject to Norwegian regulation which could not, however, interfere with the right of equal access. Pertinently for this case, Art 6 dealt with the claims on the land which had been made before Norway became sovereign. These included hunters and miners. It provided:

‘Subject to the provisions of the present Article, acquired rights of nationals of the High Contracting Parties shall be recognised.

Claims arising from taking possession or from occupation of land before the signature of the present Treaty shall be dealt with in accordance with the Annex hereto, which will have the same force and effect as the present Treaty.’

47    The relevant portions of the annex were as follows:

‘1.(1)    Within three months from the coming into force of the present Treaty, notification of all claims to land which had been made to any Government before the signature of the present Treaty must be sent by the Government of the claimant to a Commissioner charged to examine such claims. The Commissioner will be a judge or jurisconsult of Danish nationality possessing the necessary qualifications for the task, and shall be nominated by the Danish Government.

…

1.(7)    The Commissioner, after examining the claims, will prepare a report showing precisely the claims which he is of opinion should be recognised at once and those which, either because they are disputed or for any other reason, he is of opinion should be submitted to arbitration as hereinafter provided. Copies of this report will be forwarded by the Commissioner to the Governments concerned.

…

1.(9)    Within three months from the date of the report referred to in clause (7) of this paragraph, the Norwegian Government shall take the necessary steps to confer upon claimants whose claims have been recognised by the Commissioner a valid title securing to them the exclusive property in the land in question, in accordance with the laws and regulations in force or to be enforced in the territories specified in Article 1 of the present Treaty, and subject to the mining regulations referred to in Article 8 of the present Treaty.

    In the event, however, of a further payment being required in accordance with clause (8) of this paragraph a provisional title only will be delivered, which title will become definitive on payment by the claimant, within such reasonable period as the Norwegian Government may fix, of the further sum required of him.

2.    Claims which for any reason the Commissioner referred to in clause (1) of the preceding paragraph has not recognised as valid will be settled in accordance with the following provisions:

…

2.(9)    In dealing with the claims the Tribunal shall take into consideration:

(a)    any applicable rules of International Law;

(b)    the general principles of justice and equity;

(c)    the following circumstances:

(i)    the date on which the land claimed was first occupied by the claimant or his predecessors in title;

(ii)    the date on which the claim was notified to the Government of the claimant;

(iii)     the extent to which the claimant or his predecessors in title have developed and exploited the land claimed. In this connection the Tribunal shall take into account the extent to which the claimants may have been prevented from developing their undertakings by conditions or restrictions resulting from the war of 1914-1919.’

48    Unquestionably, the State parties put in place a regime under which claims pre-dating Norway’s accession to sovereignty were to be recognised by the Commissioner under para 1(7) or arbitrated under para 2 of the annex. It is also true that para 2(9)(c) required the arbitration to take into consideration any ‘applicable rules of International Law’. This reference does not, however, establish the existence of any customary rule but, instead, proceeds upon an assumption that such a rule already exists.

49    The recognition in Art 6 of earlier claims cannot serve to establish a rule of customary international law unless it also be shown to be opinio juris. This necessitates an inquiry into why the States party to the Spitsbergen Treaty entered into it. In order to establish that Art 6 reflected a rule of customary international law it would be necessary, therefore, to show that the State parties acted as they did because they believed themselves bound to do so. Professor Akehurst explained it this way in his work, A Modern Introduction to International Law (2nd ed, George Allen and Unwin, 1971) at pp 44-45:

‘When deducing rules of customary law from the conduct of states, it is necessary to examine not only what states do, but also why they do it (and in this context what states say may be much more revealing than what they do). In other words, there is a psychological element in the formation of customary law. For instance, suppose it could be proved that states habitually wrote to one another on white paper. The most that could be deduced from this fact alone would be that international law did not forbid states to write to one another on white paper; one could not deduce that writing on white paper was obligatory unless there was some evidence that states felt a sense of obligation to use white paper. And, even if such a sense of obligation was proved, one would still need to call for evidence showing that the obligation was regarded as legal; for, as we have seen, international law is not the only body of rules applicable to international relations.

The technical name given to this psychological element is opinio iuris sive necessitatis (opinio iuris for short). It is usually defined as a conviction felt by states that a certain form of conduct is required by international law. This definition presupposes that all rules of international law are framed in terms of duties. But that is not so; in addition to rules laying down duties, there are also permissive rules, which permit states to act in a particular way (e.g. to prosecute foreigners for crimes committed within the prosecuting state’s territory) without making such actions obligatory. In the case of a rule imposing a duty, the traditional definition of opinio iuris is correct; in the case of a permissive rule, opinio iuris means a conviction felt by states that a certain form of conduct is permitted by international law.’

(references omitted, italics in original)

50    Accordingly, the appellant must show that Art 6 was agreed upon because the State parties believed they should act as they did because they were required to do so by a sense of legal obligation. Of course, in Nicaragua v United States the ICJ concluded that the prohibition on the use of armed force to resolve international disputes in Art 2(4) of the Charter of the United Nations did, indeed, reflect a rule of international law. The question here is whether Art 6 may be seen as having the same nature.

51    The trial judge thought that there was nothing to indicate that Art 6 had been agreed upon out of a sense of obligation. We agree. The situation in Spitsbergen was described in 1917 as ‘unique’ and ‘entirely novel’ in Lansing R, ‘A Unique International Problem’ (1917) 11 American Journal of International Law 763 at 764. Mr Lansing also said this:

‘This extraordinary political state of the islands, to which a parallel will be hard to find in modern times, would have excited little interest but for the recent discovery of the richness of the coal deposits and the presence of a mining population, which gave promise of being permanent…

Since a similar state of affairs has never before arisen to perplex the statesmen of the world, there is no use in seeking a solution in past examples. Indeed, so unusual is the situation, that comparisons and conclusions drawn from historical experience are entirely wanting, and the problem must be solved by a consideration of the fundamental principles underlying governmental institutions….’

52    The appellant did not take this Court to any material which suggested that the State parties had acted out of a sense of obligation in agreeing to Art 6, rather than as a response to a unique and unprecedented problem. In those circumstances, it is simply not shown that Art 6 was opinio juris and it can be, therefore, of no use in demonstrating the existence of a rule of customary international law having the same content.

(ii) The Island of Jan Mayen – Mr Jacobsen

53    The island of Jan Mayen is a volcanic island in the Arctic Ocean. It is around 1,000 km west of the North Cape of Norway. It presently has a population of 18. There is an important weather station upon it. Although apparently obscure, it has previously been the subject of litigation in the ICJ: Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v Norway) (Judgment) [1993] ICJ Rep 38. As will appear below, it has also given rise to similar issues as those which brought forth the Spitsbergen Treaty, although not perhaps on the same scale. Unlike the situation which led to the Spitsbergen Treaty, the claimants in the case of Jan Mayen are known and include Mr Jacobsen (of Norway) and Mr Ekerold (of the United States).

54    The appellant relies upon the decision of the Norwegian Supreme Court in the case eventually brought by Mr Jacobsen against Norway to vindicate his claims to the island. The attitude of Norway and the United States to Mr Ekerold’s subsequent claims over the island is also relied on to demonstrate the same point. Although the cases of Mr Jacobsen and Mr Ekerold are intertwined, it is useful to start, in the first instance, with Mr Jacobsen.

55    The relevant decision is Jacobsen v Norwegian Government. The copy of the report provided to the trial judge was at (1940) 7 ILR 109. That report is, in fact, only a summary of the actual decision which appears, in the original Norwegian, at [1933] Norske Retstidende 511. The trial judge was not provided with this version or a translation of it.

56    The summary version in the international law report is, relevantly, as follows:

‘Before the Court of Oslo the plaintiff contended that according to international law he was the proprietor of that part of the island which he had occupied, as well as of ferruginous sand, etc., for the exploitation of which he had prepared since 1921. The Government resisted both contentions.

In its decision of March 22, 1930, the Court of Oslo held that the plaintiff had not succeeded in establishing his case. On appeal to the Supreme Court,

Held: that the judgment of the Court below must be reversed. The Norwegian Government was not entitled to proprietary rights in the part of the island which had been occupied by the plaintiff. At the time of the arrival of the plaintiff and his expedition at Jan Mayen Island in 1921, the whole island was a no man’s land. He was accordingly entitled to undertake a private occupation with the object of obtaining property in the occupied land. The issue in this case was dependent on whether or not it had been proved that the plaintiff’s enterprise fulfilled the conditions of a lawful occupation. A lawful occupation of a vast area in no man’s land such as that which was disputed in this case presupposed certain manifest acts showing that the possession was effective and in earnest. The first step in this connection would as a general rule be the construction of houses and the placing of notice boards stating the fact of occupation. These acts must normally be followed by acts aiming at an economic exploitation of the land. It appeared from the judgment of the Court of Oslo that the plaintiff and his men confined themselves in the summer and autumn of 1921 to the erection and repair of some houses and huts and the placing of notice boards indicating that the land was occupied by the plaintiff. These acts must be considered sufficient to fulfil the conditions for the commencement of an effective occupation. If the plaintiff had returned to Jan Mayen Island in the following year or years and had started effective mining or other industries or trade on the territory, it would have to be recognised without doubt that his preparatory steps in the summer and autumn of 1921 were sufficient. The Court of Oslo found that the plaintiff in the years following 1921 did not move in the matter and that he did not visit the island again until 1929. However, this inactivity was sufficiently explained by the fact that the Meteorological Institute, which was a State organ, made it impossible for him to implement his occupation and frustrated his plans as to the effective exploitation of the territory. The Meteorological Institute occupied a great part of the territory on which the plaintiff had placed his notice boards and constructed houses and huts. Such proceedings on the part of a State institution must have had the effect of making it impossible for the plaintiff to obtain the necessary loans for financing a new expedition to the Island.’

57    The trial judge accepted the admissibility of this material under Art 38(1)(d). As we apprehended the appellant’s argument in this Court, it was relevant not only as a judicial decision recognising the principle for which the appellant contended (under Art 38(1)(d)) but also as an example of State practice (i.e. Norway’s) going to the case based on customary international law (under Art 38(1)(b)).

58    The trial judge thought there were three problems with the decision or, at least, the summary with which he was provided. First, it was only a summary and his Honour could not ascertain from the summary whether the Supreme Court had been intending to apply a domestic rule or a rule of international law. Secondly, the summary is pitched at a level of generality which makes it difficult to know with precision what the actual point being decided was. Thirdly, without that kind of clarity it was very difficult to discern whether the decision was an example of State practice supported by opinio juris.

59    In this Court, the appellant sought to remedy this deficiency by providing a copy, in Norwegian, of the original decision, together with a translation into English prepared by a Mr Roger Stenlund of Morningside Translations on or about 20 April 2015. Mr Stenlund swore an affidavit in which he gave evidence that he considered his own translation to be accurate and complete. The Commonwealth, however, does not accept the accuracy of the translation. It sought to rely on an opinion of Dr Eirik Bjorge who is a junior research fellow at Jesus College, Oxford, where he teaches, inter alia, international law. Dr Bjorge gave evidence that one part of the translation was incorrect; that it was difficult to be clear what the Norwegian Supreme Court itself had intended by the expression (in Norwegian) ‘occupation under civil law’; and that it was also difficult to be clear whether this was, in any event, a reference to Norwegian domestic law or something else. For various reasons deriving from his own knowledge of Norwegian law, he favoured the view that the Supreme Court was probably not applying international law.

60    Both parties objected, on the appeal, to the receipt of the other’s evidence on this issue. We have concluded that the evidence should be received in part. Given the issues at stake, it would be unseemly to proceed without a proper appreciation of what the Supreme Court had, in fact, held.

61    We would propose to receive the translation of the judgment prepared by Mr Stenlund and, with it, Dr Bjorge’s evidence but only insofar as the latter deals with issues of translation. As will be apparent from above, parts of Dr Bjorge’s report also deal with his views on questions of Norwegian and international law and his opinion on what the Supreme Court might have meant. We accept that Dr Bjorge is well qualified to give evidence of that kind (although it may, perhaps, be doubted whether his opinion on what the Supreme Court may have meant is admissible). However, regardless of its admissibility as a matter of the law of evidence, it would, we think, be procedurally unfair to receive these aspects of his evidence. This part of Dr Bjorge’s evidence is not, in truth, in response to the perceived shortcomings in Mr Stenlund’s translation. As a matter of formality we would propose, therefore, that the Court receive Mr Stenlund’s affidavit and attached translation and the following parts of Dr Bjorge’s report:

(a)    paras 1-8;

(b)    the first sentence of para 9;

(c)    paras 10-15;

(d)    paras 17-23;

(e)    paras 27-29;

(f)    paras 36-37;

(g)    para 39, apart from the last three sentences; and

(h)    para 40.

62    Having obtained a complete version of the Supreme Court’s reasons in Jacobsen v Norwegian Government, unpicking its contents is perhaps not so straightforward. This is because, in part, it represents an integer in a much larger set of disputes about Jan Mayen. At their heart, these disputes involved the proprietary claims of a number of private individuals, as well as those of the Norwegian Meteorological Institute, overlaid with some issues involving international relations between Norway and the United States. The submissions of the parties, and the attention of the trial judge, tended in their focus to treat Mr Jacobsen’s claims in relation to Jan Mayen as being separate from the claims of Mr Ekerold. However, with the benefit of the translation and some additional correspondence from the United States Department of State, the two instances can be seen in their fuller outline as really one, rather complicated, episode.

63    What follows is drawn from the translation of the Supreme Court’s decision, the translation of the Oslo Municipal Court’s decision (which is included in the former translation), the treatment of the Polar and Subpolar Regions in Hackworth GH, op cit, Vol I, p 449ff and the diplomatic correspondence between Norway and the United States helpfully attached to the appellant’s written submissions in this Court.

64    So far as the current matter goes, the first relevant visitor to Jan Mayen appears to have been Christoffer Ruud. He visited Jan Mayen three times. The first was as a member of the crew of the Morgensen in 1884. The Morgensen was looking for signs of a lost sealing vessel. This brief visit appears to have piqued his interest in the island and he would later return. Before he did, another man, a hunter by trade, visited in 1908-1909. He was called Anders Andersen. Whilst he was there he constructed two plank houses. In 1916, Mr Ruud returned for a second time, on this occasion, for five days. He found on the island a stone house apparently erected by a Count Wilozek and also a wooden house. Mr Ruud returned a third time in 1917 with an expedition of five men, this time for a period of eight days. The expedition was largely investigative and, at that time, he erected no buildings and discovered no minerals. Upon his return to Norway he notified the Foreign Office that he claimed the entire island. He was the first person to do so, although he would not be the last.

65    On 9 February 1920, the Norwegian government informed the United States Department of State of Mr Ruud’s claim over Jan Mayen and of his intention to prospect there for ore and minerals.

66    At around this time the island of Jan Mayen appears to have provoked a wider interest in various quarters. In 1920, Mr Jacobsen seems to have conceived a desire to claim the island for himself for the purpose of mineral exploitation.

67    He obtained from Anders Andersen a transfer of his rights in the buildings he had erected in 1908-1909. This transfer occurred on or around 2 September 1920. Shortly afterwards, on 25 September 1920, Mr Jacobsen wrote to the Foreign Office and informed them that he now claimed Jan Mayen for himself. The Foreign Office responded, on 4 October 1920, confirming its receipt of his claim but informing him that it had already received a similar claim from Mr Ruud (and apparently also one from a Mr Hagerup whose name does not thereafter reappear and who may be disregarded for the purposes of these reasons).

68    On receipt of the news, Mr Jacobsen promptly set about organising an expedition to Jan Mayen. His purpose in doing so was to investigate, with a view ultimately to utilising, the resources of the island, in particular he expressed an intent to exploit its ironsand, aluminium silicate and leucite. Mr Jacobsen was accompanied by seven other men on his expedition. Immediately upon his arrival in June 1921 he began to repair the two plank houses which had been erected by Anders Andersen in 1908-1909. He also erected another plank house and a blockhouse. On 12 June 1921, Mr Jacobsen telegraphed the Foreign Office and informed it that he could find no trace of Mr Ruud’s claim, or of anyone else’s claims, having been marked out or signalled. He subsequently provided statements from the seven men who accompanied him on the expedition to the same effect. On 17 June 1921, he staked a claim over the southern portion of the island. He did this in a substantial way by erecting large stone cairns at one kilometre intervals along the claim boundary and inscribing the cairns with a precise description of his claim. He also erected large signs along the boundary announcing the same claim. The claim was dated 17 June 1921.

69    At this point there were three claimants to Jan Mayen. These were Mr Ruud, Mr Andersen (as to his two houses) and Mr Jacobsen. Mr Jacobsen had, of course, acquired Mr Andersen’s claim. His claim conflicted with Mr Rudd’s earlier claim over the whole island.

70    To these three claims there were now shortly to be added two more. The Norwegian Meteorological Institute launched an expedition to Jan Mayen in August 1921 on the heels of Mr Jacobsen’s expedition. It was led by an American engineer, Mr Hagbard Ekerold. The Meteorological Institute’s expedition had been approved by the Norwegian Parliament under resolution number 83 of 1921. Its purpose was to conduct practical tests with a telegraph equipped meteorological station. In that regard, it should be noted that it seems never to have been doubted that Jan Mayen is a good location for such a station. To this day, that is the principal activity on the island.

71    Mr Ekerold’s expedition arrived at Jan Mayen on or around 7 August 1921. By that time Mr Jacobsen had already been on the island for around two months and his claim had been staked and marked out since 17 June 1921. Perhaps unsurprisingly, it appears that the two expeditions fell into almost immediate disagreement. This disagreement appears to have arisen from two sources. First, Mr Ekerold decided to build the Meteorological Institute’s meteorological station in the southern part of the island, inside the very area claimed by Mr Jacobsen. Secondly, he also occupied a central part of the island apparently for himself. Part of this area also encroached upon Mr Jacobsen’s claims.

72    By the autumn of 1921, Mr Ekerold appears to have completed the construction of the meteorological station. Thereafter, it was used continuously and manned by the Meteorological Institute.

73    No doubt vexed by Mr Ekerold’s activities, Mr Jacobsen appears to have left Jan Mayen on or around 6 November 1921. Following his departure, Mr Ekerold then sought to claim the whole island in the name of Meteorological Institute.

74    On 16 December 1921, upon his return to Oslo, Mr Jacobsen informed the Foreign Office of his claim and the measures he had taken to make it. A month later, on or around 17 January 1922, Mr Ekerold sent a telegram to the Foreign Office notifying it of the Meteorological Institute’s claim to the island. Upon being instructed that such a claim was ‘against … policy’ and that only that territory necessary for the maintenance of the meteorological station should be claimed, Mr Ekerold set about staking a claim in his own name in respect of part of the island outside that which was claimed for the Meteorological Institute.

75    On 21 April 1922, Norway informed the United States about Mr Ekerold’s telegram of 17 January 1922, and the activities which had taken place on Jan Mayen.

76    Norway’s claim that the Norwegian Meteorological Institute had staked a claim on Jan Mayen caused a curiosity in the United States as to whether Norway intended thereby to assert sovereignty over Jan Mayen. It wrote to Norway on 9 November 1922, inquiring as to this matter. At around the same time Mr Jacobsen became aware of the Meteorological Institute’s claim. This was a considerable annoyance to him as he was then seeking to secure finance from various capitalists to underwrite his proposed exploitation of the mineral resources of the island. The fact that the Meteorological Institute had laid claim over the same land substantially hindered Mr Jacobsen in his efforts to raise this finance (as the Supreme Court subsequently noted).

77    On 5 July 1923, Norway confirmed to the United States that it was not claiming sovereignty through the Meteorological Institute’s erection of the meteorological station.

78    Matters seem to have entered something of a lull between 1923 and 1926. Three winters would pass before 5 February 1926, when the incumbent manager of the meteorological station enlarged the claim over the southern half of the island for the Meteorological Institute. On 21 April 1926, the manager sought to extend the claim over the whole island. On 17 May 1926, Norway dutifully informed the United States of this development.

79    At around the same time, Norway appears to have become keen to secure its title to the meteorological station. It did so, in part, by acquiring Mr Ruud’s rights (deriving from his 1917 claim to the whole island) for 10,000 Crowns pursuant to a Parliamentary allocation of 7 July 1926. Shortly afterwards, Norway informed the United States of its increased interest in the island but was again clear it was not claiming sovereignty over Jan Mayen.

80    Into this already complex situation then returned Mr Ekerold. He came this time with four men in the name of his New York company, Polarfront. Once in situ he established two fox farms (presumably arctic foxes, then much prized for their pelts) which he did in the area previously claimed by him in the central part of the island. He instructed his men to fly the flag of the United States over the fox farms. This appears to have inflamed the Norwegians working at the meteorological station, who insisted that it should be taken down.

81    At this point there were at least six sets of overlapping claims to Jan Mayen. These were:

(a)    the 1917 claim of Mr Ruud to the whole island (acquired by Norway for 10,000 Crowns in 1926);

(b)    the 1908-1909 claim of Mr Andersen to the two houses he had erected at that time (acquired by Mr Jacobsen in 1920);

(c)    the southern area claimed by Mr Jacobsen on 17 June 1921;

(d)    the area claimed by Mr Ekerold in the name of the Meteorological Institute for its meteorological station, notified on 17 January 1922 which was contained within Mr Jacobsen’s claimed area;

(e)    the area claimed by Mr Ekerold over so much of the island as was not claimed by the Meteorological Institute notified on or around 17 January 1922; and

(f)    the claim made by the Meteorological Institute to the whole island in or around 1926.

82    Plainly, these claims were not consistent. From 1926 onwards, the Norwegian government appears to have sought to secure the title position of its own meteorological station against Mr Jacobsen whilst avoiding diplomatic tension with the United States over the position of its citizen, Mr Ekerold. On 14 November 1926, Mr Ekerold had informed the United States Department of State of his dispute with Norway about the flying of the flag of the United States over his fox farms. He sought the Department of State’s assistance in enforcing his rights.

83    On 16 February 1927, the Department of State wrote to Mr Ekerold. The important part of this letter was as follows:

‘The history of this island, the long period of its known existence, and the absence of any attempt at occupation, prior to the establishment of the radio station, in 1922, as well as the general recognition of its status as “terra nullius” render it impossible under present conditions to acquire title to property there within the commonly accepted meaning of the acquisition of title to property. Ownership, in its essential features, constitutes the use and enjoyment of the property owned, to the exclusion of all others in its use and enjoyment, and is secured to the owner under the authority of the Government exercising the right of sovereignty with relation both to the island and its inhabitants.

The Department does not understand that any Government has extended its sovereignty to the Island of Jan Mayen and there would appear to be, therefore, no authority under which the rights to property may be claimed, secured and maintained. However, the establishment by you of the two fox farms and the erection of the dwellings upon land outside of the section then claimed for the radio station, should very possibly be regarded as affording you prior rights in the property which you claim at least equal to any rights that may now be claimed by the Meteorological Institute in land occupied by it. Should any Government in the future extend its authority over the island the Department would consider a request from the Polarfront Company for protection and recognition of its interests. The American Minister at Oslo has already been instructed to inform the Norwegian Ministry of Foreign Affairs that the Polarfront Company has established two fox farms on the Island of Jan Mayen and makes claim to the land occupied.

In this connection it may be stated that the Department does not understand that the Government of Norway is contemplating the annexation of the island. The Government of the United States is not considering any steps looking to annexation of the island. You understand, of course, that any action which you might take in the form of what you term notice of annexation or otherwise would not accomplish annexation to the United States.’

84    The carefully phrased position adopted in this letter appears to have been:

(a)    Jan Mayen was terra nullius; and

(b)    there were no rights of property in land which was terra nullius; but

(c)    Mr Ekerold’s claim to the fox farms would be at least equal to that of the Meteorological Institute; and

(d)    should a State claim sovereignty over Jan Mayen the United States would consider a request from Polarfront for protection and recognition of its interests.

85    The matter does not seem to have moved much after this until 1929. In that year, the first development was that Mr Jacobsen sued Norway in the Oslo Municipal Court, claiming his title was superior to the title asserted by the Meteorological Institute. After the commencement of the case he made a short visit to the island which was the first since he had left in 1921. Mr Jacobsen issued his writ of summons on 26 March 1929.

86    Quite shortly after this, on 8 May 1929, Norway claimed sovereignty over Jan Mayen by Royal decree. The very next day it informed the United States that it had done so. There then followed an exchange of correspondence between Norway and the United States upon which the appellant especially relies. The topic was, of course, Mr Ekerold’s fox farms. On 28 June 1929, the United States wrote to Norway in these terms:

‘Sir

I have the honor to acknowledge the receipt of your note of May 9, 1929, informing me that the Norwegian Government by a royal decree of May 8, 1929, has placed the arctic Island of Jan Mayen under the sovereignty of Norway and that the police authority on the Island will be exercised by the chief of the Norwegian Meteorological Station.

In reply I have the honor to inform you that the contents of your note under acknowledgment will be brought to the attention of the competent authorities of this Government for their information and guidance.

As you are doubtless aware a question has arisen in the past with regard to the rights of an American citizen, Mr. Hagbard D. I. Ekerold, and of an American company organized by him, the Polarfront Company, to the land occupied by the Company for the establishment of two fox farms. This matter, in so far as the Department is aware, has not yet been settled.

In the circumstances I have the honor to state in acknowledging your note informing me of the placing of the Island of Jan Mayen under Norwegian sovereignty that this Government is confident that the Norwegian Government will not fail to respect the rights of Mr. Hagbard D. I. Ekerold and the Polarfront Company.

Accept, Sir, the renewed assurances of my highest consideration.’

(emphasis added)

87    On 7 August 1929, Norway responded this way:

‘Sir:

I have had the honor to receive your note of June 28, 1929, relative to the placing of the Arctic island Jan Mayen under the sovereignty of Norway.

After having transmitted a copy of your note to my Government I am now instructed to inform you that the occupation of Jan Mayen by Norway is in no way intended to cause changes in the rights which, according to civil law, exist on the island.

As regards the Polar-Front Company, I am instructed to refer to previous correspondence about this case between the Norwegian Foreign Ministry and the United States Minister in Oslo, latest to the said Ministry’s letter of August 23, 1927.

Accept, Sir, the renewed assurances of my highest consideration.’

(emphasis added)

88    It was in that context that the decision of the Supreme Court in Jacobsen v Norwegian Government was made on 3 May 1933. By that decision, the Court concluded that Mr Jacobsen’s rights were superior to those of the Meteorological Institute. The materials do not reveal what impact that decision had upon the position of Mr Ekerold.

89    The suit brought by Mr Jacobsen against the Norwegian Government involved a choice between various claimants. Nobody had any interest in advancing in the Supreme Court the proposition that property rights could not exist on Jan Mayen whilst it was terra nullius. The dispute was not as to whether Jan Mayen could be owned by anyone outside any legal system but, instead, which of a number of claimants was to be held the owner. Necessarily, and, we think, confusingly, the litigation took as its assumed point of departure the legal proposition which is this litigation’s intended destination. Had Norway put the argument to the Supreme Court that nothing could be owned on Jan Mayen, and had it been accepted, it would no doubt have defeated Mr Jacobsen’s claim, but only at the Pyrrhic price of proving that the Meteorological Institute had no title either.

90    It is apparent from the decisions of the Oslo Municipal Court and, on the successful appeal, the Supreme Court, that the issue of the source of Mr Jacobsen’s property rights was not, understandably, the subject of any clear exposition. At times the rights in question are said to arise from international law, and at others, under the civil law. We return to what was held shortly, but for now it is to be noted that it was not in issue that property rights could arise on land which was terra nullius and, indeed, both parties accepted this. Those matters in issue between them were:

(a)    Norway’s attempt to rely on Mr Ruud’s title from 1917 (which it had acquired from him for 10,000 Crowns). The theory here was that Mr Ruud’s claim predated Mr Jacobsen’s. Mr Ruud’s claim also had the advantage of being over the whole island. If Norway’s argument in this regard had succeeded it would have assisted in resisting in the future all of Mr Ekerold’s claims too;

(b)    the status of Mr Andersen’s claims to the two houses erected in 1908-1909, as Mr Jacobsen was also seeking to use that title to assist his argument;

(c)    the question of whether Mr Jacobsen had done enough by way of development to give rise to any title; and

(d)    the question of what significance lay in Mr Jacobsen’s failure, after November 1921, to develop further the land claimed and the possible explanation for that delay.

91    At the trial in the Oslo Municipal Court, the Norwegian Government placed reliance upon a printed thesis by a Dr Ræstad. Dr Ræstad was an expert in the operation of the Spitsbergen Treaty (which in Norway is called the Svalbard Treaty). He expressed an opinion in the thesis about what is sufficient for occupation in a stateless area, by reference to what had been found necessary to establish a claim in the Svalbard Archipelago under the annex to the treaty.

92    The Oslo Municipal Court explained Dr Ræstad’s opinion and its significance in this way:

‘Determination of the case therefore depends on whether the plaintiff can be assumed to have undertaken what was required according to the current rules in order to establish a valid occupation. With respect to this question the court refers to the information contained in Dr. jur. Arnold Ræstad’s publication “The Svalbard Occupations – an Investigation --- --- ---.” According to what is given there the court must assume that there is considerable lack of clarity and doubt concerning the question as to how much can be undertaken by an alleged occupier to be considered a valid occupation. It seems to emerge from the present information on international opinion that it is not sufficient that the claimant in question has marked out the borders of the area that he claims to have taken into possession. Some utilization – depending on special conditions there – is certainly set as a condition for recognition of taking occupation as a valid occupation.’

93    The Oslo Municipal Court was clear that this topic was about international rules:

‘The court should note: It may be viewed as obvious that Jan Mayen was unoccupied land (terra nullius) when the plaintiff undertook steps in 1921 to manifest his desire for occupation that he claims had led to a valid occupation. It may further be viewed as obvious that according to valid international rules there was a possibility of achieving the right of ownership to land in terra nullius by occupation.’

94    The Oslo Municipal Court thus held that the rules to be applied in order to determine how much activity was necessary to make good a claim were international ones and it is likewise tolerably clear that it regarded Dr Ræstad’s publication as being not only a statement of those rules but also a statement about international law. Its comment that the source of the rights was international in nature is hardly surprising in that circumstance (although not then in dispute either).

95    The Oslo Municipal Court reasoned that Mr Jacobsen’s activities were insufficient to satisfy what it perceived were the requirements specified by Dr Ræstad. It thought he had done nothing substantial apart from the staking of the claim itself by placing the cairns and signs and had not even returned to the island for seven years. On the other hand, it was impressed by the industry exhibited by the Meteorological Institute in the erection of its meteorological station and its subsequent continuous operation. Ultimately that Court preferred the Meteorological Institute’s claims to Mr Jacobsen’s.

96    The Supreme Court reversed this decision. Seven judges sat. The principal decision was given by Judge Bonnevie, with whom Judges Næss and Backer agreed. Judge Alten also agreed but delivered separate reasons, with which Judge Rivertz agreed. Judges Evensen and Dahl dissented.

97    There are five aspects to Judge Bonnevie’s judgment that deserve emphasis.

98    First, the Norwegian Government argued that the appeal was confined to a question of law and that this prevented Mr Jacobsen from contending that the Oslo Municipal Court’s determination that he had not done enough by way of development activity to constitute a claim should be set aside. This argument Judge Bonnevie sidestepped by concluding that he was permitted to inquire into whether the Oslo Municipal Court’s interpretation of those events was correct. He then proceeded to explain why he thought it was not.

99    Secondly, he noted the parties’ agreement that, and he himself accepted, in 1921 Jan Mayen was terra nullius under international law.

100    Thirdly, he accepted that rights of private occupation could arise from staking a claim which could then become a right of private ownership:

‘When Jacobsen came to Jan Mayen in 1921 with his expedition the island was a complete no man’s land and Jacobsen had full right to private occupation with the view toward becoming an owner of the occupied area…’

(emphasis added)

101    At this point an issue of translation arises. Dr Bjorge does not accept that Mr Stenlund’s translation of the italicised portion is correct. Importantly, he says, it is missing a reference to occupation under civil law which appears in the Norwegian version of the judgment as ‘privatrettslig okkupasjon’. The disputed text is at 513 and is as follows:

‘Jacobsen hadde saaledes full rett til at skride til privatrettslig okkupasjon med sikte paa at bli eier av de okkuperte strekninger’

102    Dr Bjorge says that this should be translated as:

‘Jacobsen thus had every right to begin occupation under civil law with a view to acquiring ownership over the occupied area.’

103    We would accept Dr Bjorge’s evidence about this. The reference to civil law is important.

104    Fourthly, Judge Bonnevie explained the requirements necessary to constitute such a claim, briefly, this way (at 513-514):

‘Settlement of the main question in the case will thus seem only to depend on the extent to which the work and plans described in the decision by the Municipal Court fulfil the requirements that could be placed on occupation documents. For valid occupation of such large areas in a terra nullius, which is the case here, certain requirements must naturally be placed with regard to manifest actions that express a sincerely intended and effective occupation of territory. As the first step in such occupation there is normally erection of buildings and marking boundaries with signs that contain information on the occupation. There will normally follow actions that directly have to do with the economic utilization of the areas. As can be seen from the decision of the Municipal Court, the work of Jacobsen’s expedition in the summer and autumn of 1921 had essentially to do with erection of some buildings or huts scattered around and for setting up border markings with signs having notification of the extent occupied by Jacobsen.’

105    He did not explain, however, what the source of these principles was.

106    Fifthly, he later examined two other related issues in terms which suggested that the source of the principle might be international law or ‘civil law’. In discussing the status of the Meteorological Institute’s claims he three times referred to it as deriving from ‘civil law’. The first of these is referred to above. The other two were as follows:

‘…It is completely clear and can be seen by the decision of the Municipal Court that the Meteorological Institute itself undertook actions aiming at occupation under civil law of the greatest part of the same areas where Jacobsen had already put up his boundary markers and had his buildings and sheds. More detailed explanation is not needed that behaviour like this displayed by a government institution such as the Meteorological Institute would close off Jacobsen’s attempt to raise necessary funds for financing new expeditions and for startup of industrial operations on Jan Mayen. It is obvious that anyone who was approached by Jacobsen to participate in his projected initiatives on Jan Mayen would first and foremost have had to investigate how the situation was concerning Jacobsen’s ostensible occupation rights on the island and for that reason would turn to the Foreign Office where those concerned would find out that the Foreign Office did not recognize Jacobsen’s occupation but to the contrary viewed the area concerned to be correctly occupied under civil law by the Meteorological Institute.’

(emphasis added)

107    On the other hand, in a different part of the judgment dealing with the topic of why Mr Ruud’s actions had not been sufficient to constitute a proper claim, Judge Bonnevie appeared to say the principles were international in nature:

‘…I will also mention that Professor Mikael Lie states in a report to the Foreign Office on 15 December 1921 regarding this circumstance concerning Ruud that “Jan Mayen is terra nullius. As a basis for legal acquisition by a private person in such areas international law needs an advanced, more clearly pronounced definition of ownership that Ruud, according to his own statement, had obtained – including all proper consideration given to the special difficulties, natural conditions that block the way to effective occupation --- --- --- --- ---. Ruud’s purpose in the occupation was in my opinion not so decisive that an --- --- --- --- --- --- effective occupation can be viewed to have occurred. --- My (Professor Lie’s) conclusion is that, legally viewed, Ruud’s alleged occupation of Jan Mayen cannot be assigned any value.”’

(bold emphasis added)

108    The judgment is, therefore, obscure on what the source of the right was. On balance, we conclude that it is likely that the Supreme Court did proceed by reference to an international principle rather than ‘civil law’, although in saying that we would not wish it to be thought that we were unaware of the obscurity of the judgment. The reasons which lead us to this conclusion are as follows:

(a)    the context of the debate in the Oslo Municipal Court was the opinion of Dr Ræstad’s which was based on the operation of the Spitsbergen Treaty. It was this same material which was before the Supreme Court and it formed the legal framework underpinning the Supreme Court’s decision. The judgment is really limited to the correct characterisation of the facts found by the Court below;

(b)    the concurring judges, Judges Alten and Rivertz, were explicit in identifying the source of the principle as international law, which they perceived was reflected in the Spitsbergen Treaty; and

(c)    it made no sense to say that the civil law of Norway applied in a place which was terra nullius. The assertion of Norwegian law on Jan Mayen did not occur until sovereignty was claimed on 8 May 1929. It seems unlikely that the Supreme Court was intending to apply Norwegian law to the relevant area in respect of a time prior to sovereignty being claimed.

109    For those reasons, we accept that Jacobsen v Norwegian Government stands for two distinct propositions:

(a)    first, that on 3 May 1933 the State of Norway, as an example of State practice, applied a rule that claims arising before sovereignty could give rise to property rights which were required to be recognised by Norway after sovereignty was claimed. Further, Norway recognised this rule, believing that this was what international law required, i.e., it is also opinio juris; and

(b)    secondly, the decision is also a domestic judicial decision recognising the same right within the meaning of Art 38(1)(d).

110    The Commonwealth denied, however, that the decision could serve as an example of State practice. It submitted that the Norwegian government’s treatment of Mr Jacobsen in 1921-1929 showed that it did not accept his claim. It pointed to the summary of the decision in the international law report, where this was said:

‘Before the Court of Oslo the plaintiff contended that according to international law he was the proprietor of that part of the island which he had occupied, as well as of ferruginous sand, etc., for the exploitation of which he had prepared since 1921. The Government resisted both contentions.’

111    However, this is an inaccurate summary of the decision. For the reasons we have already given, Norway was in fact relying on the same principle itself. Whilst it did not accept Mr Jacobsen’s claim per se, it did accept the principle on which it rested and, indeed, sought through Mr Ruud’s claim to assert the same principle itself. In any event, we accept the appellant’s submissions that the Supreme Court’s decision is the authoritative statement of that nation’s position on the issue. That decision does, therefore, stand as an example of State practice (as do the Government’s own earlier actions).

(iii) The Island of Jan Mayen – the claims of Mr Ekerold

112    It remains then to mention the appellant’s argument relating to the position of Mr Ekerold. She submitted that, as the exchange of correspondence following Norway’s assertion of sovereignty in 1929 demonstrated, both the United States and Norway had accepted the existence of the rule for which she contended. We do not consider this to be correct. The United States’ Department of State’s earlier letter to Mr Ekerold of 16 February 1927 showed quite clearly that it did not accept that international law could give property rights over land which was terra nullius. At its highest, the United States promised Mr Ekerold that if another nation asserted sovereignty in the future that it ‘would consider a request from the Polarfront Company for protection and recognition of its interests’. The United States’ letter of 28 June 1929 said only that the US was ‘confident that the Norwegian Government will not fail to respect the rights of Mr Hagbard D.I. Ekerold and the Polarfront Company’. This falls well short of demonstrating that the United States was accepting the principle contended for, particularly in light of its letter of 16 February 1927 which plainly denied it. The Norwegian Government’s response of 7 August 1929 was, likewise, careful not to assert the existence of the principle. Its position was that the assertion of sovereignty was ‘in no way intended to cause changes in the rights which, according to civil law, exist on the island’. No doubt, this letter was carefully drawn but what it does not say is that Norway accepted that any rights arose under international law.

(c) Other Matters Pertaining to Custom

113    The appellant has succeeded in demonstrating that Norway has accepted the existence of the principle for which she contends as a rule of international law. On the other hand, she derives no support from the Spitsbergen Treaty or the position of Mr Ekerold.

114    At this point, the question then arises as to whether this single instance of State practice is sufficient to establish the principle as a rule of customary international law. Accepting, as we have above, that it is theoretically possible that a single instance could suffice, we do not think that in this case it does.

115    Furthermore, it is tolerably clear that when similar issues have arisen in the past they have been dealt with, at least in some common law jurisdictions, under municipal rather than international law. The Commonwealth submitted that such an approach was apparent from at least four examples.

116    The first was the Privy Council’s decision in Attorney-General for British Honduras v Bristowe (1880) 6 App Cas 143. That case concerned acts of possession carried out in an otherwise uninhabited area that was terra nullius. British Honduras was, in the mid-1700s, within the sovereignty of the King of Spain but apparently uninhabited by the Spanish. English subjects, primarily from Jamaica, went there to harvest valuable timbers its forests contained. They began to settle there in about 1759 for this purpose. Shortly after, hostilities erupted between England and Spain. At their conclusion, a treaty was concluded under which the King of Spain gave permission to English subjects to go to the area for the purpose of cutting timber. By around 1798, Spain abandoned its sovereignty over the place. However, Britain did not assume sovereignty over the area until some decades later. During this interregnum, whilst the place was terra nullius, the British settlers entered upon full possession and enjoyment of the land. In the late 1800s, decades after Great Britain had eventually assumed sovereignty over the area, the Crown commenced proceedings, by way of an Information of Intrusion, against two individuals in respect of a parcel of land there. One individual was Bristowe, who traced his rights back to one of the settlers who had engaged in acts of possession during the time when the place was terra nullius. The other individual was Hunter, who claimed title to the land pursuant to a conveyance by Bristowe.

117    The Privy Council found for the defendants. The opinion of the Board was delivered by Sir Montague E. Smith. At 155-156 he said:

‘Assuming then the conclusion of fact to be established, as their Lordships think it is, that, in the interval which elapsed between the retirement of the Spaniards in 1798 and the assumption of territorial sovereignty by the British Crown, full possession of the land had been taken by the devisees, and that such possession had been continued by them and their assignees down to the date of the filing of the information, it becomes unnecessary to determine the question whether the devisees, at the time when the British Crown annexed the territory, had acquired a title to the land by first occupancy or otherwise, which the Crown was bound to recognise. Their Lordships are by no means prepared to say that such a title has not been shewn, but they think it unnecessary so to decide, because the facts, as proved and found, establish adverse possession against the Crown for a period exceeding sixty years; namely, a possession commencing before 1817, in or before which period the Crown had certainly assumed territorial sovereignty in Honduras, and continued without disturbance or effectual claim by the Crown, down to the period of the filing of the information.’

(emphasis added)

118    The Privy Council did not, thereby, say that the principle did not exist. But its actual decision was based on a narrow application of a municipal legal principle.

119    The second and third examples were said to be afforded by the Pitcairn Islands and the island of Tristan da Cunha. The former was inhabited by the Bounty mutineers under Fletcher Christian. The latter, which are a set of volcanic islands in the South Atlantic Ocean, were inhabited by a very small band of British settlers who remained behind in 1817 when the British garrison withdrew: see Roberts-Wray K, Commonwealth and Colonial Law (Stevens & Sons, 1966) p 806. This garrison had apparently been placed on the islands to prevent the French from rescuing Napoleon from nearby St Helena: see Roberts E, Embassy to the Eastern Courts of Cochin-China, Siam, and Muscat (Harper & Brothers, 1837) p 30. Neither Pitcairn nor Tristan da Cunha was within the territory of the British Crown or any other nation. In both places the inhabitants governed themselves according to their own rules. Writing in 1966, Sir Kenneth Roberts-Wray said (op cit, p 153-154) of these places:

‘…The settlers must carry with them English law as in force at the time of settlement, otherwise they have no law at all. If the home government is indifferent or inactive and takes no steps to provide them with organs of government, has the common law nothing to say? Are the settlers unable to change or amplify the law they take with them to meet their own needs? It can be asserted, not without a fair degree of confidence, that the answers to these questions are in the negative and that in such circumstances settlers have a common law right to set up a body to make such laws as they require and Courts to enforce them.’

120    Fourthly, the Commonwealth pointed to the High Court’s decision in Mabo v Queensland [No 2] (1992) 175 CLR 1. In that case it was said that pre-existing rights of the indigenous inhabitants were recognised as arising under municipal law.

121    The appellant submitted that these examples did not show that the rule for which she contended did not exist and this, we think, may be accepted. But that was not the point for which the Commonwealth put them forward. Rather, what they show is that on some occasions, where an issue has arisen about claims on land not comprising part of a State, the claims have been dealt with under municipal law. This is not to say that every municipal legal system contains such rules or that other approaches might not plausibly be taken to the question. But what it does show is that the approach we have concluded was taken by Norway is not the only way the issue has been dealt with. That fact deprives the Norwegian instance of much force and, in our view, of the ability to establish a customary rule.

122    It follows that the appellant has failed to establish the existence of the proposed rule of customary international law. We have reached, in that regard, the same conclusion as the trial judge, albeit for different reasons. Those differences are to be understood as explained by the benefit this Court has had of a translation of Jacobsen v Norwegian Government. For completeness, it should also be noted that whilst we accept Jacobsen v Norwegian Government as a valid example of State practice for the purposes of Art 38(1)(b) and that it is a judicial authority for the purpose of Art 38(1)(d), we do not consider that for the latter purpose it is a correct statement of international law. In any event, it is certainly not, with respect, a considered one.

123    We turn, then, to the appellant’s case based upon general principles of law under Art 38(1)(c) and (d).

5. General Principles of Law (Art 38(1)(c)) and the Judicial Decisions and Teachings of the Most Highly Qualified Publicists (Art 38(1)(d))

124    Of course, as with Art 38(1)(b), Art 38(1)(c) is a substantive source of international law. Art 38(1)(d) by contrast is a subsidiary source which indicates that it has a subordinated role, perhaps of uncertain scope. Judicial decisions and teachings are said to be a ‘subsidiary means for the determination of rules of law’. The word ‘subsidiary’ suggests that these materials are to have a lesser role.

125    Before this Court the appellant advanced a substantive argument launched from a range of writings by well-known commentators on international law to which we will, in due course, return. Mr B Walker SC, who, with Mr N Owens of counsel, appeared for the appellant, put that these matters were relevant to independent cases advanced under each of Art 38(1)(b), (c) and (d). He also submitted that, in practice, the difference between the arguments might be small.

126    We do not regard the materials to which we shall shortly come as advancing the appellant’s case on the issue of customary international law under Art 38(1)(b). The position in relation to custom is quite clear and, with respect, the materials to which the Court was taken on this limb of the case have precious little to say about it.

127    Not so in the case of the ‘general principles’ referred to in Art 38(1)(c). Much of the material relied upon by the appellant consists of statements by commentators recognising the principle. It seems to us that, in truth, the case based on these writings really only has teeth as one put forward using Art 38(1)(d) to establish the existence of a ‘general principle’ under Art 38(1)(c). Although perhaps only faintly pressed, we reject, therefore, the arguments based on these materials to advance the case on custom under Art 38(1)(b) or to prove the rule’s existence by dint of a case under Art 38(1)(d).

128    There exists a debate about the operation of Art 38(1)(c) which the appellant largely sought to evade but which is significant for the disposition of this appeal. It concerns the need for the principles concerned to be general principles recognised by civilized nations. It is understood in contemporary times that the reference to ‘civilized nations’ is a reference to all nations, but the words suggest a necessary focus, nevertheless, upon municipal systems. The original draft of Art 38(1)(c) had referred to ‘the rules of international law as recognized by the legal conscience of civilised nations’ but this was felt by some, including the United States, to carry the risk of leading the Permanent Court of International Justice (the predecessor of the ICJ) to apply ‘principles, differently understood in different countries’: see Zimmerman A et al, The Statute of the International Court of Justice (2nd ed, Oxford University Press, 2012) at p 833-834. The final wording was suggested by Elihu Root and Lord Phillimore (for the United States and United Kingdom respectively). Zimmerman et al have described the operation of Art 38(1)(c) in these terms (ibid, pp 833-834):

‘The Court itself has referred to Art. 38, para. 1 (c) with an extreme parsimony. If the present author is not mistaken, this provision has been expressly mentioned only four times in the entire case law of the Court since 1922 and each time, it has been ruled out for one reason or another. However, without referring expressly to Art. 38, both Courts have, in fact, applied general principles; individual judges have shown themselves less shy in this respect; and States have invoked general principles during the pleadings. On the basis of this material, it is possible to clarify the meaning of Art. 38, para. 1 (c) and to understand why the Court so rarely resorted to this provision.

While the intentions of the drafters of the Statute are less obscure than sometimes alleged, international lawyers have never reached agreement on the definition of the general principles mentioned in Art. 38. There is, however, little doubt that they are:

•    unwritten legal norms of a wide-ranging character and

•    recognized in the municipal laws of States;

•    moreover, they must be transposable at the international level.’

(references omitted)

129    Further, this focus is certainly on municipal law (ibid, p 834):

‘…And, similarly, when associated with ‘international law’, it cannot be put into doubt that general principles are of a legal nature. In this respect, the travaux clearly show that the drafters of the Statute wished judges to be guided by legal considerations. That the roots of such principles lie in the municipal law of States is meant as a guarantee that those principles do correspond ‘to the dictates of the legal conscience of civilised nations’. …’

(references omitted)

130    This view of Art 38(1)(c) is the prevailing view, notwithstanding the ICJ’s predominant stance of silence on the issue: cf. Crawford J, Brownlie’s Principles of Public International Law (8th ed, Oxford University Press, 2012) pp 34-35 (‘Brownlie’), citing Oppenheim: ‘[t]he intention is to authorize the Court to apply the general principles of municipal jurisprudence, in particular of private law, insofar as they are applicable to relations of States’; Thirlway H, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford University Press, 2013) Vol 1 p 235 (‘It is fairly well established that the general principles contemplated by Article 38, paragraph 1(c), of the Statute are at least primarily those which reveal themselves in the consistent solutions to a particular problem adopted in the various systems of municipal law…’). The use to which the general principles thus derived from municipal law have been put are described by Professor Crawford in Brownlie (at p 35) thus:

‘…Tribunals have not adopted a mechanical system of borrowing from domestic law. Rather they have employed or adapted modes of general legal reasoning as well as comparative law analogies in order to make a coherent body of rules for application by international judicial process. It is difficult for state practice to generate the evolution of the rules of procedure and evidence as well as the substantive law that a court must employ. An international tribunal chooses, edits, and adapts elements from other developed systems. The result is a body of international law the content of which has been influenced by domestic law but which is still its own creation.’

131    Before this Court there was some debate about the role of natural law under Art 38(1)(c). The express reference in the article to municipal legal systems suggests that natural law concepts can have no direct application under it, unless the posited natural law principle is recognised in the laws of the various nations. It was, after all, precisely to avoid resort to moral precepts that the alternate final drafting of Art 38(1)(c) was eventually adopted. Thus Zimmerman et al have remarked (op cit, p 835):

‘Moreover, as seen previously, the Court itself has made an (intellectually) clear distinction between legal rules and ‘moral principles’ which can be taken into account ‘only in so far as these are given a sufficient expression in legal form’. It might be true that ‘in Art. 38, para. 1 (c) some natural law elements are inherent’, but these ‘elements’ have to be ‘legalized’ by their incorporation in the legal systems of States. This requirement of recognition of the general principles in foro domestico is the criterion which differentiates the principles of Art. 38, para. 1 (c) from both the equitable or moral principles and from the general principles of international law.’

(references omitted)

132    Consequently, in establishing the principle of international law for which she contends, the appellant is faced with the unenviable task of proving that the principle – or a municipal analogue of the principle – is recognised by the laws of civilised nations.

133    One way to approach that task would be to demonstrate that most States recognise that unoccupied land within their territory may be acquired by some species of sufficient possession. Such a principle is, for example, well understood in Australian law: see, e.g., Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 and s 45D of the Real Property Act 1900 (NSW). The argument would then have been that international law should recognise an analogous principle at the international level.

134    This was not, however, the course which the appellant pursued. Instead she submitted that the principle of law in question:

(a)    was derived from the Roman law notion of occupatio;

(b)    was well accepted by a number of eminent natural lawyers; and

(c)    derived support from other commentators of a more modern outlook.

135    In its submissions, the Commonwealth explicitly submitted this case to be deficient for failing even to attempt to show what Art 38(1)(c), properly understood, called for. In her reply submission, the appellant submitted that the principle was established for the common law by the decision in Attorney-General for British Honduras v Bristowe. But that case, which we have discussed above, was decided on the distinct principle relating to adverse possession against the Crown. In fairness to the appellant, to that decision might also be added two decisions in the United States and the Norwegian Supreme Court’s own decision in Jacobsen.

136    The first United States decision is that of Johnson v McIntosh (1823) 21 US 543. There Marshall CJ, on behalf of the Court, said (at 595):

‘It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connexion with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it.’

137    This was certainly an obiter dictum and was only tangentially related to the issue Marshall CJ was discussing at that page. That issue was complex. The case involved a contest to title over the same tracts of land in Illinois. The defendant traced his title back to the United States. The State of Virginia had taken land (including the disputed land) from the British and then ceded it to the United States. The land in question had not actually been occupied by the Crown, although the Crown had asserted sovereignty over it. It did this because the land was occupied by war-like Indian tribes that the Crown had been unable, or unwilling, to subdue. A proclamation of 1763 by King George III forbade British subjects from intruding on this land, but nevertheless asserted sovereignty over it. In 1773, a number of land speculators were successful in purchasing the lands from the chiefs of the Indian tribes. The question in the case was whether their title, derived from the chiefs, was superior to the title granted by the United States (derived from the Crown).

138    The critical question was the nature of the title which the tribes could convey. Relying upon a passage in Grotius, the plaintiffs’ counsel argued that the tribes had a title arising, in effect, from natural law. The defendant, on the other hand, argued that the tribes had no title to convey as the Crown had asserted sovereignty over the land which Virginia (and then the United States) had acceded to by the outcome of war. The plaintiffs sought to meet this argument by contending that the proclamation of 1763 which asserted sovereignty over the land was itself unlawful. That argument was rejected.

139    The passage set out above appears in a section of the judgment dealing with that argument. The very next paragraph was the critical one (at 595):

‘If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.’

140    Thus it followed (at pp 596-597) that the tribes had no title to convey, being in this second situation (as described by Marshall CJ at 595) in relation to the Crown. Two matters flow from this:

(a)    the statement was a description of the position the tribes were not in by reason of the Royal Proclamation being valid. Hence it was an obiter dictum; and

(b)    it was most likely based on the identical submission advanced by counsel based on Grotius.

141    The second decision is that of the Court of Appeals for the Ninth Circuit in United States v Fullard-Leo 133 F.2d 743 (9th Cir 1943). This case concerned the island of Palmyra, an atoll about 900 miles south of Honolulu. In 1862, one Bent, took possession of it on behalf of the King of Hawaii for the purposes of trade and commerce. The short issue was whether that act conferred on Bent title to the island. The United States, as successor to the King of Hawaii, said it did not. The successors in title to Bent said that it did. No question of title outside a legal system arose at all. The only question concerned the nature of the original Hawaiian grant. The Court of Appeals concluded that Bent did not receive a fee simple, that he ‘was merely acting as agent of the King’ (at 747) and remanded the matter to the trial court (the full procedural history is set out in United States v Fullard-Leo 331 US 256 (1947)). Haney J (Garracht J agreeing) said, relevantly (at 746-747):

‘While it is possible, under principles of international law for two individuals to obtain title to such territory as they discover (see Johnson v McIntosh, 8 Wheat. 543, 595, 21 U.S. 543, 595, 5 L.Ed. 681), such an occurrence is rare because title can also be obtained by conquest. 1 Hyde, International Law, 176 Sec. 106. If the discovered land is important, many countries could and probably would acquire it by conquest, and the knowledge that such event might happen would deter most explorers. On the other hand, if the explorers take possession in behalf of a sovereignty, they are ordinarily able to salvage something of value from their effort with much less chance of losing it, depending, of course, on the strength of the sovereignty.’

142    Again this is an obiter dictum; the first few sentences are unrelated to the issues in the case. We do not accept, in that circumstance, that this decision rises higher than Johnson v McIntosh.

143    Lastly, there is the decision in Jacobsen itself. However, as we have concluded above that the Supreme Court’s statement is not a statement as to the content of municipal but instead a statement about customary international law, this does not assist the appellant’s argument about Art 38(1)(c).

144    We do not accept, in that circumstance, that the appellant has succeeded in demonstrating that the principle for which she contends exists in any municipal legal system. This, we think, is fatal to her claim under Art 38(1)(c). This makes it unnecessary to consider the Commonwealth’s further submission that the principle identified by the appellant, even if demonstrated to exist in municipal law, could not be analogously transferred to the international sphere because it would make no sense. Here, as we apprehended it, the point was that the municipal rule would be to the effect that States recognised pre-existing title to land when sovereignty was later asserted. Since States were already at the international level, the analogical transfer could not be carried into effect. In view of the conclusion reached above, it is not necessary to pursue this matter further.

145    Strictly, that conclusion also makes it unnecessary to consider the balance of the appellant’s arguments which sought to show that a general principle existed under Art 38(1)(c) (with the assistance of Art 38(1)(d)) by reference to:

(a)    the Roman law notion of occupatio;

(b)    the writings of prominent natural law theorists; or

(c)    subsequent commentators.

146    This Court, as an intermediate court of appeal, is urged by the High Court’s decision in Kuru v New South Wales (2008) 236 CLR 1 at [12], to determine all issues raised before it and not just those actually requiring resolution. For completeness, therefore, we would say this.

147    As to (a), we do not accept that the Roman law concept of occupatio applies to land which is terra nullius. As expounded by Gaius and Justinian it applies to res nullius, i.e., items such as wild animals, fish and enemy property. These do not include land. The single exception to this appears to be ‘insula in mari nata’, that is, islands which appear in the sea. We would understand that to be a reference to an island which suddenly appears by reason of volcanic activity. The two islands in this case have not suddenly appeared in that sense so that the Roman law doctrine does not apply to them in any event. Regardless of that conclusion, we do not accept that every part of the Roman ius gentium is part of modern international law. No doubt the municipal legal principles referred to in Art 38(1)(c) will often have a Roman law heritage, but it does not follow that every part of the ius gentium is a general principle of law under Art 38(1)(c). For example, we doubt that the Roman Law principle that treats enemy slaves as res nullius forms part of modern international law. In the memorandum which was referred to in Question Two of the Special Case and was put before the trial judge, there was a reference to a passage in Professor Westlake’s, International Law: Part 1, Peace (1st ed, Cambridge University Press, 1910) at p 15, which provides as follows:

‘With both custom and reason in our subject Roman law is so intermixed that its position requires a separate notice to make it clear. Modern international law arose at a time when the larger part of the world was subject to monarchical rulers with whom their states were identified, and the Roman law was held to apply between such persons as being the law common to them. The states of other than monarchical constitution which had dealings with monarchs or with one another would have had to submit to the rules which naturally existed in the more general case, even if, by claiming rights as moral beings, they had not brought themselves under the Roman law as the one code then deemed to be obligatory on moral beings. The rules which flowed into international law from this source are now incorporated with the customary law of nations, and such is the respect still generally entertained for the Roman law, which has been called written reason, that this part of the customary law is never controverted even by the seekers after international right, although it may be the subject of some of the controversies which are waged about the interpretation of texts. Further, in applying to international law the methods of reasoning which belong to jurisprudence, it is the reasoning of Roman law that has been applied, that system being common not only to the continent of Europe but also the English Court of Admiralty.’

148    This was written before Art 38 first came into force in 1920 in respect of the Permanent Court of International Justice. While, as we have said, we do not doubt that many principles of international law have a Roman law heritage, Roman law has no ex officio status under Art 38(1), which does not mention it.

149    As to (b) and (c), we accept that there are statements in Grotius’ The Law of War and Peace (1625) (see Grotius H, De Jure Belli ac Pacis Libri Tres, Kelsey FW (trans), The Classics of International Law, Brown Scott J (ed) (Clarendon Press, 1925) Vol 2 at Book II, Ch II, Pt IV) and Vattel’s The Law of Nations (1758) (see Vattel E, Le Droit des Gens, (trans), The Law of Nations, Chitty J (ed) (T & JW Johnson & Co, 1863) at Book II, §96ff) which accept the existence of the principle upon which the appellant relies. As to the former, the appellant relied on the following (Grotius, op cit, Pt IV, p 191-192):

‘IV.—That unoccupied lands become the property of the individuals who become occupants of them, unless they have been taken over as a whole by a people

Let us proceed to the things which can be made subject of private ownership, but have not yet become private property. Of such sort are many places hitherto uncultivated, islands in the sea, wild animals, fish, and birds.

In this connexion two points must be noted. Possession may be taken in two ways, either of an undivided whole, or by means of individual allotments. The first method is ordinarily employed by a people, or by the ruler of a people; the second, by individuals. Possession by individual allotments, nevertheless, is more often taken in consequence of a grant than by free occupation.

If, however, anything which has been occupied as a whole has not yet been assigned to individual owners, it ought not on that account to be considered as unoccupied property; for it remains subject to the ownership of the first occupant, whether a people or a king. To this class ordinarily rivers, lakes, ponds, forests, and rugged mountains belong.’

(italics in original)

As to the latter, the appellant relied on the following (Vattel E, op cit, Book II, §96ff):

Ԥ96. A country possessed by a private person.

An independent individual, whether he has been driven from his country, or has legally quitted it of his own accord, may settle in a country which he finds without an owner, and there possess an independent domain. Whoever would afterwards make himself master of the entire country, could not do it with justice without respecting the rights and independence of this person. But, if he himself finds a sufficient number of men who are willing to live under his laws, he may form a new state within the country he has discovered, and possess there both the domain and the empire. But, if this individual should arrogate to himself alone an exclusive right to a country, there to reign monarch without subjects, his vain pretensions would be justly held in contempt:– a rash and ridiculous possession can produce no real right.

There are also other means by which a private person may found a new state. Thus, in the eleventh century, some Norman noblemen founded a new empire in Sicily, after having wrested that island by conquest from the common enemies of the Christian name. The custom of the nation permitted the citizens to quit their country in order to seek their fortune elsewhere.

§97. Independent families in a country.

When several independent families are settled in a country, they possess the free domain, but without sovereignty, since they do not form a political society. Nobody can seize the empire of that country; since this would be reducing those families to subjection against their will; and no man has a right to command men who are born free, unless they voluntarily submit to him.

If those families have fixed settlements, the place possessed by each is the peculiar property of that family: the rest of the country of which they make no use, being left in the primitive state of communion, belongs to the first occupant. Whoever chooses to settle there, may lawfully take possession of it.

Families wandering in a country, as the nations of shepherds, and ranging through it as their wants require, possess it in common: it belongs to them to the exclusion of all other nations; and we cannot, without injustice, deprive them of the tracts of country of which they make use. But let us recollect what we have said more than once (Book I. §§81 and 209, Book II. §69). The savages of North America had no right to appropriate all that vast continent to themselves; and since they were unable to inhabit the whole of those regions, other nations might, without injustice, settle in some parts of them, provided they left the natives a sufficiency of land. If the pastoral Arabs would carefully cultivate the soil, a less space might be sufficient for them. Nevertheless, no other nation has a right to narrow their boundaries, unless she be under an absolute want of land. For, in short, they possess their country; they make use of it after their manner; they reap from it an advantage suitable to their manner of life, respecting which they have no laws to receive from any one. In a case of pressing necessity, I think people might, without injustice, settle in a part of that country, on teaching the Arabs the means of rendering it, by the cultivation of the earth, sufficient for their own wants, and those of new inhabitants.

§98. Possession of certain places only, or of certain rights, in a vacant country.

It may happen that a nation is contented with possessing only certain places, or appropriating to itself certain rights, in a country that has not an owner, without being solicitous to take possession of the whole country. In this case, another nation may take possession of what the first has neglected; but this cannot be done without allowing all the rights acquired by the first to subsist in their full and absolute independence. In such cases, it is proper that regulations should be made by treaty; and this precaution is seldom neglected among civilized nations.’

150    A similar statement appears in Twiss T, The Oregon Question Examined (Longman, Brown, Green and Longmans, 1846) at p 151. There may be much to be said for the view that these statements are erected upon a misapplication of the Roman law concept of occupatio to land: cf. Professor Lesaffer’s observations to that effect in ‘Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription’ (2005) 16(1) EJIL 25 at 41-44. Even so, and leaving aside the decidedly positivist slant of Art 38(1)(c), these statements date from an era when it was thought that international law was largely premised on natural law theories. That age has passed. As Professor Crawford himself has observed in Chance, Order, Change: The Course of International Law, General Course on Public International Law (Hague Academy of International Law, 2014) at p 64 [58], ‘[b]y the late nineteenth century, the credibility of the old belief that international law derived from an aspect of natural law, the jus gentium, had faded’.

151    Finally, we are unpersuaded by the four additional materials upon which the appellant relies. The first of these was a passage at p 84 in Lindley MF, The Acquisition and Government of Backward Territory in International Law (Longmans, Green & Co Ltd, 1926). It was in these terms:

‘International Law does not recognize in individuals the right to acquire sovereignty for their personal benefit. As Twiss puts it, an independent individual can only acquire the dominium utile as distinguished from the dominium eminens, ‘he cannot arrogate to himself an exclusive right to the country, or to the empire over it.’

If, however, an individual has actually established himself as de facto sovereign over an inhabited region, then International Law may, for some purposes, take account of the fact. …’

Thereafter followed a quote of the first paragraph of §96 of Vattel (op cit).

152    The passage does not support the idea that a property right arises which must necessarily be recognised afterwards. It merely says that it would be unjust for the new sovereign not to so recognise the right.

153    The second was Art 35 of the General Act of the Berlin Conference Concerning the Congo of 1885. It was said that the signatory powers had recognised ‘the obligation to assure, in the territories occupied by them, upon the coasts of the African Continent, the existence of an authority sufficient to cause acquired rights to be respected’. It is tolerably clear from the remarks of the drafting Committee that these included the rights of private individuals as the appellant correctly submitted. But it is equally clear that the Committee believed these were civil rights. In Lindley (op cit, p 147), the Committee’s deliberations were reported thus:

‘The Committee proposed that the rights to be protected should be described as those ‘acquired by private individuals,’ considering that it was a question of civil rights, and that these ‘must be protected at whatever period they may have been acquired, before as well as after the occupation.’ Although this interpretation was accepted, it was not considered necessary to include the proposed qualification in the declaration. It was, however, explained by the President that the ‘acquired rights’ referred to ‘comprised all the acquired rights in existence at the time of a new occupation, whether these rights belonged to private individuals or to Governments.’’

154    We accept the Commonwealth’s submission that this was a statement directed at whatever rights had been generated under municipal law.

155    The third was a passage in Professor Westlake’s Chapters on the Principles of International Law (Cambridge University Press, 1894) where at pp 134-135 he said this:

‘When a new country is formed by a civilised state into a colony, the title to land in it may sometimes be deduced by the proprietors from a situation of fact which existed before the civilised government was established, and which that government has accepted and clothed with its sanction. This will be the case where the colony was formed among natives of some advancement, or where its formation was preceded by the settlement of pioneers of civilisation. But in general the title to land in a colony is traced from a grant by the state, and the authority of the state to make the grant resulted from its territorial sovereignty. Or you may say if you please that, at the moment of acquiring the sovereignty, the state assumed to itself the property in so much of the land as it was not morally compelled to acknowledge as belonging to natives or to the pioneers, and that subsequent grants by the state were carved out of the property so assumed. Either way you carry back the property granted to an origin in sovereignty, but the origin of the latter is still to be considered.’

(emphasis added)

156    The appellant placed reliance upon the first italicised passage. However, read as a whole and, in particular, with the last sentence, it seems that Professor Westlake’s statements perfectly controvert the appellant’s contention. Pre-existing pioneer claims bound the new sovereign only in morality. If it accepted the pioneer claim then the title was traceable to the sovereign so accepting.

157    Fourthly, reliance was placed upon footnote 2 to §250 in Jennings R and Watts A (eds), Oppenheim’s International Law (9th ed, Longman, 1992) which refers to the decision in Jacobsen v Norwegian Government as a decision ‘affirming the proprietary right of a private individual to a part of Jan Mayen Island occupied by him at a time when it was terra nullius’. The same footnote refers to United States v Fullard-Leo. The main text to which this footnote is appended dispels the appellant’s argument. The relevant portion of §250 is the first paragraph:

‘§250 Concept of occupation Occupation is the act of appropriation by a state by which it intentionally acquires sovereignty over such territory as is at the time not under the sovereignty of another state.1 It is therefore an original mode of acquisition in that the sovereignty is not derived from another state. Occupation can only take place by and for a state;2 it must be a state act, that is, it must be performed in the service of a state, or it must be acknowledged by a state after its performance.’

(original emphasis)

158    Footnote 2 is as follows:

‘See also § 241. For a decision of the Supreme Court of Norway affirming the proprietary right of a private individual to a part of Jan Mayen Island occupied by him at a time when it was terra nullius, see Jacobsen v Norwegian Government, AD, 7 (1933-34), No 42. See also United States v Fullard-Leo (1943) 133 F (2d) 743, decided by a United States Circuit Court of Appeals.’

159    Viewed in its full context, it is apparent that the authors were not endorsing the proposition but contrasting an alternate, and incorrect, position. It also reveals the source of the misconception as being the decisions in Jacobsen and Fullard-Leo. We have already explained why we do not accept those decisions as correct statements of international law. It does not seem to us that the learned editors of Oppenheim do so either.

160    In those circumstances, we do not accept that any of these four materials assist the appellant.

6. Conclusion

161    The appellant has succeeded in demonstrating that the principle for which she contends is supported by a single instance of State practice which is opinio juris, viz. the Norwegian decision in Jacobsen v Norwegian Government. However, this single instance is, in this case, insufficient to prove the existence of a rule of customary international law under Art 38(1)(b).

162    The appellant also fails to establish the existence of a general principle of law recognised by civilised nations under Art 38(1)(c). The suggested rule is not shown to exist in any municipal legal system. Although her case under Art 38(1)(c) is assisted by her references to the works of Grotius, Vattel and Twiss, these proceed from a natural law theory of international law which is inconsistent with the contemporary understanding of Art 38(1)(c). Her recourse to the Roman law concept of occupatio fails for a similar reason and also because occupatio does not apply to land, apart from insula in mari nata. Finally, the more modern commentators relied upon by the appellant do not, on analysis, support her contention.

163    The appeal should be dismissed with costs.

Associate:

Dated:    4 February 2016