FEDERAL COURT OF AUSTRALIA

Ure v Commonwealth of Australia [2015] FCA 241

THE COURT ORDERS THAT:

1.    The questions reserved for consideration in the special case filed 18 December 2013 be answered as follows:

Question 1:    Given:

(a)    the claim of the applicant in paragraph 5 of the Amended Statement of Claim, that at no prior time prior to 19 March 1970 had any state, including the Commonwealth, acquired or claimed jurisdiction or sovereignty over the Islands (as defined in the pleadings), and the Islands were accordingly terra nullius; and

(b)    the response of the Commonwealth in paragraphs 5 and 11 of the Amended Defence:

If the Commonwealth were to establish the particulars pleaded in paragraphs 5.2.1-5.2.13, 5.5.1-5.5.2 and 11.2.2.1-11.2.2.10 of the Amended Defence or in any event, is any allegation that the Commonwealth, or any other State, had not claimed or acquired jurisdiction, sovereignty and/or sovereign rights over the Islands at any time prior to 19 March 1970 or thereafter, justiciable in an Australian court?

Answer 1:    An allegation that the Commonwealth or any other State had not claimed or acquired jurisdiction, sovereignty and/or sovereign rights over the Islands at any time prior to 19 March 1970 or thereafter is justiciable in this Court in the sense that the Court is not precluded from considering and/or inquiring into any such allegation, or from determining any cause of action based on any such allegation, merely by reason of the making of the allegations pleaded in the Amended Statement of Claim and Amended Defence and, in particular, the allegations pleaded in paras 5.1, 5.2, 5.5 and 11.2.2 of the Amended Defence as particularised.

Question 2:    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)?

Answer 2:     No.

Question 3:    If and to the extent that the answer to question (2) is ‘no’, should the claim be dismissed?

Answer 3:     Yes.

Question 4:    What order as to costs should be made with respect to the Special Case?

Answer 4:    If the parties are unable to agree on the appropriate order in light of these reasons for judgment, each party is to provide short written submissions, not exceeding three pages, in support of the order that that party seeks, with the question to be determined on the papers.

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

REASONS FOR JUDGMENT

1    A special case has been filed which contains certain questions reserved for the consideration of the Court: rr 30.01 and 38.01 Federal Court Rules 2011 (Cth) (FCR).

Background

2    Elizabeth Reef and Middleton Reef are located in the Tasman Sea, approximately 600 km or 324 nautical miles east of Coffs Harbour, New South Wales. Elizabeth Reef is at, approximately, latitude 29o 57' S and longitude 159o 3' E. Middleton Reef is at, approximately, latitude 29o 28' S and longitude 159o 6' E. In these reasons, in conformity with the parties’ pleadings, I will refer to Elizabeth Reef and Middleton Reef, and the adjacent waters and seabed, as the Islands.

3    In the principal proceeding, the applicant claims to be the owner of the “full proprietary rights in the Islands and adjacent waters and seabed” (Property Rights), which were originally acquired by her predecessor in title, Alexander Francis Ure, for himself and on behalf of Michael Chan, on or about 19 March 1970. The applicant has identified the acts on which she relies for the alleged acquisition. It is not necessary to detail them here. However, it is important to note that the applicant argues that these rights were acquired under customary international law.

4    In her amended statement of claim filed on 16 July 2013 (Amended Statement of Claim), the applicant alleges that, prior to 19 March 1970:

    No State, including the Commonwealth of Australia (Commonwealth) had acquired or claimed jurisdiction or sovereignty over the Islands (para 5).

    No State or person acquired or claimed any proprietary interest in or over the Islands (para 6).

    The Islands were not the common heritage of mankind (para 6).

5    Thus, the applicant alleges, the Islands were, prior to 19 March 1970, terra nullius and res nullius (paras 5 and 6).

6    The applicant accepts that, at some time after 19 March 1970, the Commonwealth acquired sovereignty over the Islands. The applicant says that the precise time of acquisition is not important for present purposes. That said, the applicant suggested in oral submissions that, subject to certain findings being made, the first assertion of sovereignty by the Commonwealth over the Islands was in 1997 when the preamble to the Coral Sea Islands Act 1969 (Cth) was amended by the Environment, Sport and Territories Legislation Amendment Act 1997 (Cth) so that the Islands were for the first time said to be “territories acquired by the Commonwealth”. The correctness of that proposition is not now before me for decision. Of present importance is the applicant’s allegation that no State, including the Commonwealth, acquired or claimed jurisdiction over the Islands prior to 19 March 1970. The applicant alleges that the Property Rights originally acquired by Mr Ure and Mr Chan on or about 19 March 1970 survived the Commonwealth’s acquisition of sovereignty and are “property” within the meaning of s 51(xxxi) of the Constitution (paras 11 and 12).

7    The applicant further alleges that, by various legislative acts, the Commonwealth purported to acquire certain property rights in respect of the Islands. She alleges that, for various reasons, these acts were invalid and are ineffective (paras 13-34).

8    The applicant claims a range of declaratory relief, including a declaration that she is the owner of the Property Rights.

9    So far as relevant to the special case, the respondents (the Commonwealth and the Director of National Parks) make the following allegations in their amended defence filed on 22 October 2013 (Amended Defence):

    As at 19 March 1970, the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands (para 5.1).

    By various acts, the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands by no later than 19 March 1970 (para 5.2).

    Any allegation that the Commonwealth had not claimed or acquired jurisdiction or sovereignty or sovereign rights over the Islands at any time prior to 19 March 1970 is not justiciable (para 5.3).

    By certain particularised Orders in Council, the British Government asserted jurisdiction over Her Majesty’s subjects and in certain circumstances, other persons, within an area including Middleton and Elizabeth Reefs, at least by 1893 (para 5.5).

    The allegation that any other State had not claimed or acquired jurisdiction or sovereignty over the Islands at any time prior to 19 March 1970 is also not justiciable (para 5.4).

10    Further, the respondents allege:

    Whether or not the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands as at 19 March 1970, it had done so prior to 11 December 1987 and that, upon such acquisition, the Commonwealth acquired proprietary rights over such areas of the Islands as are capable of being the subject of proprietary rights according to the common law of Australia (para 11.2.2).

    Any allegation that the Commonwealth had not claimed or acquired jurisdiction or sovereignty or sovereign rights over the Islands at any time prior to 11 December 1987 is not justiciable (para 11.2.3).

11    In later paragraphs of these reasons, I will refer in more detail to the particulars of paragraphs 5 and 11 of the Amended Defence.

The questions

12    The first question reserved for consideration is:

Given:

(a)    the claim of the applicant in paragraph 5 of the Amended Statement of Claim, that at no prior time prior to 19 March 1970 had any state, including the Commonwealth, acquired or claimed jurisdiction or sovereignty over the Islands (as defined in the pleadings), and the Islands were accordingly terra nullius; and

(b)    the response of the Commonwealth in paragraphs 5 and 11 of the Amended Defence:

If the Commonwealth were to establish the particulars pleaded in paragraphs 5.2.1 - 5.2.13, 5.5.1 - 5.5.2 and 11.2.2.1 – 11.2.2.10 of the Amended Defence or in any event, is any allegation that the Commonwealth, or any other State, had not claimed or acquired jurisdiction, sovereignty and/or sovereign rights over the Islands at any time prior to 19 March 1970 or thereafter, justiciable in an Australian court?

13    The second question reserved for consideration is:

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)?

14    The third question reserved for consideration is whether, if the second question is answered in the negative, the applicant’s claim should be dismissed. The fourth question concerns costs.

The first question

Introduction

15    The respondents deny the applicant’s allegation that neither the Commonwealth nor any other State had acquired or claimed jurisdiction or sovereignty over the Islands. Indeed, the respondents allege that, by 19 March 1970, or at least prior to 11 December 1987, the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands.

16    The significance of the date 11 December 1987 is unclear. In their written submissions, the respondents referred to this date as the date on which the Elizabeth and Middleton Reefs Marine National Nature Reserve was proclaimed under the National Parks and Wildlife Conservation Act 1975 (Cth). However, in other paragraphs of the Amended Defence, consistently with allegations in the Amended Statement of Claim, this date is given as 23 December 1987.

17    For present purposes, nothing turns on the correctness of that date. According to the respondents, the point of present significance is the question of justiciability which, they say, arises at the point of denial or contradiction of the Commonwealth’s “claim” that it had acquired sovereignty by a certain date.

18    At the outset, it is important to understand the full ramifications of that submission, relying, as it does, on the meaning to be invested in the respondents’ use of the word “claim” in this context. Here, the “claim” of sovereignty by the Commonwealth does not simply mean the act of State by which sovereignty is said to have been asserted or acquired. The respondents’ use of the word “claim” extends to and encompasses their allegations in the Amended Defence about the Commonwealth’s claims to sovereignty over the Islands. It raises a particular question about the legal significance to be attributed to the mere pleading of such allegations.

19    For example, in para 5.1 of the Amended Defence, the respondents allege that, as at 19 March 1970, the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands. The gravamen of the respondents’ submission is that the mere making of this bare allegation in the pleading has the consequence that it is a “claim” that is not justiciable and cannot be contradicted by the applicant in this proceeding. The respondents made the same submission with respect to a similar allegation in para 11.2.2 of the Amended Defence that, prior to 11 December 1987, the Commonwealth had acquired jurisdiction, sovereignty and/or sovereign rights over the Islands.

20    By way of further example, in para 5.2 of the Amended Defence, the respondents allege that, by various acts which have been particularised non-exhaustively, the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands by no later than 19 March 1970. The respondents submitted that, although it may be open to the applicant to contest whether the particularised acts took place at all, the applicant could not contradict the respondents’ allegations that those acts were acts of State or that, as such, they were effective to acquire sovereignty over the Islands. The respondents made the same submission with respect to their allegations in para 11.2.2 of the Amended Defence, which include allegations to the effect that, by certain particularised acts, the Commonwealth had acquired jurisdiction, sovereignty or sovereign rights over the Islands prior to 11 December 1987. However, in light of the allegations to which I have referred at [19], the respondents also submitted that it was not necessary for them to prove the particularised acts in order to render the matter non-justiciable. The respondents put the matter in this way:

[T]he assertion of the sovereignty of the Commonwealth over the Islands is an exercise by the executive of the prerogative, and a matter that affects the external relations of the Commonwealth. That historic assertion (as pleaded by the Commonwealth) need not be demonstrated in a municipal court by evidence of acts of State. This only invites the court to adjudicate the validity of those acts: that is, whether the acts as pleaded found a claim of sovereignty … [T]his is an impermissible enquiry for a municipal court. Furthermore, there may be reasons of diplomacy and international comity for not demonstrating those acts. This is not the appropriate forum to ventilate, and adjudicate, those reasons.

21    In a similar vein, the respondents submitted that their allegations in para 5.5 of the Amended Defence—that the British Government asserted jurisdiction over Her Majesty’s subjects, and in certain circumstances other persons, within an area including the Islands, at least by 1893—are not justiciable and cannot be contradicted.

22    Therefore, the respondents submitted that, given the pleading of their Amended Defence, the applicant’s allegation—that at no time prior to March 1970 had any State, including the Commonwealth, acquired or claimed jurisdiction or sovereignty over the Islands—is not justiciable.

23    The correctness of these propositions lies at the heart of the first question.

24    If these propositions are correct, and the applicant is not entitled to pursue her allegation that the Islands were, prior to 19 March 1970, terra nullius, then the applicant cannot make out her dependent claim that the steps pleaded in the Amended Statement of Claim were effective to create or acquire the Property Rights. The respondents submitted:

[I]f it be accepted (as the Commonwealth says it must) that the Commonwealth had claimed and acquired sovereignty over the Islands by 19 March 1970, Australian domestic law provides that, in the absence of pre-existing property rights, the Commonwealth acquired a radical title amounting to full beneficial ownership in the Islands.

Relevant legal principles

25    In New South Wales v The Commonwealth (1975) 135 CLR 337 (Seas and Submerged Lands Case), Gibbs J said (at 388):

The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.

26    In so finding, his Honour took the following statement of Diplock LJ in Post Office v Estuary Radio Ltd [1968] 2 QB 740 at 753 as correctly stating the law:

It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised its sovereignty or jurisdiction. For such extension the authority of Parliament is not required.

27    In Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, Brennan J said (at 31) that the principle stated by Gibbs J in the Seas and Submerged Lands Case:

precludes any contest between the executive and the judicial branches of government as to whether a territory is or is not within the Crown’s Dominions … The recognition is accorded simply on the footing that such a prerogative act is an act of State the validity of which is not justiciable in the municipal courts.

28    Later, Brennan J stated (at 69) that the Crown’s acquisition of sovereignty “over the several parts of Australia” cannot be challenged in an Australian municipal court.

29    These principles were at the forefront of the respondents’ submissions. They were not challenged by the applicant. In this connection, the respondents also referred to passages in Salaman v Secretary of State for India [1906] 1 KB 613 for the principle that the transactions of independent States between each other are governed by laws other than those which municipal courts administer. It will be necessary for me to return to that case.

30    The respondents also placed reliance on the principle of “judicial restraint” discussed in Buttes Gas and Oil Company v Hammer [1982] AC 888, namely that a court should not, as a matter of judicial restraint, adjudicate on the transactions of foreign States and, therefore, upon claims that might give rise to the possibility of embarrassment in the conduct of foreign relations or in respect of which there are no judicial or manageable standards by which the validity of such transactions can be judged. In Buttes, Lord Wilberforce saw (at 932) the principle as one “inherent in the very nature of the judicial process”, rather than an example of the exercise of judicial discretion.

31    The respondents submitted that this principle “has been applied without limitation by Australian courts”. They referred, in particular, to the Full Court decisions in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 126 FCR 354 and Gamogab v Akiba (2007) 159 FCR 578.

32    In Petrotimor, an element of the applicants’ claims concerned the validity of certain concessions granted to the applicants by Portugal to prospect, investigate, develop and exploit hydrocarbons on a part of the continental shelf between (then) Portuguese Timor and Australia, over which Australia later claimed sovereign rights under the Timor Gap Treaty concluded with the Government of Indonesia, which came into force on 9 February 1991. In relation to the principle that, as a matter of judicial restraint or abstention, courts should not adjudicate upon transactions of foreign sovereign States, the majority (Black CJ and Hill J) observed (at [48]):

48    …This is not surprising, given that international relations can be controversial and the outcomes of a court adjudication might well create embarrassment for the government. Indeed, the facts of the present case and the exchange of diplomatic notes between Australia and Portugal illustrate just how considerable the embarrassment could be should an Australian court adjudicate on actions of the Portuguese government, let alone the possible embarrassment which might be caused to relations between Australia and East Timor on that country becoming now independent.

33    Their Honours found (at [52]):

52    In addition to the embarrassment which could be caused to Australia’s diplomatic relations should the Court pass upon the meaning of the international treaty and purport to determine the extent of Australia’s claim to the area in which the applicants’ concessions lie, the Commonwealth pointed to the discretionary factors inherent in Art 6 of the Treaty. Evidence going to embarrassment was given in the present case and read subject to the objection of the applicants. It is unnecessary to determine whether that evidence was admissible, although in our view, evidence of the opinion of qualified persons having the conduct of Australia’s foreign affairs would be admissible. The agreed facts themselves make it clear that there would be considerable embarrassment in the Court deciding what had been a most contentious issue between Portugal and Australia and which is still a subject of delicacy between Australia and the newly created East Timor.

34    Later, their Honours said (at [63]):

63    …To the extent that in Australia the doctrine is affected by the constitutional requirement of exercise of federal jurisdiction, the consequence is not judicial restraint, but lack of jurisdiction in the Court to adjudicate the applicants’ claims…

35    Their Honours discussed (at [64]-[68]), whether, in such cases, there is a “matter” upon which the Court may adjudicate and thus attract the exercise of federal jurisdiction pursuant to Ch III of the Constitution. Their Honours concluded that, on such questions, there is no “matter”. The consequence of non-justiciability in relation to Australian federal law is, therefore, that the Court has no jurisdiction, not simply that the Court should abstain from exercising jurisdiction.

36    In Gamogab, the appellant had unsuccessfully sought to be joined as a respondent to a native title claim (the Torres Strait Regional Seas Claim) on the basis of his allegation that he had traditional rights and interests with respect to the relevant claim area. The primary judge was satisfied that the appellant’s interests might be affected by a determination in the proceeding. However, the primary judge refused to make an order for joinder. The primary judge (Akiba v Queensland (No 2) (2006) 154 FCR 513 at [48]) said:

48    There is a risk, in my opinion, that the joinder of Mr Gamogab will bring to bear on these proceedings debates between village communities in PNG about their respective interests in the Torres Region Seas claim area. These are matters best left to the Courts of PNG or to its executive government to resolve by agreement with the Australian government under the [Treaty Concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters 1978, 18 December 1978, Australia-Papua New Guinea, 1429 UNTS 207 (entered into force 15 February 1985)]. As a matter of discretion, I consider that the joinder of Mr Gamogab, notwithstanding his claimed interest, is undesirable…

37    The appeal was allowed, by majority (Sundberg and Gyles JJ). The dissenting judge, Kiefel J, said that the refusal of the joinder should be upheld, on the basis that a political question was involved, which was non-justiciable. The respondents in the present case rely upon her Honour’s discussion of the Buttes principle.

38    Kiefel J said (at [31]):

31    Issues arising out of international relations have generally been regarded as non-justiciable: Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 307, referring to Buttes Gas & Oil Co v Hammer [1982] AC 888; Gerhardy v Brown (1985) 159 CLR 70. In Buttes Gas & Oil [1982] AC 888 Lord Wilberforce said that English courts may not examine “the validity, under international law, of an act or acts operating in the area of transactions between states” (at 931). A number of reasons have been advanced to explain the requirement, referred to by Lord Wilberforce, for judicial restraint. Lord Wilberforce spoke of there being no judicial standard for the determination of such questions and, more relevant to this case, the potential for embarrassment to foreign relations. Other cases, such as Gerhardy v Brown 159 CLR 70, have referred to the Court assuming a function which is committed to another branch of government.

39    After discussing Buttes, and noting that the “political question” doctrine has attracted criticism (see the observations in Re Ditfort: Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 by Gummow J at 371-372), her Honour said (at [34]):

34    Opinions may differ as to the breadth of the principle as stated in Buttes Gas & Oil [1982] AC 888. Nevertheless, it has been approved in the Spycatcher 165 CLR 30 case and applied without limitation by two Full Courts of this Court: in Petrotimor 126 FCR 354 and in Peko-Wallsend Ltd 15 FCR 274. It follows that negotiations and agreements between Australia and another country are not to be the subject of judicial determination for the reason that they might cause embarrassment and affect relations between the countries. Questions raised concerning those subjects are non-justiciable: Buttes Gas & Oil [1982] AC at 933; Petrotimor 126 FCR 354 at [68].

40    Importantly, her Honour stressed that it is the nature of the contentious question that is relevant to non-justiciability, rather than the reality of embarrassment. Her Honour said (at [40]):

40    There is however one anomaly in this matter, if the refusal of joinder is upheld on the basis of there being a political question inherent in the appellant’s case which renders it non-justiciable. The Commonwealth now supports the appellant in his application for joinder, to an extent. This implies that it may not be considered that as determination will have an adverse effect upon foreign relations. The matter has not been directly addressed. Lord Wilberforce in Buttes Gas & Oil [1982] AC 888 did not consider that the reality of embarrassment determined whether a case was justiciable. The answer to the question depended in each case upon an appreciation of the nature and limits of the judicial function (at 436). In Petrotimor 126 FCR 354, evidence was tendered on the issue as to whether embarrassment was likely. It was considered unnecessary to refer to it as the question raised was capable of answer by reference to the contents of the Exchange of Notes (at [52]). Consequently the Court did not deal with the question. There seems no reason to doubt that this aspect of Buttes Gas & Oil [1982] would not be applied. It holds that it is the nature of the question for the Court which renders it non-justiciable.

41    The applicant did not seek to challenge the correctness of the Buttes principle or, when applicable, its consequences in Australia for the exercise of federal jurisdiction. However, the applicant did challenge the applicability of the principle in relation to the pleaded facts, a question to which I shall return.

The Commonwealth’s claim to sovereignty: the pleaded acts

42    The respondents’ case, apart from its reliance on para 5.1 of the Amended Defence, is that the acts it has particularised in paras 5.2 and 11.2.2 thereof are acts of State which, individually and collectively, “make it clear that the Court should not adjudicate upon any contest of sovereignty over territory that the Commonwealth claims to be part of Australia”.

43    In relation to the period prior to 19 March 1970, the respondents rely upon acts of, or concerning, the Australian Defence Forces, including:

    the promulgation of Navy Orders on 28 February 1913, whereby an area including the Islands was stated to be within the Naval Station that was to be controlled by the Commonwealth Government, and Navy Orders in the same year whereunder control of the Naval Station was transferred to the Commonwealth Government on 4 October 1913 (para 5.2.1);

    the conduct of a search for the ship “Manurewa” in about May and June 1922 by the Australian Navy (HMAS Geranium) in an area including the Islands, as requested by the New Zealand owners of the ship and the New Zealand Prime Minister (para 5.2.2); and

    the conduct of military training operations on and around the Islands at least in the period 1941-1968 (paras 5.2.5 and 5.2.6).

44    The respondents also rely upon communications in the period 1940 and 1941 between Australia (or the Prime Minister of Australia) and the United Kingdom Secretary of State for Dominion Affairs (paras 5.2.3 and 5.2.4). In relation to these communications, the respondents submitted:

These high-level communications reveal matters of diplomatic delicacy, including the effect of proposed actions on the conduct of belligerent powers, and culminate in the ‘suggestion’ of the British Secretary of State for Dominion Affairs that the Commonwealth Government take steps to obtain and exercise control over those reefs and islands in which they may be specially interested. The military operations authorised by the Commonwealth’s Department of the Navy shortly thereafter should be viewed in this light, and so understood as an assertion of sovereignty by the Commonwealth Government. It is not for the Court to seek to determine in relation to the Commonwealth’s assertion of sovereignty the true meaning and effect of that correspondence recommending a particular course of action dictated by the exigencies of war and national interest, nor the effect of the action that followed upon that recommendation. In that regard, there are no judicial or manageable standards that the Court can apply. It is not to the point that these matters have passed into history and so can now be examined with safe detachment. Rather, the point is that the Court is not in a position to adjudicate the meaning and effect of those acts and assertions that were animated by considerations beyond the purview of a municipal court.

45    The respondents also rely on what they say is the assertion of sovereignty and jurisdiction over the Islands by way of Commonwealth legislation applicable to an area that includes the Islands (paras 5.2.7 and 5.2.8).

46    In relation to the period after 19 March 1970 and prior to 1987, the respondents rely on:

    the conduct of search operations in October 1971 by the Royal Australian Air Force for the crew of the ketch “One and All” in waters in the vicinity of Middleton Reef and the rescue of the crew by a Royal Australian Navy submarine (para 5.2.12);

    the refusal, by letter dated 25 May 1970, by the Commonwealth Department of Civil Aviation to approve the operation of a radio beacon for aviation activities in the area of the Islands, as requested by Mr Ure (para 5.2.9), and the approval, given by letter dated 11 May 1971, by the Superintendent of the Radio Branch of the Australian Post Office for the establishment and operation of a non-directional radio beacon on the vessel SS “Runic”, which was stranded on Middleton Reef (para 5.2.11);

    the wording of Commonwealth legislation which, the respondents say, renders the legislation applicable to an area that includes the Islands (paras 11.2.2.3 and 11.2.2.5);

    recommendations by the Director of National Parks and Wildlife that the Islands be declared a Marine National Nature Reserve under Commonwealth legislation (paras 11.2.2.7 and 11.2.2.8); and

    the conduct of government scientific expeditions to and surveys of the Islands (paras 11.2.2.4, 11.2.2.6 and 11.2.2.9).

47    The respondents also rely on:

    the conclusion in 1983 of a maritime delimitation treaty between Australia and France in which Middleton Reef was used as a baseline and point of reference (para 5.2.13); and

    the acceptance by the United Nations Commission on the Limits of the Continental Shelf (UN Commission) of Australia’s claim to a continental shelf that comprises an area that includes the Islands (paras 11.2.2.1, 11.2.2.2 and 11.2.2.10).

48    The respondents submitted that these latter two instances require “especial consideration” in relation to the application of the Buttes principle. With regards to the treaty between Australia and France, the respondents submitted:

The use of Middleton Reef in the treaty negotiations with France is capable of being taken as demonstrating the attitude of foreign States to Australia’s claim to the Reef. However, those negotiations involve question of diplomacy, which are the province of the executive. Intrusion by the courts into those dealings may be damaging to international comity and good relations.

49    Similarly, the respondents submitted that any challenge to the validity of Australia’s assertion of sovereign rights in the continental shelf would undermine the decision (recommendation) of an international body—the UN Commission—which had been made under Art 76 of the United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).

50    The respondents submitted that the applicant’s allegation that no other State had claimed or acquired jurisdiction or sovereignty over the Islands at any time prior to 19 March 1970 is not justiciable, based on the principle that the transactions of independent States between each other are governed by other laws than those which municipal courts administer: Cook v Sprigg [1899] AC 572.

51    In this connection, the respondents referred to their allegations in para 5.5 of the Amended Defence that the British Government, by Orders in Council, had asserted jurisdiction over persons within an area including the Islands. They submitted:

It is not for a municipal court to challenge the validity (that is, the effect) of these acts of a foreign State, and whether they are sufficient to establish the sovereignty and jurisdiction of the State over the Islands for the purposes of the applicant’s claims. The applicant’s pleading calls for an Australian court to make a pre-emptive assessment of the claims of jurisdiction or sovereignty that might be made by other nations … [T]hat is not a permissible enquiry for a municipal court.

52    As I have noted above (at [20]), the respondents submitted that it is not necessary for them to prove the acts particularised in the Amended Defence (which they allege constitute an assertion of sovereignty) in order to demonstrate that the question whether any State had claimed or acquired jurisdiction or sovereignty over the Islands prior to 19 March 1970, is non-justiciable. According to them, it is sufficient that they merely plead that the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands by 19 March 1970, or at least prior to 11 December 1987 in order to render the matter non-justiciable.

Consideration

53    It is important to note that the applicant’s pleading of the acquisition of the Property Rights focuses on a state of affairs existing prior to 19 March 1970. This is because, on the pleaded case, Mr Ure, for himself and on behalf of Mr Chan, acquired those rights by undertaking certain acts on or about that date. As I have noted, the applicant accepts that, at some time after 19 March 1970, the Commonwealth acquired sovereignty over the Islands. Given that acceptance, the factual question raised in the proceeding is not whether the Commonwealth acquired sovereignty over the Islands but when and how it acquired sovereignty and, in particular, whether the Commonwealth acquired sovereignty prior to 19 March 1970. The first question must be considered in that light. Thus, the focus of attention for the proceeding must be the acts to which I have referred at [43]-[45] above.

54    In considering the justiciability of the applicant’s allegation that, at no time prior to 19 March 1970, no State, including the Commonwealth, had acquired or claimed jurisdiction or sovereignty over the Islands, both the applicant and the respondents relied on the judgment of Fletcher Moulton LJ in Salaman. Relevantly, the issue presented by that case was whether certain acts of the East India Company in respect of the person and property of Maharajah Duleep Singh, following the second Sikh war in 1848-1849, were acts of State and whether certain pleaded causes of action arising out of those acts were justiciable.

55    In discussing these matters, Fletcher Moulton LJ said (at 639-641):

An act of State is essentially an exercise of sovereign power, and hence cannot be challenged, controlled, or interfered with by municipal Courts. Its sanction is not that of law, but that of sovereign power, and, whatever it be, municipal Courts must accept it, as it is, without question. But it may, and often must, be part of their duty to take cognizance of it. For instance, if an act is relied upon as being an act of State, and as thus affording an answer to claims made by a subject, the Courts must decide whether it was in truth an act of State, and what was its nature and extent. An example of this is to be found in the case of Forester v. Secretary of State for India in Council. But in such an inquiry the Court must confine itself to ascertaining what the act of State in fact was, and not what in its opinion it ought to have been. In like manner municipal Courts may have to consider the results of acts of State, i.e., their effects on the rights of individuals, and even of the Government itself. Acts of State are not all of one kind; their nature and consequences may differ in an infinite variety of ways, and these differences may profoundly affect the position of municipal Courts with regard to them.

…

The true view of an act of State appears to me to be that it is a catastrophic change, constituting a new departure. Municipal law has nothing to do with the act of change by which this new departure is effected. Its duty is simply to accept the new departure; and its power to adjudicate upon, and enforce rights of individuals, or of the Government, in the future, appear to me to be precisely the same whether the origin of such rights be an act of State or not. But, although this be so, it must not be supposed that the principles of interpretation applicable to an act of State are the same as those which apply to other acts. For instance, if an act of State be expressed in a document purporting to confer benefits on an individual, it by no means necessarily follows that there is any intention to create a contract, or that the document should be construed by the same canons of interpretation as would be adopted in the case of a contract between two individuals.

56    Although the respondents relied on parts of the passage quoted above as confirming the non-justiciability of acts of State in municipal courts, the applicant emphasised his Lordship’s reservation that “if an act is relied upon as being an act of State, and thus affording an answer to claims made by a subject, Courts must decide whether it was in truth an act of State, and what was its nature and extent”.

57    This inquiry was exemplified in Salaman, where Fletcher Moulton LJ and the other members of the Court Appeal (Vaughan Williams and Stirling LJJ) considered a number of documents pleaded by the plaintiff as the basis for his claims—the plaintiff being the trustee in bankruptcy for a descendant of the Maharajah, Prince Victor Albert Jay Duleep Singh, and the defendant being a body corporate (the Secretary of State for India in Council) which, by an Act of 1858 (21 & 22 Vict. c. 106), succeeded to the East India Company’s rights and liabilities. One of those documents was the Terms of Lahore, under which the Maharajah relinquished all claims to the sovereignty of the Punjab, and all property of the State of Lahore was confiscated to the East India Company in part payment of debts due to the British Government, including the expenses of the war. Another term was that the East India Company would pay a pension to the Maharajah.

58    The statement of claim alleged four distinct causes of action. The first was that the defendant was liable under the Terms of Lahore as a trustee to pay the plaintiff, as Prince Victor’s trustee in bankruptcy, arrears of the pension which accrued during the lifetime of the Maharajah, and to which Prince Victor became entitled after the Maharajah’s death. The second cause of action was that the defendant was liable as a trustee to pay the plaintiff the arrears of the pension said to be due to Prince Victor, in succession to Maharajah Duleep Singh. The third cause of action was that the defendant was liable as a trustee to account to the plaintiff for certain real and personal property which the East India Company retained, said to be the private estate of Maharajah Duleep Singh as opposed to property of the State of Lahore. The fourth cause of action was that the defendant was liable to account as trustee to the plaintiff for the value of certain property of Maharaja Duleep Singh which had been seized by mutineering soldiers in the employ of the East India Company at the time of the Indian Mutiny. The question, therefore, was whether these causes of action arose from the acts and documents pleaded by the plaintiff and were maintainable against the defendant as the Secretary of State for India in Council.

59    After considering these causes of action, Vaughan Williams LJ said (at 633-634):

I have gone through the claims in detail, and I have only to say that, according to my view, not only are the whole of the facts stated in this statement of claim consistent with that which was done by the East India Company being done as an act of State, and not in the exercise or recognition of any legal right whatsoever, but further that the facts stated upon the statement of claim are prima facie such as lead necessarily to the inference that the whole of that which was done was done by the East India Company as an act of State in respect of the personal custody of the Maharajah himself and of his property of all sorts and descriptions. …

60    A similar finding was made by Stirling LJ, who concluded that, on an examination of the relevant documents, the first three causes of action were all based on acts of State. As to the fourth cause of action, his Lordship said that it had been admitted that it could not be supported.

61    Fletcher Moulton LJ made clear (at 641) that he started from the premise that the pleaded causes of action were “not necessarily beyond the cognizance of municipal courts merely because their origin is connected more or less directly with an act of State”. On examining the causes of action his Lordship concluded that the first two causes of action were not maintainable in light of the Terms of Lahore. As to the third cause of action, his Lordship said (at 643-644):

Now, if the “Terms of Lahore” fully define the act of State so far as it concerns the property of the late Maharajah, I think that the above constitutes a claim of a nature such that the Court ought not to prevent the plaintiff raising it, and obtaining a decision upon it, by the ordinary process of an action. But I do not shut my eyes to the possibility that the defendant may meet this claim by an allegation that, apart from the question whether this property passed to the Company in accordance with the 2nd clause of the “Terms of Lahore,” the seizure and sale of this property was in itself an act of State—an intentional exercise of sovereign power independent of the rights taken by the Company at the time of the granting of the “Terms of Lahore”—and that such act of State, like all acts of State, cannot be reviewed or criticized by a municipal Court. If this allegation can be substantiated, it would be an answer to the plaintiff’s claim. An Act of State need not rest upon or be expressed in documents. It may be evidenced by the nature of the acts done, and the circumstances under which they were done; and, if an act is in this way shewn to have been actually done in such a way as to constitute it an act of State, it is no answer to say that it was in excess of previous or contemporary acts of State to which it might be expected to conform.

62    As to the fourth cause of action, his Lordship noted, as had Stirling LJ, that it was admitted to be incapable of being supported.

63    The applicant used Salaman as an illustration of her submission that, although the validity of an act of State is something that cannot be challenged, it does not follow that other, related questions cannot be examined, such as whether the alleged act did occur and, if so, when; and whether the act was an act of State that purported to acquire sovereignty over territory.

64    I have not been asked to examine the particularised acts to assess, for the purposes of the first question, their nature and significance in relation to the Commonwealth’s claim of sovereignty over the Islands. The respondents’ case is that the mere allegations they have made in the Amended Defence, to which I have referred, have the consequence that, without more, the applicant’s allegation—that at no time prior to 19 March 1970 had any State acquired or claimed jurisdiction or sovereignty over the Island—or the broader allegation identified in the first question as arising from the pleadings, is rendered non-justiciable.

65    The applicant, on the other hand, submitted that questions of acquisition of sovereignty are not resolved in legal proceedings by mere assertions of governments. As the applicant put it:

It is an act by a government the validity of which is not to be challenged, not the bald assertion of a conclusion (i.e. sovereignty).

(Emphasis in original.)

66    The applicant took me to a number of the particularised acts referable to the period prior to 19 March 1970 (specifically those referred to in [43]-[44] above) for the purpose of illustrating what she saw to be, for the purposes of her case, the contestable nature of the respondents’ allegations. These acts do not need to be discussed here.

67    I do not accept that, simply because the respondents have alleged in para 5.1 of their Amended Defence that, as at 19 March 1970, the Commonwealth had claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands, the applicant’s allegation (that no State had, prior to that time, acquired or claimed jurisdiction or sovereignty), or the broader allegation identified in the first question as arising from the pleadings, is thereby rendered non-justiciable. None of the cases to which I was taken by the respondents contain such a finding, illustrate that proposition, or otherwise justify such a conclusion. To so find would be to give the respondents’ allegations a quality of conclusiveness that an allegation in a pleading does not possess. The respondents’ allegations do not fall into some exceptional category just because they are about the acquisition of sovereign rights by a sovereign State.

68    Nevertheless, in a given case, little may be required to demonstrate that sovereignty, as alleged, has been acquired. In Ffrost v Stevenson (1937) 58 CLR 528, Latham CJ said (at 549):

Courts are required to take judicial notice of the extent of His Majesty’s dominions (See cases cited in Halsbury’s Laws of England, 2nd ed., vol. 13, p. 621). The law treats such a question as one not to be determined in cases of doubt by particular courts upon such evidence as particular litigants may choose to submit, or upon an examination by particular courts of documents which are possibly ambiguous in their terms. Whether a particular territory is or is not within His Majesty’s dominions is to be conclusively determined, in any case of doubt, by a formal statement made by a Minister of the Crown in response to a formal inquiry by a court (Duff Development Co. v. Kelantan Government). A recital in an executive order made under a statute cannot be regarded as being such a formal statement within either the ordinary rules of evidence or the special provisions of the Foreign Jurisdiction Act 1890, sec. 4, which provides a statutory procedure whereby a court may obtain from a Secretary of State a statement which shall be conclusive evidence of the existence or extent of any jurisdiction of His Majesty in any foreign country.

69    In Re Ditfort, Gummow J said (at 368):

The expression “non-justiciable”, when used in relation to international relations conducted by Australia, identifies several distinct legal rules or principles. First, “non-justiciability” has special application with regard to the law of evidence. While the courts are entitled to take judicial notice of the course of open and notorious international events of a public nature, in some cases of doubt they accept as conclusive statements provided to the courts by the Executive Government: Ffrost v Stevenson (1937) 58 CLR 528 at 549; Bradley v Commonwealth (1973) 128 CLR 557 at 562; Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 62 ALJR 344, per Brennan J at 352; cf Corporate Affairs Commission v Bradley [1973] 1 NSWLR 382 at 393. The statements so received have dealt with such questions as the extent of foreign territory, the existence of a state of war, belligerency or neutrality, the existence of foreign States and the identity of persons constituting the governments of recognised States. The statements provided by the executive certify that the Australian Government “recognises” a particular state of affairs: see the terms of the certificate in Corporate Affairs Commission v Bradley (supra) at 390. The terms of such certificates are subject to interpretation by the courts but, once so construed, the certificates are “conclusive”. The expression “conclusive” is used not only in the sense that evidence is not admissible to contradict the certificates (Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] AC 853 at 901) but also, it seems, in the sense that the certificates cannot be questioned in proceedings for judicial review under s 75(v) of the Constitution or s 39B of the Judiciary Act: cf R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Trawnik, The Times, 21 February 1986, which involved a certificate issued pursuant to statute, not the prerogative; and see also C Warbrick, “Executive Certificates in Foreign Affairs: Prospects for Review and Control” (1986) 35 ICLQ 138.

70    The rationale for that approach is explained in Heydon JD, Cross on Evidence (10th ed, LexisNexis Butterworths, 2015) at [3085] as follows:

The source of information to which the court resorts is treated as one of indisputable accuracy for reasons of public policy — the undesirability of a conflict between the courts and the executive. As in all cases in which the courts renounce their powers of determining facts on the basis of evidence, the practice may be represented as something like a submission to official dictatorship, but, in this instance, it is difficult to see how else a judge should act when confronted with such questions as the sovereignty of a foreign state, the membership of a diplomatic suite, the extent of Australian territorial waters or of the realm or of other territory claimed by the Crown, or the existence of a state of war.

71    Further in this connection, despite the respondents’ submission to the contrary, I do not accept that an allegation made by the Commonwealth in a pleading has the status or incidence of a formal statement by the executive arm of government on an act of State of the kind to which the cases refer. Once again, the cases to which I was taken contain no such finding, do not illustrate that proposition, or justify such a conclusion. The respondents’ submission blurs the distinction between the pleadings, which function to define the issues for resolution in the proceeding in accordance with the applicable rules of court (see, here, Div 16.1 FCR), and the material on which the Court acts to make relevant findings of fact to determine those issues. The distinction is the traditional one between allegation and proof (I include within the latter, findings based on judicial notice): see also, in this regard, Evidence Act 1995 (Cth) s 145.

72    I also do not accept that simply because the respondents have pleaded various acts by which they allege that the Commonwealth or some other State has claimed and acquired jurisdiction, sovereignty and/or sovereign rights over the Islands (such as in paras 5.2, 5.5 and 11.2.2 of the Amended Defence), the Court is thereby precluded from considering the applicant’s allegation or inquiring into the acts alleged by the respondents to determine their legal nature and effect. Once again, in a given case, little may be required to demonstrate the existence, and legal nature and effect, of the pleaded acts. For example, in Mabo (No 2), Brennan J referred to the annexation of the Murray Islands by an exercise of the prerogative evidenced by Letters Patent, which his Honour said (at 31) was a mode of acquisition recognised by the common law as a valid means of acquiring sovereignty over foreign territory.

73    Thus, I am satisfied that, notwithstanding the respondents’ pleading, it is open to the applicant to call into question, and for the Court to inquire into, whether the acts pleaded by the respondents occurred (if they are not admitted) and to consider their legal nature and effect, such as whether each was an act of State and, if so, whether the act was of the kind by which sovereignty or some other relevant right was acquired; and, whether the act be considered alone or with other acts. To do so is not to challenge the recognised effect of an act of State or to call into question its propriety. It is to do no more than to inquire into its asserted existence as an act of State for which the Court must give recognition.

74    Furthermore, I am not persuaded that the allegations in the Amended Statement of Claim and Amended Defence are such that, on their face, they show conclusively or inevitably that, by application of the Buttes principle, the Court does not have jurisdiction to entertain them or should otherwise abstain from entertaining them. This is not to deny that, in the course of a proceeding, it may become apparent that the Buttes principle has application.

75    For her part, the applicant submitted that there is no potential for embarrassment. She submitted that her allegations do not raise any dispute between herself and the Commonwealth, or between the Commonwealth and any other State, as to the existence of the Commonwealth’s claims to sovereignty or as to the extent of the territory over which that sovereignty is claimed. She submitted that the only issue is when the Commonwealth acquired sovereignty over the Islands.

76    I am not persuaded that, in some absolute sense, there is no potential for embarrassment. However, at the present time, it is not necessary for me to delve into that question. To do so would only be to speculate on how the parties’ respective cases might unfold.

Conclusion

77    In my view, the answer to the first question, considered in light of the particular way in which the parties have addressed it, is as follows: An allegation that the Commonwealth or any other State had not claimed or acquired jurisdiction, sovereignty and/or sovereign rights over the Islands at any time prior to 19 March 1970 or thereafter is justiciable in this Court in the sense that the Court is not precluded from considering and/or inquiring into any such allegation, or from determining any cause of action based on any such allegation, merely by reason of the making of the allegations pleaded in the Amended Statement of Claim and Amended Defence and, in particular, the allegations pleaded in paras 5.1, 5.2, 5.5 and 11.2.2 of the Amended Defence as particularised.

The second question

Introduction

78    As defined in the Amended Statement of Claim, the Property Rights claimed by the applicant are the “full proprietary rights in the Islands and adjacent waters and seabed”. As I have noted, the Amended Statement of Claim particularises the acts by which the applicant alleges that, on or about 19 March 1970, Mr Ure, for himself and on behalf of Mr Chan, acquired the Property Rights.

79    The applicant relies on international law, rather than on any principle of domestic law, to provide the legal basis for her allegation that the Property Rights were acquired. The applicant submitted that it is a rule of customary international law that a private individual can acquire rights, constituting property under s 51(xxxi) of the Constitution, over land areas that are terra nullius, and surrounding sea areas, provided that such individuals have demonstrated an intention to assert ownership and have undertaken acts to assert possession.

80     When addressing the terms of the second question, the applicant submitted that the words “proprietary rights” direct attention to the concept of “property” as used in s 51(xxxi) of the Constitution and not to any concept in international law. Thus, the applicant submitted, the second question is concerned with whether rights conferred by international law constitute “property” for the purposes of s 51(xxxi), not whether international law would describe those rights as “proprietary”.

81    I do not accept that submission. I agree with the respondents’ submission that the second question can only be concerned with what international law recognises as “property”. The question of whether something qualifies as “property” for the purposes of s 51(xxxi) is a different and subsequent question. This distinction is reflected in the applicant’s pleading, particularly having regard to the definition of Property Rights in para 7 of the Amended Statement of Claim and the subsequent allegation in para 12 that the Property Rights are “property” within the meaning of s 51(xxxi) of the Constitution.

82    Apart from this, the parties agree that the second question is not directed to the sufficiency of the particularised acts to acquire property rights under international law. Rather, the question is whether, under international law, an individual as opposed to a State can obtain rights in land or sea territory.

83    The parties proceeded on the basis that customary international law is not proved by evidence. They relied on Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) (2013) 212 FCR 406 at [31]-[48]. However, that case is authority for a more limited proposition, namely that, for an Australian court, a question as to the interpretation of a treaty, which arises in the course of ascertaining the operation of Australian law, is to be approached as a question of law rather than one of fact: see, especially, at [48]; see also Snedden (aka Vasiljkovic) v Minister for Justice (Cth) (2013) 141 ALD 351 at [57]. Nevertheless, at [32] of PT Garuda, Perram J referred to the existence of authority that supports the view that, as with domestic law, but not as with foreign law, international law is not proved by expert evidence. Amongst other authority, his Honour referred to the following obiter dictum of Stephenson LJ in Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529 at 569:

But rules of international law, whether they be part of our law or a source of our law, must be in some sense “proved,” and they are not proved in English courts by expert evidence like foreign law: they are “proved” by taking judicial notice of “international treaties and conventions, authoritative text books, practice and judicial decisions” of other courts in other countries which show that they have “attained the position of general acceptance by civilised nations”: The Cristina [1938] A.C. 485, 497, per Lord Macmillan: and those sources come seldom if ever from every civilised nation or agree upon a universal rule; they move from one generally accepted rule towards another.

84    This passage in Trendtex, it seems to me, envisages those rules of international law established by custom.

Customary international law

85    Customary international law is established by two requirements: State practice; and the conviction felt by States that the practice is required by international law (referred to as opinio juris).

86    Speaking of the origins of this source of international law, Professor Triggs (Triggs GD, International Law: Contemporary Principles and Practices (2nd ed, LexisNexis Butterworths, 2011) at [2.6]) has said:

Before States adopted the practice of negotiating multilateral treaties after WW II, international law consisted primarily of customary rules. Just as it is common to all legal systems that law reflects time-honoured, day-to-day practices, custom is recognised by international law. Custom has evolved through a long historical process by which state practices and recognition of the binding character of those practices by the international community have crystallised into normative rules. The traditional immunity of foreign sovereigns and their representatives from the jurisdiction has, for example, evolved from the practical need of rulers to communicate with each other, and has become accepted over time as obligatory. Customary law is thus justified as founded upon community acceptance and needs for stability and predictability.

87    The twin principles underpinning the formation of customary international law—State practice supported by opinio juris—are illustrated in the North Sea Continental Shelf cases (North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3). One question which arose in the proceedings before the International Court of Justice (ICJ) was whether Art 6 of the Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964) (1958 Convention)—which adopted, in certain circumstances, the “equidistance-special circumstances principle” for delimiting boundaries—had come to reflect customary international law based on subsequent State practice, and should be applied to delimit the areas of the continental shelf in the North Sea between the Federal Republic of Germany, Denmark and the Netherlands.

88    The ICJ said (at [71]):

71    In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the time this result is not lightly to be regarded as having been attained.

89    The ICJ was not persuaded that Art 6 was of a fundamentally norm-creating character, such as could be regarded as forming the basis of a general rule of law: see at [72]. Nevertheless, the ICJ proceeded to discuss (at [73]) “the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law”.

90    Although the notion of customary law connotes that the posited rule has emerged over a considerable period of time, the ICJ reasoned that, even without that passage of time, a very widespread and representative participation in a convention might suffice, provided it included the States whose interests were specially affected by the question in issue. However, in the cases before it, the ICJ concluded that, although the number of ratifications and accessions to the 1958 Convention had been “respectable”, they were nevertheless “hardly sufficient” to establish widespread and representative participation: see at [73].

91    The ICJ then considered the element of time, saying (at [74]):

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. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement 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;— and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.

(Emphasis added.)

92    The ICJ then turned to consider whether the asserted rule was supported by opinio juris. Although, in the course of the proceedings, 15 cases had been cited in which continental shelf boundaries had been delimited according to the equidistance principle, and although most of those cases occurred since the signing of the 1958 Convention, the ICJ concluded that these cases were of little precedential value. At [76]-[77] the ICJ found:

76    To begin with, over half the States concerned, whether acting unilaterally or conjointly, were or shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favour of the equidistance principle. As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did and … there is no lack of other reasons for using the equidistance method, so that acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature.

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 opinion 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.

(Emphasis added.)

93    The Court approved the following dictum of its predecessor, the Permanent Court of International Justice (SS ‘Lotus’ (France v Turkey) (Judgment) [1927] PCIJ (ser A) No 10 at 28):

Even if the rarity of the judicial decisions to be found … were sufficient to prove … the circumstances alleged …, it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstentation were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand … there are other circumstances calculated to show that the contrary is true.

94    The ICJ concluded (at [78]):

78 …Applying this dictum to the present case, the position is simply that in certain cases—not a great number—the States concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so—especially considering that they might have been motivated by other obvious factors.

95    In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, the ICJ further considered the requirement of State practice, saying (at [186]):

186    It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs. 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.

(Emphasis added.)

96    The ICJ reiterated (at [207]) the observations it had made in North Sea Continental Shelf, quoted at [92] above, that, for a new customary rule to be formed, not only must the acts concerned “amount to a settled practice”, but they must be accompanied by the required opinio juris.

97    In Polyukhovich v The Commonwealth (1991) 172 CLR 501, Brennan J referred with approval to both North Sea Continental Shelf and Nicaragua v United States of America, saying (at 559-560):

In the absence of international conventions, the custom required to evidence “a general practice accepted as law” must be “extensive and virtually uniform” (North Sea Continental Shelf Cases…) and “followed on the basis of a claim of right and, in turn, submitted to as a matter of obligation” (MacGibbon, “Customary International Law and Acquiescence”, British Year Book of International Law 115, vol. XXXIII (1957), at p. 117). In Nicaragua v. United States of America … the International Court of Justice accepted that it is “sufficient that the conduct of States should, in general, be consistent with” a postulated rule of international law, but that was a view expressed in conjunction with an inquiry whether there was an opinio juris as to the binding character of the postulated rule (see pp. 99-101). An opinio juris supportive of a postulated rule of customary international law must explain and inform the practice of States in order to show that that practice is “accepted as law”. The principle is conveniently stated by Dr Akehurst’s summary of his article “Custom as a Source of International Law”, British Year Book of International Law, vol. XLVII (1974-1975) 1, at p. 53:

“Opinio juris is necessary for the creation of customary rules; State practice, in order to create a customary rule, must be accompanied by (or consist of) statements that certain conduct is permitted, required or forbidden by international law (a claim that conduct is permitted can be inferred from the mere existence of such conduct, but claims that conduct is required or forbidden need to be stated expressly). It is not necessary that the State making such statements believes them to be true; what is necessary is that the statements are not challenged by other States.”

98    In an earlier work (Akehurst M, A Modern Introduction to International Law (2nd ed, George Allen and Unwin Ltd, 1971) at pp 44-45), Dr Akehurst explained opinio juris in the following way, consistently with the passage accepted by Brennan J in Polyukhovich:

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 opinion 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.

99    As to the significance of the distinction between permissive rules and rules imposing duties, Dr Akehurst said (at 45-46):

As far as permissive rules are concerned, it is sufficient to prove that some states have acted in a particular way, and that other states, whose interests were affected by such acts, have not protested against such acts—in other words, that the other states have acquiesced in such acts.

In the case of rules imposing duties, it is not enough to prove that states have acted in the manner required by the alleged rule, and that other states have acquiesced in such action. It also needs to be proved that states regard the action as obligatory, not voluntary. A belief in the obligatory character of particular conduct can be proved by pointing to an express acknowledgement of the obligation by the states concerned, or by showing that any failure to act in the manner required by the alleged rule has met with protests from other states whose interests are affected.

…

The actions of states, and the reactions of other states, are often accompanied by statements setting out the states’ attitudes towards the relevant rules of customary law. This is particularly true when a protest is made; a protest will carry little weight unless some reason is given for protesting, and the state to whom the protest is addressed will probably feel driven to attempt to justify its behaviour.

100    The distinction between permissive rules and rules imposing duties is important in the present case because, as explained below, the applicant’s case is based on the existence of an obligatory rule that a State that acquires sovereign rights over terra nullius must recognise and give legal effect to any private property rights already in existence at the time that the State acquires such sovereignty.

The applicant’s position

101    The applicant relies on the reasoning and references in a legal memorandum (Monroe L, Moore JN and Crawford J, The Legal Status of Middleton and Elizabeth Reefs in International Law following the entry into force of the 1982 Law of the Sea Convention (Legal Memorandum, 16 February 1996)). Certain parts of the memorandum were extracted and annexed as part of the special case.

102    In that memorandum, the authors advance the contention that, under international law, private parties who claim terra nullius and res nullius, and who to take preliminary steps to occupy and to exploit the land’s resources, can obtain proprietary, possessory and usufructuary interests in that land. The authors contend that the legal criteria by which private rights are obtained are distinct from, but are analogous to, those which apply when a State seeks to assert a claim of sovereignty.

103    According to the authors, the legal criterion for the acquisition of such rights is the Roman law concept of occupation—“taking effective occupation, with an intent to become owner of something which, at the moment, belongs to nobody”. The authors contend that although occupation can give rise to the three distinct types of rights, the “most common practice has been for private parties to obtain full property rights by occupation”.

104    This, therefore, is the first rule of customary international law for which the applicant contends.

105    As I have noted above (at [100]), the applicant also submitted that there is another rule of customary international law which holds that a State which acquires sovereign rights over terra nullius must recognise and give legal effect to any private property rights already in existence at the time that the State acquires such sovereignty. The applicant submitted that this rule is established in three cases:

    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 or Treaty), which, the applicant submitted, codified the rule.

    Island of Jan Mayen – Mr Ekerold.

    Island of Jan Mayen – Mr Jacobsen.

106    The applicant also submitted that, in each case, the private party’s rights arose because the party had effectively occupied the disputed territory before the assertion of sovereignty by a State. In making that submission, the applicant appeared to rely on these cases as also establishing the first rule of customary international law for which she contends. I will proceed on that basis.

107    Thus, the applicant’s case comprehends a permissive rule of customary international law (that private parties can acquire proprietary rights over terra nullius and res nullius) and a rule of customary international law imposing a duty (that a State which subsequently acquires sovereignty over that territory must recognise these pre-existing proprietary rights).

108    It is convenient to deal, first, with the three cases, and then to consider the memorandum.

The Spitsbergen Treaty

109    The original contracting parties to the Spitsbergen Treaty were the United States of America (the United States), Great Britain, Denmark, France, Italy, Japan, Norway, The Netherlands, and Sweden (the contracting parties). An instrument of ratification was deposited for the British Empire, including Australia, on 29 December 1923.

110    The circumstances in which the Treaty was entered into are explained in Lansing R, “A Unique International Problem” (1917) 11 American Journal of International Law 763 at 764-765; see also Hackworth GH, Digest of International Law (United States Government Printing Office, 1940) Vol 1 pp 465-468. Mr Lansing, who subsequently became Secretary of State for the United States, said:

Prior to the beginning of the present century the islands of Spitzbergen, which are nearly 50,000 square miles in area, were merely places of resort for whalers and hunters of various nationalities. The barren shores and deep harbors, which are closed by arctic ice eight or nine months of the year, were deemed to be valueless for permanent occupation. About the year 1900, however, coal deposits in West Spitzbergen, the existence of which had been known for some time, were found to be commercially valuable, and a company with American capital was organized to exploit them. Confident of the wealth of these coal fields, a considerable investment was made, shafts were sunk, and machinery and buildings erected.

The profitable nature of the enterprise aroused the cupidity of persons belonging to nationalities other than that of the first company and, following the example set, they began to make claims to the coal-bearing area, asserting their intention to engage in the industry. These conflicting claims were the cause of attention being called to the political situation of the islands.

The unique feature of the situation is this: Although the islands of Spitzbergen were discovered over two centuries ago and have been frequently visited since their discovery, no nation has ever considered it worth its while to occupy them or to assert sovereignty over them. The intense cold and the long period of the year when they are ice-bound necessarily made an attempt to develop their resources extremely difficult, so that they seemed to be an undesirable possession, a probable source of expense rather than a source of profit. This was the prevailing opinion of those governments whose vessels visited occasionally those barren shores in search of furs and whales. Thus the archipelago remained unoccupied, and it became generally recognized that Spitzbergen was terra nullius, a ‘no-man’s land.’ Doubtless in recent years more than one government would have been willing to have annexed the territory in view of its possible mineral wealth, but having so long acquiesced in the declaration that it was terra nullius none has had the hardihood to claim sovereignty over the archipelago.

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. If this population increased and persons of different nationalities settled in the islands laying claim to lands already claimed by others, how would these people be governed and to what authority could they appeal to settle their conflicting claims and to protect them in the enjoyment of their rights? That was the problem in 1914 and is the problem still which the Powers interested will have to solve. And in view of the fact that the principle of terra nullius must be considered as a factor it is by no means easy of solution.

111    Under Art 1 of the Treaty, the contracting parties recognised Norway’s full and absolute sovereignty over the Archipelago.

112    Article 2 declared certain exclusive rights of hunting of occupiers of land “whose rights have been recognised in accordance with the terms of Articles 6 and 7, always subject to the observance of regulations made by the Norwegian Government…”

113    Article 6 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.

114    Article 7 provided:

With regard to methods of acquisition enjoyment and exercise of the right of ownership of property, including mineral rights, in the territories specified in Article 1, Norway undertakes to grant to all nationals of the High Contracting Parties treatment based on complete equality and in conformity with the stipulations of the present Treaty.

Expropriation may be resorted to only on grounds of public utility and on payment of proper compensation.

115    The Annex to the Treaty sets out the procedure for the notification, examination and adjudication of claims to the land comprising the Archipelago, which had been made before the Treaty was entered into. The task of examining these claims was to be undertaken by a Commissioner appointed by the Danish Government who, after examining the claims, was charged with preparing a report showing precisely the claims which, in his opinion, should be recognised at once, and the claims which, in his opinion, should be submitted to arbitration.

116    In respect of the claims which should be recognised at once, the Norwegian Government was required to confer upon the claimants a valid title securing to them “exclusive property” in the land in question, subject to the reservation of certain mining rights for the contracting parties.

117    The claims submitted to arbitration were to be determined by a Tribunal, which was required to take into consideration any applicable rules of international law, the “general principles of justice and equity”, and the following circumstances:

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

    the date on which the claim was notified to the government of the claimant; and

    the extent to which the claimant or his predecessors in title had developed and exploited the claimed land.

118    In respect of claims recognised by the Tribunal, the Norwegian government was, once again, required to confer upon the successful claimant a valid title, subject to the mining rights reserved under the Treaty. All other claims were to be “finally extinguished”.

119    I do not accept the applicant’s submission that the Spitsbergen Treaty codified a rule of customary international law that a State which acquires sovereign rights over terra nullius must recognise and give legal effect to any private property rights already in existence at the time that the State acquires such sovereignty. The submission appears to proceed on the premise that the postulated rule was in existence, as a matter of customary international law, before the Treaty was entered into in 1920. There is, however, no material before me which establishes that fact. More specifically, there is no material before me which establishes that there was any extensive and virtually uniform practice by States or, in general, some consistent practice by States, that reflected any observance of that rule, let alone any material that shows that such a rule was observed and acted upon by States as a matter of obligation.

120    Further, there is nothing in the Treaty itself which is declaratory of the fact, or from which it can be inferred, that such a rule exists or, before the Treaty, existed under international law. The Treaty evidences no more than that, in the very special circumstances then existing with respect to the land comprising the Archipelago, a number of States reached a consensus, not in recognition of a pre-existing obligation, but as a voluntary act, that sovereignty should be exercised over the Archipelago by Norway, subject to the terms of the Treaty.

121    Further, the Treaty created a process by which the claims of individuals, based on prior acts of possession or occupation, were to be examined and, if necessary, adjudicated upon, in accordance with the terms of the Annex to the Treaty, with a view to those claims being either accepted or rejected. As I have noted, all other claims, falling outside the processes provided by the Annex, were to be extinguished. The process of adjudication required the Tribunal to not only take into account any applicable rules of international law, but also “general principles of justice and equity” and certain stipulated circumstances. The process, thus provided, speaks of a special regime agreed upon by the contracting parties to protect the interests of their nationals, not one for the recognition and observance of rights already existing under international law.

122    Thus, the Treaty itself does not establish or evidence the existence of the first rule postulated by the applicant that, as a matter of customary international law, a private individual can, by occupation, acquire rights over terra nullius. The Treaty, as a voluntary act between contracting States, provided both the foundation for, and the machinery by which, the claims of individuals could be recognised as rights, and upon which the Norwegian Government was then required to act by granting valid titles to the successful claimants.

Island of Jan Mayen – Mr Ekerold

123    Jan Mayen is an island in the Arctic Ocean between Norway and Greenland.

124    In April 1922, Mr Hagbard Ekerold, a United States citizen, sent a telegram to the Norwegian Foreign Office in which he stated that he had “annexed” the island in the name of the Norwegian Meteorological Institute, with a view to its permanent occupation. The existence of this telegram was referred to in correspondence between the Norwegian Legation in Washington and the United States Department of State (Department). A note from the Norwegian Foreign Office, which was transmitted to the Department on 5 July 1923, apparently in response to an inquiry made by the Department, signified that, although Norway considered the island to be terra nullius, no question could arise regarding the annexation of the island by any power in view of the fact that no country had interests to protect in the island that were greater than Norway’s interests.

125    In 1926, the Polarfront Company, a New York corporation of which Mr Ekerold was President, established two fox farms on the island. On 16 February 1927, in the course of correspondence between Mr Ekerold and the Department concerning the company’s claims to rights in the island by reason of the establishment of the fox farms, the Department pointed out that the general recognition of the status of the island as terra nullius rendered it impossible to acquire title to property there, because:

…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.

126    By a Royal decree of 8 May 1929, the island was placed under Norwegian sovereignty.

127    In a note dated 28 June 1929, addressed to the Norwegian Minister, the Department said:

… 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, insofar 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. Hargbard D.I. Ekerold and the Polarfront Company.

128    On 7 August 1929, the Norwegian Legation informed the Department that it was instructed to say that the occupation of Jan Mayen in Norway “was in no way intended to cause changes in the rights which, according to civil law, ‘exist on the island’”: Hackworth GH, Digest of International Law (United States Government Printing Office, 1940) Vol 1 p 476.

129    The applicant submitted that, notwithstanding the lack of ordinary “title”, the United States and Norway proceeded to recognise that Mr Ekerold had “rights on the land”, as evidenced by the correspondence on 28 June 1929 and 7 August 1929, to which I have referred.

130    The applicant also submitted that this case demonstrates recognition by each of the United States and Norway of Mr Ekerold’s “rights”, and that the use of the word “rights” in this correspondence, to describe Mr Ekerold’s interest in the island, demonstrated a mutual understanding that his claims had a legal basis that Norway was required to respect.

131    I do not accept those submissions. The earlier correspondence on 16 February 1927 between Mr Ekerold and the Department shows that, so far as the United States was concerned, ownership of property could only be secured under the authority of the government exercising the right of sovereignty with respect to the island and its inhabitants. At that time, both the United States and Norway recognised that the island as terra nullius and, according to the Department, this rendered it impossible for title to property on the island to be acquired.

132    Further, in light of the correspondence between Mr Ekerold and the Department on 16 February 1927, I do not think that it can be reasonably said that the use of the word “rights” in correspondence between the Department and the Norwegian Minister on 28 June 1929, and between the Norwegian Legation and the Department on 7 August 1929, can be invested with the meaning of rights recognised as a rule of customary international law. The response of the Norwegian Legation, as reported, specifically referred to rights according to civil law, thereby meaning the domestic law of Norway.

133    Contrary to the applicant’s submission, the case does not establish the existence of a rule of customary international law that a private individual can, by occupation, acquire rights over land areas that are terra nullius, or of a rule of customary international law that a State which acquires sovereign rights over terra nullius must recognise and give legal effect to any private property rights already in existence at the time that the State acquires such sovereignty.

Island of Jan Mayen – Mr Jacobsen

134    The applicant submitted that the 1933 decision of the Supreme Court of Norway in Jacobsen v Norwegian Government (1940) 7 ILR 109, demonstrates the Supreme Court’s recognition of “the plaintiff’s entitlement to undertake a private occupation in Jan Mayen with the object of obtaining property in the occupied land”.

135    In that case, the plaintiff, a Norwegian subject, notified the Norwegian Foreign Office, by letter dated 25 September 1920, that he claimed a certain part of the island. He supported his claim by a declaration, by one Anders Andersen, to the effect that he had transferred a house and attached land on the island to the plaintiff.

136    In 1921, the plaintiff organised an expedition to the island. He subsequently transmitted a report to the Norwegian Foreign Office annexing a declaration by seven men who lived on the island. The declaration was to the effect that they had not found any traces of appropriation left by persons who had previously notified their claims to land on the island. The plaintiff erected some houses on the island, which he marked with his name, and also marked the boundaries of that part of the island which he intended to occupy, placing sign-boards and large stones along the boundary lines.

137    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 the proprietor of certain minerals on the island which he intended to exploit. The Norwegian Government resisted both contentions.

138    The Court of Oslo held that the plaintiff had not succeeded in establishing his case. However, the Supreme Court reversed that judgment.

139    The report of the Supreme Court’s judgment on which the applicant relies, is a summary. It states, in part:

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.

140    The report of the Supreme Court’s reasons, in this form, certainly supports the applicant’s case. There are, however, a number of difficulties in relying on the Supreme Court’s judgment, and more particularly the report of that judgment, as either establishing or evidencing the two rules for which the applicant contends as rules of customary international law.

141    At the outset, it should be recognised in favour of the applicant that judgments of national courts are a recognised source of international law. In Polyukhovich, Brennan J accepted (at 559) that Art 38(1) of the Statute of the International Court of Justice is generally regarded as a complete statement of the sources of international law. Article 38(1)(d) identifies the sources as including “judicial decisions and the teaching of the most highly qualified publicists of the various nations”. However, this source is expressly qualified as a “subsidiary means for the determination of rules of law”.

142    In this connection, Dr Akehurst has stated (Akehurst M, “The Hierarchy of the Sources of International Law” (1974-75) 47 British Yearbook of International Law 273 at 279-280):

Judicial decisions and the writings of publicists are described in Article 38 of the International Court’s Statute ‘as subsidiary means for the determination of rules of law’. This suggests that they have a lower hierarchical value than treaties, custom and general principles of law. Indeed, some writers do not regard them as sources at all but only as indirect and secondary evidence of rules created by the true sources—treaties, custom and general principles of law.

It is sometimes said that decisions of international courts carry greater weight than decisions of national courts, which in turn carry greater weight than the writings of publicists. This is true more often than not, but there can be exceptions; it would be invidious to name names, but all of us can think of certain writers who have enjoyed a greater reputation than certain judgments of national courts, or of certain judgments of national courts which have enjoyed a greater reputation than certain judgments of international courts. Much depends on the quality of the reasoning which the judge or writer employs. The absence of any rule of binding precedent in international law means that judgments do not always carry greater weight than the writings of publicists.

143    Further, the following statement appears in Crawford J, Brownlie’s Principles of Public International Law (8th ed, Oxford University Press, 2012) at p 41:

Article 38(1)(d) of the Statute of the International Court is not limited to international decisions. Decisions of national courts also have value. Some decisions provide indirect evidence of the practice of the forum state on the question involved. Others involve an independent investigation of a point of law and a consideration of available sources, and thus may offer a careful exposition of the law. Municipal judicial decisions have been an important source of material on the recognition of governments and states, state succession, sovereign immunity, diplomatic immunity, extradition, war crimes, belligerent occupation, the concept of a ‘state of war’, and the law of prize. However, the value of these decisions varies considerably, and individual decisions may present a narrow, parochial outlook or rest on an inadequate use of sources. A further problem arises from the sheer number of domestic decisions touching on international law. While the most significant of these may be widely circulated, others go unnoticed.

144    With these comments in mind, the following matters should be noted about the report of the judgment on which the applicant relies.

145    First, one cannot ascertain from the report whether the Supreme Court was intending to apply a rule of domestic law or a rule of international law to the case before it.

146    Secondly, as I have noted, the report is a summary of the reasons for judgment. It contains no elucidation of the particular principles on which the Supreme Court based its conclusions that the Norwegian Government was not entitled to proprietary rights in the part of the island which had been occupied by the plaintiff, or that the plaintiff was entitled to undertake a private occupation with the object of obtaining property in the occupied land. It does not contain, for example, “a careful exposition of the law”. One simply does not know what sources were relied upon to support the legal conclusions that were reported as having been reached.

147    Thirdly, without any elucidation of the particular principles or sources on which the Supreme Court’s conclusions were based, it is difficult to understand how the judgment can be seen as either establishing, applying or illustrating a rule or rules that can be said to have been based on the settled practice of States supported by opinio juris. Indeed, it is difficult to see how the judgment stands as evidence of the practice of the forum State, Norway, given that the report records that, before the Court of Oslo, the Norwegian Government opposed the principles on which the plaintiff advanced its case in that court.

148    For these reasons, I do not accept that this case establishes the rules for which the applicant contends as rules of customary international law.

Conclusion on the three cases

149    To summarise, I am not satisfied that any of the three cases establishes that there is an extensive and virtually uniform practice or, in general, some consistent practice, by States that reflects a rule of international law that, by occupation, a private individual can acquire rights over land areas that are terra nullius or a rule that a State that acquires sovereign rights over terra nullius must recognise and give legal effect to any private property rights already in existence at the time that the State acquires such sovereignty, let alone any such practice or practices supported by opinio juris.

150    Is there a different conclusion if the three cases are considered cumulatively? In my view, there is no different conclusion.

The memorandum

151    As I have noted, the memorandum on which the applicant relies (see [101] above) is directed to the postulated rule that a private individual can acquire rights over land areas that are terra nullius, and surrounding sea areas, provided that such individuals have demonstrated an intention to assert ownership and undertaken acts to assert possession. It is not directed to the second postulated rule that a State which acquires sovereign rights over terra nullius must recognise and give legal effect to any private property rights already in existence at the time that the State acquires such sovereignty.

152    As to the first postulated rule, the authors of the memorandum do not cite any direct authority for its existence as a rule of customary international law. Noticeably, the authors do not rely on any of the three cases discussed above. Rather, the authors advance a number of asserted propositions, only some of which appear to be supported by authority—and even then only by private law analogies drawn from Roman law (in particular, the notion of occupatio) and the common law (in particular, the acquisition of property rights by prescription). A careful reading suggests that what the authors are really advancing is not a description of existing international law, but an argument for the rule for which they contend. I am, with great respect, unpersuaded by the argument.

153    The respondents submitted:

Critically, this is where the applicant’s analysis falls short. There may be a principle of municipal law that provides for the acquisition of property by occupation by individuals acting in a private capacity. That principle may be reflected, or have some sort of an analogy, in international law insofar as States may acquire territory by occupation. However, from this, the applicant seeks to deduce the proposition that it is a ‘general principle of law practiced by civilized nations’ that private individuals acting in a private capacity can acquire property by occupation under international law. There is simply no authority for that proposition.

154    I accept that submission.

Overall conclusion

155    In my view, the answer to the second question is: No.

Third question

156    As the applicant’s allegation, properly understood, is that the Property Rights were acquired by Mr Ure and Mr Chan as a matter of customary international law, and as the applicant has not demonstrated the existence of that rule—let alone the second rule that, as a matter of customary international law, the Property Rights must be recognised by the Commonwealth—the allegation cannot be sustained, and the applicant’s claims for relief must fail. Thus, the proceeding should be dismissed.

Disposition

157    The questions reserved by the special case will be answered accordingly. I will hear the parties on the fourth question (the question of costs), if they are unable to agree on the appropriate order in light of the above reasons. In that event, each party is to provide short written submissions, not exceeding three pages, in support of the order that that party seeks. I will determine that question on the papers.

Associate:

Dated:    17 March 2015