Ure v Commonwealth of Australia and Another

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judge: Perram,Robertson,Moshinsky JJ
• Judgment Date: 04 February 2016
• Neutral Citation: [2016] FCAFC 8
• Date: 04 February 2016

([2016] FCAFC 8)

Australia, Federal Court.

(Perram, Robertson and Moshinsky JJ)

Ure

and

Commonwealth of Australia and Another 1

Territory — Acquisition of sovereignty — Islands — Whether international law permitting acquisition of sovereignty over terra nullius by an individual — Whether State acquiring sovereignty over territory obliged to recognize existing private ownership — Whether rule deriving from customary international law — Whether rule deriving general principle of law — Article 38(1) of Statute of International Court of Justice

Human rights — Property rights — Whether rights created by international law proprietary — Whether international law permitting acquisition of sovereignty over terra nullius by an individual — Whether State acquiring sovereignty over territory obliged to recognize existing private ownership — Sources of international law

Sources of international law — Substantive — Customary international law — Content — Article 38(1)(b) of Statute of International Court of Justice — General principles of law — Article 38(1)(c) of ICJ Statute — Whether appellant establishing rule of customary international law — Whether Norwegian Supreme Court decision in Jacobsen sufficient — State practice — Opinio juris — Whether other jurisdictions dealing with similar issues under municipal law — Whether appellant establishing existence of general principle of law recognized by civilized nations — Whether deriving from municipal legal systems — Operation of Article 38(1)(c) — ICJ Statute

Relationship of international law and municipal law — Customary international law — Norwegian Supreme Court decision in Jacobsen — Status of decision — State practice — Opinio juris — Whether Jacobsen concerning content of municipal law or customary international law — Whether judicial authority for purpose of Article 38(1)(d) of Statute of International Court of Justice — Whether correct statement of international law — General principles of civilized nations — Whether focusing upon municipal systems — Article 38 of ICJ Statute — The law of Australia

Summary:2The facts:—The appellant, Mr Ure,3 in proceedings against the respondent Commonwealth of Australia, had claimed full property rights in the islands Elizabeth Reef and Middleton Reef, which were located approximately 80 nautical miles north of Lord Howe Island. The appellant had alleged that these property rights were acquired over terra nullius under customary international law, surviving the Commonwealth's subsequent acquisition of sovereignty over these islands. The trial judge dismissed this claim (164 ILR 304).

The appellant appealed.4 He continued to claim that such a rule derived from customary international law as defined in Article 38(1)(b) of the Statute of the International Court of Justice (“the ICJ Statute”)5 but expanded his submission that it could also be derived from a general principle of law, under Article 38(1)(c), and supported in both cases by the teachings of the most highly qualified publicists under Article 38(1)(d).

Held:—The appeal was dismissed.

(1) Australian courts had accepted that Article 38(1) of the ICJ Statute set out the sources of international law. The question posed to the Court focused on the rights created by international law and whether they were proprietary (paras. 14–15).

(2) For a rule of customary international law to be established under Article 38(1)(b) of the ICJ Statute, there had to be evidence of a general practice which reflected obedience to a perceived rule of law (opinio juris). A general practice had to be extensive and virtually uniform, although those requirements could interact in complex ways. The presence of a treaty rule might, or might not, evidence a rule of customary international law depending on the treaty (paras. 28–35).

(3) A rule of customary international law could be demonstrated by a small number of instances of State practice; it was at least theoretically possible that a customary rule might be created by a single instance. However, the practice had to be extensive and virtually uniform amongst those States for whom the rule would have been meaningful (paras. 36–40).

(4) The establishment of a rule of customary international law could not be advanced by the existence of a general principle under Article 38(1)(c) of the ICJ Statute. These were distinct sources of international law and stood alone. Neither could the teachings referred to in Article 38(1)(d) demonstrate the existence of a customary rule if there was insufficient evidence of custom (para. 41).

(5) With respect to the Spitsbergen Treaty, 1921, the recognition in Article 66 of claims to the Svalbard Archipelago that pre-dated Norway's accession to sovereignty had not been shown to be accompanied by opinio juris. There was no indication that Article 6 had been agreed upon out of a sense of obligation rather than as a response to a unique and unprecedented problem (paras. 42–52).

(6) The decision of the Supreme Court of Norway in Jacobsen7 stood for the proposition that on 3 May 1933 Norway, as an example of State practice, applied a rule that claims arising before sovereignty could give rise to property rights which were required to be recognized by Norway after sovereignty was claimed. Norway recognized this rule, believing that it was what international law required, and was thus also opinio juris. It was also a domestic judicial decision recognizing the same right within the meaning of Article 38(1)(d) of the ICJ Statute. It was likely that Jacobsen had proceeded by reference to an international principle rather than civil law. Jacobsen was the authoritative statement of Norway's position on the claim of Mr Jacobsen over the island of Jan Mayen and therefore an example of State practice (paras. 53–111).

(7) Correspondence between Mr Ekerold and the United States following Norway's assertion of sovereignty over the island of Jan Mayen in 1929 did not demonstrate the acceptance of a rule that international law could give property rights over land which was terra nullius (para. 112).

(8) The appellant had failed to establish that there was a rule of customary international law that property rights of individuals over terra nullius could exist. This was the same conclusion as that reached by the trial judge, albeit for different reasons, due to the availability of a translation of Jacobsen. Although it was theoretically possible that a single instance of State practice could suffice, the Norwegian Jacobsen decision, which reflected opinio juris, was insufficient to prove the existence of a rule of customary international law under Article 38(1)(b) of the ICJ Statute. As similar issues had been dealt with, at least in some common law jurisdictions, under municipal rather than international law, the approach taken by Norway was deprived of force. While Jacobsen was a valid example of State practice for the purpose of Article 38(1)(b), although it was a judicial authority for the purpose of Article 38(1)(d) of the ICJ Statute, it was not a correct statement of international law (paras. 113–23).

(9) Unlike Article 38(1)(c) of the ICJ Statute, which was a substantive source, Article 38(1)(d) was a subsidiary source of international law, suggesting that judicial decisions and teachings of the most highly qualified publicists had a subordinated role, perhaps of uncertain scope. The writings relied upon by the appellant were only relevant to establish the existence of a general principle under Article 38(1)(c) (paras. 124–7).

(10) The general principles of law in Article 38(1)(c) of the Statute had to be those recognized by civilized nations, which suggested a necessary focus upon municipal systems. Although the ICJ was predominantly silent on the issue, the prevailing view, supported by the travaux, was that these principles, which were unwritten legal norms of a wide-ranging character, were to be derived from municipal law and transposed at the international level. The express reference to municipal legal systems in Article 38(1)(c) suggested that natural law principles had no application unless recognized in the laws of various nations (paras. 128–31).

(11) The appellant had failed to establish the existence of a general principle of law recognized by civilized nations under Article 38(1)(c) of the ICJ Statute. He had not demonstrated that the principle existed in any municipal legal system; the Supreme Court's statement in Jacobsen did not concern the content of municipal but rather customary international law. For completeness, neither did the Roman law concept of occupatio apply to terra nullius, nor did the writings of prominent natural law theorists or subsequent commentators support the appellant's case. The appellant had failed to argue that most States recognized that unoccupied land within their territory might be acquired by sufficient possession, a principle well understood in Australian law, which by analogy could apply at the international level (paras. 132–63).

The text of the judgment of the Court commences on the opposite page.

1. INTRODUCTION

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

2. As at the date of the trial, the appellant's mother was the widow of the late Alexander Francis Ure (“Mr Ure”) who died on or about 17 August 1993. Mrs Ure herself passed away on 11 July 2015, but the parties were content for her son, Mr Paul Ure, to represent her estate for the purposes of the appeal and the balance of the underlying proceeding. Mr Paul Ure received a grant of probate on 8 December 2015...