New Island, New Nation?

by Duncan Hollis

I’m fascinated by the recent story that volcanic activity has produced an actual, new island in the South Pacific near Tonga. The sailors who claim to be the first to have “discovered” this new land mass have pretty amazing photos of the island and the “pumice raft” that accompanied its creation. Scientists are having a field day assessing this relatively rare geological phenomenon.

As an international lawyer, however, what excites me is the question of whether the island constitutes terra nullius – unoccupied territory that is open to acquisition by any sovereign state. Moreover, since it’s actually newly created territory, we can talk about that concept free from its troubled history, where the terra nullius principle was applied by European and other colonizers to justify claims to territory in Asia and Africa, notwithstanding that the territory was frequently occupied by existing communities (see, e.g., Max Huber’s decision in the Island of Palmas case). So, the question becomes who’s island is it? Although my geographic skills are pretty weak, its proximity to existing Tongalese territory will likely lead Tonga to claim sovereignty and contend that any claim to terra nullius status for the island should fail. Given Tonga’s status as an archipelago, I suspect there’s some merit to this position if one assumes the island emerged within Tonga’s existing archipelagic baselines (see, e.g., UNCLOS Arts. 46, 47 and 49, defining an “archipelago” as a “group of islands, including parts of islands, interconnecting waters . . . which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such” and extending the sovereignty of an archipelagic state to “the waters enclosed by the archipelagic baselines,” which are, within certain limits, to be drawn around the outermost islands and reefs of the archipelago). As such, Tonga could argue the new island would be no different than changes in land formations within a sovereign state; i.e., movements in river flows, earthquakes, or volcanic activity within an existing state’s territory do not create terra nullius so why should it be any different simply because a new formation occurrs in an archipelago?

But what if the island is not within Tonga’s existing sovereign territory? Does it make sense to revive the doctrine of terra nullius and let states compete for the island through the traditional (and somewhat antiquated) methods for acquiring sovereignty over territory such as discovery or effective occupation (I assume the UN Charter precludes reviving the doctrine of conquest)? Or, in today’s world is it impossible to separate the concept of terra nullius from its colonial usages, such that we might want to find alternative methods for assigning sovereignty over the island? And what about the concept of res communis—now applicable to the high seas and outer space? Could one reject any claim to sovereignty over this island, treating it instead as “the common heritage of mankind” given that we now live in a world where land territory is a limited, and arguably rapidly depleting resource?

All of these analysis assume that any assignment of sovereignty would involve existing states. But it’s also possible that the island’s original discoverers or some other group of individuals might try and establish the island as a new nation state. Although often amusing, such claims rarely succeed in the modern era. Still, you have to award those seeking new sovereign status points for creativity and persistence (and, in truth, they may have a more credible claim to private property interests in the “new” territory they occupy, even if they’re unlikely to establish a newly recognized nation state). So, for those of you looking to start your own country, it’s a long odds proposition, but you might want to book a cruise to the South Pacific sooner rather than later.

6 Responses

  1. It’s ours, I say! Ours! (And by “ours,” of course, I mean New Zealand.)

    Fascinating post…

  2. Is there truly no historical use of terra nullius on legitimately unoccupied land? Surely, there have been remote islands devoid of human habitation.

    …and yes, signing on the UN Charter voids any claim a country has to Right of Conquest after their signing. In theory, as almost all conquest was extra-legal even prior to that.

  3. Of course, the Charter only invalidates claims based on conquest in respect of conquests after its entry into force. This is simply the principle of intertemporal (international) law.

    This also reflects the basis of such invalidity: conquests would usually be in violation of Article 2(4) of the Charter, resulting from the use of force against another State.

    Would this not mean that the Charter leaves unaffected the operation of terra nullius? If the area truly belongs to no-one, any use of force (in the broadest sense, seeing as there will be no defenders) would not be directed against another State. Therefore, there is no rule of invalidity and non-recognition.

    I add that this is not a fully considered view.

    And another question: if the new land mass is within the territorial sea of Tonga, surely a classification as an island would justify Tonga in extending its territorial sea, by giving a full territorial sea to that island. Does this not raise the question whether the new land mass falls to be qualified as an island, or as a rock?

    (I cannot find this requirement in the UNCLOS, but I seem to remember it exists, presumably as part of the definition of the term ‘coast’)

    As for the concept of res communis, I expect that there might be some problems in the application of the concept to land, not least in the area of jurisdiction and, hence, governance. Who, for instance, is to have territorial jurisdiction over crimes committed there? This problem does not arise readily in the law of the sea, as people will only be able to go and stay there on vessels, which will come under the jurisdiction of their flag State (this is not to repeat the old but erroneous statement that a ship is a ‘perambulating province’ of its flag State), but this is clearly not true of a new island. And if there is no territorial jurisdiction, there might be no jurisdiction at all, if, say, the offender’s State of nationality does not claim jurisdiction on the basis of active personality in its domestic law (English law springs to mind), and there is no other title of jurisdiction.

    A fascinating post, indeed.

  4. In my constant effort to lower the intellectual discourse at this site, I can’t believe the legal scholar Eddie Izzard and his “cunning use of flags” theory hasn’t been mentioned yet in relation to claiming this new island.

  5. I love Opinio Juris.

  6. Guys, exactly the same thing happened in the 19th century. An island popped up in the Tyrrenian sea. The Kingdom of the Two Sicilies named it “Isola Ferdinandea” in honor of King Ferdinand II of the Two Sicilies. Great Britain, however, occupied it first and planted the flag. A heated international law row ensued. While they were in the mids of exchanging threaths, the island sank and disappeared (not uncommon for vulcanic islands). I can give you references but are all in Italian, as far as I know.

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