International Law and Christmas (Island)

“On the 24th,  about half an hour after day-break,  land was discovered bearing North East by East ½ East. Upon nearer approach,  it was found to be one of those low islands so common in this ocean; that is,  a narrow bank of land inclosing the sea within. A few cocoa-nut trees were seen in two or three places; but in general the land had a very barren appearance. At noon,  it extended from North East by East to South by East ½ East,  about four miles distant. The wind was at East South East; so that we were under a necessity of making a few boards to get up to the lee or west side where we found from forty to twenty and fourteen fathoms water,  over a bottom of fine sand….The meeting with soundings determined me to anchor,  with a view to try to get some turtle; for the island seemed to be a likely place to meet with them…”

It was in these words that Captain James Cook,  Commander of the HMS Resolution,  recalled the discovery of Christmas Island near Kiribati 235 years ago on 24 December 1777. Following Kiribati’s independence,  Christmas Island has been called Kiritimati Island since 1981. Although James Cook may have been the first to discover Christmas Island,  it is questionable whether he did enough to acquire sovereignty over the island on behalf of the English Crown.

Having spent nine days on Christmas Island doing not much, it seems, apart from hunting turtles and observing a solar eclipse, Captain Cook departed on 2nd January 1778. Cook took with him more than 300 turtles (weighing ca. 1 tone) of “the green kind; and perhaps as good as any in the world.” For our purposes it is, however, more interesting to know what he left behind.

I.      Captain Cook’s acts of taking possession of Christmas Island

A few days before his departure, Captain Cook ordered a couple of cocoa-nuts to be planted on one of the small islands belonging to the Christmas Island archipelago. Further, some melon seeds were planted in another unspecified place. Finally, Cook left on the island a bottle containing the following inscription:

Georgius Tertious, Rex, 31 Decembris, 1777

Naves: Resolution, Jac. Cook. Pr., Discovery, Car. Clerke, Pr.

So in summary, Cook left behind seeds and a note containing information about his voyage. Without going into the details of the later controversies ensuing between the United States of America and Great Britain in the second half of the 19th century surrounding the rightful ownership of the island, it is questionable whether these acts sufficed to confer sovereignty over the islands in light of international law at the time.

II.    The (in)sufficiency of Captain Cook’s acts to confer sovereignty over the island

According to international law applicable at the time, there were four more or less defined modes of acquiring sovereignty over territory: Conquest, Cession, Accession and Occupation. Only the latter mode is of interest in the case of the Christmas Island.

Sovereignty can be acquired by occupation if three conditions are met: first, the territory in question must be terra nullius at the point of occupation; second, there must have been an “actual taking of possession” accompanied, third, by the intention to acquire the territory (see, e.g., the ICJ decisions in Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Sovereignty over Certain Frontier Land (Belgium/The Netherlands)).

With respect to the first criterion, it seems that Christmas Island was uninhabited and unclaimed at the time of Captain Cook’s arrival (international law at the time generally tended to ignore any existing claims to newfound territories by non-European entities).

However, with respect to the second and third requirements, even if there was an intention to claim the island, it is questionable whether the seeds and the message in the bottle constitute an actual taking of possession. Although the manifestation of “actual possession” could take different forms according to time and place and less was generally required in the context of remote/uninhabited territories, usually at least express declarations and sovereign markers such as flags were required.

Captain Cook’s Secret Instructions issued by the British Admiralty (dated 6 July 1776) further suggest that the English Crown itself believed that more than seeds and a message in a bottle were required. Cook had been ordered to leave “proper marks and inscriptions as first discoverers and possessors”. It is unlikely that the plants and the bottle constituted “proper marks and inscriptions” compared to the acts Cook performed on other islands, which were generally “characterized by a considerable degree of formality” (Keller et. al.) and compared to the practices of other seafarers at the same time.

Admittedly, claims to sovereignty were at times based on mere discovery in the sense of visual apprehension of a territory and/or symbolic annexation. It remains controversial, however, whether discovery on its own or coupled with symbolic annexation ever sufficed to confer sovereignty over newfound territories. It is less disputed that such claims could usually not survive subsequent claims by other states based on actual occupation in any case.

Thus, even if one considered Cook’s seeds and his message in a bottle to be sufficient initially, it is unlikely that his acts would have survived competing claims based on a larger degree of actual occupation. Indeed, Captain JL Pendleton, Commander of the ‘John Marshall’, claimed Christmas Island for the USA in 1857. It was not long, however, before the British re-claimed the island in 1889 and, having carried out a number of nuclear bomb tests on and near the island in the 1950s, they continued to hold it until Kiribati’s independence in 1979.

III.  Contemporary significance of ancient tales

One might wonder whether these ancient tales are of any relevance in our time. Now, as those engaged in the study or arbitration of territorial disputes know, an examination of original, and often medieval claims to sovereignty is required frequently in order to determine contemporary rights. The ICJ cases concerning the Delimitation and Territorial Questions between Qatar and Bahrain and the Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge are just two such examples. In those and similar cases it is necessary to determine the exact state of the law at the time when the dispute first arose. For lawyers engaged in that exercise the log books and memoirs of seafarers like Captain Cook are a very valuable resource.

But beyond their retrospective significance, these medieval examples of state practice might well be of guidance when we are faced with claims to sovereignty over previously unconquered and/unclaimed territories such as the high seas, the subterranean sea-bed, and outer space in the decades to come.

→ The full text of Captain Cook’s adventures on Christmas Island (including details on two sailors who got lost on the island and a few unfortunate turtles that had to die prematurely) can be found in “The Three Voyages of Captain James Cook Around the World, Vol VI” of 1821 from p. 166 onwards. A remarkable wealth of similar tales by other seafarers has also been collected by A Keller in “The Creation of Rights of Sovereignty through Symbolic Acts 1400-1800.”

This post was first published on 25 December 2013.

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